Burton #369585 v. Nurkala et al

1
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
UJUAN BURTON #369585, 	Case No. 2:24-cv-96
Plaintiff, 	Hon. Jane M. Beckering
U.S. District Judge
v.
MARSHA NURKALA, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
I. 	Introduction
This Report and Recommendation (R. & R.) addresses Defendants’ motion for
summary judgment. 	(ECF No. 38).
Plaintiff – state prisoner Ujuan Burton − filed an unverified complaint under
42 U.S.C. § 1983 alleging that Defendants violated his Eighth and Fourteenth
Amendment rights while he was incarcerated at Baraga Correctional Facility (AMF).
(ECF No. 1.)
On April 30, 2025, this Court dismissed one defendant from Burton’s lawsuit
based on Plaintiff’s failure to exhaust his administrative remedies. 	(ECF No. 20.)
At this point in the case, Burton maintains Eighth and Fourteenth Amendment
claims against Corrections Officer (CO) Unknown Beasley, CO Unknown Holley, and
Resident Unit Manager (RUM) Marsha Nurkala.
Case 2:24-cv-00096-JMB-MV ECF No. 41, PageID.<pageID> Filed 01/13/26 Page 1
of 18

2
The 	three 	remaining 	defendants 	filed 	the 	present 	motion 	for 	summary
judgment on August 26, 2025. 	Burton has not responded to Defendants’ motion.1
In the opinion of the undersigned, there is no genuine issue of material fact
regarding Burton’s Eighth and Fourteenth Amendment claims. 	For the reasons set
forth 	below, 	the 	undersigned 	respectfully 	recommends 	that 	the 	Court 	grant
Defendants’ motion for summary judgment and dismiss the case.
II. 	Factual Allegations
The undersigned issued an R. & R. in this case on March 31, 2025. 	(ECF No.
18.) 	That R. & R. provided the following summary of the allegations:
Burton states that on August 31, 2023, he and inmate Bailey engaged
in a “verbal confrontation” in the prison yard. (ECF No. 1, PageID.4.)
Following the argument, Bailey allegedly did not return to the prison
yard for roughly a week. (Id.) Burton states that Bailey’s absence
concerned him and made him fear physical retribution from Bailey. (Id.)
Burton states that he kited both the Inspector and RUM Nurkala to ask
them to intervene on his behalf. (Id.) In the kite, Burton stated that he
feared another altercation with Bailey because he did not want to return
to segregation and because Bailey was allegedly affiliated with the
prison gang known as “the Malanics.” (Id.)
Burton says that the Defendants failed to defuse the tension between
himself and Bailey. (Id.) Burton asserts that instead, COs Holley and
Beasley informed Bailey of Burton’s kite and Burton’s allegation that
Bailey was a member of the Malanics. (Id.) Holley and Beasley allegedly
told Bailey that Burton or the prison gang known as the “Gangster
Disciples” was going to attack him. (Id.)
On September 6, 2023, Bailey allegedly returned to the prison yard and
then hit Burton on the back of the head “several times” while he was on
1 	When, as here, the non-movant fails to respond to a motion for summary
judgment, the Court must “examine the movant’s motion for summary judgment to
ensure that he has discharged his initial burden.” Stough v. Mayville Cmty. Sch., 138
F.3d 612, 614 (6th Cir. 1998) (citing Carver v. Bunch, 946 F.2d 451, 455 (6th Cir.
1991)).
Case 2:24-cv-00096-JMB-MV ECF No. 41, PageID.<pageID> Filed 01/13/26 Page 2
of 18

