1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

PHILLIP BERRYMAN, et al., 

Plaintiffs, CIVIL ACTION NO. 14-CV-12593 

vs. DISTRICT JUDGE AVERN COHN 

MAGISTRATE JUDGE MONA K. MAJZOUB 

SCOTTY FREED, et al., 

Defendants. 

___________________________________________/ 

REPORT AND RECOMMENDATION 

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. '§ 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. 

 

1 Plaintiff Berryman is currently incarcerated at the Macomb Correctional Facility; 

Plaintiff Mora remains incarcerated at the Saginaw Correctional Facility; and Plaintiff Starling has 

been release on parole.

2:14-cv-12593-AC-MKM Doc # 35 Filed 04/20/15 Pg 1 of 10 Pg ID 228
2 

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 Background2

 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.) 

 

2 Plaintiffs each set forth separate factual allegations in their joint Complaint. (Compare

docket no. 1 at 19-25, with docket no. 1 at 39-42, and docket no. 1 at 53.)

2:14-cv-12593-AC-MKM Doc # 35 Filed 04/20/15 Pg 2 of 10 Pg ID 229
3 

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 

2:14-cv-12593-AC-MKM Doc # 35 Filed 04/20/15 Pg 3 of 10 Pg ID 230
4 

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.” 

(Docket no. 1 at 39.) Then, when he attempted to get a hearing report from the alleged hearing, 

Defendant Vittitow told him that if he kept asking, he “might find himself way up North.” (Id. at 

2:14-cv-12593-AC-MKM Doc # 35 Filed 04/20/15 Pg 4 of 10 Pg ID 231
5 

40.) 

Plaintiff Starling also alleges that Defendants Ruhl-Anderson and Kedron fabricated a 

false Major Misconduct allegation against him for allegedly giving his telephone PIN to another 

inmate, which resulted in a 180-day loss of phone privileges. Plaintiff alleges that Defendant 

Kedron told him “you need to watch who you write grievance on,” and non-party officer Randall 

told him “you’re getting into a big mess hanging out with prisoner Berryman, certain staff are 

going after you because of it.” (Id. at 40-41.) 

Plaintiff Mora alleges that he complained to the Assistant Resident Unit Supervisor in his 

unit about Defendant Reszke throwing Plaintiff Mora’s property on the floor and that in retaliation 

for doing so, Defendant Reszke charged him with theft and being out of place. Plaintiff Mora 

further alleges that he tried to get the hearing rules from Defendant Freed, but Defendant Freed 

refused to provide them. Defendant Culberson then took Plaintiff Mora to a hearing regarding the 

charges, refused to provide him with an interpreter, and then found Plaintiff Mora guilty. Plaintiff 

Mora alleges that he could not understand Defendant Culberson at the hearing and that she falsely 

stated that Plaintiff pled guilty. Plaintiff also notes that Defendant Reszke told him that he 

“should not be hanging out with Berryman.” (Docket no. 1 at 53.) 

B. Governing Law 

1. Motion to Sever

Under Rule 21, a court “may at any time, on just terms, add or drop a party. The court may 

also sever any claim against a party.” Fed. R. Civ. P. 21. District courts have broad discretion 

with regard to severance under Rule 21. See Deskovic v. City of Peekskill, 673 F.Supp.2d 154, 

159-60 (S.D.N.Y. 2009); United States v. O’Neil, 709 F.2d 361, 367 (5th Cir.1983). The moving 

2:14-cv-12593-AC-MKM Doc # 35 Filed 04/20/15 Pg 5 of 10 Pg ID 232
6 

party bears the burden of demonstrating that “severance is required to avoid prejudice or confusion 

and to promote the ends of justice.” See Bey v. City of N.Y., No. 99 Civ. 3873(LMM), 2009 WL 

1911742, at *1 (S.D.N.Y. June 30, 2009) (citing Lewis v. Triborough Bridge & Tunnel Auth., No. 

97 Civ. 0607(PKL), 2000 WL 423517, at *2 (S.D.N.Y. Apr. 19, 2000)). Moreover, when 

considering a Rule 21 motion to sever, courts look to Rule 20 for guidance. Coalition to Defend 

Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means 

Necessary v. Regents of the University of Michigan et. al, 701 F.3d 466, 489 (6th Cir. 2012); see 

also In re EMC Corp., 677 F.3d 1351, 1356 (Fed.Cir. 2012); Acevedo v. Allsup's Convenience 

Stores, Inc., 600 F.3d 516, 521 (5th Cir.2010); Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th 

Cir.1997). Under Rule 20(a)(1), joinder of Plaintiffs is proper if “(A) [the plaintiffs] assert any 

right to relief jointly, severally, or in the alternative with respect to or arising out of the same 

transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or 

fact common to all plaintiffs will arise in the action.” Fed.R.Civ.P. 20(a)(1). Similarly, joinder of 

Defendants is proper if “(A) any right to relief is asserted against [the defendants] jointly, 

severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or 

series of transactions or occurrences; and (B) any question of law or fact common to all defendants 

will arise in the action.” Fed. R. Civ. P. 20(a)(2). But courts also consider “(1) whether 

severance would serve judicial economy; (2) whether prejudice to the parties would be caused by 

severance; and (3) whether the claims involve different witnesses and evidence.” See, e.g., Kehr

v. Yamaha Motor Corp., 596 F.Supp.2d 821, 826 (S.D.N.Y.2008). 

