UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

MARY ANN MCBRIDE, BRIAN 

STANLEY WITTMAN, & RALPH 

WILLIAMS, on behalf of themselves & all 

others similarly situated,

Plaintiffs,

v.

MICHIGAN DEPARTMENT OF 

CORRECTIONS, DANIEL H. HEYNS, in 

his official capacity as Director of the 

Michigan Department of Corrections; 

THOMAS FINCO, in his official capacity 

as Deputy Director of the Correctional 

Facilities Administration; RANDALL 

TREACHER, in his official capacity as 

Chief Deputy Director of the Michigan

Department of Corrections; ANTHONY 

STEWART, in his official capacity as 

Warden of the Women’s Huron Valley 

Correctional Facility; JEFFREY WOODS, 

in his official capacity as Warden of the 

Chippewa Correctional Facility; &

CATHLEEN STODDARD, in her official

capacity as Warden of the Carson City 

Correctional Facility,

Defendants,

v.

EDWARD BURLEY #502426 & 

BRANDON RESCH #304507,

 Interested Parties.

NO. 2:15-cv-11222

HON. SEAN F. COX

MAG. DAVID R. GRAND

MDOC’S BRIEF IN 

SUPPORT OF ITS APPEAL 

OF THE SETTLEMENT 

MONITOR’S 

RECOMMENDATION

REGARDING MR.

BRANDON RESCH

 /

Abraham Singer (P23601)

Law Offices of Abraham Singer

30833 Northwestern Hwy. Ste. 120

Farmington Hills, MI 48334

(248) 626-8888

Scott A. Mertens (P60069)

Zachary A. Zurek (P80116)

Assistant Attorneys General

Attorneys for Defendants Finco, 

Heyns, Michigan Dep’t of 

Case 2:15-cv-11222-SFC-DRG ECF No. 184, PageID.4899 Filed 10/29/20 Page 1 of 15
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asinger@singerpllc.com

Andrew D. Lazerow

Brian Eugene Kempfer

Philip J. Levitz

Stephen Curtis Bartenstein

Covington & Burling LLP

850 Tenth Street NW

Washington, DC 20001

(202) 662-6000

alazerow@cov.com

Chris E. Davis (P52159)

Michigan Protection & Advocacy Ser.

4095 Legacy Parkway, Ste 500

Lansing, MI 48911

(517) 487-1755

cdavis@mpas.org

Attorneys for Plaintiffs 

Edward Donald Burley #502426

Interested Party in Pro Per

Oaks Correctional Facility

1500 Caberfae Highway

Manistee, MI 49660

Brandon Marcus Resch #304507

Interested Party in Pro Per

Carson City Correctional Facility

10274 Boyer Road

Carson City, MI 48811-9746

Corrections, Stewart, Stoddard

Treacher and Woods

Michigan Dep’t of Attorney General

MDOC Division

P.O. Box 30217

Lansing, MI 48909

(517) 335-3055

mertenss@michigan.gov

zurekz1@michigan.gov

MDOC’S BRIEF IN SUPPORT OF ITS APPEAL OF THE 

SETTLEMENT MONITOR’S RECOMMENDATION REGARDING 

MR. BRANDON RESCH

PROCEDURAL HISTORY

On February 20, 2020, the parties, in an effort to streamline the 

post-judgment inmate complaint process, entered into a Stipulated 

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Order (ECF No. 150) that created a procedure for handling inmate 

complaints regarding the implementation of the terms of the McBride 

Settlement Agreement. (ECF No. 112.)

In part, paragraph 1 of the Stipulated Order states that 

The process contained in this Stipulated Order is not meant 

in any way to be a waiver of any administrative processes 

contained in any Michigan Department of Corrections 

(MDOC) policy directives, the Federal Prison Litigation 

Reform Act (42 U.S.C. § 1997e), and/or the Michigan Prison

Litigation Reform Act (MCLA 600.5501 et seq.).

Paragraph 2 makes it clear that the process enumerated in the 

Stipulated Order is “[f]or complaints by class members regarding the 

implementation of the terms and conditions of the Settlement 

Agreement in this matter only . . .”

BACKGROUND

Since the entry of the Stipulated Order, Mr. Resch has submitted 

a number of complaints. These complaints have all been in writing. 

Some have been directly to the court.

As it pertains to the current appeal, on July 17, 2020, Mike Brady 

from Sabot Consulting sent an email to Robin Gilbert (the MDOC’s 

Statewide ADA Coordinator) advising her that Mr. Resch had sent a 

letter complaining about seven specific issues. (See attached Ex. 1.) On 

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August 3, 2020, Ms. Gilbert sent a response to Mr. Brady with 

documentation supporting the MDOC’s respective positions on each 

issue with supporting documentation. (See attached Ex. 2.)

