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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

PHILLIP BERRYMAN, 

Plaintiff, CIVIL ACTION NO. 14-CV-12593 

vs. DISTRICT JUDGE AVERN COHN 

MAGISTRATE JUDGE MONA K. MAJZOUB 

SCOTTY FREED, et al., 

Defendants. 

___________________________________________/ 

REPORT AND RECOMMENDATION 

Plaintiff Philip Berryman,1 a prisoner at the Saginaw Correctional Facility at the time of 

his suit, filed this action under 42 U.S.C. '§ 1983, 1985, and 1988 against Defendants Scott Freed, 

Russell Vittitow, Leona Elkins, Michael Exelby, Nannie Culberson, Karen Kedron, Fay Taylor, 

Fred Funston, Kristopher Reszke, Adriane Neff, and Margaret Ruhl-Anderson, alleging that they 

conspired to retaliate against Plaintiff in violation of his “right to substantive due process under the 

First and Fourteenth Amendments,” his “right to procedural due process rights under the 

Fourteenth Amendment, his “rights to due process and a fair trial under the Fifth and Sixth 

Amendments,” his “rights to due process and a fair hearing/trial under the First, Fifth and Sixth 

Amendments,” and his “right against continued seizure without probable cause under the Fourth 

Amendment.” (See docket no. 1.) Plaintiff seeks compensatory damages, punitive damages, 

and any other relief that the Court deems appropriate. 

Before the Court is Defendant Adriane Neff’s Motion for Summary Judgment. (Docket 

 

1

 Plaintiff was originally joined by two additional plaintiffs, but the Court has severed 

Plaintiffs’ claims and dismissed the two other plaintiffs from this action. (Docket no. 42.)

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no. 64.) Plaintiff filed a Response to the Motion (docket no. 65), and Defendant Neff filed a 

Reply (docket no. 66). Plaintiff then filed a Response to Defendant Neff’s Reply.2

 (Docket no. 

67.) 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 Eastern 

District of Michigan Local Rule 7.1(f)(2), and issues this Report and Recommendation. 

I. Recommendation

 For the reasons that follow, it is recommended that Defendant Neff’s Motion for Summary 

Judgment (docket no. 64) be GRANTED, and that all claims against Defendant Neff be 

DISMISSED. 

II. Report

A. Background3

 

Defendant Neff is a physician’s assistant who worked for the Michigan Department of 

Corrections (MDOC) at the G. Robert Cotton Correctional Facility in Jackson, Michigan (JCF), 

from July 2009 until May 2013. (Docket no. 64-2 at 2.) Plaintiff’s claims against Defendant 

Neff primarily relate to a medical procedure Defendant Neff attempted to perform on Plaintiff in 

December 2010, when Plaintiff was incarcerated at JCF. According to Defendant Neff, Plaintiff 

had an ingrown hair on his chin that became infected. Defendant Neff first prescribed antibiotics, 

but then decided that she should perform an incision and drainage (I&D) procedure. (Docket no. 

64-2 at 2.) Defendant Neff claims that, during the procedure, Plaintiff reached up and grabbed 

 

2 Also pending before the Court is the MDOC Defendants’ Motion for Summary Judgment (docket 

no. 78), which the undersigned will address at a later date. 

3

 The undersigned only includes the factual and procedural history relevant to the issues raised by 

Defendant Neff’s Motion for Summary Judgment and Plaintiff’s responses. 

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her breast, which startled her and caused her to accidentally cut herself with a scalpel she was 

holding for the procedure. (Id. at 3.) Defendant Neff completed a misconduct report regarding 

the incident, and a hearing was held. (Docket no. 64-3.) Plaintiff was found guilty of sexual 

assault and assault and battery, and sentenced to 60 days of detention on December 16, 2010. 

(Id.) 

