Richards #641715 et al v. Perttu

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
KYLE B. RICHARDS #671715, 	Case No. 2:20-cv-76
Plaintiff, 	Hon. Hala Y. Jarbou
v. 	Chief U.S. District Judge
UNKNOWN PERTTU,
Defendant.
/
REPORT AND RECOMMENDATION
This Report and Recommendation (R. & R.) addresses the parties’ request for
a decision from the Court on which claims remain.1 	The parties hold substantially
different views of what claims remain. In Plaintiff’s view, all 28 of Richards’s claims
set forth in the original claims table, ECF No. 157, PageID.751-754, remain in the
case. Defendant disagrees, arguing that by the logic of the Court of Appeals’ opinion
in this case, only Richards’s thwarting claims that were intertwined with the merits
of his retaliation claims remain, and that all other claims should be dismissed. Perttu
identifies three thwarting claims from Richards’s complaint that would also qualify
as retaliation claims and should remain in the case.
For the reasons set forth below, the undersigned respectfully recommends that
the Court conclude (1) that all 28 of Richards’s claims from the original claims table
remain in the case, and (2) that the three additional thwarting claims set forth in
1 	Plaintiff also requests a 105-day extension of discovery with the extension
beginning on the date when this Court decides what claims remain.
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Richards’s complaint be added to the list of remaining First Amendment retaliation
claims.
A. Relevant Procedural History
This case began in April 2020 with the filing of a 51-page civil complaint by
three pro se Plaintffs – state prisoners Kyle Richards, Kenneth Pruitt and Robert
Kissee – all of whom were incarcerated in the Baraga Correctional Facility (AMF) in
Baraga, MI. 	ECF No. 1. 	All three Plaintiffs asserted claims against Resident Unit
Manager 	(RUM) 	Thomas 	Perttu, 	who 	served 	as 	a 	Michigan 	Department 	of
Corrections (MDOC) employee at AMF.
Litigation of the exhaustion issue began when Defendant Perttu filed a motion
for summary judgment asserting that the Plaintiffs had failed to exhaust their
administrative remedies prior to filing their civil suit. ECF No. 34. Perttu asked the
Court to dismiss all of Plaintiffs’ claims. In response, Plaintiffs asserted that Perttu
prevented 	them 	from 	utilizing 	the 	grievance 	process 	at 	the 	prison, 	and 	that
administrative remedies were therefore unavailable. ECF No. 51. The undersigned
issued an R. & R. recommending that Perttu’s motion be denied and that the
exhaustion issue be addressed at a bench trial pursuant to Lee v. Willey, 789 F.3d 673
(6th Cir. 2015). ECF No. 97, PageID.438.
The Plaintiffs objected to the R. & R.’s recommendation for a bench trial. ECF
No. 102, PageID.455. 	Plaintiffs’ objection did not include a discussion of the
intertwinement issue – i.e., whether the substantive claims raised by Plaintiffs in
their complaint were intertwined with the facts relating to exhaustion. 	Perttu’s
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motion for summary judgment was denied by the Court. ECF No. 105. Citing Lee v.
Willey, 	the 	Court 	noted 	that 	exhaustion 	was 	a 	threshold 	issue 	of 	judicial
administration “rather than an issue regarding the merits of the underlying case.”
Id., PageID.468.
Defendant then requested a bench trial on the issue of exhaustion pursuant to
Lee v. Willey, 789 F.3d at 678 (holding that disputed issues of fact regarding
exhaustion presented a matter of judicial administration that could be decided in a
bench trial).
The undersigned conducted a bench trial on the exhaustion issue in November
2021 and issued an R. & R. recommending dismissal of the case. 	ECF No. 157. 	In
that R. & R., the undersigned identified and listed a total of 45 claims asserted by the
three Pro Se Plaintiffs. See id., PageID.751-754 (claims table).
Overruling a number of objections filed by Plaintiffs, this Court dismissed the
case in its entirety in March 2022. ECF No. 169.
After entry of judgment, only Plaintiff Richards appealed the District Court’s
decision. 	ECF No. 172. 	In March 2024, the Court of Appeals for the Sixth Circuit
reversed this Court’s decision. Richards v. Perttu, 96 F.4th 911 (6th Cir. 2024).
RUM Perttu filed a petition for a writ of certiorari, seeking review in the U.S.
Supreme Court. The Supreme Court granted this petition, Perttu v. Richards, 145 S.
Ct. 119 (2024), heard argument on this case in February 2025, and issued its opinion
affirming the Sixth Circuit in a 5-4 decision published in June 2025. 	Perttu v.
Richards, 605 U.S. 460 (2025).
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In August 2025, the undersigned issued a Case Management Order (CMO) that
authorized the parties to engage in discovery. 	ECF No. 215. 	However, the parties
soon concluded that they had significant differences of opinion as to what claims
actually remained in the case. 	Thus, on Oct. 22, 2025, the parties requested
clarification from the Court on which claims remained. 	ECF No. 219. 	The Court
ordered simultaneous memoranda from the parties, ECF No. 220, and responses,
ECF No. 225. The parties have filed the following: ECF No. 222 (Defendant’s opening
memorandum), ECF No. 223 (Plaintiff’s opening memorandum), ECF No. 226
(Defendant’s response), and ECF No. 227 (Plaintiff’s response).
B. Summary of Argument
RUM Perttu argues that the Sixth Circuit and the U.S. Supreme Court
concluded that a plaintiff is entitled to a jury trial on the issue of exhaustion only
when the exhaustion issue is intertwined with the merits of the claim. ECF No. 222,
PageID.1317-1319. And relatedly, when the exhaustion issue is not intertwined with
the merits of the claim, a plaintiff is not entitled to a jury trial on exhaustion. 	Id.,
PageID.1319. Perttu asserts that Richards’s thwarting claims, which implicated his
ability to exhaust his administrative remedies, were intertwined with retaliation
claims on three occasions: 	Aug. 19, 2019; Jan. 15, 2020; and April 15, 2020. 	Id.,
PageID.1322. 	Perttu reasons that Richards is entitled to a jury trial only on these
three claims and that the balance of his claims – other First Amendment claims as
well as Fifth and Eighth Amendment claims and claims under the Americans with
Disabilities Act (ADA) – remain dismissed. Id., PageID.1321-1325.
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Richards disagrees, arguing that the Sixth Circuit’s decision, which was
affirmed by the U.S. Supreme Court, was an unqualified reversal of this Court’s
dismissal of Richards’s claims. In other words, this Court’s decision was reversed in
its entirety. 	ECF No. 223, PageID.1329-1332. 	In addition, Richards argues that
Perttu missed his opportunity to argue on appeal that intertwining issue was limited
to only a few claims. Id., PageID.1332-1333.
C. Analysis
The undersigned concludes that all 28 of Richards’s claims listed in the original
claims table – ECF No. 157, PageID.751-754 – should remain in the case.2 	In
addition, the undersigned concludes that three additional thwarting claims set forth
in Richards’s complaint should be added to the list of remaining retaliation claims.3
A review of the pleadings and arguments shows that Perttu did not ask this
Court, the Sixth Circuit, or the U.S. Supreme Court to distinguish between merits
claims that were intertwined with the exhaustion issues and those that were not, nor
did he ask any of these courts to reverse in part and affirm in part. The Sixth Circuit
reversed 	the 	District 	Court’s 	decision 	in 	its 	entirety 	without 	qualification 	or
limitation, and the U.S. Supreme Court affirmed that decision. Based on the history
of the previous arguments and decisions, the undersigned cannot draw distinctions
the appellate courts were not invited to consider and did not consider.
2 	Claims by Pruitt and Kissee should remain dismissed because they did not
appeal the District Court’s decision.
3 	These 	combined 	thwarting/retaliation 	claims 	were 	not 	identified 	as
substantive claims in the undersigned’s original claims table. 	A complete listing of
the remaining claims is provided below.
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A more detailed review of the pleadings and arguments in this case is
necessary to explain this conclusion.
1. 	Previous Arguments and Decisions
a. U.S. District Court
First, as noted above, this Court initially denied Perttu’s motion for summary
judgment based on failure to exhaust. ECF Nos. 97 (R. & R.), 105 (order adopting R.
& R.). 	This denial was based on assertions the Plaintiffs made in their verified
complaint, where all three Plaintiffs alleged that Perttu thwarted their efforts to
exhaust his claims by destroying their grievances. See ECF No. 97, PageID.436-437
(citing ECF No. 1, PageID.19-23).
The undersigned then conducted a bench trial on exhaustion and issued an R.
& R. recommending that Plaintiffs’ case be dismissed for failure to exhaust. ECF No.
157. 	That R. & R. summarized the 45 claims Plaintiffs set forth in the complaint.
See ECF No. 157, PageID.751-755. 	The R. & R. also discussed evidence presented
related to Perttu’s alleged attempts to intercept and destroy Plaintiffs’ grievances.
See id., PageID.768-772. The R. & R. did not list Plaintiffs’ thwarting claims, see ECF
No. 1, PageID.19-23, as substantive retaliation claims. Ultimately, Plaintiffs filed a
number of objections to this R. & R., but they did not object to the District Court’s
summary 	of 	their 	claims. 	ECF 	No. 	159. 	None 	of 	the 	parties 	raised 	the
intertwinement issue in the District Court. 	The Court then overruled Plaintiffs’
objections and dismissed the case. ECF Nos. 169, 170.
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The bottom line for purposes of the parties’ request for clarification is that the
District 	Court 	neither 	analyzed 	nor 	identified 	which 	substantive 	claims 	were
intertwined with Plaintiffs’ thwarting claims. Furthermore, Perttu did not suggest,
as an alternative outcome, that some of Richards’s claims might be intertwined, and
thus not subject to dismissal, while others – the non-intertwined claims – should still
be dismissed.
b. Court of Appeals
Only Plaintiff Richards appealed the District Court’s decision. 	In his Pro Se
Appellant’s Brief, Richards raised the intertwinement issue, writing as follows:
‘Willey’ also clearly states that when ‘exhaustion’ is part of the complaint
itself 	(the 	Plaintiff 	argued 	in 	Claim 	2[4] 	that 	Defendant
unconstitutionally prevented and retaliated against him for trying to file
grievances) then a bench trial under ‘Willey’ is not permissible where it
would also essentially be resolving a claim itself.
Richards v. Perttu, Case No. 22-1298, Doc. 7-1.
In his Appellee’s Brief, Perttu argued that this argument was waived because
it was not raised below and not developed on appeal. Id., Doc. 10. Richards then filed
a motion for clarification in which he argued that he had in fact objected to a bench
trial under Lee v. Willey. Id., Doc 11.5
4 	The original complaint appears to list separate claims from each Plaintiff.
Claim “2.1” on Page 19 of the complaint appears to apply to Richards. 	ECF No. 1,
PageID.19. 	Claim 2.1 asserts that Richards’s grievances relating to sexual assault
were not processed while his other grievances were processed. Richards also alleges
that RUM Perttu told him that he was “not going to let you file any sexual assault
grievances.” Id. This claim does not mention retaliation.
5 	The Court of Appeals docketed this pleading as Richards’s reply brief.
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The Court of Appeals then ordered supplement briefing on the intertwinement
issue. Id., Doc. 19. In its order, the Court framed the issue as follows:
In his supplemental brief, Perttu argued (1) that district courts could address
exhaustion via a bench trial even if the exhaustion issues were intertwined with the
merits of a plaintiff’s claims, and (2) Richards’s claims were not intertwined with the
exhaustion issue. 	Id., Doc. 21. 	Perttu did not ask the Court of Appeals to consider
affirming the District Court in part by allowing the dismissal to stand for claims that
were clearly not intertwined.
Richards, who was then represented by counsel, argued that a jury trial was
required “when merits issues are entangled with threshold issues.” 	Id., Doc. 23.
Richards also did not suggest a partial reversal as an alternative resolution.
The Court of Appeals reversed the District Court’s dismissal of Richards’s case.
Citing Lee v. Willey, the Sixth Circuit noted that “[a] judge, rather than a jury, can
ordinarily decide disputed facts with regard to the PLRA’s requirement that a
prisoner must exhaust his administrative remedies before filing a § 1983 action in
federal court.” Richards, 96 F.4th at 920. But, the Court of Appeals noted that “Lee
did 	not 	answer 	the 	question of 	what 	happens 	when 	the 	factual 	disputes 	are
intertwined. 	Such is the situation here.” 	Id. 	The Court then found that Richards
had stated a retaliation claim based on his allegations that Perttu destroyed his
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grievances. 	Id. (stating, “[i]n sum, Richards makes out a prima facie case of First
Amendment retaliation because Perttu allegedly destroyed Richards’s grievances in
response to Richards’s attempted filing of those grievances.”). The Court of Appeals
then concluded (1) that “the Seventh Amendment requires a jury trial when the
resolution of the exhaustion issue under the PLRA would also resolve a genuine
dispute of material fact regarding the merits of the plaintiff's substantive case” and
(2) that “the district court erred when it ordered an evidentiary hearing to settle the
disputed facts in question.” Id. at 923. The opinion of the court did not distinguish
between substantive claims that were intertwined with the exhaustion issue and
those that were not. In conclusion, the court stated, “we REVERSE the judgment of
the district court and REMAND the case for further proceedings consistent with this
opinion.” Id.
c. 	U.S. Supreme Court
As noted above, the U.S. Supreme Court affirmed the Sixth Circuit’s ruling in
a 5-4 decision. 	Perttu, 605 U.S. 460. 	The parties’ briefs did not ask the Supreme
Court 	to 	distinguish 	between 	substantive 	claims 	that 	were 	intertwined 	with
exhaustion issues and those that were not. See Perttu v. Richards, 2024 WL 4989134
(Petitioner’s Brief); 2025 WL 234407 (Respondent’s Brief); 2025 WL 566453 (Reply
Brief). As a result, the Court did not attempt to distinguish intertwined claims from
non-intertwined claims.
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2. 	Analysis
RUM Perttu asks this Court to rule that almost all of Richards’s claims remain
dismissed even though the Court of Appeals reversed this Court’s ruling in its
entirety without qualification. 	The record does not support Perttu’s conclusion.
Perttu simply did not ask the Court of Appeals to distinguish between intertwined
and non-intertwined claims, an argument that would likely have led the Court to
consider affirming in part as to the non-intertwined claims. But that argument was
not raised. Based on the record, the appellate courts did not consider whether some
claims in this case should remain dismissed. 	The Court of Appeals reversed the
District Court’s ruling in its entirety, and the Supreme Court affirmed this ruling.
As a result, the undersigned respectfully recommends that this Court conclude that
all of Richards’s claims remain in the case.
3. 	Remaining Claims
As noted above, the undersigned summarized the claims filed by all three
Plaintiffs in an earlier R. & R. The undersigned recommends that the Court conclude
that all 28 of Richards’s claims in the claims table in ECF No. 157 remain in the case.
The amended claims table shown below includes all of Richards’s claims but excludes
claims by Kissee and Pruitt. Some of the claims in the table below are re-numbered
with the former number shown in parentheses.
Amended Claims Table (claims involving Richards only)
Claim
No.
Claim 	Date or Date
Range of
Incident(s)
Factual Allegation
1 	8 th Amdt. 	06/20/2019 	RUM Perttu propositioned Richards, Richards
declined, and Perttu threatened to kill him if he
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Claim
No.
Claim 	Date or Date
Range of
Incident(s)
Factual Allegation
told anyone about the encounter. (ECF No. 1,
PageID.5.)
2 	8 th Amdt. 	08/19/2019 	RUM Perrtu threatened to send Richards to
segregation if he did not engage in sex work and
offered to help him escape from prison if he did.
(Id.)
3 	8 th Amdt. 	08/20/2019 	RUM Perttu threatened Richards in an attempt to
get him to engage in sex work. (Id., PageID.6.)
4 	8 th Amdt. 	01/07/2020 	RUM Perttu told Richards to engage in sex work
for him. When Richards said no, RUM Perttu
threatened to kill him. (Id.)
5 	8 th Amdt. 	01/15/2020 	RUM Perttu told Richards that if he wanted out of
segregation, he would have to engage in sex work.
(Id.)
6 	8 th Amdt. 	01/22/2020 	RUM Perttu told Richards that he could keep him
in segregation forever unless Richards did what he
wanted. (Id., PageID.7.)
7 	8 th Amdt. 	01/29/2020 	RUM Perttu propositioned Richards. (Id.)
8 	8 th Amdt. 	02/04/2020 	RUM Perttu propositioned Richards. When
Richards asked Perttu to stop harassing him,
Perttu threatened to kill him. (Id.)
9 	8 th Amdt. 	02/12/2020 	RUM Perttu told Richards he was going to get him
to comply with his demands one way or another.
(Id., PageID.8.)
10 	8 th Amdt. 	02/18/2020 	RUM Perttu told Richards he could engage in
sex work or remain in segregation. (Id.)
11 	8 th Amdt. 	02/26/2020 	RUM Perttu told Richards to masturbate in front
of him. (Id.)
12 	8 th Amdt. 	03/04/2020 	RUM Perttu asked whether Richards was “ready
to play ball.” (Id.)
13 	8 th Amdt. 	03/10/2020 	RUM Perttu asked if Richards was masturbating,
and, upon learning that Richards was urinating,
refused to walk away. (Id., PageID.9.)
14 	8 th Amdt. 	03/18/2020 	RUM Perttu propositioned Richards. (Id.)
15 	8 th Amdt. 	03/26/2020 	Knowing that Richards had a hearing coming up,
RUM Perttu told Richards to engage in sex work if
he wanted parole. (Id., PageID.10.)
16 	8 th Amdt. 	04/01/2020 	RUM Perttu told Richards it was only a matter
of time before he gave in to Perttu’s demands. (Id.)
17 	8 th Amdt. 	04/13/2020 	RUM Perttu told Richards that if he did not
engage in sex work, Perttu would find a way to
place him in segregation again. (Id.)
18 	8 th Amdt. 	04/14/2020 	While Richards showered, RUM Perttu looked at
his genital area and threatened to come into the
shower. (Id.)
19
(formerly 28)
1 st Amdt.
Retaliation
08/20/2019 	RUM Perttu told Richards that, because Richards
was not doing what he wanted, he would transfer
Richards to a level four prison, where Richards
would be more susceptible to violence. (Id.,
PageID.28.) When Richards refused to be
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Claim
No.
Claim 	Date or Date
Range of
Incident(s)
Factual Allegation
transferred, he was sent to administrative
segregation and Perttu directed staff to write
false misconduct reports against him. Perttu
coordinated this transfer because of Richards
attempts to file grievances. (Id., PageID.25.)
20
(formerly 29)
8 th Amdt. 	08/20/2019 	RUM 	Perttu 	coordinated 	Richards’s 	transfer
to administrative segregation despite the fact
Richards suffers from various mental illnesses.
(Id., PageID.31.)
21
(formerly 30)
ADA 	08/20/2019 	RUM Perttu coordinated Richards’s transfer to
administrative segregation despite the fact
Richards suffers from various mental illnesses.
(Id.)
22
(formerly 35)
1 st Amdt.
Retaliation
03/20/2020 	RUM Perttu denied Plaintiffs’ access to their
JPay accounts, JP5 players, and to the media
store in retaliation for Plaintiffs filing grievances
against him. (Id., PageID.32.)
23
(formerly 36)
1 st Amdt.
Retaliation
01/01/2020 	Richards and Kissee asked RUM Perttu for legal
supplies. Based on the grievances and complaints
they had previously filed, RUM Perttu denied
their requests. (Id., PageID.34-36.)
24
(formerly 37)
1 st Amdt.
