Burns v. Brewer et al

Filing 84

ORDER Adopting 80 Report and Recommendation, GRANTING 68 Defendants' Motion for Summary Judgment, DENYING 81 Plaintiff's Objections, and DENYING 73 Plaintiff's Motion to Compel Discovery as Moot. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WILLIAM BURNS,
Plaintiff,
v.
SHAWN BREWER, et al.,
Defendants.

2:18-CV-10937-TGB-EAS
HON. TERRENCE G. BERG
HON. ELIZABETH A. STAFFORD
ORDER ADOPTING REPORT
AND RECOMMENDATION
(ECF NO. 80), GRANTING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT (ECF
NO. 68), DENYING
PLAINTIFF’S OBJECTIONS
(ECF NO. 81), AND DENYING
PLAINTIFF’S MOTION TO
COMPEL DISCOVERY AS
MOOT (ECF NO. 73)

This is a prisoner civil rights cased filed by William Burns pursuant
to 42 U.S.C. § 1983. Mr. Burns claims he was prohibited from receiving
incoming mail containing proofs of books that allegedly posed a security
threat. On December 6, 2018, defendants moved for summary judgment.
ECF No. 26. This Court adopted the Report and Recommendation issued
by Magistrate Judge Elizabeth A. Stafford, which granted in part and
denied in part Defendants’ motion for summary judgment and dismissed
all defendants besides James King and Kimberly Napier. ECF No. 45;
ECF No. 50. After conducting discovery, Defendants filed a motion to

submit a second dispositive motion. ECF No. 67, PageID.702. Magistrate
Judge Stafford granted Defendants leave to file a second dispositive
motion. ECF No. 69.
This matter is now before the Court on Magistrate Judge Stafford’s
January 25, 2021 Report and Recommendation (ECF No. 80)
recommending that Defendants’ Motion for Summary Judgment (ECF
No. 68) be granted.1 The Court has reviewed Magistrate Judge Stafford’s
Report and Recommendation, Plaintiff’s objections thereto, and
Defendants’ response to Plaintiff’s objections. For the reasons set forth
below, Plaintiff’s objections are OVERRULED, and the Report and
recommendation is ACCEPTED and ADOPTED as the opinion of the
Court.
I.

BACKGROUND

The facts of this case are laid out in Magistrate Judge Stafford’s
Report and Recommendation. ECF No. 80, PageID.881-82. In short,
Create Space publisher mailed Plaintiff William Burns proofs of books
that he had authored while he was incarcerated at G. Robert Cotton
Correctional Facility. ECF No. 1-1, PageID.20. Plaintiff alleges that after

In addition to the motion for summary judgment, there is a pending
motion to compel discovery and/or disclosure filed by Plaintiff. ECF No.
73. As a result of this Court’s order accepting and adopting the Report
and Recommendation of Magistrate Judge Stafford, all remaining
Defendants will be dismissed from the case. Accordingly, Plaintiff’s
pending motion to compel discovery and/or disclosure is moot.
1

the books were sent to the mailroom, they were then forwarded to
property for delivery. ECF No. 1, PageID.4. According to Plaintiff’s
complaint, Plaintiff was informed that Defendant Napier “personally”
came to the property room, took the books, and delivered them to
Defendant King’s office. ECF No. 1, PageID.5. Plaintiff received a notice
of package rejection which stated that the books violated MDOC Policy
Directive 05.03.118. ECF No. 1, PageID.5. After Plaintiff filed a grievance
and requested a hearing, Defendant King—the hearing officer—held that
the rejection of books was proper under the MDOC policy. Specifically,
Defendant King found that the books allegedly posed a security threat
and were also banned under the prohibition on mail intended for
operating a business enterprise. ECF No. 1-1, PageID.35.
II.

STANDARD OF REVIEW

A district court must conduct a de novo review of the parts of a
Report and Recommendation to which a party objects. See 28 U.S.C. §
636(b)(1). “A judge of the court may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate judge.
The judge may also receive further evidence or recommit the matter to
the magistrate judge with instructions.” Id.
“The Sixth Circuit’s decision to require the filing of objections is
supported by sound considerations of judicial economy,” and “enables the
district judge to focus attention on those issues—factual and legal—that
are at the heart of the parties’ dispute.” Thomas v. Arns, 474 U.S. 140,

