UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Neil Emery and

Ryan Burgdorf, 

Plaintiffs,

v. Case No. 15-11113

Joseph R. Burtch, Honorable Sean F. Cox

Magistrate Judge David R. Grand 

Defendant.

_________________________________/

ORDER ACCEPTING AND ADOPTING 

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

This is a prisoner civil rights case. Plaintiffs Neil Emery (“Emery”) and Ryan Burgdorf

(“Burgdorf”) (collectively “Plaintiffs”) allege that Defendant Dr. Joseph Burtch (“Burtch”)

sexually assaulted them, in violation of their Eighth Amendment right to be free from cruel and

unusual punishment. At all relevant times, Plaintiffs were incarcerated at the Central Michigan

Correctional Facility in St. Louis, Michigan (“STF”). (Doc. #12 at ¶¶ 1-2). Burtch, the sole

defendant in this case, is a physician for a private medical contractor and treated Plaintiffs during

their incarceration at STF. Id. at ¶¶ 3, 6, 25. 

On July 1, 2015, this Court referred all pretrial matters to Magistrate Judge David R.

Grand pursuant to 28 U.S.C. 636(b)(1)(A) and (b)(1)(B). (Doc. #6). On July 7, 2015, Burtch

filed a motion to dismiss Plaintiff’s complaint. (Doc. #9). On July 29, 2015, Plaintiffs filed a

response to the motion (Doc. #11) and a separate motion for leave to amend their complaint,

including a proposed amended complaint. (Doc. #12, 12-1). On August 18, 2015, after the

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motion to dismiss had been fully briefed, Plaintiffs filed supplemental authority with the

Court–Crawford v. Cuomo, 796 F.3d 252 (2d Cir. 2015)–which was decided on August 11,

2015. (Doc. #14). Because Burtch’s reply brief failed to address the allegations in the amended

complaint or the significance of the Crawford decision, Magistrate Judge Grand issued a Report

and Recommendation (“R&R”) recommending dismissal of Burtch’s motion without prejudice. 

(Doc. #15). This Court filed an Order Accepting and Adopting the R&R on November 24, 2015. 

(Doc. #19). 

On November 12, 2015, Burtch filed a motion to dismiss Plaintiff’s amended complaint. 

(Doc. #18, Def.’s Br.). Plaintiff’s filed a response to the motion on November 29, 2015. (Doc.

#20). Burtch filed a reply on December 4, 2015. (Doc. #21). Magistrate Judge Grand

determined that a hearing was not necessary. See E.D. Mich. L.R. 7.1(f). 

On January 15, 2016, Magistrate Judge Grand issued a Report and Recommendation,

wherein he recommended that this Court DENY Burtch’s motion to dismiss. (Doc. #22, R&R). 

Burtch timely objected to the R&R on January 27, 2016. (Doc. #23, Def.’s Objs.). Plaintiffs

responded to Burtch’s motion on February 12, 2016. (Doc. #25, Pl.s’ Resp.). Burtch filed a

reply on February 18, 2016. (Doc. #26, Def.’s Reply). 

The Court finds Burtch’s objections to be without merit. Therefore, the Court shall

ADOPT the R&R and DENY Burtch’s Motion to Dismiss. 

STANDARD OF REVIEW 

Pursuant to Federal Rule of Civil Procedure 72(b), a party objecting to the recommended

disposition of a matter by a Magistrate Judge must file objections to the R&R within fourteen

(14) days after being served with a copy of the R&R. FED. R. CIV. P. 72(b)(2). Objections must

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“(A) specify the part of the order, proposed findings, recommendations, or report to which a

person objects; and (B) state the basis for the objection.” E.D. MICH. LR 72.1(d). Objections are

not “a second opportunity to present the argument already considered by the Magistrate Judge.” 

Betancourt v. Ace Ins. Co. of Puerto Rico, 313 F. Supp. 2d 32, 34 (D.P.R. 2004). Moreover, the

district court should not consider arguments that have not first been presented to the magistrate

judge. See Stonecrest Partners, LLC v. Bank of Hampton Roads, 770 F. Supp. 2d 778, 785

(E.D.N.C. 2011). 

“The district judge must determine de novo any part of the magistrate judge’s disposition

that has been properly objected to. The district judge may accept, reject, or modify the

recommended disposition; receive further evidence; or return the matter to the magistrate judge

with instructions.” FED. R. CIV. P. 72(b)(3). 

