UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MARY ANN McBRIDE, et al., 

 Plaintiffs, Civil Action No. 15-11222 

 Honorable Sean F. Cox 

v. Magistrate Judge David R. Grand 

 

MICHIGAN DEPARTMENT OF 

CORRECTIONS, et al., 

 

 Defendants. 

__________________________________/ 

REPORT AND RECOMMENDATION TO DENY DEFENDANTS’ MOTION FOR 

PARTIAL SUMMARY JUDGMENT [15] 

Before the Court is the motion for partial summary judgment filed on May 1, 2015, by 

the Michigan Department of Corrections (“MDOC”) and six of its employees: MDOC Director 

Daniel Heyns, Deputy Director Thomas Finco, Chief Deputy Director Randall Treacher, 

Women’s Huron Correctional Facility Warden Anthony Stewart, Chippewa Correctional Facility 

Warden Jeffrey Woods and Carson City Correctional Facility Warden Cathleen Stoddard 

(collectively “defendants”).1

 [15]. Plaintiffs Mary Ann McBride (“McBride”), Brian Wittman 

(“Wittman”), and Ralph Williams (“Williams”) (collectively “plaintiffs”), all of whom are 

currently incarcerated, submitted a response to this motion on May 22, 2015. [23]. Defendants 

did not file a reply. The matter has been referred to the undersigned for all pretrial matters 

 

1

 Although defendants denominate the instant motion as one for summary judgment, they make a 

passing reference to “bring[ing] this motion under Fed. R. Civ. P. 12(b)(6) and 56(a).” [15 at 2]. 

Since defendants submitted documents concerning “matters outside the pleadings,” Fed. R. Civ. 

P. 12(d), the Court will solely consider the motion pursuant to the summary judgment standard. 

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pursuant to 28 U.S.C. § 636(b). [17]. The Court conducted a hearing with respect to the motion 

on September 17, 2015. 

I. RECOMMENDATION 

For the reasons set forth below, IT IS RECOMMENDED that defendants’ motion for 

partial summary judgment [15] be DENIED.

II. REPORT 

A. Background

McBride, Wittman, and Williams are State of Michigan prisoners who, at all relevant 

times, were confined at the Women’s Huron Valley Correctional Facility (“WVH”) located in 

Ypsilanti, Michigan, the Carson City Correctional Facility (“DRF”) located in Carson City, 

Michigan, and the Chippewa Correctional Facility (“URF”) located in Kincheloe, Michigan, 

respectively. [1]. In general, plaintiffs assert that defendants have discriminated against them 

and/or violated their rights because they are either deaf or significantly hearing impaired. 

More specifically, plaintiffs allege violations of: (1) Title II of the Americans with 

Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”) and its implementing regulations; (2) the 

Rehabilitation Act, 29 U.S.C. § 794, et seq. (“RA”) and its implementing regulations; (3) the 

Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq. (“RLUIPA”); 

(4) the Free Exercise Clause of the First Amendment to the United States Constitution (42 U.S.C. 

§ 1983 – solely against the individual defendants in their official capacities); and (5) the Free 

Speech Clause of the First Amendment to the United States Constitution (42 U.S.C. § 1983 – 

solely against the individual defendants in their official capacities). Plaintiffs seek injunctive 

relief, and will eventually seek class certification status on behalf of approximately 110 similarly 

situated inmates. [Id. at ¶ 103]. 

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B. Relevant Facts 

1. Plaintiffs’ Allegations 

The complaint’s factual allegations center around five different areas: (1) inadequate 

access to telecommunications; (2) inadequate access to auxiliary aids and services; (3) 

inadequate visual notification of prison alerts and announcements; (4) ineffective communication 

during parole and disciplinary proceedings; (5) unequal treatment of deaf and hearing impaired 

inmates by prison officers. [Id. at ¶ 30]. 

Regarding access to telecommunications, plaintiffs maintain that MDOC 

telecommunication devices for the deaf (“TDDs”) do not adequately assist them in remotely 

communicating with relatives because “[t]he TDD direct-messaging system works only if both 

the caller and recipient have access to a TDD device.” [Id. at ¶ 38]. Plaintiffs also allege that 

MDOC charges them significantly higher rates for using TDDs than for traditional telephone 

calls. [Id.]. Also, some MDOC facilities, such as URF, do not have any TDDs, videophones, or 

telephone amplifiers. [Id. at ¶ 41]. 

Access to hearing aids, interpreter services and other assistive devices are supposedly 

limited as well. According to Williams, MDOC officials at URF have denied his requests for an 

auditory evaluation of his right ear so that he could receive a hearing aid. [Id. at ¶ 53]. On other 

occasions, Williams asserts that MDOC officials placed him in solitary confinement without the 

use of his hearing aid. [Id. at ¶ 54]. Plaintiffs complain of significant delays in sending assistive 

devices out for repairs and obtaining necessary replacement parts. [Id. at ¶ 55-57]. Without the 

use of these devices, plaintiffs claim they are exposed to a heightened risk of danger from other 

inmates. [Id. at ¶ 59]. Plaintiffs also report that the availability of sign language interpreters is 

significantly restricted, and in some MDOC facilities, requests for these interpreters are routinely 

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denied or they are not provided at all. [Id. at ¶¶ 69-70]. Without these accommodations, 

plaintiffs’ allege that their ability to obtain proper medical care, and utilize rehabilitative 

programs and religious services, is significantly diminished. [Id. at ¶¶ 67-77]. 

Plaintiffs also contend that MDOC facilities lack adequate visual notification systems for 

hearing impaired inmates and that the systems already in place “function poorly or are used only 

sporadically.” [Id. at ¶ 82]. For instance, Wittman and Williams assert that housing units at DRF 

and URF do not have visual displays for posting announcements or warnings in case of 

emergencies. [Id. at ¶¶ 87-89]. McBride alleges that, although MDOC officials at WHV issued 

her a pager, she “has not received pages for emergencies or alarms such as fire drills” or the 

pages are received “too late to be of benefit.” [Id. at ¶ 84]. Plaintiffs are then forced to rely on 

other inmates to receive emergency bulletins and announcements. 

