Murphy v. Lockhart et al

Filing 140

ORDER Adopting 101 Report and Recommendation Granting 74 Motion for Summary Judgment filed by Cheryl Berry. Signed by District Judge David M. Lawson. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TIMOTHY MURPHY,
Plaintiff,
Case Number 10-11676
Honorable David M. Lawson
Magistrate Judge Laurie J. Michelson

v.
SEAN LOCKHART, CFA Administrative
Assistant, THOMAS BIRKETT, SMF Warden
RAY BOWERSON, Resident Unit Manager,
MICHAEL KRAJNIK, Resident Unit Manager,
SARAH BEARSS, Assistant Resident Unit
Supervisor, KENNETH WERNER, Assistant
Resident Unit Supervisor, CHERYL BERRY,
General Office Assistant/Mailroom Clerk,
and JERI-ANN SHERRY, Regional Prison
Administrator,
Defendants.
_________________________________________/

OPINION AND ORDER ADOPTING MAGISTRATE JUDGE MICHELSON’S
REPORT AND RECOMMENDATION, OVERRULING PLAINTIFF’S
OBJECTIONS, GRANTING MOTION FOR SUMMARY JUDGMENT BY
DEFENDANT CHERYL BERRY, AND CONTINUING ORDER OF REFERENCE
The matter is before the Court on the objections by the plaintiff to a report filed by
Magistrate Judge Laurie J. Michelson on October 18, 2011 recommending that defendant Cheryl
Berry’s motion for summary judgment be granted. The part of the plaintiff’s complaint directed to
defendant Berry concerns her role at the Chippewa Correctional Facility in rejecting two pieces of
his mail — a copy of Esquire magazine which features the article on his attempted escape and a
copy of the religious book, Codex Magica — which the plaintiff alleges violated his rights to due
process, free exercise of religion, free speech, and his rights under the Religious Land Use and
Institutionalized Persons Act.

In an opinion and order filed in this case on September 30, 2011, the Court granted a motion
for summary judgment as to the mail processing and related constitutional and statutory claims as
to all the defendants who had moved for that relief. Defendant Berry, however, was not among
them. The Court referred the case back to Magistrate Judge Michelson for further pretrial
management, and defendant Berry then filed her motion for summary judgment. Judge Michelson
recommended that the motion be granted on the grounds that the Court discussed in the September
11, 2011 opinion, and the plaintiff filed timely objections.
The Court sees no need to repeat its legal rulings contained in the previous opinion.
Defendant Berry is similarly situated as the other defendants named in the mail room claim. The
ruling of the Court applies to her in the same manner. The plaintiff’s objections to Magistrate Judge
Michelson’s report in essence outline his disagreement with this Court’s prior ruling on the issue.
The Court, however, sees no basis to alter its ruling and adopts it in full with respect to defendant
Berry.
Accordingly, it is ORDERED that the report and recommendation [dkt #101] is ADOPTED.
It is further ORDERED that the plaintiff’s objections to the magistrate judge’s report and
recommendation [dkt #109] are OVERRULED.
It is further ORDERED that the defendant Cheryl Berry’s motion for summary judgment
[dkt. #74] is GRANTED.

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It is further ORDERED that the plaintiff’s complaint against defendant Cheryl Berry, only,
is DISMISSED WITH PREJUDICE.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: August 24, 2012

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on August 24, 2012.
s/Deborah R. Tofil
DEBORAH R. TOFIL

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