ANALYSIS

In his motion to dismiss, Burtch argued that Plaintiffs’ allegations failed to satisfy the

objective and subjective prongs of the Eighth Amendment test. According to Burtch, the alleged

contact with Plaintiffs was not objectively harmful and did not display a sufficiently culpable

state of mind. In arguing that the objective prong was not met, Burtch relied primarily on the

Sixth Circuit’s decision in Jackson v. Madery, 158 F. App’x 656 (6th Cir. 2005). Specifically,

Burtch argued that the alleged conduct at issue was not sufficiently serious because it was

isolated, brief, and not severe.1

 Burtch went on to conclude that even after the Second Circuit’s

1

In Jackson, the court found that under circumstances where the alleged conduct was

isolated (happened only once), brief (lasting less than one minute), and “not severe” (resulted in

no bodily injury), the objective prong of the Eighth Amendment test was not satisfied because

the conduct was not sufficiently serious. Jackson, 158 F. App’x at 662. 

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decision in Crawford, the conduct at issue still did not give rise to a constitutional violation. 

(Def.’s Br. at 3, 7, 12). 

Magistrate Judge Grand disagreed with Burtch on each point. The R&R first provides

that an Eighth Amendment claim involves two elements: (1) the prisoner must allege that the

conduct was objectively “harmful enough” or sufficiently serious to establish a constitutional

violation; and (2) the prisoner must allege that the defendant acted with subjectively “sufficiently

culpable state of mind.” (R&R at 4-5) (internal citations omitted). The R&R concludes that

both the objective and subjective prongs have been met here. 

As to the objective prong–Magistrate Judge Grand noted that the Sixth Circuit’s opinion

in Jackson does not require dismissal of Plaintiff’s claims. Id. at 6-7. In so doing, the R&R

points out that the Sixth Circuit in Jackson relied extensively on the Second Circuit’s decision in

Boddie v. Schnieder, 105 F.3d 857 (2d Cir. 1997). The R&R also notes that the Second Circuit

has since clarified that Boddie stands for the proposition that a “single incident of sexual abuse,

if sufficiently severe or serious, may violate an inmate’s Eighth Amendment rights no less than

repetitive abusive conduct.” Crawford, 796 F.3d at 257. As to the subjective prong–the R&R

concludes that Plaintiffs’ allegations, taken as true, adequately allege that Burtch acted for the

purpose of arousing or gratifying his sexual desire. Id. at 11. 

Burtch has lodged two objections to the January 15, 2016 R&R. The Court finds that

Burtch has not asserted any proper objections to the R&R. As explained below, Burtch’s

objections advance the same arguments that Magistrate Judge Grand has already rejected without

pointing to a specific deficiency in the R&R’s reasoning. Additionally, the Court agrees with the

Magistrate Judge’s analysis as to the issues challenged. 

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I. Objection 1

Burtch’s first objection largely serves as a recitation of arguments advanced before, and

properly rejected by, the Magistrate Judge. Here, Burtch challenges the R&R’s conclusion that

Plaintiffs’ allegations satisfy the objective prong of the Eighth Amendment test. First, Burtch

takes issue with the Magistrate Judge’s reliance on Crawford and proceeds to distinguish the

facts in Crawford from the facts presently before the Court. (Def.’s Objs. at 2-4). Burtch then

summarily asks that the Court reject the R&R “because the decision is contrary to, contradicts,

and ignores applicable case precedent.” Id. at 5. 

As to the insinuation that the Magistrate Judge improperly considered Crawford when

determining whether the objective prong had been satisfied, the R&R correctly notes: 

As Burtch points out, Crawford is not binding on this Court; it is, however, quite

relevant to the Court’s consideration of the instant motion. In interpreting Boddie

and broadening the scope of sexual abuse that may rise to the level of a

Constitutional violation, the Crawford court noted that “sexual abuse of prisoners,

once passively accepted by society, deeply offends today’s standards of decency. 

The proper application of the rule in Boddie must reflect these standards.” 

Crawford, 796 F.3d at 254. This Court sees no reason why this same conclusion

would not apply here. Given that the Jackson court explicitly noted that the

objective element of an Eighth Amendment claim is contextual and responsive to

contemporary standards of decency, and that the Sixth Circuit previously relied

heavily on Second Circuit precedent on this issue, Crawford is quite instructive in

the instant case. 

(R&R at 7). Aside from pointing out that Crawford is not binding, Burtch has not identified any

deficiency in the Magistrate’s reasoning as to this point. 

Moreover, to the extent that Burtch is arguing that the conduct in Crawford is

distinguishable from the conduct at issue here, (Def.’s Objs. at 3-4; see also Def.’s Br. at 14),

Magistrate Judge Grand has already pointed out that “[t]his argument misses the mark.” Id. at 7. 