147 (1985). As such, “[o]nly those specific objections to the magistrate’s
report made to the district court will be preserved for appellate review;
making some objections but failing to raise others will not preserve all
the objections a party may have.’” McClanahan v. Comm’r of Soc. Sec.,
474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith v. Detroit Fed’n of
Teachers Loc. 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).
The Sixth Circuit has concluded that “[o]verly general objections do
not satisfy the objection requirement.” Spencer v. Bouchard, 449 F.3d
721, 725 (6th Cir. 2006) (abrogated on other grounds by Jones v. Bock,
549 U.S. 199 (2007)). “The objections must be clear enough to enable the
district court to discern those issues that are dispositive and
contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). An
objection is too general if it merely restates the arguments previously
presented or disputes the recommendation without specifying the
findings the party believes to be in error. Id. See also VanDiver v. Martin,
304 F.Supp.2d 934 (E.D. Mich. 2004). Where a party fails to make specific
objections, “[t]he functions of the district court are effectively duplicated
as both the magistrate and the district court perform identical tasks.”
Howard v. Sec’y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir.
1991). See also Smith, 829 F.2d at 1373. “[F]ailure to file specific
objections to a magistrate’s report constitutes waiver of those objections,”
and the Court is not required to conduct a de novo review of the issues

addressed by the magistrate. Cowherd v. Million, 380 F.3d 909, 912 (6th
Cir. 2004). See Thomas, 474 U.S. at 149.
III.

ANALYSIS

Plaintiff raises four objections to the Report and Recommendation.
ECF No. 81. Each will be addressed in turn.
a.

Objection One

First, Plaintiff contends that “defendant is attempting to relitigate
an issue already presented to this Court.” ECF No. 81, PageID.895.
Plaintiff asserts that he is not operating a business, but instead his
“books are published through Mega House Publications” and none have
been sold to a prison. ECF No. 81, PageID.894. Additionally, Plaintiff
argues that because Defendants’ motion for summary judgment does “not
cite the potential that Burns might sell the books online and thus operate
a business operation as a justification for rejecting the books,”
Defendants should not be allowed to relitigate this issue. ECF No. 81,
PageID.895.
Plaintiff’s objection will be overruled for three reasons. First,
contrary to Plaintiff’s argument, Defendants’ successive motion for
summary judgment clearly argues that the business enterprise rule
provides a justification for rejecting the books. See ECF No. 68,
PageID.717 (“Because inmates engaging in a business enterprise while
incarcerated is incompatible with security, order, and rehabilitation, this
policy falls well within the realm of the reasonable.”). ECF No. 1-1,

PageID.35. This justification was provided well before the filing of either
summary judgment motion as evidenced by the Step I Grievance
Response attached as an exhibit to Plaintiff’s initial complaint. The
Response notes that part of the justification for upholding the package
rejection is that “PD. 05.03.118 MM, 22, also prohibits mail for the
purpose of operating a business enterprise while within the facility.”
Therefore, the issue of the business enterprise rule is properly before the
Court on Defendants’ second motion for summary judgment.
Next, while Plaintiff argues he is not operating a business, he
acknowledged in his original complaint that the impact of the denial of
the packages included “loss of income” and that he intended to offer the
books for sale via online retailers. ECF No. 1, PageID.13; ECF No. 1-2,
PageID.62-63. Plaintiff provides no evidence or argument to refute that
the books were mailed to him for the purpose of gaining income in
violation of PD. 05.03.118 MM, 22. See Fed. R. Civ. P. 56(a) (“The court
shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”). It is irrelevant that the publishing
company who sent the manuscripts is not owned by Plaintiff as the
Plaintiff’s intent to earn money from this venture is clear and
undisputed.
Finally, even if the Court did find that Defendant was not entitled
to summary judgment on Plaintiff’s First Amendment claim, it is not

dispositive because the magistrate judge’s recommendation to grant
summary judgment in Defendants’ favor is based on a determination that
Defendants are entitled to qualified immunity. See ECF No. 80,
PageID.887 (“But the Court need not decide that issue to recommend
summary judgment in defendants’ favor because they are entitled to
qualified immunity. . . Even if Burns had fashioned a persuasive
argument that defendants violated his constitutional rights when
applying the business enterprise mail rule to his books, that violation
would not have been clearly established. Thus, defendants are entitled to
summary judgment based on qualified immunity.”). The Court need not
resolve the question of summary judgment on Plaintiff’s First
Amendment claim in order to find in Defendants’ favor.
Accordingly, Plaintiff’s first objection will be overruled.
b.