Plaintiffs also assert that inmates are required to appear at disciplinary proceedings 

without their hearing devices or sign language interpreters. Plaintiffs reference an occasion 

where MDOC officials at URF allegedly denied Williams’s request to use his hearing aid during 

a misconduct hearing, thereby rendering him unable to understand the charges against him or 

mount a competent defense. The hearing resulted in his placement in solitary confinement for 40 

days. [Id. at ¶ 95]. Similarly, MDOC officials at DRF allegedly denied Wittman’s request for a 

sign language interpreter to appear with him during a disciplinary hearing. [Id. at ¶ 96]. 

Finally, plaintiffs maintain that they suffer unequal and improper treatment from MDOC 

officers because they are not properly trained to handle hearing impaired inmates. For instance, 

they allege that officers have yelled at McBride and cited her for misconduct “when she fail[ed] 

to respond to instructions that she did not hear.” [Id. at ¶ 99]. They have also allegedly mocked 

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her in front of other inmates and ignored her attempts to communicate with them by writing 

messages on notepads. [Id. at ¶ 100]. 

2. Defendants’ Motion for Partial Summary Judgment 

In their motion for partial summary judgment,2

 defendants maintain that: (1) most of 

plaintiffs’ claims should be dismissed because they failed to exhaust their administrative 

remedies prior to commencing the instant action; (2) MDOC has sovereign immunity against the 

Title II ADA claim under the Eleventh Amendment to the United States Constitution; (3) the 

RLUIPA claim is not cognizable because defendants have not imposed a “substantial burden” on 

plaintiffs’ religious exercise; and (4) their failure to provide sign interpreters for religious 

services does not violate the Free Exercise Clause of the First Amendment to the United States 

Constitution. 

C. Legal Standard 

Pursuant to Federal Rule of Civil Procedure 56, the Court will grant summary judgment 

if “the movant 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); see also Pittman v. Cuyahoga 

County Dep’t of Children & Family Servs., 640 F.3d 716, 723 (6th Cir. 2011). A fact is material 

if it might affect the outcome of the case under governing law. See Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, 

the Court assumes the truth of the non-moving party’s evidence and construes all reasonable 

 

2 Because defendants are not seeking dismissal of the Rehabilitation Act and free speech claims, 

they are, in actuality, moving for partial summary judgment. [23 at 1, n.2.]. This Report and 

Recommendation is captioned accordingly. 

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inferences from that evidence in the light most favorable to the non-moving party. See Ciminillo 

v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006). 

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. See Celotex Corp. v. Catrett, 477 U.S. 317, 

325 (1986); Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009). “Once the moving 

party satisfies its burden, ‘the burden shifts to the nonmoving party to set forth specific facts 

showing a triable issue.’” Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001) 

(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In 

response to a summary judgment motion, the opposing party may not rest on its pleadings, nor 

“‘rely on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact’ but 

must make an affirmative showing with proper evidence in order to defeat the motion.” 

Alexander, 576 F.3d at 558 (internal quotations omitted).

D. Analysis 

1. Exhaustion 

Defendants contend that most of the claims in this case are procedurally barred under the 

Prison Litigation Reform Act (“PLRA”) because plaintiffs failed to exhaust their administrative 

remedies prior to commencing the instant proceeding. [15 at 5]. 

The PLRA requires prisoners challenging the conditions of their confinement under 42 

U.S.C. § 1983 to first properly exhaust their available administrative remedies. 42 U.S.C. § 

1997e(a) (“[n]o action shall be brought with respect to prison conditions under §1983 . . . by a 

prisoner confined in any jail, prison, or other correctional facility until such administrative 

remedies as are available are exhausted.”); see Jones v. Bock, 549 U.S. 199, 220 (2007); Porter 

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v. Nussle, 534 U.S. 516, 532 (2002). The Jones Court held that “exhaustion is an affirmative 

defense, and prisoners are not required to specifically plead or demonstrate exhaustion in their 

complaints.” Jones, 549 U.S. at 216. The burden is on the defendant to show that the plaintiff 

failed to properly exhaust his administrative remedies before filing the action. Id.; see also 

Kramer v. Wilkinson, 226 F. App’x 461, 462 (6th Cir. 2007) (the “affirmative defense [of 

exhaustion] may serve as a basis for dismissal only if raised and proven by the defendants.”). 

In order to exhaust their administrative remedies, prisoners must complete the 

administrative review process in accordance with the deadlines and other applicable procedural 

rules established by state law. Id. at 218-19. This requirement is a stringent one. In Woodford v. 

Ngo, 548 U.S. 81, 93 (2006), the Supreme Court held that the PLRA exhaustion requirement 

“requires proper exhaustion.” “Proper exhaustion demands compliance with an agency’s 

deadlines and other critical procedural rules.” Id. at 90; see Scott v. Ambani, 577 F.3d 642, 647 

(6th Cir. 2009); Vandiver v. Corr. Med. Servs., 326 F. App’x 885, 888 (6th Cir. 2009). 

Defendants specifically assert that plaintiffs failed to comply with MDOC Policy 

Directive (“P.D.”) 03.02.130 (effective Jul. 9, 2007) entitled “Prisoner/ Parolee Grievances” by 

failing to include required information in the early stages of the grievance process (and in one 

instance, by filing suit before the grievance had received a ruling at the final Step III stage). [15 

at 7]. Insofar as it is relevant to this case, P.D. 03.02.130 provides the following guidelines for 

filing prisoner grievances: 

“E. Grievances may be submitted regarding alleged violations of policy or 

procedure or unsatisfactory conditions of confinement which directly 

affect the grievant, including alleged violations of this policy and related 

procedures. 

. . . 

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P. Prior to submitting a written grievance, the grievant shall attempt to 

resolve the issue with the staff member involved within two business days 

after becoming aware of a grievable issue, unless prevented by 

circumstances beyond his/her control or if the issue falls within the 

jurisdiction of the Internal Affairs Division in Operations Support 

Administration. If the complaint is not resolved, the grievant may file a 

Step I grievance. The Step I grievance must be filed within five 

business days after the grievant attempted to resolve the issue with 

staff. 

* * * 

R. A grievant shall use the Prisoner/Parolee Grievance form (CSJ-247A) 

to file a Step I grievance; a Prisoner/Parolee Grievance Appeal form (CSJ247B) shall be used to file a Step II or Step III grievance. The forms may 

be completed by hand or by typewriter however, handwriting must be 

legible. The issues shall be stated briefly but concisely. Information 

provided shall be limited to the facts involving the issue being grieved 

(i.e., who, what, when, where, why, how). Dates, times, places and 

names of all those involved in the issue being grieved are to be 

included. 