3
the phone. (Id.), Burton states that he was placed on “Toplock” (a form
of reduced privileges) later that day. (Id.)
On September 7, 2023, Nurkala approached Burton’s cell door and “in a
loud enough voice for everyone to hear,” asked, “[D]o you wanna tell me
why you havin problems with the Malanics?” Burton says he tried to
explain 	that 	Nurkala 	was 	“placing 	him 	in 	danger.” 	(Id.) Nurkala
allegedly replied, “[W]hen you’re ready to tell me what’s going on then
just send me ANOTHER KITE.” (Id. (emphasis in original).)
Burton says that after this interaction, his kite was shared with COs
Holley and Beasley. (Id.) Holley and Beasley shared the information in
the kite over the Unit 6 intercom, allowing everyone in Unit 6 to hear
its contents. (Id., PageID.4−5.) Burton says that for days afterward,
inmates threatened him and called him a “rat.” (Id., PageID.5)
Burton was eventually moved to segregation in Unit 5. (Id.) While
waiting for his move to be complete, Burton says he gave CO Roberts a
kite to give the Inspector and Acting Deputy Warden (ADW). (Id.)
Burton states that he gave Roberts the kite because he could not send
his own messages. (Id.) Roberts did not place the kite in the mailbox,
instead placing it in the staff office for Holley and Beasley to read. (Id.)
Burton states that while he was in segregation, Holley and Beasley once
again shared the kite’s content with the inmates in Unit 6. (Id.)
On or about October 25, 2023, Burton asked Nurkala how long he would
be required to remain in segregation. (Id.) “[I]n a loud voice” Nurkala
replied, “I don’t know cause I heard that you still have problems with
the Malanics.” (Id.)
Burton was then moved to segregation in Unit 3. (Id.) Burton says that
Beasley rounded in Unit 3 and woke him up at 6:55 am by shining his
flashlight into the cell and tapping on the door. (Id.) Beasley allegedly
told Burton, “[T]he Malanics and [Gangster Disciples] couldn’t wait to
see him when he gets out and that no amount of kites could save him.”
(Id.) Burton says inmates once again overheard and started to threaten
him. (Id.)
Burton states that on November 25, 2023, he sent a kite to medical
concerning pain in the back of his head. (Id., PageID.6.) Nurse Patricia
Lewis 	allegedly 	diagnosed 	Burton 	with 	“Occipital 	Neuralgia” 	and
ordered an MRI test. (Id.) Burton states that Lewis prescribed him
multiple medications. (Id.)
Case 2:24-cv-00096-JMB-MV ECF No. 41, PageID.<pageID> Filed 01/13/26 Page 3
of 18

4
On or about December 13, 2023, Roberts came to Burton’s cell in Unit 3.
(Id.) Roberts “joked” that he gave Burton’s kite to Holley and Beasley
because they “needed more content to add to the first one.” (Id.) Burton
says he requested that Roberts leave, which prompted Roberts to write
him a false Threatening Behavior ticket. (Id.)
On or about “1/13/23 [sic],” Lieutenant Pombier removed Burton from
his cell for questioning. (Id.) Burton says that during the escort, Pombier
admitted that “per his own credible sources [Burton’s] grievances about
officers Roberts, Beasley and Holley held some validation.” (Id.) Pombier
“assured [Burton] that he would ride him out soon for his protection.”
(Id.) Burton was relocated to “a neighboring facility four days later.” (Id.)
(ECF No. 18, PageID.112-114.)
III. 	Verification
In ruling on a summary judgment motion, a court must decide whether a
genuine issue of material fact remains. 	Fed. R. Civ. P. 56(a). 	The materials a court
may consider in making this assessment are identified in Fed. R. Civ. P. 56(c).
Courts, however, allow a plaintiff to rely on a “verified complaint,” which has “‘the
same force and effect as an affidavit for purposes of responding to a motion for a
motion for summary judgment.” 	Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir.
1993) (quoting Williams v. Browman, 981 F.2d 901, 905 (6th Cir.1992)). 	To qualify
as “verified,” a complaint must be executed in a manner that meets the requirements
set forth in 28 U.S.C. § 1746. 	Id. 	In contrast, complaints that are unverified are
not considered Rule 56 evidence. 	Cooper v. Parker, No. 2:17-CV-00155, 2019 WL
5273967, 	at 	*2 	(W.D. 	Mich. 	Aug. 	29, 	2019) (citations 	omitted), report 	and
recommendation adopted, No. 2:17-CV-155, 2019 WL 4686423 (W.D. Mich. Sept. 26,
2019).
Here, Burton’s Complaint is unverified and is not considered as Rule 56
Case 2:24-cv-00096-JMB-MV ECF No. 41, PageID.<pageID> Filed 01/13/26 Page 4
of 18