Objection Two

Next, Plaintiff disputes the truthfulness of the statements made by
Defendant Napier in the sworn affidavit. Specifically, Plaintiff contends
it is not true that Defendant Napier “did not pick the books up from the
mailroom herself, did not take the books to P.C. King’s office, nor did she
drop the books off to the mailroom, or have any personal involvement.”
ECF No. 81, PageID.896. To support this contention, Plaintiff points to
his own affidavit which recounts communications with Officer Wilcox
about Defendant Napier’s involvement, a letter from Bonnie Burns,
(Plaintiff’s wife) recounting her call with property, and a memorandum

from Defendant Napier regarding the grievance. ECF No. 1-3, PageID.81,
100; ECF No. 26-3, PageID.276.
In support of the motion for summary judgment, Defendants
include the sworn affidavit of Defendant Napier, which states that she is
an administrative assistant whose role does not involve “any decisions
pertaining to mail notices and/or rejections, administrative hearing
outcomes, or what is placed on the restricted publications list.” ECF No.
68-2, PageID.736. Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A fact is material only if it might affect the outcome of the case under the
governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party has the initial burden of demonstrating an absence of
a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986). If the moving party carries this burden, the party opposing
the motion “must come forward with specific facts showing that there is
a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). On a motion for summary judgment, the
Court must view the evidence and any reasonable inferences drawn from
the evidence in the light most favorable to the non-moving party.
Matsushita, 475 U.S. at 587 (citations omitted); Redding v. St. Edward,
241 F.3d 530, 531 (6th Cir. 2001).

The three materials presented by Plaintiff fail to refute the
assertion that Defendant Napier is an administrative assistant and is not
involved in any decisions regarding package rejections or materials on
the restricted publications list. Each piece of evidence provided by
Plaintiff is evaluated in turn.
Plaintiff first points to his own affidavit which states he was (1) told
by Officer Wilcox that Defendant Napier “went to the property room and
picked the books up herself,” and (2) told by Defendant King that
Defendant Napier came to his office with the books and asked “what she
should do with them.” ECF No. 1-3, PageID.81. But, this information
comes from Plaintiff’s own affidavit—not that of Officer Wilcox or
Defendant King—and therefore cannot be viewed as creating a genuine
issue of material fact when it only repeats secondhand information. Even
if this Court were to accept Plaintiff’s affidavit of events that he did not
witness, nowhere does the affidavit provide evidence that Defendant
Napier was involved with any administrative decision-making regarding
applying the business enterprise rule or placing items on the restricted
publications list. In fact, the affidavit only states that Defendant King
and the central office in Lansing were the ones who made arguments
regarding the reasons the books were taken. Because Plaintiff’s own
affidavit provides no evidence to refute Defendant Napier’s testimony
that she lacked any decision-making capacity with regard to the packages
or publications list, it does not create a genuine issue of material fact.

Next, Plaintiff directs the Court to a letter from his wife which
recounts a telephone call that she had with property department.
According to his wife’s letter, Defendant Napier “has taken the books and
is de[c]iding whether you will be given them.” ECF No. 1-3, PageID.100.
However, in the very next sentence Mrs. Burns says, “I would assume
that she is reading them.” Id. (emphasis added). The Court is unable to
find that this evidence creates a genuine issue of material fact as to
Defendant Napier’s involvement because it only presumes Defendant
Napier was involved with decision-making. Even viewing this evidence
in the light most favorable to Plaintiff, an email from an individual
relaying a phone conversation and providing conjecture about
Defendant’s actions is insufficient to establish a genuine issue of material
fact. See Goodman v. J.P. Morgan Inv. Mgmt., Inc., 954 F.3d 852, 859
(6th Cir. 2020) (quoting Anderson, 477 U.S. at 252) (“The ‘mere existence
of a scintilla of evidence’ in support of the non-moving party does not
establish a genuine issue of material fact.”)
Finally, Plaintiff directs the Court to a memorandum written by
Defendant Napier, which states that she “had not received a response
from CFA [Correctional Facilities Administration] as to whether this
prison author is going on the restricted publication list.” ECF No. 26-3,
PageID.276. This too fails to refute the testimony provided in Defendant
Napier’s affidavit. As stated in the very next line from the memorandum,
“[a]t no time was [Defendant Napier] involved in the preparation and

distribution of the Notice of Package/Mail Rejection.” Id. This
memorandum is completely consistent with Defendant Napier’s affidavit
which explains she was contacted by Defendant King who asked whether
the books in question were being placed on the MDOC prohibited mail
list. ECF No. 68-2, PageID.702. Defendant Napier contacted Correctional
Facilities Administration to inquire about their decision to place the
books on the mail list. Her administrative responsibility to relay the
decisions made by others is not evidence that she herself had the power
to make or was involved in any decision to place any books on the
restricted list.
Because Plaintiff does not provide evidence that Defendant Napier
was involved in any aspect of decision-making regarding mail notices,
rejections, administrative hearings, or the restricted publications list, the
second objection will be overruled.
c.

