UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TRAVIS MAY,

Plaintiff, Civil Action No.: 15-10785

Honorable Arthur J. Tarnow

v. Magistrate Judge Elizabeth A. Stafford

 

DANIEL HEYNS, et al., 

Defendants. 

__________________________________/

REPORT AND RECOMMENDATION TO DENY PLAINTIFF’S MOTION 

FOR SUMMARY JUDGMENT AND TO GRANT

PLAINTIFF’S MOTIONS FOR JURY TRIAL [ECF NOS. 78, 83, 84]

I. INTRODUCTION

Travis May, a state prisoner proceeding pro se, brings this 42 U.S.C. 

§ 1983 action against clinical manager Julia Hitchingham, social worker 

Sheri Pond, and Deputy Warden Willie Riley,1 alleging retaliation in 

violation of the First Amendment and the Americans with Disabilities Act 

(ADA), allegedly resulting in his termination from the Residential Substance 

Abuse Treatment (RSAT) program. [ECF No. 25]. Presently before the 

Court are May’s motion for summary judgment and motions for jury trial.

 1 In May’s amended complaint he also lists Daniel Heyns and Michael 

Eagen as defendants, but after an order was issued adopting in part and 

rejecting part this Court’s reports and recommendations, May’s claims are 

only against Hitchingham, Pond, and Riley. [ECF No. 70]. 
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[ECF Nos. 78, 83, 84]. For the following reasons, the Court

RECOMMENDS that May’s motion for summary judgment be DENIED, and 

that his motions for jury trial be GRANTED. 

II. BACKGROUND

May alleges in his amended complaint that “[t]he Michigan Parole 

Board issued an order of parole on July 5, 2012 with a projected release 

date of February 14, 2013[]” upon the condition that he “enter and complete 

the Residential Substance Abuse Treatment (RSAT) program.” [ECF No. 

25, PgID 123]. After entering the RSAT program, May filed numerous 

grievances claiming the conditions of the RSAT program violated MDOC’s 

policy directives. [Id.]. He claims that defendants had him terminated from 

the program, “in part,” as retaliation for writing those grievances. [Id.]. May 

also alleges that he is entitled to protection under the ADA due to his 

substance abuse disorder and that, once he “exhibited symptoms of his 

disease and dissatisfaction by writing grievances about the RSAT program 

conditions,” the defendants terminated him from the program. [Id., PageID 

124].

III. ANALYSIS

A.

"The Court shall grant summary judgment if the movant shows that 
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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 party 

seeking summary judgment bears the initial burden of informing the Court 

of the basis for its motion, and must identify particular portions of the record 

that demonstrate the absence of a genuine dispute as to any material fact. 

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Alexander v. 

CareSource, 576 F.3d 551, 558 (6th Cir. 2009). If the movant satisfies its 

burden, the burden shifts to the non-moving party to go beyond the 

pleadings and set forth specific facts showing a genuine issue for trial. 

Celotex, 477 U.S. at 324; Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 

453 (6th Cir. 2001). 

For his retaliation claim, May must demonstrate that he was excluded 

from the RSAT program at least in part because of the exercise of 

protected conduct. Siggers-El v. Barlow, 412 F.3d 693, 699 (6th Cir. 2005). 

He must show that he was excluded from the RSAT program due to his 

disability in order to establish his ADA claim. 42 U.S.C. § 12132. May does 

not satisfy his initial burden of providing the Court with evidence 

establishing that he was excluded from RSAT because of either retaliation 

or his disability; he simply reiterates in his motion for summary judgment 

the allegations that he made in his amended complaint. The exhibits he 
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attaches to his motion are devoid of evidentiary value with respect to the 

issues at hand. [ECF No. 78, PageID 345-67].

And in their response to May’s summary judgment motion, 

defendants set forth evidence that May was discharged from the RSAT 

because he was disruptive and uncooperative in his group therapy 

sessions. Pond asserts in her affidavit that she does “not recall the exact 

reason for Mr. May’s termination from the RSAT program,” but that he was 

“very disruptive to the therapeutic community and taking up time and 

resources from staff and his peers because of his attention-seeking 

behavior.” [ECF No. 80-2, PageID 391]. She further claims that May’s

termination from the RSAT program was not due to the grievances he filed. 