Subsequently, a confidential telephone call was scheduled between Mr.

Resch and Rick Wells from Sabot Consulting. 

On August 24, 2020, Mr. Wells sent an email (see attached ex. 3)

to Ms. Gilbert indicating that “[a]lthough he did not mention it in his 

letter, when he and I spoke on the phone he mentioned 4 specific 

misconducts from URF in 2019.” The four misconducts, according to 

what was reported to Mr. Wells by Mr. Resch were for the following:

1. Disobeying a Direct Order on April 22, 2019, 

2. Violation of Posted Housing Unit Rules on May 2, 2019,

3. Violation of Posted Housing Unit Rules on July 8, 2019, and,

4. Out of Place on August 14, 2019.

In addition, he mentioned two grievances (URF-19-08-2358-27A

and URF-19-10-2835-28E). Mr. Wells requested documentation 

regarding these misconducts and grievances. At this point in time, it 

was not entirely clear as to what Mr. Resch’s concerns were regarding 

the above listed misconducts and grievances.

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On September 3, 2020, Ms. Gilbert responded to Mr. Wells by 

email and provided the requested documents. (See attached Ex. 4.) She 

provided documentation regarding the April 22, 2019 misconduct 

(Disobeying a Direct Order) and two separate misconducts that took 

place on August 14, 2019. (See attached Ex. 5.) The two August 14, 

2019 incidents were Out of Place and Fighting. The Fighting incident 

was not mentioned in Mr. Wells’ request but nevertheless was provided.

The two grievances were also provided. (See attached Ex. 6.) Ms. 

Gilbert indicated that the MDOC did not have documentation regarding 

the May 2, 2019 Violation of Posted Housing Unit Rules incident or the 

July 8, 2019 Violation of Posted Housing Unit Rules incident. This is 

because they were Class III misconducts. Pursuant to MDOC Policy 

Directive 03.03.105, Section CCC, Prisoner Discipline, “A copy of the 

Misconduct Report shall be kept only in the prisoner’s Counselor file.

The report shall be kept for at least 60 calendar days after the date of 

the hearing or waiver for control and monitoring purposes and to 

provide the basis for establishing a pattern of Class III misconducts if 

other action becomes necessary.” Each misconduct was contested by 

Mr. Resch. However, Mr. Resch, of his own volition, opted not to 

exhaust all of his administrative remedies despite being fully aware of 

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these administrative remedies and never pursued any remedies allowed 

in the court system.

On September 5, 2020, the Settlement Monitor emailed a 

document that addressed the seven issues mentioned in exhibit 1. In 

addition, the document specifically articulated Mr. Resch’s concerns 

regarding the above misconducts and grievances in newly labeled “Issue 

#8.” This document discussed and made specific recommendations

regarding all eight outstanding issues. The document is 22 pages long. 

For purposes of this appeal, attached as exhibit 3 is an abridged version 

of the 22-page response that only contains the Settlement Monitors 

discussion and recommendations as they pertain to the misconducts 

and grievances. (See attached Ex. 7.) In sum, the Settlement Monitor

recommends that the misconducts be “re-issued/re-heard or 

dismissed/removed.” The MDOC advised the Settlement Monitor that 

they would be appealing the recommendations.

On October 6, 2020, Defendants filed the instant appeal of the 

Settlement Monitor’s recommendations. (ECF No. 175.) This appeal is 

to the Settlement Monitor’s recommendations as they pertain to the 

above-mentioned grievances and misconducts only.

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ARGUMENT

I. Introduction

Mr. Resch is a thirty-nine-year-old male who has been in and out 

of the MDOC for most of his adult life. His crimes are numerous and 

involve approximately 14 crimes of dishonesty. (See attached Ex. 8.) 

During his time with the MDOC, he has been found guilty of 41 

misconducts. (See attached Ex. 9.) Between April and October of 2019 

Mr. Resch filed six grievance appeals to Step III—none of which were 

for the misconducts listed above. In total, he has filed sixty-four appeals 

to Step III since 2014. He is well aware of the misconduct process and 

his rights and responsibilities therein. He has also filed several 

lawsuits while an inmate with the MDOC. In each of those lawsuits, as 

is required by the Prison Litigation Reform Act (PLRA), Mr. Resch 

alleged that he had exhausted his administrative remedies. Mr. Resch

certified that those allegations were true under the penalties of perjury. 

Mr. Resch is well aware of the required administrative remedies that 

must be exhausted. Yet, as will be discussed below, he did not exhaust 

those administrative remedies in each of the above listed misconducts.

The Stipulated Order for addressing inmate complaints has been

overwhelmingly effective. However, in this instance, the MDOC 

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believes that Mr. Resch is clearly manipulating the process and the 

good intentions of the Settlement Monitor.