5
evidence. 	However, Burton attached an affidavit as exhibit 2 to his Complaint.
Burton’s Affidavit includes verification language in accordance with 28 U.S.C. § 1746.
Accordingly, the undersigned considers Burton’s Affidavit, but not the unverified
complaint, as Rule 56 evidence.
IV. 	Summary Judgment Standard
Summary judgment is appropriate when the record reveals that there are no
genuine issues as to any material fact in dispute and the moving party is entitled to
judgment as a matter of law. 	Fed. R. Civ. P. 56; Kocak v. Comty. Health Partners of
Ohio, Inc., 400 F.3d 466, 468 (6th Cir. 2005). 	The standard for determining whether
summary judgment is appropriate is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” 	State Farm Fire & Cas. Co. v. McGowan,
421 F.3d 433, 436 (6th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251−52 (1986)). 	The court must consider all pleadings, depositions, affidavits,
and admissions on file, and draw all justifiable inferences in favor of the party
opposing the motion. 	Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986); Twin City Fire Ins. Co. v. Adkins, 400 F.3d 293, 296 (6th Cir.
2005).
V. 	Analysis
A. Eighth Amendment Claims
The Eighth Amendment imposes a constitutional limitation on the power of
the states to punish those convicted of crimes. 	Punishment may not be “barbarous,”
Case 2:24-cv-00096-JMB-MV ECF No. 41, PageID.<pageID> Filed 01/13/26 Page 5
of 18

6
nor 	may 	it 	contravene 	society’s 	“evolving 	standards 	of 	decency.” 	Rhodes 	v.
Chapman, 452 U.S. 337, 345–46 (1981). 	The Amendment, therefore, prohibits
conduct by prison officials that involves the “unnecessary and wanton infliction of
pain.” 	Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987) (per curiam) (quoting Rhodes,
452 U.S. at 346). 	The deprivation alleged must result in the denial of the “minimal
civilized measure of life’s necessities.” 	Rhodes, 452 U.S. at 347; see also Wilson v.
Yaklich, 148 F.3d 596, 600–01 (6th Cir. 1998). 	The Eighth Amendment is only
concerned with “deprivations of essential food, medical care, or sanitation” or “other
conditions intolerable for prison confinement.” 	Rhodes, 452 U.S. at 348 (citation
omitted). 	Moreover, “[n]ot every unpleasant experience a prisoner might endure
while incarcerated constitutes cruel and unusual punishment within the meaning of
the Eighth Amendment.” 	Ivey, 832 F.2d at 954. 	“Routine discomfort is ‘part of the
penalty that criminal offenders pay for their offenses against society.’” 	Hudson v.
McMillian, 503 U.S. 1, 9 (1992) (quoting Rhodes, 452 U.S. at 347). 	As a consequence,
“extreme deprivations are required to make out a conditions-of-confinement claim.”
Id.
For a prisoner to prevail on an Eighth Amendment claim, he must show that
he faced a sufficiently serious risk to his health or safety and that the defendant
official acted with “‘deliberate indifference’ to [his] health or safety.” 	Mingus v.
Butler, 591 F.3d 474, 479–80 (6th Cir. 2010) (citing Farmer v. Brennan, 511 U.S. 825,
834 (1994) (applying deliberate indifference standard to medical claims)); see also
Helling v. McKinney, 509 U.S. 25, 35 (1993) (applying deliberate indifference
Case 2:24-cv-00096-JMB-MV ECF No. 41, PageID.<pageID> Filed 01/13/26 Page 6
of 18

7
standard 	to 	conditions 	of 	confinement 	claims)). 	The 	deliberate-indifference
standard includes both objective and subjective components. 	Farmer, 511 U.S. at
834; Helling, 509 U.S. at 35–37. 	To satisfy the objective prong, an inmate must show
“that he is incarcerated under conditions posing a substantial risk of serious harm.”
Farmer, 511 U.S. at 834. 	Under the subjective prong, an official must “know[] of and
disregard[] an excessive risk to inmate health or safety.” 	Id. at 837. 	“[I]t is enough
that the official acted or failed to act despite his knowledge of a substantial risk of
serious harm.” 	Id. at 842. 	“It is, indeed, fair to say that acting or failing to act with
deliberate indifference to a substantial risk of serious harm to a prisoner is the
equivalent of recklessly disregarding that risk.” 	Id. at 836. 	“[P]rison officials who
actually knew of a substantial risk to inmate health or safety may be found free from
liability if they responded reasonably to the risk, even if the harm ultimately was not
averted.” 	Id. at 844.
1. 	Objective Prong
“To establish a constitutional violation based on failure to protect, a prison
inmate first must show that the failure to protect from risk of harm is objectively
‘sufficiently serious.’” Bishop v. Hackel, 636 F.3d 757, 766 (6th Cir. 2011) (citing
Farmer, 511 U.S. at 834). 	The risk to inmate health or safety must be “excessive.”
Farmer, 511 U.S. at 837. 	This objective prong “requires a court to assess whether
society considers the risk that the prisoner complains of to be so grave that it violates
contemporary standards of decency to expose anyone unwillingly to such a risk.”
Helling v. McKinney, 509 U.S. 25, 36 (1993) (emphasis in original). 	Even where a
Case 2:24-cv-00096-JMB-MV ECF No. 41, PageID.<pageID> Filed 01/13/26 Page 7
of 18