*** 

V. Within five business days after attempting to resolve grievable issues 

with staff, a grievant may send a completed Prisoner/Parolee form (CSJ247A) to the Step I Grievance Coordinator designated for the facility, field 

office or other office being grieved . . .” 

[Id. at 8-9] (emphasis added). The Court will evaluate defendants’ exhaustion arguments as they 

relate to each of the Step III grievances filed by plaintiffs.3

 

 a. McBride 

 McBride filed the following three relevant Step III grievances while incarcerated at WHV 

[Id. at 9]: 

 

3

 In support of their exhaustion defense, defendants have attached the Step III grievance reports 

which list the grievances appealed to Step III by each plaintiff. [15, Exs. A-C]. 

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Grievance # Subject Matter 

1) WHV-11-11-4707-06c 

(“06-c”) 

Failure to provide interpreter for 

religious services 

2) WHV-13-03-1391-03f 

(“03-f”) 

Failure to accommodate hearing 

disability with sign language interpreters 

and updated technology 

3) WHV-14-06-2356-06e 

(“06-e”) 

Supporting documents not submitted4

Defendants argue that McBride did not exhaust these grievances for the following reasons: 

 Grievance 06c: McBride solely named MDOC in this grievance without mentioning the 

remaining individual defendants in violation of P.D. 03.02.130 ¶ R. Defendants propose 

that all of the claims stemming from this grievance should be dismissed in their entirety. 

[Id. at 9]. 

 

 Grievance 03f: Of the named defendants in this action, McBride solely named Heyns in 

this grievance, in violation of P.D. 03.02.130 ¶ R. Defendants propose that all of the 

claims related to this grievance should be dismissed except as to Heyns. [Id. at 10]. 

 Grievance 06e: This grievance was still pending at the time plaintiffs filed the complaint. 

Defendants propose that all claims related to this grievance should be dismissed in their 

entirety. [Id.]. 

 As for Grievance 03f, the Court finds that McBride satisfied the requirements of P.D. 

03.02.130 ¶ R because she identified all of the relevant parties whom she reasonably could have 

known about at the time she filed this grievance. [15-2 at 14 (“This grievance is submitted 

against Warden Millicent Warren, MDOC Director Daniel Heyns, Regional Prison Administrator 

Bruce Curtis, Deputy Warden Osterhoust, Chaplin Mardini, DeAngel D. Johnson, G. Griffy, T. 

 

4 Although defendants attached supporting documentation for grievance WHV-12-10-5015-06e, 

which relates to MDOC’s failure to evaluate McBride’s hearing and provide her with hearing 

aids, they do not challenge this particular grievance on exhaustion grounds or for any other 

reason. [See 15-2 at 17-21; 23 at 10]. Defendants did not provide supporting documentation for 

grievance 06-e, though they describe it as relating to an alleged “Failure to provide hearing aids.” 

[15 at 9]. 

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Beard, T. Snipes, Luna, Health Unit Manager Jackson.”)]. In their response brief, plaintiffs 

correctly note that: 

[t]he grievance does not identify Defendant Anthony Stewart, WHV’s 

current warden, for the obvious reason that Defendant Stewart was not 

WHV’s warden when the grievance was filed, and therefore was not 

involved in the issues grieved. Nor does it identify Defendants Jeffrey 

Woods and Cathleen Stoddard because they are wardens of different 

prisons . . . and also were not involved in the issues grieved. 

 

[23 at 8]. 

 As to Stewart the analysis is fairly straightforward. At the time of the alleged wrongful 

conduct, Millicent Warren (named in the grievance) was the warden at WHV. However, at the 

time this action was filed, Stewart was the warden at that facility. The fact that this personnel 

change occurred between the alleged wrongful conduct and the filing of the complaint cannot be 

used to preclude McBride from bringing her related claims. A similar issue was recently 

addressed in Argue v. Burnett, No. 08-186, 2011 U.S. Dist. LEXIS 27139 (W.D. Mich. Jan. 18, 

2011) adopted by 2011 U.S. Dist. LEXIS 27141 (W.D. Mich. Mar. 16, 2011). There, the court 

confronted the more common situation where an inmate filed a Step I grievance against an 

MDOC official who later retired and was then, unbeknownst to the inmate, replaced by another 

individual prior to the filing of the complaint. The MDOC official argued that he should be 

dismissed from the action because he was no longer “the proper party against whom the 

requested relief can be obtained. Id. at *16 But rather than dismiss the complaint, the magistrate 

judge recommended substituting the current officeholder in place of his retired predecessor, 

noting “[t]hat Plaintiff misidentified the name of the individual who then held that position is, in 

the Court’s opinion, of no consequence.” Id. at *19. Ultimately, the district judge adopted this 

recommendation and did not bar the inmate from suing the current officeholder despite the fact 

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that he was not involved in the events underlying the Step I grievance and, thus, not named in the 

grievance or original complaint. Argue is analogous to the instant case. Because McBride 

properly identified Millicent Warren as the warden at WHV when she filed Grievance 03f, the 

Court sees no reason to preclude her claims against that facility’s new warden on exhaustion 

grounds. 

Defendants’ arguments as to Stoddard and Woods are different, but equally lacking in 

merit. Stoddard is being sued by Wittman exclusively for wrongful conduct that occurred at 

DRF, while Woods is being sued by Williams for wrongful conduct that exclusively occurred at 

URF. Defendants are essentially asking the Court to find that McBride’s claim, which has 

nothing to do with Stoddard or Woods, must be dismissed because her underlying grievance does 

not name either of those defendants. Since Stoddard and Woods both had no connection to the 

issues that McBride grieved at WHV, she obviously had no reason to mention them in Grievance 

03f and, thus, fully complied with P.D. 03.02.130 ¶ R. As a result, the PLRA does not require 

McBride to exhaust her claims against Stoddard and Woods on account of the allegations in the 

complaint that solely pertain to her co-plaintiffs or other putative class members.5

Moreover, even assuming these purported errors would otherwise render Grievances 06c 

and 03f unexhausted, they are still ripe for judicial review because MDOC officials addressed 

the grievances on the merits. See Reed-Bey v. Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010) 

 

5

 Defendants’ contrary view is untenable because it would require a plaintiff, in order to exhaust 

her own claim to: (1) correctly predict the identity of each future co-plaintiff and/or putative 

class member; (2) identify which MDOC officials were involved in each of the relevant Step I 

grievances filed by each such person; and then (3) name those MDOC officials in each of her 

own relevant Step I grievances (although many of these officials would have no connection to 

the issues being grieved). Defendants cite no law requiring prisoner plaintiffs to possess such 

prescient powers. 

