United States District Court, E.D. Michigan, Southern Division
Cohn, District Judge
REPORT AND RECOMMENDATION TO DENY DEFENDANTS'
MOTION FOR PARTIAL SUMMARY JUDGMENT (DE 23) and TO DENY
PLAINTIFF'S MOTION FOR BENCH TRIAL ON EXHAUSTION DISPUTE
ANTHONY P. PATTI, UNITED STATES MAGISTRATE JUDGE
reasons stated below, the Court should DENY
Defendants' January 23, 2019 motion for partial summary
judgment (DE 23) and DENY Plaintiff's
February 12, 2019 motion for bench trial on exhaustion
dispute (DE 26).
Donald Burley is currently incarcerated at the MDOC's
Oaks Correctional Facility (ECF), where he is serving a
sentence imposed on February 22, 2006 in No. 04013795-FC-A
(Genesee County). This case was appealed in state court on
several occasions. See People v. Burley, No. 133517,
478 Mich. 930, 732 N.W.2d 916 (June 26, 2007); People v.
Burley, No. 141516, 488 Mich. 1045, 794 N.W.2d 589 (Mar.
8, 2011); and, People v. Burley, No. 154241, 500
Mich. 959, 891 N.W.2d 870, 871 (Apr. 4, 2017).
the way, Burley is or has been a party to quite a few
lawsuits in this Court. See Burley v. Prelesnik
(2:11-cv-11258-AC-MJH) (habeas corpus);Burley v.
Miller, et al. (2:15-cv-12637-DML-MKM) (prisoner civil
rights); Burley v. Quiroga, et al.
(2:16-cv-10712-GCS-PTM) (prisoner civil rights); Burley
v. Abdellatif, et al. (2:16-cv-12256-AJT-DRG) (prisoner
civil rights); Burley v. Rider et al.
(2:17-cv-10110-PDB-APP) (prisoner civil rights); Burley
v. Knickerbocker, et al. (2:18-cv-12625-GAD-MKM)
(prisoner civil rights); and, Burley v. Corizon Health,
Inc., et al. (2:19-cv-10370-DML-RSW) (prisoner civil
Burley is or has been a party to several Western District of
Michigan cases, including: (a) Burley v.
Martin, et al., 1:2012-cv-00308 (prison condition),
which involved an appeal to the Sixth Circuit (13-01599);
(b) Burley v. Leslie, et al.,
1:13-cv-00599-RJJ-RSK (W.D. Mich.) (prison condition);
(c) Burley v. Daniels, et al.,
1:15-cv-00570-RHB-PJG (W.D. Mich.) (prison condition); and,
(d) Burley v. Cooley, et al.,
1:15-cv-00320-RJJ-RSK (W.D. Mich.) (prison condition).
17, 2018, while incarcerated at Parnall Correctional Facility
(SMT), Burley filed the instant lawsuit against several
Macomb Correctional Facility (MRF) Defendants:
(a) Michelle Williams-Ward, an Assistant
Resident Unit Supervisor (ARUS); (b) Warden
Randall Haas; (c) Deputy Warden George
Stephenson; (d) Regina Jenkins-Grant, a
Resident Unit Manager (RUM); and, (e)
seemingly, “S. Williams, ” who later appeared as
“Carylon Williams.” (DE 1 at 1-3, 7, 17; see
also DE 16.)
of background, Plaintiff declares that, on March 19, 2015,
while he was incarcerated at Lakeland Correctional Facility
(LCF), he was approved for prisoner-to-prisoner mail with
Christopher Snow, who Plaintiff describes as “a civil
witness in People v. Leslie, 13-599[.]” (DE 1 at 7
¶ D, DE 27 at 26 ¶ 15.) This appears to be a
reference to Burley v. Leslie, et al.,
1:13-cv-00599-RJJ-RSK (W.D. Mich.).
claims to have arrived at MRF on March 26, 2015. (DE 1 at 17,
DE 27 at 24 ¶ 1.) While the text of Plaintiff's
complaint is somewhat difficult to navigate, it does describe
the “approximate time period” of the events
giving rise to Plaintiff's claims as “from June
 through March 2016.” (DE 1 at 6 ¶ C.)
Still, other pages of the complaint, coupled with its
attachments, suggest that a wider period of time is at issue,
which will be discussed in further detail below. At this
point, it suffices to say that Plaintiff's complaint
alleges claims based on, inter alia, retaliation and
access to courts. (DE 1 at 4, 6-7, 17.)
Pending Dispositive Motion
pending before the Court is the MDOC Defendants' January
23, 2019 motion for partial summary judgment. (DE 23.)
Specifically, Defendants argue that:
1. Summary judgment is warranted with
respect to most of Burley's claims due to his failure to
properly exhaust his administrative remedies with respect to
2. Summary judgment is warranted with
respect to Burley's claim that Defendant Williams denied
him access to the courts[, ] because the allegations in the
complaint do not present a cognizable claim.
(DE 23 at 13-24).
Plaintiff has filed both a motion for a bench trial on
exhaustion dispute (DE 26) and a response (DE 27). Defendants
have filed a combined reply / response (DE 29), and Plaintiff
has filed a sur-reply (DE 31), which was later approved by
the Court (DE 32).
Defendants have not shown that Plaintiff failed to exhaust
his available administrative remedies in accordance with 42
U.S.C. § 1997e(a) as to his claims against
Relevant subject matter and time period
complaint is purportedly based on several federal
constitutional or statutory rights, among which is access to
the courts, i.e., his right “to petition the
Government for a redress of grievances[, ]” under the
First Amendment, and retaliation. (DE 1 at 4.) As noted
above, the text of Plaintiff's complaint is somewhat
difficult to navigate, although it is replete with references
to retaliation and access to the Court. (See DE 1 at
this navigational difficulty, it makes sense that the events
underlying Plaintiffs claims against Defendants, each of whom
is identified as located at MRF, span a period of time
following his alleged March 26, 2015 arrival at MRF. (DE 1 at
2-3, 17.) When taking into consideration the pleading's
attachments, including the grievances identified below, the
relevant time period appears to include:
. Plaintiffs April 10, 2015 attempt to send
out legal mail, seemingly the subject of MRF-15-04-0704-15b
(DE 1 at 35-36, DE 23-2 at 93-97);
. Plaintiffs May 18, 2015 letter to
Stephenson, which bears the same date as the incident
underlying MRF-15-05-0955-17z (DE 1 at 23-24, 37; DE 23-2 at
. Plaintiffs June 12, 2015 attempt to send
out “3 parcels” of legal mail (to Heyns, Levin,
and Snyder) regarding No. 04013795-FC-A (Genesee County) (DE
1 at 25-27);
. Plaintiffs June 14, 2015 letter to
Stephenson and Haas regarding “continued denial of
access to courts & violations of policy by ARUS M.
Williams, ” (DE 1 at 33);
. Stephenson's June 18, 2015 reply to
prisoner correspondence (DE 1 at 34);
. Plaintiff's September 25, 2015 attempt
to send Step III grievance appeals, specifically Step III
grievances in MRF-15-06-01174-12d4 and MRF-15-07-012040-12I,
each of which was received at Step III on ...