Plaintiff claims that Defendant Neff fabricated the sexual assault story to retaliate against 

Plaintiff because Plaintiff had previously filed grievances against Defendant Neff’s “Homosexual 

Lover.” (Docket no. 1 at 29.) He also alleges that Defendant Neff’s decision to perform the I&D 

was part of a plan to “Cut Plaintiff’s Face trying to kill him,” also in retaliation for Plaintiff’s 

previously filed grievances. (Id.) Finally, Plaintiff alleges that Defendant Neff “and/or other 

Defendant members conspired together to overcome the intentional destruction/confiscation and 

denial of Plaintiff’s records and files, by fabricating evidence, concealing impeaching and 

exculpatory evidence.” (Id. at 34.) 

Defendant Neff filed her Motion for Summary Judgment on March 23, 2016. (Docket no. 

64.) She argues that Plaintiff’s claims against her are barred by the statute of limitations and 

because Plaintiff did not exhaust his administrative remedies as is required by the Prison Litigation 

Reform Act, 42 U.S.C. § 1997e(a). She further argues that Plaintiff offers no support for his 

“utterly preposterous claim” that Defendant Neff fabricated the sexual assault, and that the 

conspiracy claim fails because Plaintiff does not attribute any specific wrongdoing to Defendant 

Neff. (Docket no. 64 at 17-21). 

As explained below, the undersigned concludes that all claims against Defendant Neff are 

barred by the applicable statute of limitations. The other possible grounds for dismissal of 

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Plaintiff’s claims against Defendant Neff are therefore not addressed in this Report and 

Recommendation. 

B. Governing Law 

Summary judgment is appropriate where the moving party 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). The moving party has the burden of showing an absence of evidence to support the 

non-moving party’s case. Covington v. Knox Cty. Sch. Sys., 205 F.3d 912, 915 (6th Cir. 2000). 

Rule 56 expressly provides that: 

A party asserting that a fact cannot be or is genuinely disputed must support 

the assertion by: 

(A) citing to particular parts of materials in the record, including 

depositions, documents, electronically stored information, affidavits or 

declarations, stipulations (including those made for purposes of the motion only), 

admissions, interrogatory answers, or other materials; or 

(B) showing that the materials cited do not establish the absence or presence 

of a genuine dispute, or that an adverse party cannot produce admissible evidence 

to support the fact. 

 

Fed. R. Civ. P. 56(c)(1). “The court need consider only the cited materials, but it may 

consider other materials in the record.” Fed. R. Civ. P. 56(c)(3). 

Once the moving party has met its burden of production, the non-moving party must come 

forward with significant probative evidence showing that a genuine issue exists for trial. 

Covington, 205 F.3d at 915. A mere scintilla of evidence is insufficient to defeat a properly 

supported motion for summary judgment; rather, “there must be evidence on which the jury could 

reasonably find for the [non-moving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 

(1986). Ultimately, a district court must determine whether the record as a whole presents a 

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genuine issue of material fact, drawing “all justifiable inferences in the light most favorable to the 

non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 

(1986); Hager v. Pike Cty. Bd. of Educ., 286 F.3d 366, 370 (6th Cir. 2002). 

C. Analysis

 Defendant Neff argues that she is entitled to summary judgment because the undisputed 

facts show that Plaintiff’s claims against her are barred by the applicable statute of limitations. 

(Docket no. 64 at 19-20.) 

 A plaintiff must commence suit within the time prescribed under the applicable statute of 

limitations in order to avoid the statute of limitations bar. Plaintiff attempts to state claims against 

Defendant Neff under 42 U.S.C. §§ 1983 and 1985. Because 42 U.S.C. §§ 1983 and 1985 do not 

provide their own statutes of limitations, federal courts borrow the analogous limitations period 

from the forum state. Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir. 2005). The Sixth 

Circuit has held that Michigan’s three-year statute of limitations for general personal injury claims 

found in Mich. Comp. Laws § 600.5805(10) is the applicable statute of limitations for § 1983 

claims. McCune v. City of Grand Rapids, 842 F.2d 903, 905 (6th Cir. 1988). Claims filed under 

42 U.S.C. § 1985 are also subject to a three-year limitations period. See Bates v. Colony Park 

Ass’n, 393 F. Supp. 2d 578, 591 (E.D. Mich. 2005) (holding that state-law claims for conspiracy 

are subject to a three-year statute of limitations in Michigan); see also Phifer v. City of Grand 

Rapids, 657 F. Supp. 2d 867, 873 (W.D. Mich. 2009) (“[C]laims under §§ 1981, 1983, and 1985 

are governed by Michigan’s three-year statute of limitations for personal injury actions . . . .”) 