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(holding that the PLRA exhaustion requirement had been met when MDOC addressed an 

inmate’s grievance on the merits although he did not name “all those involved in the issue being 

grieved.”); see also Maxwell v. Corr. Med. Servs., 538 F. App’x 682, 687-89 (6th Cir. 2013) 

(applying Reed-Bey where prison officials addressed the merits of the subject grievance). 

 The Court also agrees with plaintiffs that a material issue of fact exists concerning 

whether Grievance 06e remained pending at the time she commenced this lawsuit on March 31, 

2015. [15 at 7]. At this point, the only evidence before the Court regarding this particular 

grievance is that McBride filed her Step III appeal on September 9, 2014, and that as of April 21, 

2015 (the date of the Step III Grievance Report provided to the Court), that grievance had been 

“Denied” at Step III. [15-2 at 4]. The actual date of the Step III denial is not indicated on the 

report, and thus, defendants have not shown that it had not been denied at the time plaintiffs filed 

this action. Again, the Court notes that defendants did not append any documentation associated 

with Grievance 6e to their motion. Therefore, defendants have not sufficiently established that 

McBride failed to exhaust her administrative remedies as to Grievance 06-e before commencing 

this action. 

 b. Wittman 

 Wittman filed two relevant Step III grievances while incarcerated at DRF. The grievance 

numbers and the subject matter of each grievance are listed in the table below [15 at 11]: 

Grievance # Subject Matter 

1) DRF-14-01-0066-12i (“66-12i”) Failure to send cochlear 

implant for repairs 

2) DRF-13-07-1390-12i (“90-12i”) Failure to accommodate 

hearing disability with sign 

language interpreters and 

updated technology 

Defendants maintain that Wittman failed to exhaust these grievances for the following reasons: 

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 Grievance 66-12i: Wittman solely named “Head RN” in his grievance without 

mentioning any of the above-named defendants, in violation of P.D. 03.02.130 ¶ R. 

Defendants propose that all of the claims stemming from this grievance should be 

dismissed in their entirety. [Id. at 12]. 

 Grievance 90-12i: Wittman solely named defendant Heyns in this grievance without 

mentioning the remaining defendants in violation of P.D. 03.02.130 ¶ R. Defendants 

propose that all of the claims related to this grievance should be dismissed except as to 

Heyns. [Id.]. 

 Here, the Court concludes that Wittman’s Grievance 66-12i is ripe for judicial review 

under Reed-Bey since MDOC officials addressed the grievance on its merits. In addition, 

Grievance 90-12i satisfied the requirements of P.D 03.02.130 ¶ R because Wittman appropriately 

submitted this grievance “against Warden Willie Smith, MDOC Director Heyns, Regional Prison 

Administrator Bruce Curtis, ADA Coordinate Koenigsknecht, all unknown Deputy Wardens, and 

all unknown Shift Supervisors.” [15-3 at 41]. As with McBride, at the time of the alleged 

wrongful conduct, Willie Smith (named in the grievance) was the warden at DRF. However, at 

the time this action was filed, Stoddard was the warden at that facility. The fact that this 

personnel change occurred in the interim cannot be used to preclude Wittman from bringing his 

related claims. See Argue, supra. 

 Similarly, with respect to Stewart and Woods, Stewart is being sued by McBride 

exclusively for wrongful conduct that occurred at WHV while Woods is being sued by Williams 

for wrongful conduct that exclusively occurred at URF. Since Stewart and Woods both had no 

connection to the issues that Wittman grieved at DRF, he obviously had no reason to mention 

them in Grievance 90-12i and, thus, did not violate P.D. 03.02.130 ¶ R. See supra at 11. 

Therefore, summary judgment is not warranted because defendants have not demonstrated that 

Wittman’s claims are unexhausted. 

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 c. Williams 

 While incarcerated at URF, Williams filed one relevant Step III grievance which was 

related to the lack of a text/telephone system at the facility. [15 at 12]. Although Williams’ 

grievance listed the “Date of Incident” as November 20, 2012 (the date he arrived at URF), the 

text of his initial grievance, which he submitted on October 28, 2013, made clear that his 

complaint related to an ongoing and then-present issue. [15-4 at 8]. The grievance stated, in 

relevant part: 

I wear a hearing aid and would like to be transferred to a facility that has a 

text/telephone system test/telephone device. When I arrived November 

20, 2012, I was lead to believe the system was soon to be installed which 

of to date [it] hasn’t. I would like to call my family with the same 

privileges as other inmates. 

[Id.]. Williams also specifically wrote that, “I talk [sic] to healthcare on 10/23/13 about this 

matter, they told [sic] they did not know I had a hearing aid . . . I also talk to my ARUM, he told 

me healthcare would take care of this.” [Id.]. 

 Defendants assert that because Williams became “aware of a grievable issue” on 

November 20, 2012, when he first arrived at URF, his filing of the grievance on October 28, 

2013, was untimely under P.D. 03.02.130 ¶ P. Consequently, defendants propose that all of the 

claims related to this grievance should be deemed unexhausted. This argument lacks merit. 

 First, affording all reasonable inferences to Williams, his grievance could be construed as 

relating to the denial of a request he made on October 23, 2013. Such an interpretation would 

make his grievance, filed on October 28, 2013, timely under P.D. 03.02.130 ¶ P. This version of 

events at least raises a genuine issue of material fact as to when Williams actually became aware 

that URF would not be receiving a TDD system and whether his Step I grievance was timely. 

Moreover, at the hearing, Williams’ counsel confirmed that Williams is not seeking relief with 

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respect to any conduct prior to October 23, 2013 – the date he claims he “talk[ed] to health care.” 