II. Mr. Resch was a full participant in the misconduct 

proceedings listed above and effective communication 

occurred during each proceeding.

At the time of the misconducts discussed above, Mr. Resch carried 

a “N” designation. (These designations have since changed and all deaf 

and/or hard of hearing inmates carry an “H” designation.) The “N”

designation meant that Mr. Resch was hearing impaired without deficit.

Mr. Resch did not wear hearing aids at the time and he had made no 

affirmative requests for accommodations under the ADA to facilitate 

any difficulties he may have had hearing or communicating. He 

regularly spoke on the telephone and communicated freely with fellow 

inmates and staff. In fact, from April 1, 2019, Mr. Resch has logged 189 

hours and 27 minutes of conventional telephone time. Mr. Resch 

participated in the above listed Misconduct Proceedings and opted not 

to exhaust his administrative remedies.

The Settlement Monitor seems to conclude that because effective 

communication was not documented in the above listed misconduct 

proceedings that effective communication must not have taken place. 

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That is simply not the case. A review of the misconducts and grievances

clearly show that Mr. Resch participated in every proceeding. In the 

April 22, 2019 Class II Misconduct for Disobeying a Direct Order, Mr. 

Resch was present at the hearing and pled “not guilty.” (See attached 

Ex. 5, supra.) He participated in the process and verbally articulated 

his defense. (Id.) In the August 14, 2019 Class I Misconduct for 

Fighting, the Hearing Officer clearly notes that “the prisoner is 

informed.” (Id.) Mr. Resch was present, and the misconduct report was 

reviewed with him. (Id.) He refused the assistance of a Hearing

Investigator. (Id.) He presented a 2-page statement and a hand drawn 

diagram in his defense. (Id.) Mr. Resch fully participated in the 

proceedings. Finally, in the August 14, 2019 Class II Misconduct for 

Out of Place, Mr. Resch was present and pled “not guilty.” (Id.) Mr. 

Resch gives a defense and participates in the proceedings. (Id.)

Nothing in the Settlement Agreement requires the MDOC to 

document effective communication. Likewise, nothing in the 

Settlement Agreement states that if effective communication is not 

documented, the MDOC must re-issue/re-hear or dismiss/remove any 

misconducts. If Mr. Resch felt like effective communication did not take 

place in any proceeding, or that his due process rights were in any way 

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violated, his legal recourse was to exhaust his administrative remedies

and then (in the case of a Class I Misconduct) file a lawsuit.

As discussed above, paragraph 1 of the Stipulated Order in part 

states that:

The process contained in this Stipulated Order is not meant 

in any way to be a waiver of any administrative processes 

contained in any Michigan Department of Corrections 

(MDOC) policy directives, the Federal Prison Litigation 

Reform Act (42 U.S.C. § 1997e), and/or the Michigan Prison

Litigation Reform Act (MCLA 600.5501 et seq.).

Paragraph 2 makes it clear that the process enumerated in the 

Stipulated Order is “[f]or complaints by class members regarding the 

implementation of the terms and conditions of the Settlement 

Agreement in this matter only . . .” What transpired in these 

misconducts has nothing to do with the implementation of the terms 

and conditions of the McBride Settlement Agreement. Mr. Resch had a 

duty to exhaust his administrative remedies as it pertained to these 

misconducts and chose not to.

III. Mr. Resch chose not to exhaust his administrative 

remedies.

It is important to note that the Mr. Resch’s misconducts occurred 

in April 2019 and August 2019. In the first instance, that is a year and 

a half ago. In the second instance, a year and two months ago. 

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Punishments were issued and have already been served. The 

applicable time frames to appeal through the administrative process 

and ultimately to a court (in the case of a Class I Misconduct) has

expired.

Richard Russell is the MDOC’s Hearings Administrator and 

Grievance Section Manager in the Office of Legal Affairs. As he states 

in his Declaration (see attached ex. 10.), Class I misconducts are major 

misconducts that are appealable to a court of law if the prisoner first 

exhausts his or her administrative remedies provided by the MDOC. 

The administrative remedy for Class I misconducts is to appeal to the 

Hearings Administrator in the Office of Legal Affairs. (Id.) The 

Hearings Administrator has the authority under statute and 

administrative rule to order a rehearing or to vacate the decision. (Id.)

Class II and III misconducts are minor misconducts that are not 

appealable to court since the sanction of detention is not allowed under 

policy. Therefore, no liberty interest is involved. (Id.)