2. Temporary Restraining Order 

Federal Rule of Civil Procedure Rule 65 authorizes the issuance of preliminary injunctions 

2:14-cv-12593-AC-MKM Doc # 35 Filed 04/20/15 Pg 6 of 10 Pg ID 233
7 

and temporary restraining orders. The Court may issue a temporary restraining order to preserve 

the status quo until it has had an opportunity to determine whether a preliminary injunction should 

issue. First Tech. Safety Sys, Inc. v. Depinet, 11 F.3d 641, 650 (6th Cir. 1993). “A preliminary 

injunction is an extraordinary remedy which should be granted only if the movant carries his or her 

burden of proving that the circumstances clearly demand it.” Overstreet v. Lexington-Fayette 

Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002) (citation omitted). In deciding a motion for 

a preliminary injunction, the court should consider whether (1) the movant has shown a strong or 

substantial likelihood of success on the merits; (2) the movant will suffer irreparable injury 

without the injunction; (3) the preliminary injunction will cause substantial harm to others; and (4) 

the public interest will be served if the injunction issues. Id. (citation omitted). While these 

factors are to be balanced, the failure to show a likelihood of success on the merits is generally 

fatal. Id. See also Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir. 2000). 

C. Analysis 

1. Defendants’ Motion to Sever

Through their Motion to Sever, Defendants argue that Plaintiffs each raise separate claims 

against divergent groups of defendants, even though there are overlapping defendants and 

Plaintiffs each allege some sort of retaliation claim. Thus, Defendants contend, Plaintiffs are 

improperly joined under Rule 20(a)(1), and Defendants are improperly joined under Rule 20(a)(2). 

(See docket no. 30.) Plaintiffs assert, though separate responses, that their claims are not 

improperly joined because they allege that (1) Defendants acted in concert to retaliate against 

Plaintiff Berryman for his filing of grievances against Defendants and other non-party officers, 

and (2) Defendants retaliated against Plaintiffs Starling and Mora because of their friendships with 

2:14-cv-12593-AC-MKM Doc # 35 Filed 04/20/15 Pg 7 of 10 Pg ID 234
8 

Plaintiff Berryman. (See docket nos. 31, 32, and 34.) 

Although Plaintiffs’ claims are arguably related because of the underlying connection to 

Plaintiff Berryman, the claims by Plaintiffs Mora and Starling are analytically and factually 

distinct from those of Plaintiff Berryman. As Defendants correctly note, “Plaintiff Berryman’s 

claims are against Defendants Freed, Exelby, Funston, Taylor, Neff, Ruhl-Anderson, Culberson, 

and Elkins [for] allegedly [filing] false misconduct tickets, interference with access to the courts, 

retaliation, conspiracy, and destruction/confiscation of documents;” while Plaintiffs Starling’s 

claims are against “Defendants Freed, Ruhl-Anderson, Culberson, Vittitow and Kedron [for] 

allegedly [filing a] false misconduct ticket, conspiracy to destroy or deny evidence, and 

retaliation;” and Plaintiff Mora’s claims are “against Defendants Freed, Reszke, and Culberson 

[for] writ[ing] a retaliatory misconduct ticket . . . and [denying him] an interpreter at the hearing.” 

(Docket no. 30 at 5-6.) Moreover, Plaintiff Berryman alleges that Defendants’ retaliation is based 

on his filing of grievances while Plaintiffs Starling and Mora allege that Defendants’ retaliation is 

based on their friendship with Plaintiff Berryman. Thus, while some of Plaintiffs’ claims and 

arguments may be similar and may require the testimony of related witnesses, the questions of law 

and fact are not common to all of the Plaintiffs or all of the Defendants. Therefore, the Court 

should grant Defendants’ Motion to sever and dismiss Plaintiffs Starling and Mora from this 

matter, without prejudice. Additionally, Plaintiff Berryman should be required to pay the 

remaining filing fee that was originally split between the Plaintiffs. 

2. Plaintiffs’ Motion for a Temporary Restraining Order

Without any further development of their argument, Plaintiffs generally assert that they 

will be transferred from SRF in retaliation for their filing of the instant lawsuit, that Defendants 

2:14-cv-12593-AC-MKM Doc # 35 Filed 04/20/15 Pg 8 of 10 Pg ID 235
9 

“have a practice and custom” of doing so, and that Plaintiffs “will suffer immediate and irreparable 

harm and lack of adequate remedy at law unless the Defendants . . . are prevented from continuing 

in such conduct and from further retaliation.” (Docket no. 5.) Notably, Plaintiffs Berryman and 

Starling have already been transferred from SFR, and Plaintiff Starling has been released on 

parole. Thus, Plaintiffs’ instant Motion is moot with respect to those individual Plaintiffs. 

Moreover, Plaintiffs have failed to make any argument with regard to the factors that the Court is 

to consider with regard to a Motion for TRO. Thus, they have failed to meet their burden in this 

matter. Plaintiffs’ Motion should be denied.

D. Conclusion 

For the reasons stated above, 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.) 

III. Notice to Parties Regarding Objections 

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

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 E.D. Mich. LR 72.1(d)(2). Failure to file specific 

objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 

(1985); Howard v. Sec=y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United States 

v. Walters, 638 F.2d 947 (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 

2:14-cv-12593-AC-MKM Doc # 35 Filed 04/20/15 Pg 9 of 10 Pg ID 236
10 

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 E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this 

Magistrate Judge. 

Any objections must be labeled as AObjection #1,@ AObjection #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 

AResponse to Objection #1,@ AResponse to Objection #2,@ etc. 

Dated: April 20, 2015 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 Plaintiffs Philip Berryman, Charles Starling, and Daniel Mora on this date. 

Dated: April 20, 2015 s/ Lisa C. Bartlett 

Case Manager 

2:14-cv-12593-AC-MKM Doc # 35 Filed 04/20/15 Pg 10 of 10 Pg ID 237