[Id.]. Similarly, Hitchingham, a RSAT Clinical Manager, claims that May’s 

uncooperative and disruptive behavior caused chaos in the group therapy 

session and that he was ultimately terminated from the RSAT program for 

lack of progress. [ECF No. 80-3, PageID 396]. In Deputy Warden Riley’s 

affidavit, he claims that May divulged confidential information from the 

therapy sessions to those outside of the group and that the sole reason he 

was removed was his own behavior. [ECF No. 80-4, PageID 401]. May’s 

RSAT removal form described him as creating chaos in the group, as well 

as asserting that he did not want to be in RSAT in the first place:
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Resident has caused chaos in RSAT since he was transferred 

into the program. He continuously talks about filing lawsuits 

and grievances against RSAT employees, the parole board, 

and the MDOC. He believes that he is imprisoned unlawfully by 

the parole board because they sent him to RSAT and made him 

go past his earliest release date. He has openly stated that he 

doesn’t want to be in RSAT and he has filed numerous 

grievances to get himself out of RSAT and he admits to 

attempting to sell his legal services to others, to help them get 

out of RSAT. This behavior causes chaos in the house 

because he bashes staff, MDOC, and the parole board to 

others in RSAT, and it causes the most detriment to new house 

members. . . . He is resisting most of his treatment. He has 

refused to engage in certain parts of treatment, for example, he 

refused to say the SHAR philosophy and participate in some 

morning and evening meets, which are required and not 

optional. . . . In group he goes off on tangents and isn’t easily 

redirected, as he talks over others. Resident has been told that 

he needs to focus on himself in treatment in order to get help, 

he hasn’t changed the behavior therefore he is not progressing 

in treatment and he is not getting the help he needs in RSAT. 

He told this therapist that she was going to have to kick him out 

of RSAT because he wasn’t going to sign out even though he 

didn’t want to be in RSAT. He then claimed he was threatened 

and wanted to lock up for his protection, a threat was not 

substantiated and resident was found to be dishonest. 

Resident is being terminated for lack of progress. 

[ECF No. 80-5, PageID 405]. 

So even if May had satisfied his initial burden, defendants have 

responded with specific evidence showing a genuine dispute for trial on the 

issue of why May was terminated from the RSAT program, and May’s 

motion for summary judgment should be denied.
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B.

May has also filed two motions for a jury trial. [ECF Nos. 83, 84]. 

Defendants did not respond. The Seventh Amendment guarantee of the 

right to a jury trial applies to actions seeking legal relief under Section 

1983, although a jury trial is not necessary for threshold issues such as 

jurisdiction, or matters of judicial administration such as whether claims are 

properly exhausted. City of Monterey v. Del Monte Dunes at Monterey, 

Ltd., 526 U.S. 687 (1999); Lee v. Willey, 789 F.3d 673, 678 (6th Cir. 2015). 

Here, May requests compensatory and punitive damages, which 

constitutes legal relief subject to the Seventh Amendment guarantee. [ECF 

No. 25, PageID 125]. 

Under Federal Rule of Civil Procedure 38(b)(1), May should have 

made his demand for a jury trial within 14 days after the last pleading, but 

Federal Rule of Civil Procedure 39(b) allows a court to order a jury trial 

even when it was not properly demanded. Given May’s pro se status and 

the absence of objection from defendants, May’s request for a jury trial 

should be granted.

IV. CONCLUSION

For the foregoing reasons, it is RECOMMENDED that May’s motion 

for summary judgment [ECF No. 78] be DENIED, and his motions for jury 
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trial [ECF Nos. 83, 84] should be GRANTED.

Dated: April 24, 2017 s/Elizabeth A. Stafford

Detroit, Michigan ELIZABETH A. STAFFORD

United States Magistrate Judge

NOTICE TO PARTIES REGARDING OBJECTIONS

Either party to this action may object to and seek review of this 

Report and Recommendation, but must act within fourteen days of service 

of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed. R. Civ. 

P. 72(b)(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. 

Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 

638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that party 

might have to this Report and Recommendation. Willis v. Secretary of 

HHS, 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). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

service of objections, the non-objecting party must file a response to 
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the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

limitation. If the Court determines that any objections are without merit, it 

may rule without awaiting the response.

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on April 24, 2017.

s/Marlena Williams

MARLENA WILLIAMS

Case Manager