8
serious injury occurs, the objective prong of a failure-to-protect claim requires an
analysis of the likelihood of harm in the relevant circumstances to the injured party
before the alleged injury occurred. 	See Zakora v. Chrisman, 44 F.4th 452, 469 (6th
Cir. 2022) (citing Reedy v. West, 988 F.3d 907, 909, 912–14 (6th Cir. 2021) (concluding
that, although the plaintiff had suffered a “brutal assault” at the hands of his
cellmate, the objective prong was not met because general disagreements between
the cellmates before the incident did not present a substantial risk of harm)).
In Gant v. Campbell, the Sixth Circuit ruled that an inmate’s “general concern”
about safety does not rise to the level of a substantial threat of serious harm.
4 F. App’x 254, 256 (6th Cir. 2001) (finding risk of harm was not sufficiently serious where
an inmate expressed a general concern that he would be attacked by gang members because his
brother had previously been attacked). 	Instead, inmates must express “a specific, known
risk” to their safety. 	Id. 	The Sixth Circuit has held there existed a serious threat
of harm where inmates alleged they received threats of violence, even when they were
“less than forthcoming” with details regarding the threat against them. 	Richardson
v. Bauman, 702 F. App’x 402, 404−05 (6th Cir. 2017) (finding the Plaintiff established the
objective prong of his Eighth Amendment deliberate indifference claim because he alleged he
received repeated threats of physical violence by MS-13 gang members, even though he gave no
reason for the threats and could not identify the prisoners who were supposedly threatening him);
see also Madden v. Grate, No. 5:19-CV-73-TBR-LLK, 2020 WL 95138, at *4 (W.D. Ky.
Jan. 8, 2020) (explaining “[e]ven if an inmate cannot specifically identify the inmate
responsible for the threat or is less than forthcoming with prison officials, a threat of
Case 2:24-cv-00096-JMB-MV ECF No. 41, PageID.<pageID> Filed 01/13/26 Page 8
of 18

9
bodily harm is sufficiently serious to satisfy the objective component of a deliberate
indifference claim.”).
Here, Defendants argue that the objective component is not satisfied because
there were no “known external factors to place Defendants ‘on notice’ that Burton
required ‘close supervision from Bailey leading up to the assault.’” 	(ECF No. 39,
PageID.202.) 	Defendants argue that the kite Burton submitted on September 3rd
or 4th pertained to Burton’s concern with not wanting to jeopardize his lower security
transfer rather than his safety. 	(Id., PageID.202.)
As mentioned above, Burton did not respond to Defendants’ motion. 	But, in
the affidavit filed with his complaint, Burton says that after the August 31, 2025,
verbal interaction with Bailey, he kited RUM Nurkala and non-defendants Inspector
Miller and Assistant Deputy Warden Horrocks, asking them to intervene. 	(ECF No.
1-2, PageID.15.) 	Burton says that he placed the kite in the Prison Counselor/RUM’s
PO 	box 	around 	September 	3rd 	or 	4th. 	(ECF 	No.39-1, 	PageID.234.) 	In 	his
unverified complaint, Burton alleges that COs Holley and Beasley informed Bailey
about the kite. 	(ECF No. 1, PageID.4.) 	In his deposition, Burton asserts that he
did not specifically ask for protection in the kite, but that he asked for RUM Nurkala
to use her judgment to intervene. 	(ECF No. 39-1, PageID.233.)
Next, Burton says that Bailey punched him twice in the back of the head on
September 6th. 	(ECF No. 1-2, PageID.15.) 	Burton says he suffered head trauma
from the assault. 	(Id.) 	In his unverified complaint, Burton alleges that he was
diagnosed with Occipital Neuralgia two months after the assault. 	(ECF No. 1,
Case 2:24-cv-00096-JMB-MV ECF No. 41, PageID.<pageID> Filed 01/13/26 Page 9
of 18