Objection Three

Next, Plaintiff argues that Defendants’ second motion for summary
judgment failed to present any evidence which would “merit a different
finding.” ECF No. 81, PageID.898. While not entirely clear, it appears
Plaintiff is referencing Defendants’ argument that Plaintiff did not
properly exhaust his claims. See ECF No. 26, PageID.221.
However, exhaustion was only at issue in Defendants’ first
summary judgment motion and is not discussed in either the second
summary judgment motion filed by Defendants or the corresponding

Report and Recommendation currently before this Court. In the
magistrate judge’s previous order, which was adopted by this Court, it
was already determined that Plaintiff exhausted his claims against both
Defendant Napier and King. ECF No. 45, PageID.582. Because the issue
of exhaustion was already resolved, the magistrate judge’s current
recommendation that the second motion for summary judgment be
granted is not the result of a different finding with regard to exhaustion,
nor does it address exhaustion in any way. Instead, the magistrate judge
recommends granting the motion because Defendants are entitled to
summary judgment based on qualified immunity. ECF No. 80,
PageID.887.
Accordingly, Plaintiff’s third objection will be overruled as the
Report and Recommendation did not make a different finding with
regard to exhaustion.
d.

Objection Four

Finally, Plaintiff argues that Defendants’ second motion for
summary judgment is merely a “second bite of the apple” because of their
dissatisfaction with the Court’s previous decision to deny their claims of
qualified immunity. ECF No. 81, PageID.898. In support of this
proposition, Plaintiff quotes the adopted order from the first summary
judgment motion, which determined that “genuine disputes of material
fact remain” with regard to both Defendant Napier’s and King’s qualified
immunity defense. ECF No. 81, PageID.898-99. Plaintiff also argues that

Defendant Napier’s sworn affidavit is the only “new” evidence provided
and that it could have been presented in Defendants’ first request for
summary judgment. Because Defendants did not present new evidence,
Plaintiff asks the Court to view their second request for summary
judgment as an improper attempt to relitigate their request for qualified
immunity.
This argument is also without merit. First, “[d]istricts court may in
their discretion permit renewed or successive motions for summary
judgment, particularly when the moving party has expanded the factual
record on which summary judgment is sought.” Lexicon, Inc. v. Safeco
Ins. Co. of Am., 436 F.3d 662, 670 n.6 (6th Cir. 2006) (quoting Kovacevich
v. Kent State Univ., 224 F.3d 806, 835 (6th Cir. 2000)). “[D]enial of
summary judgment has no res judicata effect.” Id. (quoting Whitford v.
Boglino, 63 F.3d 527, 530 (7th Cir.1995)). Next, a party should present
“good reason[s]” when seeking to file a successive motion for summary
judgment. Kovacevich, 224 F.3d at 835. For example, district courts have
found good reason when “the moving party has expanded the factual
record on which summary judgment is sought.” Hertz Schram PC v. FBI,
No. CIV.A. 12-14234, 2014 WL 1389331, at *1 (E.D. Mich. Apr. 9, 2014)
(quoting Kovacevich, 224 F.3d at 835). Contrary to Plaintiff’s objection,
the Court does not find case law which requires the “good reason” to be
the discovery of new evidence that was previously unavailable at the time
the first summary judgment motion was made. Id. (finding that the

party’s submission of an additional declaration describing a search for
records was a sufficient “good reason” for granting leave for a successive
motion). Here, Defendant sought leave to file a second dispositive motion
after supplementing the factual record with Defendant Napier’s affidavit
and after conducting discovery—which included the taking of Plaintiff’s
deposition. ECF No. 67, PageID.702. The additional affidavit and
discovery provided sufficient “good reason” to grant leave to file a second
summary judgment motion.
Because Defendants’ successive summary judgment motion was
permissible, the Court will overrule Plaintiff’s final objection.
CONCLUSION
Accordingly, it is hereby ORDERED that Magistrate Judge
Stafford’s Report and Recommendation of January 25, 2021 is
ACCEPTED and ADOPTED. It is FURTHER ORDERED that
Defendants’ Motion for Summary Judgment (ECF No. 68) be GRANTED
and the remaining claims against Defendants are DISMISSED.
It is FURTHERED ORDERED that Plaintiff’s Motion to Compel
Discovery and/or Disclosure (ECF No. 73) is DENIED as MOOT.
SO ORDERED.
Dated: March 19, 2021

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE