Lytal et al v. Sampson et al

Filing 76

Opinion and ORDER Overruling Plaintiff's Objections, adopting 73 Report and Recommendation; granting 36 Motion to Dismiss; granting 38 Motion for Summary Judgment; granting 61 Motion to Dismiss; Dismissing Federal Claims with Prejudice and Declining Jurisdiction Over State Law Claims. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
PHILIP BERRYMAN,
Plaintiff,
Case Number 10-12169
Honorable Thomas Ludington

v.
BARBARA SAMPSON, et al.,
Defendants.
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OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS, ADOPTING
JUDGE KOMIVES REPORT AND RECOMMENDATION, GRANTING THE PAROLE
BOARD DEFENDANTS’ MOTION TO DISMISS, GRANTING THE MDOC
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, GRANTING DEFENDANT
BERRIOS’S MOTION TO DISMISS, DISMISSING PLAINTIFF’S FEDERAL CLAIMS
WITH PREJUDICE, AND DECLINING JURISDICTION OVER PLAINTIFF’S STATE
LAW CLAIMS
This pro se civil rights action was brought pursuant to 42 U.S.C. § 1983 by six prisoners in
the custody of the Michigan Department of Corrections. Five of the other plaintiffs withdrew from
the action, with Philip Berryman (“Plaintiff”) remaining as the sole plaintiff. On October 26, 2010,
Plaintiff filed an amended complaint. As defendants in his amended complaint, Plaintiff names:
Barbara Sampson, Chair of the Michigan Parole Board and Board Members James Atterberry,
Miguel Berrios, Charles Brown, Paul Condino, Jodie DeAngelo, Stephen DeBoer, David Fountain,
Lisa Gettys, Artina Tensley Hardman, John Sullivan, Anthony E.O. King, Laurin’ Thomas, Sonia
Warchock, and David Kleinhardt (collectively “Parole Board Defendants”); Michigan Department
of Corrections (“MDOC”) employees at the G. Robert Cotton Correctional Facility including
Assistant Deputy Warden Larry Ford, Classification Director Catherine DeForest, Resident Unit
Manager Quincie Cooper, Assistant Librarian Jacqueline Cooke, and Librarian Hatutu Elam; and
Thomas A. Kulick, who Plaintiff identifies as an employee of the MDOC but Defendants identify

as a Michigan Assistant Attorney General. Plaintiff alleges that defendants failed to afford him a fair
commutation hearing, relied on or provided false information at the hearing, and denied him a
commutation in retaliation for his having filed lawsuits and grievances. Despite medical testimony
that he is unlikely to live for more than a year, Plaintiff submits that the Board recommended that
the Governor not commute his sentence based on his litigation history and that other similarly
situated prisoners who had not filed lawsuits while incarcerated were recommended for
commutation. Plaintiff seeks a declaratory judgment and injunctive relief. The case was referred
to Magistrate Judge Virginia Morgan for all pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(B).
ECF No. 29. The case was subsequently reassigned to Magistrate Judge Paul Komives for all pretrial
matters. ECF No. 35.
On March 11, 2011, the Parole Board defendants, except for defendant Berrios, who had not
then been served, filed a motion to dismiss pursuant to Rule 12(b)(6). On March 17, 2011, the
MDOC Defendants who had been served—Cook, DeForest, Elum, and Cooper—filed a motion for
summary judgment pursuant to Rule 56(a). On June 23, 2011, Defendant Berrios filed a motion to
dismiss, incorporating by reference the Parole Board Defendants’ motion to dismiss. Judge Komives
completed his report and recommendation on September 8, 2011. ECF No. 73. Judge Komives
recommends dismissing Plaintiff’s claim that Defendants inappropriately presented or relied on false
evidence at Plaintiff’s commutation hearing for failing to state a claim for relief because Plaintiff
is attempting to attack the substantive sufficiency of the Board’s recommendation. Judge Komives
also recommends dismissing Plaintiff’s retaliation claim because Plaintiff presents conclusory
allegations of a retaliatory motive that is unsupported by material facts. Next, Judge Komives
recommends dismissing Plaintiff’s equal protection claim because Plaintiff has not demonstrated

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that he was denied commutation on the basis of his membership in a suspect class or that he was
similarly situated to other prisoners who were granted commutation. Finally, Judge Komives
recommends declining jurisdiction over Plaintiff’s state law claims and sua sponte dismissing the
claims against Defendant Ford, who has not yet been served, because the same analysis applies to
the claims against him as the claims made against the other defendants. Plaintiff filed an objection
to Judge Komives report and recommendation on September 27, 2011.
The Court agrees with Judge Komives’s conclusions and will adopt his report and
recommendation. As will be explained herein, Plaintiff’s objections will be overruled, the Parole
Board Defendants’ motion to dismiss will be granted, the MDOC Defendants’ motion for summary
judgment will be granted, Defendant Berrios’s motion for summary judgment will be granted,
Plaintiff’s federal claims against the moving parties will be dismissed, Plaintiff’s federal claims
against Defendant Ford and Defendant Holden1 will be sua sponte dismissed, and jurisdiction will
be declined over Plaintiff’s state law claims.
I
Plaintiff provides a number of general objections and disagreements with the content and
structure of Judge Komives’s report and recommendation. “A general objection to the magistrate’s
report has the same effect as a failure to object” and an objection that does nothing more than state
a disagreement with a magistrate’s suggested resolution, or simply summarizes what has been
presented before, is not an “objection” as that term is used in the context of Federal Rule of Civil