(citing Wolfe v. Perry, 412 F.3d 707, 714 (6th Cir. 2005)); Krum v. Sheppard, 255 F. Supp. 994, 

998 (W.D. Mich. 1966) (holding that § 1985 conspiracy claims are subject to the three-year statute 

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of limitations for personal injury claims in Michigan, explaining that “the damages resulting from 

a deprivation of civil rights are injuries to the person,” and that “[t]herefore, the claim of a 

conspiracy to deprive the plaintiff of his civil rights is also a claim of ‘injuries to the person’ within 

the ordinary meaning of that term.”), aff’d, 407 F.2d 490 (6th Cir. 1967). 

Although statutes of limitation are governed by state law, the question of when civil rights 

claims accrue remains one of federal law. Wallace v. Kato, 549 U.S. 384, 388 (2007) (“While we 

have never stated so expressly, the accrual date of a § 1983 cause of action is a question of federal 

law that is not resolved by reference to state law.”); LRL Properties v. Portage Metro Hous. Auth., 

55 F.3d 1097, 1107 (6th Cir. 1995). “Under federal law as developed in this Circuit, [a cause of 

action accrues] and the statute of limitations period begins to run when the plaintiff knows or has 

reason to know that the act providing the basis of his or her injury has occurred.” Collyer v. 

Darling, 98 F.3d 211, 220 (6th Cir. 1996) (citing Friedman v. Estate of Presser, 929 F.2d 1151, 

1159 (6th Cir. 1991)). 

Plaintiff filed the instant complaint on July 1, 2014. (Docket no. 1.) Plaintiff states that 

the “main allegation” against Defendant Neff is that she “intentionally conspired with others to 

KILL Plaintiff and in her attempt she stabbed and cut him in the face thereby causing damage to 

the nerve muscles in chin and jaw areas.” (Docket no. 67 at 4.) The attempted I&D procedure 

occurred on December 9, 2010. (Docket no. 64-3 at 2.) Any conspiring to kill Plaintiff during 

the procedure would necessarily have occurred prior to that date. Plaintiff also alleges some sort 

of conspiracy between Defendant Neff and others to fabricate the sexual assault and destroy 

evidence supporting Plaintiff’s version of events. (See docket no. 65 at 4 (facts “clearly 

demonstrate[] that Defendant Neff’s plan was to lure Plaintiff Berryman into a secluded area with 

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the intentions of KILLING him, and/or in order to set him up with false charges”).) The 

misconduct hearing relating to the sexual assault occurred on December 16, 2010; therefore, any 

fabrication of evidence or conspiracy to “set Plaintiff up” would necessarily have occurred prior to 

that date. 

Moreover, Plaintiff would have been aware of Defendant’s Neff’s alleged attack on him on 

December 10, 2010, as it was happening, and he would have become aware of any allegedly 

fabricated evidence during the misconduct hearing on December 17, 2010. Thus, Plaintiff’s 

claims accrued, at the latest, by December 16, 2010. Plaintiff does not argue otherwise. Indeed, 

his only reasonably well-developed response to Defendant Neff’s argument is that the running of 

the limitations period was tolled when he filed a previous lawsuit against Defendant Neff. He 

references a case “filed in the beg[inning] part of the year 2013, before the Honorable Victoria 

Roberts United States Federal District Judge,” which appears to be case no. 13-12403. (Docket 

no. 65 at 5.) However, that case was filed on May 31, 2013, and was dismissed without prejudice 

on July 11, 2013. See Berryman v. Neff, 13-12403, docket no. 8 at 1-3, 12 (E.D. Mich. July 11, 