The R&R specifically states that: 

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The Crawford court did not hold that a Constitutional violation occurs only when

inappropriate contact is made with an inmate’s ‘genitalia’ or ‘their intimate

areas,’ as Burtch suggests. To the contrary, the court specifically stated that when

a prison official “intentionally brings his or her genitalia into contact with the

inmate in order to arouse or gratify the officer’s sexual desire or humiliate the

inmate, a violation is self-evident because there can be no penological

justification for such contact.” Here, where Plaintiffs allege that Burtch

brought his penis into contact with their knees, moved his hips from left to

right, and became sexually aroused, the conduct at issue falls squarely within

the confines of Crawford.

(R&R at 7-8) (emphasis added) (internal citations omitted). 

Burtch further argues that each case cited by him includes attempts by the plaintiffs to

“escape the situation” or “threatening remarks” by the defendants. This, too, has already been

rejected by Magistrate Judge Grand: 

Finally, Burtch argues that the conduct at issue was not sufficiently serious

simply because Plaintiffs “neither protested to, nor made affirmative movements

away from [Burtch’s] alleged unwelcomed contact.” However, Burtch cites no

case law in support of the proposition that conduct fails the objective prong of the

Eighth Amendment inquiry if it is not immediately protested, and such a

proposition is untenable.

. . . . 

Burtch has not cited any case law for the proposition that a “verbal statement” of

intent of harm is required, and the Court is not aware of any. 

(R&R at 9-10). Rather than point to any deficiency in the Magistrate Judge’s reasoning, Burtch

unpersuasively states, that while “[t]hreatening remarks, sexually suggestive comments, or

attempts to object may not be the rule ... they have certainly been the custom.” (Def.’s Objs. at

5). Burtch has not presented any argument that persuades this Court to reject Magistrate Judge

Grand’s conclusions. Accordingly, Burtch’s first objection is overruled. 

II. Objection 2

Burtch’s second objection also serves as a recitation of the arguments advanced before,

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and properly rejected by, the Magistrate Judge. Here, just as in his motion, Burtch takes issue

with the conclusion that Plaintiffs’ allegations satisfy the subjective prong of the Eighth

Amendment test. (Def.’s Objs. at 5). 

Burtch asserts that allowing “Plaintiffs to make bold accusations without any

corroborating pleadings, such as accusing the aggressor of making verbal statements showing a

subjective intent to humiliate or gain sexual gratification, gives prisoners carte blanche to

besmirch the reputations of healthcare professionals and prison workers with impunity.” Id. at 6

(emphasis in original). Burtch argues that the allegations here are an indication of Plaintiffs’

own subjective interpretation of what occurred rather than Burtch’s subjective intent.2

 Id.

Burtch contends that Plaintiffs have not alleged how becoming aroused or being erect

demonstrates the subjective intent to gain sexual gratification. Id. at 7-8. Burtch further notes

that doctors must necessarily make physical contact with their patients in order to perform their

jobs, and concludes that “if the alleged series of events even occurred at all, [Burtch’s] alleged

conduct was innocent or inadvertent.” Id. at 6, 8. 

Magistrate Judge Grand properly found Burtch’s arguments unpersuasive. Again,

Magistrate Judge Grand correctly pointed out that Burtch failed to cite a single case, which

stands for the proposition that a “verbal statement” of intent is required to satisfy the subjective

prong. (R&R at 10). Next, the Magistrate Judge correctly noted that: 

Burtch merely challenges the factual accuracy of Plaintiffs’ allegations, claiming

that he did not, in fact, become sexually aroused, that Plaintiffs have no witnesses

supporting their assertions, and that any contact was incidental to Plaintiff’s

2

 For example, Burtch contends that the allegations that Defendant “became aroused” and

that Emery “could see the outline of an erect penis,” merely demonstrate Plaintiffs’ subjective

interpretation of what occurred. Id. at 7. 

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legitimate medical examinations. These arguments, however, raise questions

of fact and the parties’ credibility, which issues are not properly resolved at the

motion to dismiss stage.

Id. at 11-12 (emphasis added). Burtch has not pointed to any deficiency in the Magistrate

Judge’s reasoning. Instead, Burtch reasserts the reasons why he believes Plaintiffs have not

sufficiently alleged subjective intent. For the reasons properly stated in the R&R, Burtch’s

second objection is overruled.

ORDER 

For the reasons set forth above, IT IS ORDERED that the Court ACCEPTS AND

ADOPTS the January 15, 2016 R&R. The Court shall DENY Defendant’s Motion to Dismiss. 

(Doc. #18).

IT IS SO ORDERED.

S/Sean F. Cox 

Sean F. Cox

United States District Judge

Dated: June 22, 2016

I hereby certify that a copy of the foregoing document was served upon counsel of record on

June 22, 2016, by electronic and/or ordinary mail.

S/Jennifer McCoy 

Case Manager

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