1

Defendant Holden was included in the initial complaint filed and identified as an Assistant
Resident Unit Supervisor at the G. Robert Cotton Correctional Facility. Plaintiff did not include
Defendant Holden in his amended complaint. However, the same analysis applies to the claims
against Defendant Holden as the claims made against the other MDOC Defendants and it is
appropriate to sua sponte dismiss these claims as well.
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Procedure 72. Aldrich v. Bock, 327 F. Supp. 2d 743, 747-48 (E.D. Mich. 2004). Plaintiff’s three
discernible, specific objections to Judge Komives’s conclusions will be addressed below.
A
First, Plaintiff objects to Judge Komives’s recommendation to dismiss Plaintiff’s claim that
the Parole Board Defendants presented or relied on false evidence at Plaintiff’s commutation hearing
for failing to state a claim for relief because Plaintiff is attempting to attack the substantive
sufficiency of the Board’s recommendation. Plaintiff contends that the Parole Board Defendants
knowingly used false information at his commutation hearing, and that “[a]ny jurist could conclude
that the plaintiff’s filing of lawsuits [] weighed on the minds of the defendants [and was] a
motivating factor in their denial to recommend” commutation to the governor. ECF No. 75 at 5, 8.
Nonetheless, Plaintiff does not provide any evidence that the Parole Board Defendants failed to
afford him the necessary due process he was entitled to in order to state a claim for relief pursuant
to § 1983. Moreover, his objection, which includes arguments presented to Judge Komives, is
insufficient “to alert the Court to alleged errors on the part of the magistrate judge.” Aldrich v. Bock,
327 F. Supp. 2d 743, 747 (E.D. Mich. 2004). Plaintiff’s first objection will be overruled.
B
Plaintiff’s second objection is to Judge Komives recommendation to dismiss Plaintiff’s
retaliation claim because Plaintiff presented only conclusory allegations of retaliatory motive that
is unsupported by material facts. Plaintiff contends that the Parole Board Defendants did not use
his institutional record or criminal record as the basis for deciding to recommend denial of Plaintiff’s
commutation request, but instead justified the recommendation on their lack of assurance that he
would not re-offend despite only scoring an 11.6% chance of recidivism within one year following

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his release. The remainder of Plaintiff’s objection provides similar conclusory allegations that he
has “made it clear that all of the Defendants were motivated to retaliate against him because of his
litigation activities.” ECF No. 75 at 8.
Plaintiff’s objection, however, attacks the substantive sufficiency of the Board’s
recommendation similar to his arguments made regarding his false information due process claim
and do not provide any evidence of retaliation. Worman v. Summers, 111 F. App’x 369, 371 (6th Cir.
2004) (“The federal court is not authorized to review the substantive merits of the state clemency
proceeding or the quality of the evidence considered during those proceedings, . . .”). Furthermore,
as Judge Komives noted, “conclusory allegations of a retaliatory motive unsupported by material
facts will not be sufficient to state a claim under § 1983.” Harbin-Bey v. Rutter, 420 F.3d 571, 580
(6th Cir. 2005) (internal quotations and citation omitted). Plaintiff’s objection will thus be overruled.
C
Finally, Plaintiff objects to Judge Komives recommendation to dismiss his equal protection
claim because Plaintiff has not demonstrated that he was denied commutation on the basis of his
membership in a suspect class or that he was similarly situated to other prisoners who were granted
commutation. Plaintiff concedes that he “cannot show that he is similarly situated to other inmates
for the purposes of the commutation decision,” but then conclusively states that he is “clearly
similarly situated to other prisoners” for equal protection purposes. Plaintiff has thus not established
that he was “similarly situated . . . in all respects that are material” to a prisoner that was granted
commutation. See Barker v. Conerly, No. 05CV74408DT, 2006 WL 305643, at *3 (E.D. Mich. Feb.
9, 2006) (citing Linger v. Akram, 23 F. App’x 248, 252 n.5 (6th Cir. 2001)). Plaintiff’s objection will
be overruled.

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II
Accordingly, it is ORDERED that Plaintiff’s objections (ECF No. 75) are OVERRULED.
It is further ORDERED that Judge Komives’s report and recommendation (ECF No. 73) is
ADOPTED.
It is further ORDERED that the Parole Board Defendants’ motion to dismiss (ECF No. 36)
is GRANTED.
It is further ORDERED that the MDOC Defendants’ motion for summary judgment (ECF
No. 38) is GRANTED.
It is further ORDERED that Defendant Berrios’s motion to dismiss (ECF No. 61) is
GRANTED.
It is further ORDERED that Plaintiff’s federal claims against the Parole Board Defendants,
the MDOC Defendants and Defendant Berrios are DISMISSED WITH PREJUDICE.
It is further ORDERED that Plaintiff’s federal claims against Defendant Ford and Defendant
Holden are sua sponte DISMISSED WITH PREJUDICE.
It is further ORDERED that jurisdiction is DECLINED over Plaintiff’s state law claims.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: December 21, 2011
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each
attorney of record herein by electronic means and upon Philip Berryman, #107202
at Lakeland Correctional Facility, 141 First Street, Coldwater, MI 49036 by first
class U.S. mail on December 21, 2011.
s/Tracy A. Jacobs
TRACY A. JACOBS

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