Finally, defendants’ argument is flawed as it essentially seeks to impose a permanent waiver of 

claims of an ongoing or repetitive nature that are not raised when the very first instance of 

alleged wrongdoing occurs. Defendants advance no support in the law for such a theory. In 

sum, based on the record before the Court, defendants have not shown that Williams failed to 

exhaust his claims in this action. 

 2. Sovereign Immunity 

Defendants maintain that MDOC has sovereign immunity against the plaintiffs’ Title II 

ADA claim pursuant to the Eleventh Amendment to the United States Constitution. [15 at 14]. 

The Eleventh Amendment provides: “The Judicial power of the United States shall not be 

construed to extend to any suit in law or equity, commenced or prosecuted against one of the 

United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. 

Const. amend. XI. Unless an exception applies, MDOC, as a state agency, is immune from suit 

under the Eleventh Amendment. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 

(1984); Harrison v. Michigan, 722 F.3d 768, 771 (6th Cir. 2013). The only exceptions to such 

immunity are where: (1) the state consents to the filing of such a lawsuit; or (2) Congress 

expressly abrogates Eleventh Amendment immunity. Id. (citing Alabama v. Pugh, 438 U.S. 781, 

782 (1978) and Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984)). Since 

there is no dispute that the State of Michigan has not waived sovereign immunity against Title II 

ADA claims, the only question is whether Congress appropriately abrogated sovereign immunity 

in the Title II context. 

To make this determination, the Court must answer the following questions: (1) “whether 

Congress unequivocally expressed its intent to abrogate [sovereign] immunity;” and (2) “if it did, 

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whether Congress acted pursuant to a valid grant of constitutional authority.” Lane v. Tennessee, 

541 U.S. 509, 517 (2004). In answering the second question, the United States Supreme Court 

has held that “insofar as Title II creates a private cause of action for damages against the States 

for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state 

sovereign immunity.” United States v. Georgia, 546 U.S. 151, 159 (2006). 

To ascertain whether Title II of the ADA validly abrogates state sovereignty in any given 

Fourteenth Amendment case, the Supreme Court requires the following assessment be made on a 

“claim-by-claim basis” by determining: “(1) which aspects of the State’s alleged conduct 

violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment;6

and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth 

Amendment, whether Congress’s purported abrogation of sovereign immunity as to that class of 

conduct is nevertheless valid.” Id. The Sixth Circuit holds that the above test is “required” when 

states raise sovereign immunity as a defense to a Title II ADA claim that also implicates 

Fourteenth Amendment rights. Mingus v. Butler, 591 F.3d 474, 483 (6th Cir. 2010) (citing 

Zibbell v. Mich. Dep’t of Human Servs., 313 F. App’x 843, 847 (6th Cir. 2009)). 

a. Plaintiffs’ Allegations which Implicate a Violation of the Fourteenth 

Amendment’s Equal Protection Clause 

Here, MDOC does not contest that Congress unequivocally expressed its intent to 

abrogate sovereign immunity as to ADA claims because the ADA specifically provides that: “[a] 

State shall not be immune under the Eleventh Amendment to the Constitution of the United 

States from an action in Federal or State court of competent jurisdiction for a violation of this 

 

6

 Here, plaintiffs argue that the challenged conduct implicates both their equal protection and due 

process rights under the Fourteenth Amendment. 

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chapter.” 42 U.S.C. § 12202. Rather, MDOC’s position is that “[b]ecause the disabled are not a 

suspect class for equal protection purposes,” plaintiffs cannot “establish[] that the alleged denial 

of services [in violation of Title II of the ADA] also constitutes [an actual] violation of the 

Fourteenth Amendment[’s] [equal protection clause],” i.e. the second prong of the Georgia test. 

[15 at 18 (emphasis added)]. As discussed below, this position is flawed. 

MDOC relies principally on Popovich v. Cuyahoga Cnty. Court of Common Pleas, 276 

F.3d 808 (6th Cir. 2002) (en banc) for its argument that a Title II ADA claim resounding in equal 

protection does not abrogate sovereign immunity. In Popovich, a hearing-impaired plaintiff sued 

an Ohio state court under Title II of the ADA “for allegedly failing to provide him with adequate 

hearing assistance in his child custody case.” Id. at 811. After a trial in the district court, the 

plaintiff obtained a jury award on the theory that the state court discriminated against him by 

failing to provide him with equal access to the courts and by unreasonably excluding him from 

the custody proceeding altogether. Id. The Sixth Circuit held that the Eleventh Amendment 

barred the equal access claim “in so far as the action relie[d] on congressional enforcement of the 

Equal Protection Clause,” but did not preclude the unreasonable exclusion claim “in so far as it 

relie[d] on congressional enforcement of the Due Process Clause.” Id. The Sixth Circuit 

reasoned that Congress did not have the constitutional authority under section 5 of the Fourteenth 

Amendment to abrogate sovereign immunity for the purpose of enforcing “equal protectiontype” claims under Title II of the ADA. Id. at 818. Importantly, however, the Popovich court 

based its conclusion on the following reasoning: 

...under equal protection principles, disability—unlike race—is not a 

“suspect category” and does not deserve “heightened scrutiny.” 

Therefore, States may make reasonable employment decisions on the basis 

of disability. Title I of the Disabilities Act, which addresses 

discrimination in employment based on disability, may only trigger 

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“minimum rational-basis review,” and Congress may not enforce the 

Equal Protection Clause by creating a higher standard of liability and 

enforcing it against the states in federal court. Sovereign immunity under 

the Eleventh Amendment forbids heightened state liability in federal 

courts in disability claims because such claims have never before received 

more constitutional protection than rational basis review. 

Id. at 812 (internal citations omitted).7 

The problem with defendants’ reliance on Popovich is that the Sixth Circuit subsequently 

clarified in Mingus that, as long as a plaintiff seeks only the level of review to which he would 

otherwise be entitled (i.e., “rational basis” review in a disability case) – and not a heightened 

level of review (i.e., “strict scrutiny”) – Eleventh Amendment immunity as to his ADA claim 

would be abrogated because doing so would not “creat[e] a higher standard of liability” for the 

defendant. In Mingus, 591 F.3d 474, the plaintiff inmate suffered from macular degeneration. 

