Berryman et al v. Freed et al
MEMORANDUM AND ORDER OVERRULING PLAINTIFF'S OBJECTIONS [DOC. 90] AND ADOPTING REPORT AND RECOMMENDATION [DOC. 89] AND DENYING PLAINTIFF'S MOTION TO STRIKE [DOC. 80]AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [DOC. 78] AND DISMISSING CASE Signed by District Judge Avern Cohn. (MVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 14-12593
SCOTT FREED, R. VITTITOW, L.
ELKINS, EXELBY, N. CULBERSON,
KEDRON, FAY TAYLOR, FRED FUNSTON,
RESZKE, ADRIANE NEFF, and
HON. AVERN COHN
MEMORANDUM AND ORDER
OVERRULING PLAINTIFF’S OBJECTIONS (Doc. 90)
AND ADOPTING REPORT AND RECOMMENDATION (Doc. 89)
DENYING PLAINTIFF’S MOTION TO STRIKE (Doc. 80)
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Doc. 78)
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
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.
relating to him. Defendants are: Scott Freed, R. Vittitow, L. Elkins, Exelby, N.
Culberson, Kedron, Fay Taylor, Fred Funston, Reszke, and Ruhl-Anderson.2 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
The matter was referred to a magistrate judge for pretrial proceedings, (Doc. 27),
and before whom plaintiff filed a motion to strike (Doc. 80) and defendants filed a motion
for summary judgment (Doc. 78). The magistrate judge issued a report and
recommendation (MJRR), recommending that plaintiff’s motion be denied, defendants’
motion be granted, and the case dismissed. (Doc. 89).
Before the Court are plaintiff’s objections to the MJRR. (Doc. 90). Defendants
have filed a response to the objections. (Doc. 91). For the reasons that follow, the
objections will be overruled, the MJRR will be adopted, plaintiff’s motion will be denied,
defendants’ motion will be granted, and the case will be dismissed.
A district court must conduct a de novo review of the parts of a magistrate
judge's report and recommendation to which a party objects. 28 U.S.C. § 636(b)(1). The
district "court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate" judge. Id. The requirement of de novo
review "is a statutory recognition that Article III of the United States Constitution
Defendant also sued Adriane Neff. The Court, on adoption of the
recommendation of the magistrate judge, entered summary judgment in her favor.
mandates that the judicial power of the United States be vested in judges with life
tenure." United States v. Shami, 754 F.2d 670, 672 (6th Cir. 1985).
A general objection, or one that merely restates the arguments previously
presented, is not sufficient to alert the court to alleged errors on the part of the
magistrate judge. An "objection" that does nothing more than state a disagreement with
a magistrate judge's suggested resolution, or simply summarizes what has been
presented before, is not an objection as that term is used in this context. Howard v.
Sec'y of Health and Human Servs., 932 F.2d 505, 508 (6th Cir. 991) ("It is arguable in
this case that Howard's counsel did not file objections at all.... [I]t is hard to see how a
district court reading [the ‘objections'] would know what Howard thought the magistrate
had done wrong.").
Plaintiff’s objections for the most part repeat the arguments considered and
rejected by the magistrate judge. Be that as it may, plaintiff’s objections3 are addressed
in turn below.
Plaintiff objects to the magistrate judge’s recommendation that plaintiff’s official
capacity claims for money damages against Free, Elkins, Exelby, Culbertson, Taylor,
Funston, and Rhul-Anderson be dismissed as barred by the Eleventh Amendment.
Plaintiff does not object to the recommendation that Vittitow, Kedron, and
Reszke be dismissed because plaintiff fails to identify any claims against them. Not
does plaintiff object to the dismissal of his claims against Funston. Plaintiff also does
not object to the magistrate judge’s recommendation that his motion to strike be denied.
Plaintiff suggests that he is seeking injunctive relief. However, the magistrate judge
correctly recognized that the relief sought in the complaint is limited to monetary
damages, i.e., compensatory and punitive damages, plus costs and attorney fees. (See
e.g., Doc. 1, PageID.25-27, §§72, 82, 91, 111, 136, 151, 161, 172, 187, 198, 203, 209,
223.) No equitable or injunctive relief was requested. As such, plaintiff’s claims against
them must be dismissed.
Plaintiff also objects to the magistrate judge’s finding that plaintiff’s individual
claims against Freed and Culberson are barred because they are entitled to absolute
immunity for the actions. This objection is not well taken. Plaintiff’s claims against
Freed and Culberson is their alleged action(s) taken in performance of their job duties
as a hearing investigator and hearing officer. Specifically, plaintiff alleges that
Culberson was the “hearing officer” with respect to a misconduct ticket and his dispute
with Freed is in the context of his duties in processing misconduct tickets and
responding to document requests in connection therewith. Whether a hearing officer or
judicial official is entitled to immunity depends not on the person’s job title, but whether
the activity underlying the alleged liability is performance of a judicial or quasi-judicial
function within the scope of his/her job duties. See Foster v. Walsh, 864 F.2d 416,
417-18 (6th Cir. 1988) (The Sixth Circuit had “no difficulty” granting immunity to a court
clerk in the context of a lawsuit arising from her issuance of an arrest warrant because
such activity was “a ‘truly judicial act.’”). Moreover, absolute immunity is applicable to
both hearing investigators and hearing officers when performing quasi-judicial functions.
Evans v. Eaton, 2009 U.S. Dist. LEXIS 47069 (E.D. Mich. June 4, 2009).
Here, Culberson and Freed were named in this complaint in connection with such
quasi-judicial activities. As such, the magistrate judge correctly concluded that they are
entitled to immunity.
The remainder of plaintiff’s objections relate to the magistrate judge’s finding that
he failed to exhaust his claims against Fay Taylor, Elkins (for retaliation), Exelby, and
First, to the extent plaintiff says that the magistrate judge did not read the
grievances, he is mistaken. The magistrate judge carefully describes the subject matter
of each grievance in detail, as well as the response thereto.
As to Taylor, plaintiff says he exhausted his claim against her, citing what he
purports to be grievance language. As noted in defendants’ response to plaintiff’s
objections, plaintiff appears to be excerpted from the Grievance Identified as SRF
2013-08-1377-28B, which is attached as Exhibit 3 to Defendants’ Motion for Summary
Judgment (Doc. 78-3, PageID.760.). This grievance claims that Taylor denied him
access to the courts by refusing his request to order ink jet cartridges for his word
processor. He claimed that the refusal was done in retaliation. This was evaluated at
the Step II, which upheld the denial on the grounds that the information regarding the
retaliation remained vague and, also, that inkjet cartridges “do not appear to be on the
Approved Property List” and Plaintiff had not filed documentation showing his right to
them. (Id. at PageID. 759.)
The magistrate judge is correct that the grievance was rejected as vague as to
the claim of retaliation—the only basis for Plaintiff’s claim against Taylor. The grievance
identifies Plaintiff’s disagreement with Taylor’s alleged refusal to
provide him with ink jet cartridges. It does not allege that the refusal was in connection
with any protected conduct undertaken by plaintiff, which would be necessary to support
his claim of retaliation. Nor is there any documentation supporting plaintiff’s alleged
right to them.
Moreover, even assuming plaintiff exhausted his claims against Taylor, summary
judgment in her favor remains appropriate because she is entitled to qualified immunity.
As explained in defendants’ motion for summary judgment, Taylor is entitled to qualified
immunity because the only alleged wrongdoing is her refusal to order ink cartridges for
plaintiff’s typewriter. While Plaintiff claims this was retaliatory, there is no factual
allegation to support this. Specifically, there is no allegation of a protected conduct that
plaintiff engaged in prior to the alleged refusal to order the ink cartridges or a basis for
finding that the alleged refusal was motivated at least in part by the protected conduct.
Nor is there any allegation of a violation of due process with respect to this as is
necessary to establish a claim under the Fourteenth Amendment.
In short, plaintiff’s claim against Taylor is subject to dismissal for failure to
exhaust and on the grounds of qualified immunity.
As to Exelby, plaintiff says he was not required to file a Step III appeal to the
denial of prior grievances for Exelby and therefore did exhaust his claim. The objection
lacks merit. The PLRA requires exhaustion of all available administrative remedies.
MDOC policy authorizes a grievant to file a Step II and Step III appeal “if s/he is
dissatisfied with the response” or “s/he did not receive a timely response.” ®. 78-5,
PageID. 835, ¶¶ BB, FF.) A transfer to a different facility does not generally excuse a
failure to completely comply with the grievance policy. Napier v. Laurel
County, 636 F.3d 218, 223-24 (6th Cir. 2011).
As to Ruhl-Anderson, the magistrate judge correctly concluded that plaintiff had
not exhausted his claim. The grievance cited in the report and recommendation, and in
plaintiff’s objection, address allegations of property allegedly lost during the transfer
from one facility to another. There is no mention that any act was done in retaliation for
any misconduct ticket or otherwise which forms the basis for plaintiff’s claim in the
Plaintiff also objects to the magistrate judge’s recommendation that plaintiff’s
claim of retaliation under 42 U.S.C. § 1985(3) be dismissed is based on his failure to
demonstrate that “the conspiracy was motivated by a class based animus, such as
race.” (Doc. 89, PageID.1066.) Plaintiff does not refute this finding in his objections.
The complaint simply does not allege any class-based animus. This objection is
As to plaintiff’s claim of conspiracy under 42 U.S.C. § 1983, plaintiff essentially
objects to the magistrate judge’s reliance on defendants’ affidavits when plaintiff says
he provided an affidavit refuting these. However, the affidavits attached to plaintiff’s
response are neither signed nor notarized. Moreover, plaintiff responded to the
Defendant’s denial that s/he conspired against him by a bland assertion that he
“[d]isputes” the Defendant’s statement (which s/he testified to under oath based on
personal knowledge) “as untrue” and that he “leave[s] her to her proofs.” (See, e.g.,
R.81, PageID.985, ¶6.) These are vague and conclusory allegations and unsupported
by material facts. As the magistrate judge correctly recognized, these allegations are
insufficient to support a claim for conspiracy.
For the reasons stated above, plaintiff’s objections are OVERRULED. The
MJRR is ADOPTED as the findings and conclusions of the Court. Plaintiff’s motion to
strike is DENIED. Defendants’ motion for summary judgment is GRANTED. This case
UNITED STATES DISTRICT JUDGE
Dated: July 31, 2017
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