The 8/14/19 Fighting Class I misconduct was heard by a LARA 

Administrative Law Judge (ALJ) pursuant to policy. (Id.) Mr. Resch

refused the assistance of a Hearing Investigator but provided a written 

statement and diagram. (Id.) The ALJ considered all the evidence but 

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did not agree that Mr. Resch’s statement supported an affirmative 

defense to the charge as is required for a valid defense. (Id.) The ALJ 

found the prisoner guilty and imposed the sanction of 10 days of 

Detention from 8/19/19 to 8/29/19. (Id.) The maximum allowable 

detention would have been 30 days. (Id.) No Request for Rehearing 

was filed by Mr. Resch. As a result, Mr. Resch did not exhaust his 

administrative remedies in this case. (Id.)

The 4/22/19 Disobeying a Direct Order Class II misconduct was 

heard pursuant to policy and a decision rendered finding Mr. Resch

guilty of the misconduct. (Id.) While Mr. Resch argued that he did not 

hear the order, testimony of the officer involved indicated that when 

Mr. Resch was ordered to move, he responded by answering, “where”, 

indicating he correctly heard the order. (Id.) Mr. Resch did not 

immediately move which he was required to do. (Id.) The hearing 

officer found the officer to be credible, found Mr. Resch guilty of the 

charge, and issued the sanction of 2 days of top lock served 5/2/19 to 

5/4/19. (Id.) There is no evidence that Mr. Resch forwarded any appeal 

to the Deputy Warden as is required under policy in order to exhaust 

administrative remedies. (Id.) No grievance was filed through to Step 

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III regarding any alleged due process issue, again failing to meet policy 

requirements for exhausting administrative remedies. (Id.)

The 8/15/19 Out of Place Class II misconduct was heard pursuant 

to policy and a decision rendered finding Mr. Resch guilty of the 

misconduct. (Id.) Mr. Resch did not put forth an affirmative defense 

but rather argued that he had not been properly reviewed on the 

misconduct. (Id.) Evidence was presented, including video evidence.

Review with Mr. Resch was attempted, however, Mr. Resch refused 

participation and refused to sign the misconduct report. (Id.) In such 

cases a copy of the misconduct is left with the prisoner for review and 

the failed attempt noted in the logbook, and that was done in this case. 

(Id.) This fulfills the obligation of the MDOC to provide notice of the 

charges at least 24 hours in advance of the hearing. (Id.) Therefore, no 

due process issue existed, and Mr. Resch was found guilty of the charge.

(Id.) The sanctions imposed were 5 days of Toplock from 8/29/19 to 

9/3/19 and 5 days of Loss of Privileges from 9/3/19 to 9/8/19. (Id.) There 

is no evidence that Mr. Resch appealed to the Deputy Warden. As a 

result, Mr. Resch failed to exhaust his administrative remedies at this 

point. (Id.) Mr. Resch did file a grievance at Step I alleging a due 

process issue. (Id.) However, Mr. Resch failed to follow through filing 

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to Step III. (Id.) Therefore, administrative remedies were again not 

exhausted. (Id.)

In summary, there is no credible evidence that Mr. Resch received 

less than due process. Prisoner Mr. Brandon Resch failed to exhaust 

his administrative remedies in each of the above cases.

CONCLUSION AND RELIEF REQUESTED

For the reasons stated above, the MDOC respectfully requests 

that this Honorable Court sustain their appeal and not require the

MDOC to adopt the Settlement Monitor’s recommendations.

Respectfully submitted, 

Dana Nessel

Attorney General

/s/ Scott A. Mertens

Scott A. Mertens (P60069)

Zachary A. Zurek (P80116)

Assistant Attorneys General

Attorneys for Defendants

Michigan Dep’t of Corrections; 

Heyns, Finco, Treacher, Stewart, 

Woods & Stoddard

MDOC Division

P.O. Box 30217

Lansing, MI 48909

(517) 335-3055

MertensS@michigan.gov

Dated: October 29, 2020 Zurekz1@michigan.gov

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CERTIFICATE OF SERVICE (E-FILE)

I hereby certify that on October 29, 2020, I electronically filed the 

foregoing document(s) together with this Certificate of Service with the 

Clerk of the Court using the ECF System, which will provide electronic 

copies to counsel of record and a hard copy of same as placed in FirstClass Mail, postage paid, fully addressed as follows: 

District Judge David R. Grand

U.S. District Court – Eastern District of Mich.

200 East Liberty St.

Ann Arbor, MI 48107

And to: 

Brandon Resch #304507

CARSON CITY CORRECTIONAL FACILITY

10274 BOYER ROAD

CARSON CITY MI 48811

/s/ Scott A. Mertens

Scott A. Mertens (P60069)

Zachary A. Zurek (P80116)

Assistant Attorneys General

Attorneys for Defendants

Michigan Dep’t of Corrections; 

Heyns, Finco, Treacher, Stewart, 

Woods & Stoddard

MDOC Division

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