He filed a civil rights complaint against prison officials alleging violations of the Eighth and 

Fourteenth Amendments, and the ADA, though his claims all essentially arose out of allegations 

that Mingus’ requests for a single-occupancy room with key-operated locks were denied while 

“other inmates, especially able-bodied ones, receiv[ed] single-occupancy rooms.” Mingus, 591 

F.3d at 477. The district court, relying on the 2006 U.S. Supreme Court ruling in Georgia, found 

 

7

 Unlike the “equal protection-type” claims, the Sixth Circuit recognized that the same problem 

of congressional overreach is not implicated where Title II of the ADA is used to enforce “due 

process-type” claims. Id. at 817. The Popovich majority noted that “the ‘participation’ 

requirement of Title II serves to protect Popovich’s due process right to a meaningful hearing. In 

child custody cases involving hearing-impaired parents, Congress is well within its express 

authority under Section 5 to require states to accommodate parental disability and to refrain from 

retaliation, for Congress is ‘enforcing’ the due process right rather than ‘expanding’ it.” Id. at 

815. Thus, defendants do not argue that they enjoy Eleventh Amendment immunity as to the 

portion of plaintiffs’ Title II claim which implicates their due process rights. [15 at 18]. Rather, 

they essentially argue that defendants’ due process claims fail as a matter of law because “there 

is no constitutionally protected due process right to an effective prison grievance procedure.” 

[Id.]. The Court addresses that argument below. 

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that “Title II of the ADA abrogated state sovereign immunity in official capacity suits,” and thus 

allowed Mingus’ ADA claim to proceed. 

On appeal, the Sixth Circuit affirmed. Like the district court, the Sixth Circuit relied 

heavily on Georgia, in particular, the Court’s conclusion that “insofar as Title II creates a private 

cause of action for damages against the States for conduct that actually violates the Fourteenth 

Amendment, Title II validly abrogates state sovereign immunity.” Id. (quoting Georgia, 546 

U.S. at 159). Specifically, the Sixth Circuit held that MDOC’s sovereign immunity had been 

abrogated as to the plaintiff’s Title II ADA claim because he did “not claim to deserve 

heightened scrutiny as a member of a suspect class but instead challenge[d] the rational basis for 

[defendant’s] actions.” The Court explained: 

the district court found that there exists a genuine issue of material fact 

with respect to the rational basis for Butler’s actions ... At this stage in the 

litigation, Mingus has alleged misconduct that actually violated the 

Fourteenth Amendment—namely, treatment unequal to that received by 

other disabled inmates. 

... Mingus has alleged that the same misconduct by [defendants] violated 

the Fourteenth Amendment and the ADA independently. Regarding the 

former, he alleged that “there is no rational basis for the classification 

allowing able bodied prisoners, and those with medical problems less 

serious than Plaintiff’s, as qualifying for a single-occupancy room.” As to 

the ADA, he claimed that he was being “discriminated against as a result 

of [his] disability, where other prisoners with different disabilities, or no 

disabilities at all, are provided with single-occupancy rooms.” In both 

instances, the gravamen of his complaint is that he was treated differently 

than similarly situated prisoners or prisoners with fewer, or less serious, 

disabilities with no rational basis underlying the disparate treatment. 

Thus, Mingus has alleged misconduct that independently violated both 

Title II of the ADA and the Fourteenth Amendment. 

Butler’s reliance upon Popovich is misplaced ... In this case, [] Mingus 

does not claim to deserve heightened scrutiny as a member of a suspect 

class but instead challenges the rational basis for [defendant’s] actions. 

Id., at 482-83. 

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Analogizing to the Title II ADA claim asserted in Mingus, plaintiffs in this action allege 

that “Defendants’ failure to provide effective communication for individuals with hearing 

disabilities denied and continues to deny, on the basis of their disability, Plaintiffs the same 

access to Defendants’ services, benefits, activities, programs, or privileges as the access provided 

to hearing individuals.” [1 at ¶121]. Importantly, this does not equate to an assertion that 

plaintiffs are entitled to “strict scrutiny” review of this alleged unequal treatment. In fact, 

plaintiffs emphasize that they “do not claim to be members of suspect class.” [23 at 19]. In other 

words, plaintiffs make factual allegations which could both support an equal protection claim 

(albeit under “rational basis” scrutiny), and a claim under Title II of the ADA. Defendants’ 

assertion that “[b]ecause the disabled are not a suspect class for equal protection purposes,” 

plaintiffs cannot “establish[] that the alleged denial of services [in violation of Title II of the 

ADA] also constitutes [an actual] violation of the Fourteenth Amendment[’s] [equal protection 

clause],” is simply inaccurate. [15 at 18 (emphasis added)]. 

The plaintiffs thus satisfy the second prong of the Georgia test, and Eleventh Amendment 

immunity is abrogated as to their Title II ADA claim.8

 

b. Plaintiffs’ Allegations which Implicate a Violation of the Fourteenth 

Amendment’s Due Process Clause 

MDOC also argues that it is entitled to Eleventh Amendment immunity on plaintiffs’ 

ADA claim to the extent that claim implicates the Fourteenth Amendment’s due process clause. 

MDOC concedes that the State’s sovereign immunity would be abrogated to the extent plaintiffs’ 

 

8 Because the Court has found that plaintiffs alleged misconduct that violates the Fourteenth 

Amendment, it need not consider the third prong of the Georgia test, which is implicated only 

where the alleged “misconduct violated Title II but did not violate the Fourteenth Amendment.”

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Title II ADA claim was aimed at remedying a cognizable due process violation. [15 at 18]. 

MDOC argues, however, that plaintiffs have not alleged such a violation. Yet the entirety of 

MDOC’s argument on this issue is its assertion that “the Sixth Circuit has previously held that 

there is no constitutionally protected due process right to an effective prison grievance 

procedure. Walker v. Mich. Dep’t Corr., 128 F. App’x 441, 445 (6th Cir. 2005)...[and] 

prisoners have no constitutional right to rehabilitation, education or jobs. Canterino v. Wilson, 

869 F.2d 948, 952-54 (6th Cir. 1989).” [15 at 19 (emphasis added)]. This argument lacks merit 

because plaintiffs’ allegations implicate due process concerns not with respect to prison 

grievance procedures or obtaining education or a job while in prison, but rather with respect to 

the inability to meaningfully defend themselves at disciplinary and parole proceedings, impeding 

their freedom to communicate with relatives, and infringing upon their free exercise of religion 

by failing to provide sign interpreters at religious services. [Id. at 21-22]. MDOC’s failure to 

address the plaintiffs’ real claims alone merits denial of the relief it requests. 