2013). Even if that case was pending long enough to bring Plaintiff’s claims within the 

limitations period (which it was not), the statute of limitations is not tolled while a complaint that is 

later dismissed without prejudice is pending, as a dismissal without prejudice “‘leaves the situation 

the same as if the suit had never been brought.’” Portman v. Wilson, No. 10-CV-169-KSF, 2010 

WL 2870050, at *7 (E.D. Ky. Jul. 19, 2010) (quoting Wilson v. Grumman Ohio Corp., 815 F.2d 

26, 27-28 (6th Cir. 1987)). Defendant Neff points out another case Plaintiff filed, in the Western 

District of Michigan on April 25, 2012. However, that case was also dismissed without prejudice 

(after pending for 161 days), and therefore also did not toll the running of the limitations period. 

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See Crawford v. Prison Health Servs., case no. 1:12-cv-00409, docket no. 47 (W.D. Mich. Oct. 3, 

2012). 

 Plaintiff also argues in passing that the actions taken by Defendant Neff are part of a 

“continuing violation” of his rights, such that the later violations committed by other defendants 

would bring Defendant Neff’s alleged violations into the limitations period. (See Docket no. 65 

at 6.) The “continuing violation” doctrine, however, is no longer available to plaintiffs like Mr. 

Berryman, who allege a series of discrete violations of their civil rights and attempt to rely on the 

timeliness of the later-arising claims to save their untimely claims. See Sharpe v. Cureton, 319 

F.3d 259, 268 (6th Cir. 2003) (discussing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 

(2002), and holding, “Morgan overturns prior Sixth Circuit law addressing serial violations, i.e., 

plaintiffs are now precluded from establishing a continuing violation exception [to the statute of 

limitations] by proof that the alleged acts of discrimination occurring prior to the limitations period 

are sufficiently related to those occurring within the limitations period.”). Moreover, there is at 

least a fifteen month gap between the time of the events involving Defendant Neff, which occurred 

in December 2010, and those involving the other defendants, which begin in March 2012, and 

continue through May 2014. (See Docket no. 1 at 19-24.) Plaintiff fails to explain how his 

claims against Defendant Neff are part of a “continuing violation” in light of such a significant 

time gap. 

 Accordingly, because the claims asserted against Defendant Neff are time-barred, the 

undersigned recommends that these claims be DISMISSED. 

III. NOTICE TO PARTIES REGARDING OBJECTIONS 

The parties to this action may object to and seek review of this Report and 

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Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as 

provided for in 28 U.S.C. § 636(b)(1) and Eastern District of Michigan Local Rule 72.1(d). 

Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. 

Arn, 474 U.S. 140, 149 (1985); Howard v. Sec’y of Health & Human Servs., 932 F.2d 505 (6th Cir. 

1991); U.S. v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). Filing of objections which raise 

some issues, but fail to raise others with specificity, will not preserve all the objections a party 

might have to this Report and Recommendation. Willis v. Sec’y of Health & Human Servs., 931 

F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 

(6th Cir. 1987). Pursuant to Eastern District of Michigan Local Rule 72.1(d)(2), a copy of any 

objections is to be served upon this Magistrate Judge. 

Any objections must be labeled as “Objection #1,” “Objection #2,” etc. Any objection 

must recite precisely the provision of this Report and Recommendation to which it pertains. Not 

later than fourteen days after service of an objection, the opposing party must file a concise 

response proportionate to the objections in length and complexity. The response must 

specifically address each issue raised in the objections, in the same order and labeled as “Response 

to Objection #1,” “Response to Objection #2,” etc. 

Dated: January 19, 2017 s/ Mona K. Majzoub 

 MONA K. MAJZOUB 

UNITED STATES MAGISTRATE JUDGE 

PROOF OF SERVICE 

I hereby certify that a copy of this Report and Recommendation was served on counsel of 

record and on Plaintiff Philip Berryman on this date. 

Dated: January 19, 2017 s/ Lisa C. Bartlett 

Case Manager 

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