Berryman et al v. Freed et al

Filing 76

ORDER Adopting Report and Recommendation for 68 Report and Recommendation, 62 Motion for Sanctions filed by Philip Berryman, 57 Motion to Compel filed by Philip Berryman Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PHILLIP BERRYMAN,
Plaintiffs,
v.

Case No. 14-12593

SCOTT FREED, R. VITTITOW, L.
ELKINS, EXELBY, N. CULBERSON,
KEDRON, FAY TAYLOR, FRED FUNSTON,
RESZKE, ADRIANE NEFF, and
RUHL-ANDERSON,

HON. AVERN COHN

Defendants.
____________________________________/
ORDER
ADOPTING REPORT AND RECOMMENDATION (Doc. 68)
AND
DENYING PLAINTIFF’S MOTION TO COMPEL (Doc. 57)
AND
DENYING PLAINTIFF’S MOTION FOR SANCTIONS (Doc. 62)
I.
This is a prisoner civil rights case. Plaintiff Philip Berryman1 filed this action
under 42 U.S.C. § 1983, 1985, and 1988, essentially claiming that defendants,
employees of the Michigan Department of Corrections conspired to violate his civil
rights by issuing false and/or retaliatory misconduct tickets and destroying documents
relating to him. Defendants are: Scott Freed, R. Vittitow, L. Elkins, Exelby, N.
Culberson, Kedron, Fay Taylor, Fred Funston, Reszke, Adriane Neff, and

1

Plaintiff was originally joined by Charles Starling and Daniel Mora. The Court,
adopting the magistrate judges’s report and recommendation, severed plaintiff’s claims
and dismissed Starling and Mora. See Doc. 42.

Ruhl-Anderson. Plaintiff claims violations of the First, Fourth, Fifth, Sixth, and
Fourteenth Amendments. Plaintiff seeks compensatory damages, punitive damages,
and any other relief that the Court deems appropriate.
The matter was referred to a magistrate judge for pretrial proceedings, (Doc. 27),
and before whom the following motions were filed:
Plaintiff’s motion to compel (Doc. 57)
Defendants’ motion to dismiss (Docs. 58, 59)2
Plaintiff’s motion for sanctions (Doc. 59).
The magistrate judge issued a report and recommendation (MJRR), recommending that
defendants’ motion be granted on the grounds that plaintiff failed to comply the Court’s
prior order directing him to pay the remainder of the filing fee, see Docs. 42, 45.
However, the magistrate judge also recommended that plaintiff be allowed thirty (30)
days in which to pay the remainder of the filing fee to avoid dismissal. The magistrate
judge also recommended that if plaintiff pays the fee, that plaintiff’s motion to compel
and motion for sanctions be denied.
Plaintiff objected to the MJRR, arguing that he should not have to pay the
remainder of the filing fee. (Doc. 69). The Court overruled the objections and directed
plaintiff to pay the filing fee within 30 days or the case would be dismissed. (Doc. 72).
The Court also said that if plaintiff paid the filing fee, it would separately consider the
magistrate judge’s recommendation on plaintiff’s discovery motions.

2

Defendants sought dismissal based on plaintiff’s failure to comply with the
Court’s prior orders directing him to pay the remainder of the filing fee and for failure to
prosecute.
2

Plaintiff has paid the filing fee. See text docket entry of July 19, 2016.3
The Court will now consider the magistrate judge’s recommendation on plaintiff’s
motion to compel and motion for sanctions. The magistrate judge recommends that the
motions be denied because plaintiff received the requested discovery and sanctions are
not warranted. See MJRR, Doc. 68 at p. 8-9. Putting aside that plaintiff has not
objected to the MJRR, the Court agrees with the magistrate judge that plaintiff is not
entitled to relief on either motion.
Accordingly, the MJRR is ADOPTED. Plaintiff’s motion to compel and motion for
sanctions are DENIED AS MOOT.4
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: August 31, 2016
Detroit, Michigan

3

Plaintiff filed a motion for extension of time in which to pay the remainder of the
filing fee. (Doc. 74). Because plaintiff has now paid the filing fee, this motion is MOOT.
4

Also pending before the magistrate judge are defendants’ motion for summary
judgment (Doc. 64) and plaintiff’s motion to disqualify (Doc. 73).
3