Even on the merits of plaintiffs’ actual claims, MDOC’s motion should be denied. Due 

process requires that prisoners in disciplinary proceedings be given: “1) written notice of the 

charges at least twenty-four hours in advance; 2) an opportunity, when consistent with 

institutional safety and correctional goals, to call witnesses and present documentary evidence in 

his defense; and 3) a written statement by the factfinders as to the evidence relied on and the 

reasons for the disciplinary action.” Davis v. Zuercher, No. 09-5398, 2009 U.S. App. LEXIS 

29570, at *5-6 (6th Cir. Dec. 16, 2009) (citing Wolff v. McDonnell, 418 U.S. 539, 564-67 

(1974)). In addition, “some evidence must exist to support the disciplinary conviction.” Id. at *6 

(citing Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455-56 (1985)). Underlying these 

requirements is the principle that prisoners must be able to comprehend the nature and subject of 

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these proceedings. In fact, as this Court has recently explained, “A prison inmate does retain ‘a 

‘liberty’ interest, guarded by due process, with respect to state-imposed prison discipline that 

rises to the level of an ‘atypical and significant hardship on the inmate.’’” McGhee v. Warren, 

No. 14-12753, 2015 WL 5608346, at *3 (E.D. Mich. Sept. 9, 2015) (quoting Hardin-Bey v. 

Rutter, 524 F.3d 789, 791 (6th Cir. 2008)). See also e.g., Holmes v. Godinez, 11-2961, 2015 WL 

5920750, at *50 (N.D. Ill. Oct. 8, 2015) (“the Seventh Circuit has held that in a criminal 

proceeding, due process is denied when a defendant is unable to comprehend the proceedings 

because of language barriers.” (citing United States v. Johnson, 248 F.3d 655, 663 (7th Cir. 

2001)). Thus, it is clear that prison officials must provide at least some process before subjecting 

an inmate to an atypical and significant hardship. 

Numerous district courts have extended this principle to inmates subject to disciplinary 

hearings who cannot understand the proceedings on account of a language barrier or hearingimpairment. See Holmes, 2015 WL 5920750, at *51 (“hearing impaired inmates who are not 

fluent in English may have a due process right to a qualified [sign language] interpreter at prison 

disciplinary hearings.”); Clarkson v. Coughlin, 898 F.Supp. 1019, 1049-50 (S.D.N.Y. 1995) 

(finding prison’s failure to provide hearing accommodations to deaf inmates disciplinary, 

grievance and parole hearings constituted denial of due process); Bonner v. Arizona Dept. of 

Corr., 714 F.Supp. 420, 425 (D.Ariz. 1989) (determining that deaf inmate had a due process 

liberty interest in a qualified sign language interpreter during disciplinary hearing proceedings); 

Sandoval v. Holinka, No. 09-033, 2009 U.S. Dist. LEXIS 15565, at *7-8 (W.D. Wis. Feb. 27, 

2009) (noting that the due process rights of a Spanish-speaking inmate may have been violated 

“if [he] did not comprehend the proceedings or process he was subject to.”). Thus, at least at this 

stage of the litigation, MDOC has not shown that plaintiffs’ ADA claim allegations regarding 

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their ability to meaningfully participate in disciplinary hearings could not also support a due 

process violation. 

Nor have defendants shown that plaintiffs’ assertion, that the alleged ADA violations 

impede their freedom to communicate with relatives and infringe upon their free exercise of 

religion by failing to provide sign interpreters at religious services, fail to implicate due process 

concerns. See Brandenburg v. Hous. Auth. of Irvine, 253 F.3d 891, 900 (6th Cir. 2001) (noting 

“the well-established rule that ‘almost all § 1983 claims rely on the substantive component of the 

Due Process Clause because it is through that vehicle that fundamental rights are incorporated 

against the states.’”). Thus, plaintiffs have satisfied Georgia’s second prong as to this aspect of 

their ADA claim, and the Court need not reach the third prong. Supra, fn. 9. 

In sum, whether under the Equal Protection Clause or the Due Process Clause, the Court 

concludes that the plaintiffs’ Title II ADA claim abrogates MDOC’s sovereign immunity under 

the standards articulated in Georgia. 

 3. RLUIPA

Defendants argue that plaintiffs’ RLUIPA claim should be dismissed because the failure 

to provide plaintiffs with sign language interpreters at religious services does not impose a 

“substantial burden” on their religious exercise. RLUIPA provides that, “[n]o government shall 

impose a substantial burden on the religious exercise of a person residing in or confined to an 

institution . . . even if the burden results from a rule of general applicability,” unless the 

government demonstrates that such an imposition: (1) “is in furtherance of a compelling 

governmental interest;” and (2) is the “least restrictive means” of furthering that compelling 

governmental interest. 42 U.S.C. § 2000cc-1(a)(1)-(2). Citing Thomas v. Review Bd. Of Ind. 

Employment Sec. Div., 450 U.S. 707, 718 (1981) and Sherbert v. Verner, 374 U.S. 398, 404 

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24 

(1963) defendants assert that the “substantial burden” test requires proof that MDOC officials 

pressured plaintiffs to either violate their religious beliefs or abandon a precept of their religion. 

On the other hand, plaintiffs urge the Court to adopt the version of the “substantial 

burden” test enunciated in Haight v. Thompson, 763 F.3d 554 (6th Cir. 2014). In that case, the 

Sixth Circuit Court of Appeals held that a “substantial burden” is imposed when prison officials 

either: (1) “place[ ] substantial pressure on an adherent to modify his behavior and to violate his 

beliefs;” or (2) “effectively bar his sincere faith-based conduct.” Id. at 565. Applying this 

standard, the Sixth Circuit reversed the district court’s award of summary judgment to the 

defendants and found that a genuine issue of material fact existed as to whether Kentucky prison 

officials placed a “substantial burden” on inmates’ religious exercise by denying them access to 

some of the traditional foods used at a religious ceremony. Id. at 561-65. Since Haight is the 

Sixth Circuit’s most recent and salient elucidation of the “substantial burden” test, the Court 

adheres to its holding. 