Retaliation
02/14/2020 	Richards and Pruitt asked RUM Perttu for
legal supplies. 	Based on the grievances and
complaints they had previously filed, RUM Perttu
denied their requests. (Id.)
25
(formerly 38)
1 st Amdt.
Retaliation
04/09/2020-
04/11/2020
Plaintiffs asked RUM Perttu for legal supplies.
Based on the grievances and complaints they had
previously filed, RUM Perttu denied their
requests. (Id.)
26
(formerly 39)
5 th Amdt. 	04/04/2020 	RUM Perttu entered the AMF property room and
slammed Richards’s KTV Television and his JP5
media player against the wall. (Id., PageID.37.)
27
(formerly 40)
1 st Amdt.
Retaliation
04/04/2020 	RUM Perttu destroyed Richards’s television and
media player because of Richards’s attempts to file
grievances. (Id.)
28
(formerly 45)
8 th Amdt. 	4/21/2020 	RUM Perttu shut off the water in Plaintiffs’ cells
and told Plaintiffs they would die of thirst before
drinking his water. (Id., PageID.39.)
As noted above, the claims in the original claims table did not include a
retaliation 	claim 	in 	which 	the 	alleged 	adverse 	action 	was 	the 	destruction 	or
interception of grievances. The Court of Appeals, however, concluded that Richards
did state retaliation claims against Perttu in which the alleged adverse action was
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the destruction of grievances. 	See Richards, 96 F.4th at 920 (stating, “[i]n sum,
Richards makes out a prima facie case of First Amendment retaliation because Perttu
allegedly destroyed Richards's grievances in response to Richards’s attempted filing
of those grievances.”). These retaliation claims were the core of the Court of Appeals’
conclusion that Richards’s substantive claims were intertwined with the exhaustion
issue. Id. at 922.
Defendant Perttu identifies three of these intertwined retaliation/thwarting
claims in Richards’s complaint: 	Aug. 19, 2019; Jan. 15, 2020; and April 15, 2020.
ECF 222, PageID.1322. 	Plaintiff does not dispute this assertion. 	These additional
retaliation claims are listed in the table below.
Additional Retaliation Claims
Claim
No.
Claim 	Date or Date
Range of
Incident(s)
Factual Allegation
29 	1 st Amdt.
Retaliation
8/19/2019 	RUM Perttu allegedly approached Richards’s cell
with 4 Prison Rape Elimination Act (PREA)
grievances written by Richards and destroyed
them in front of Richards. ECF No. 1, PageID.19.
30 	1 st Amdt.
Retaliation
1/15/2020 	RUM Perttu allegedly intercepted 4 additional
PREA grievances written by Richards and
destroyed them in front of Richards. Id.,
PageID.20.
31 	1 st Amdt.
Retaliation
08/20/2019 	RUM Perttu allegedly intercepted 3 grievances
written by Richards and destroyed them in front of
Richards. Id., PageID.21.
D. Conclusion
The 	undersigned 	respectfully 	recommends 	that 	this 	case 	go 	forward 	on
Richards’s 28 claims listed in the original claims table and the three additional
retaliation/thwarting claims set forth above – 31 claims in total.
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In Plaintiff’s response memorandum, ECF No. 226, Plaintiff requested 105
days – roughly 3-1/2 months – for completion of discovery following the Court’s
decision on the remaining claims. 	The undersigned respectfully recommends an
extension of the discovery deadline to a date 3-1/2 months after the Court rules on
this R. & R., and a dispositive motions deadline a month after that.
Dated: 	January 8, 2026 	/s/ `ttÜàxÇ ixÜÅttà
MAARTEN VERMAAT
U.S. MAGISTRATE JUDGE
NOTICE TO PARTIES
Any objections to this Report and Recommendation must be filed and served within
fourteen days of service of this notice on you. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P.
72(b). All objections and responses to objections are governed by W.D. Mich. LCivR
72.3(b). Failure to file timely objections may constitute a waiver of any further right
of appeal. United States v. Walters, 638 F.2d 947 (6th Cir. 1981); see Thomas v. Arn,
474 U.S. 140 (1985).
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