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Berryman v. Freed

United States District Court, E.D. Michigan, Southern Division

April 20, 2015

PHILLIP BERRYMAN, et al., Plaintiffs,
SCOTTY FREED, et al., Defendants.


MONA K. MAJZOUB, Magistrate Judge.

Plaintiffs Philip Berryman, Charles Starling, and Daniel Mora, prisoners at the Saginaw Correctional Facility at the time of their suit, [1] filed this action under 42 U.S.C. ยง 1983, 1985, and 1988 against Defendants Scott Freed, R. Vittitow, L. Elkins, Exelby, N. Culberson, Kedron, Fay Taylor, Fred Funston, Reszke, Adriane Neff, and Ruhl-Anderson alleging that Defendants conspired to retaliate against them in violation of their "right to substantive due process under the Fist and Fourteenth Amendments, " their "right to procedural due process rights under the Fourteenth Amendment, their "rights to due process and a fair trial under the Fifth and Sixth Amendments, " their "rights to due process and a fair hearing/trial under the First, Fifth and Sixth Amendments, " and their "right against continued seizure without probable cause under the Fourth Amendment." ( See docket no. 1.) Plaintiffs seek compensatory damages, punitive damages, and any other relief that the Court deems appropriate.

Before the Court are Plaintiffs' Motion for a Temporary Restraining Order (docket no. 5) and Defendants' Motion to Sever (docket no. 30). Plaintiffs each filed a response to Defendants' Motion. (Docket nos. 31, 32, and 34.) All pretrial matters have been referred to the undersigned for consideration. (Docket no. 27.) The undersigned has reviewed the pleadings, dispenses with a hearing pursuant to E.D. Mich. L.R. 7.1(f)(2), and issues this Report and Recommendation.

I. Recommendation

The undersigned recommends denying Plaintiffs' Motion for a TRO (docket no. 5) and granting Defendants' Motion to Sever (docket no. 30). Plaintiffs Charles Starling and Daniel Mora should be dismissed from this matter without prejudice. The Court should also require Plaintiff Philip Barryman to pay the remaining portion of his filing fee. ( See docket no. 2.)

II. Report

A. Factual Background[2]

Plaintiff Berryman alleges that Defendants' retaliatory conduct began in December 2010 while he was housed at the Cotton Correctional Facility. Plaintiff alleges that he filed grievances against a healthcare provider at the prison and that "her Homosexual Partner, " Defendant Neff, retaliated by falsely claiming that Plaintiff Berryman had assaulted her, which led to a Misconduct Ticket. Plaintiff alleges that his hearings on the matter were rushed and that he was then transferred to the Lakeland Correctional Facility without having an opportunity to prove his innocence. (Docket no. 1 at 19.) Plaintiff contends that he attempted to get information concerning Defendant Neff's mental stability and that he wrote letters to the Jackson County Prosecutor's Office and the Michigan State Police without any response. ( Id. )

Plaintiff Berryman further alleges that while he was incarcerated at the Lakeland Correctional Facility, he received 15 false Major Misconduct Tickets from Defendant Elkins and that he was told she "knew about what he had done at the Cotton facility." ( Id. ) At some point, though, non-party Captain Thomas took Plaintiff to see Defendant Elkins and told her to stop writing the tickets, but she said that she was "told to write the tickets, by her supervisor D. Smith." ( Id. ) The tickets from Defendant Elkins stopped, but Plaintiff then started being charged with complaints from D. Smith. ( Id. at 20.) Plaintiff was ultimately informed by non-party RUM G. Paul that Plaintiff was going to be transferred because of all of his grievances and other complaints. ( Id. )

On June 11, 2013, Plaintiff Berryman was transferred to the Saginaw Correctional Facility. Plaintiff alleges that at that time, he was given a drug test, "which shown negative for drugs, " but he was given a Major Misconduct Ticket for Substance Abuse and Other. ( Id. at 20-21.) Plaintiff alleges that Defendants Freed and Neff denied him access to documents that would prove his innocence and that they further told him that staff at SRF would not put up with him constantly filing grievances like he did at Lakeland and Cotton. ( Id. at 21.) He alleges that Defendants then found him guilty of the Major Misconduct, which resulted in a permanent loss of his visiting privileges. ( Id. )

Plaintiff Berryman alleges that later that night, Defendant Ruhl-Anderson allowed another prisoner to steal his property, so Plaintiff filed a grievance. He claims that Defendant Taylor then refused to order inkjet cartridges for his word processor and stopped a word-processor-repair claim, which Plaintiff had attempted to send to a previously approved vendor. ( Id. ) And he alleges that Defendant Taylor refused to remit a filing fee to federal court for a case in the Western District of Michigan, which resulted in his inability to receive proper Kosher meals. ( Id. at 22.)

Plaintiff Berryman also alleges that Defendant Ruhl-Anderson claimed that she found contraband in Plaintiff's area, which Plaintiff claims were hobbycraft popsicle sticks, but Defendant Culberson still found him guilty of the ticket "because she had to rely on the (other) officers to protect her while she was at work." ( Id. ) Plaintiff claims that Defendant Ruhl-Anderson told him to "file another grievance on me" if Plaintiff believed the ticket was improper. ( Id. )

Finally, Plaintiff Berryman alleges that on May 5, 2014, Defendant Funston came to his room told him he was "the inspector" and that he was there "to check [Plaintiff's] legal materials at the request of AGA Kummer regarding a lawsuit you have with a prisoner Connor's (sic)." ( Id. at 23.) Plaintiff alleges that Defendant Funston took his word processor and floppy disks with all of his legal materials on them. ( Id. )

Plaintiff Starling alleges that Defendants Freed, Ruhl-Anderson, Culberson, Vittitow, and Kedron, along with some other non-party officers, conspired to retaliate against him because he was friends with Plaintiff Berryman. Plaintiff alleges that in April of 2014, he was issued a Major Misconduct ticket and that he was found guilty of the misconduct without a hearing by Defendant Freed, the hearing investigator. Plaintiff Starling alleges that he attempted to contact Defendants Vittitow, Freed, and Culberson regarding the lack of a hearing but that none of them responded. And when Plaintiff asked non-party Sergeant Cichouski about the lack of a hearing, he said "you'll have to provide it, you like hanging with mister (sic) Berryman and filing grievances so much." ...

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