Applying the appropriate legal standard, the Court finds that summary judgment should 

be denied. The factual record in this case is entirely undeveloped. Defendants do not proffer 

any evidence that would assist the Court in evaluating whether they placed a substantial burden 

on McBride’s religious exercise by failing to provide her with a sign language interpreter at 

religious services. Nor do defendants identify “a compelling governmental interest” that would 

justify their failure to provide an interpreter or sufficiently demonstrate that such an interest was 

served “in the least restrictive way.” Id. at 566. Consequently, defendants have failed to show 

the absence of a genuine dispute of material fact, and are not entitled to summary judgment on 

the RLUIPA claim. Celotex, 477 U.S. at 325; Alexander, 576 F.3d at 558. 

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4. Free Exercise Clause 

Defendants similarly contend that the failure to provide sign interpreters for religious 

services does not violate the Free Exercise Clause because plaintiffs are not coerced in any way 

or penalized for the content of their religious beliefs. Defendants urge the Court to look to the 

U.S. Supreme Court in Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 

(1988), for the proper legal standard to apply to plaintiffs’ free exercise claim. There, the Court 

ruled that the construction of a road through a national forest for the purpose of timber harvesting 

did not violate the free exercise rights of local Native American tribes who used the same land 

for religious purposes. The Court found that the government had not “coerced” the tribes “into 

violating their religious beliefs” nor “penalize[d] religious activity by denying any person an 

equal share of the rights, benefits, and privileges enjoyed by other citizens.” Id. at 449. 

Plaintiffs argue that “Defendants’ unlawful and unjustified discrimination against 

Plaintiffs violates Plaintiffs’ religious exercise” under the First Amendment.” [23 at 24]. While 

this may be true, plaintiffs’ cursory statement does not provide the Court with a substantive 

analysis of the relevant issue. Plaintiffs appear to be urging the Court to adopt the standard 

articulated in Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 531 (1993), where 

the Supreme Court held that “a law that is neutral and of general applicability need not be 

justified by a compelling governmental interest even if the law has the incidental effect of 

burdening a particular religious practice.” Citing to Employment Div. Dept. of Human Resources 

of Ore. v. Smith, 494 U.S. 872 (1990), the Supreme Court noted that a provision that fails “to 

satisfy these requirements must be justified by a compelling governmental interest and must be 

narrowly tailored to advance that interest.” Id. at 531-32. 

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 The Court finds that neither Lyng nor Church of Lukumi provides the proper legal 

standard for the plaintiffs’ free exercise claim. In Flagner v. Wilkinson, 241 F.3d 475, 481 

(2001), the Sixth Circuit clearly stated that “the proper standard to apply in prisoner cases 

challenging restrictions on the free exercise of religion is supplied by the Supreme Court’s 

decision in Turner [v. Safley, 482 U.S. 78, 89 (1987)].” Id. There, the Supreme Court held that 

“when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it 

is reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89. The Turner

Court then went on to enumerate four factors that should be considered when analyzing the 

reasonableness of a challenged prison regulation. The Sixth Circuit has summarized these 

factors as follows: 

First, there must be a valid, rational connection between the prison 

regulation and the legitimate governmental interest put forward to justify 

it. If not, the regulation is unconstitutional, and the other factors do not 

matter. Unlike the first factor, the remaining factors are considerations 

that must be balanced together: (2) whether there are alternative means of 

exercising the right that remain open to prison inmates; (3) the impact 

accommodation of the asserted constitutional right will have on guards 

and other inmates, and on the allocation of prison resources generally; and 

(4) whether there are ready alternatives available that fully accommodate 

the prisoner’s rights at de minimis cost to valid penological interests. 

 

Berryman v. Granholm, 343 F. App’x 1, 6 (6th Cir. 2009) (quoting Spies v. Voinovich, 173 F.3d 

398, 403 (6th Cir. 1999)). 

 But even under the framework set forth in Turner, plaintiffs highlight the same glaring 

omission that scuttled defendants’ challenge to the RLUIPA claim–the absence (at least at this 

early stage of the litigation) of any supporting evidence in the record. The Court agrees with 

plaintiffs that defendants “have not even attempted to identify specific, undisputed facts, bearing 

on whether [or not] Defendants have violated Plaintiffs’ religious exercise rights.” [23 at 24-25]. 

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27 

And defendants’ motion lacks any meaningful analysis of the factors specified in Turner. 

Without more, defendants’ motion for summary judgment should be denied with respect to 

plaintiffs’ free exercise claim. 

III. CONCLUSION 

For the foregoing reasons, IT IS RECOMMENDED that defendants’ motion for partial 

summary judgment [15] be DENIED. 

Dated: October 30, 2015 s/David R. Grand 

Ann Arbor, Michigan DAVID R. GRAND 

 United States Magistrate Judge 

NOTICE TO THE PARTIES REGARDING OBJECTIONS 

Within 14 days after being served with a copy of this Report and Recommendation and 

Order, any party may serve and file specific written objections to the proposed findings and 

recommendations and the order set forth above. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 

72(b)(2); E.D. Mich. LR 72.1(d)(1). Failure to timely file objections constitutes a waiver of any 

further right of appeal. See Thomas v. Arn, 474 U.S. 140, (1985); United States v. Sullivan, 431 

F.3d 976, 984 (6th Cir. 2005). Only specific objections to this Report and Recommendation will 

be preserved for the Court’s appellate review; raising some objections but not others will not 

preserve all objections a party may have. See Smith v. Detroit Fed’n of Teachers Local 231, 829 

F.2d 1370, 1373 (6th Cir. 1987); see also Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596-97 (6th 

Cir. 2006). Copies of any objections must be served upon the Magistrate Judge. See E.D. Mich. 

LR 72.1(d)(2). 

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A party may respond to another party’s objections within 14 days after being served with 

a copy. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1). Any such response should be 

concise, and should address specifically, and in the same order raised, each issue presented in the 

objections. 

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 October 30, 2015. 

 s/Eddrey O. Butts 

 EDDREY O. BUTTS 

 Case Manager 

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