Burley v. Michigan Department of Corrections et al

Filing 169

ORDER adopting 165 Report and Recommendation and Denying 148 Motion for Summary Judgment. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EDWARD BURLEY,
Plaintiff,
Case No. 16-CV-10712
vs.
HON. GEORGE CARAM STEEH
J. QUIROGA, WILLIAMSON,
R. KLATT and HAROLD GILKEY,
Defendants.
_____________________________/
ORDER ACCEPTING MAGISTRATE JUDGE'S REPORT
AND RECOMMENDATION [ECF No. 165] AND DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [ECF No. 148]
This matter is before the court on defendants Russell Klatt and
Harold Gilkey’s motion for summary judgment [ECF No. 148]. The motion
was referred to Magistrate Judge Patricia Morris for a Report and
Recommendation. The matter is presently before the court on the Report
which recommends that defendants’ motion for summary judgment be
denied. Objections to the Report were filed by defendants and plaintiff
filed a response brief. The court has reviewed the file, record, magistrate
judge's Report and Recommendation, objections and response. For the
reasons set forth below, the court agrees with the thorough analysis
conducted by the magistrate judge and accepts her recommendation that
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defendants’ motion for summary judgment be DENIED.
As to defendant Klatt, the Report and Recommendation concludes
that there is an issue of material fact whether plaintiff is disabled and
whether he was denied services due to such disability. The issue as to
defendant Gilkey is whether he was named as a party in either the original
complaint or the amended complaint. The defendants’ single objection
goes to the Report’s conclusion that plaintiff’s amended complaint is not
time barred as to defendant Gilkey.
It is uncontested that the accrual date of plaintiff’s claims against
Gilkey is June 19, 2013, which means that plaintiff had to file his complaint
against Gilkey by June 19, 2016. Plaintiff’s original complaint was filed on
February 25, 2016. Gilkey was not named in the caption of the complaint,
nor did he appear in the list of defendants provided near the beginning of
the complaint. Gilkey does appear in the complaint under the section
entitled “Personal Involvement of Defendants,” specifically under the entry
for Ionia Correctional Facility defendants. The complaint then describes
three occasions where plaintiff was denied an accommodation by
“Defendant RUM Guilkie”. Gilkey was not served with the original
complaint, but he was served with the amended complaint on July 16,
2018.

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The magistrate judge focuses first on the misspelling of RUM Harold
Gilkey’s name, pointing out that MDOC employed an Assistant Resident
Unit Supervisor (ARUS) Gerald Gilkie at the same facility. When plaintiff
sought to serve process on RUM Gilkey he had retired, but ARUS Gilkie
remained and accepted service. Neither RUM Harold Gilkey nor ARUS
Gerald Gilkie used the same spelling that plaintiff used in his complaint.
On June 30, 2016, plaintiff offered a “Proposed Amended Complaint”
that again referred to “RUM Guilkie” in the body but not the caption. The
new material added a few factual details relating to RUM Gilkey and a new
characterization of his actions as discriminatory. Defendant Gilkey was
finally served on July 16, 2018 after the court granted plaintiff’s motion to
amend the complaint on March 6, 2017 and the confusion about the
spelling of Gilkey’s name was resolved.
The magistrate judge adopted the more lenient approach to
construing Fed. R. Civ. P. 10(b), which permits parties to be identified in
the body of the complaint. The hardline approach, preferred by
defendants, would require a person to appear in the caption to be
considered a party. This court agrees with the analysis conducted by the
magistrate judge in reaching her conclusion. See ECF No. 165, PageID
4344-4352. The weight of authority supports looking at the complaint as a

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whole, and not just to the caption, for evidence of plaintiff’s intention as to
the identity of the parties. Using this approach, the magistrate judge
conceded it was a close question whether plaintiff did enough to identify
Gilkey as a defendant in his original complaint. Ultimately she was
persuaded that he did, pointing to the fact that the complaint refers to
“RUM Guilkie” as a defendant in a section listing defendants; includes
Gilkey’s position as “RUM”, which distinguishes him from any other person
with a similar name; and describes Gilkey’s conduct that forms the basis for
plaintiff’s claim.
Plaintiff proceeded in forma pauperis, which entitled him to have the
court and the United States Marshals effect service. The magistrate judge
recognized that plaintiff could have done more to alert the court clerk to the
fact that a summons was not issued for Gilkey. However, because plaintiff
filed his amended complaint, which made his intention to sue Gilkey even
more explicit, shortly after the first batch of parties were served, the
magistrate judge ultimately concludes that the failure does not undercut
plaintiff’s intention to name Gilkey in the original complaint. The court
again agrees with the magistrate judge’s analysis.
For the reasons set forth above, defendants’ objection is overruled.
The court hereby accepts the magistrate judge’s Report and

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Recommendation denying defendants’ motion for summary judgment.
Now, therefore,
IT IS HEREBY ORDERED that the magistrate judge’s Report and
Recommendation is ACCEPTED and defendants’ objection to the Report
and Recommendation is OVERRULED.
IT IS HEREBY FURTHER ORDERED that defendants’ motion for
summary judgment is DENIED.
Dated: July 25, 2019
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
July 25, 2019, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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