10
PageID.6.) 	During his deposition, Burton described the injury as “a knot in the back
of my head” and stated that he saw medical personnel following the assault. 	(ECF
No. 39-2, PageID.241.) 	Burton’s clinical encounter form includes the following
evaluation notes:
(ECF No. 39-11, PageID.273.)
Following the assault, Burton says that RUM Nurkala discussed gang issues
in a loud voice outside of his cell. 	(ECF No. 1-2, PageID.15.) 	Burton also alleges
that COs Bailey and Holley read one of Burton’s kites over the intercom in Unit 6
before and after Burton left the Unit. 	(Id.)
All three Defendants stated in sworn declarations that they were unaware of
any risk to Burton’s safety posed by Bailey. 	(ECF No. 39-7, PageID.260; ECF No.
39-8, PageID.264; ECF No. 39-9, PageID.268.) 	Furthermore, all three Defendants
stated they had not seen Burton’s kite regarding Bailey. 	(Id.) 	In Burton’s
deposition transcript, he states that he never personally told any of the Defendants
about a safety risk posed by Bailey. 	(ECF No. 39-2, PageID.239-40.) 	When faced
with a complaint that contradicts later deposition testimony, this Court credits the
deposition testimony. Leary v. Livingston Cnty., 528 F.3d 438, 444 (6th Cir. 2008)
(first citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d
265 (1986); then citing Fed.R.Civ.P. 56(e)(2); then citing Scott v. Harris, 550 U.S. 372,
Case 2:24-cv-00096-JMB-MV ECF No. 41, PageID.<pageID> Filed 01/13/26 Page 10
of 18

11
127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007); and then citing Wysong v. City of Heath,
260 F. App’x. 848, 857 (6th Cir. 2008)) (“Nor can [the plaintiff] create a triable issue
of fact simply by pointing to discrepancies between his complaint . . . and his
deposition testimony . . . When a claimant's testimony contradicts the allegations in
his complaint, we will credit his later testimony.”).
In the opinion of the undersigned, Burton has not established a genuine issue
of material fact regarding the objective component of his claim. 	Burton alleges that
Defendants acknowledged the kite at his cell and over the intercom after the
September 6th assault. 	Burton’s allegation that COs Holley and Beasley saw the
kite before September 6th and told Bailey about it is not substantiated beyond his
unverified complaint.
Even if the Defendants saw the kite before the assault, Burton acknowledges
that he did not directly ask for protection in the kite and that he told RUM Nurkala
to use her judgment about any intervention. 	Burton also stated that he did not
perceive an immediate safety risk after the verbal altercation with Bailey on August
31st. 	(ECF No. 39-2, PageID.228.) 	Therefore, Burton has not established a genuine
issue of material fact regarding his claim that he was under a substantial risk of
serious harm prior to the September 6th assault.
2. 	Subjective Prong
“Under this subjective deliberate-indifference standard, a prison official cannot
be found liable under the Eighth Amendment ‘unless the official knows of and
disregards an excessive risk to inmate health or safety[.]’” 	Rhodes v. Michigan,
Case 2:24-cv-00096-JMB-MV ECF No. 41, PageID.<pageID> Filed 01/13/26 Page 11
of 18

12
10 F.4th 665, 674–75 (6th Cir. 2021) (internal alterations omitted) (quoting Mingus
v. Butler, 591 F.3d 474, 480 (6th Cir. 2010)). 	“[T]he official must both be aware of
facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” 	Id. 	Such awareness can be
demonstrated through “inference from circumstantial evidence, ... and a factfinder
may conclude that a prison official knew of a substantial risk from the very fact that
the risk was obvious.” 	Farmer, 511 U.S. at 842 (citations omitted).
As 	set 	forth 	above, 	Defendants 	assert 	that 	they 	were 	not 	deliberately
indifferent to Burton’s safety and wellbeing because they were not aware of any
threats to Burton’s safety prior to the assault. 	(ECF No. 39, PageID.206.)
Burton has not responded to Defendants’ arguments and the record before the
Court does not contradict Defendants’ claim that they were unaware of a risk to
Burton’s health or safety prior to the assault for the same reasons articulated in the
objective component analysis. 	Burton states that he did not directly ask for
protection in his kite. 	(ECF No. 39-2, PageID.233-240.) 	Burton says the main
indications he had that Bailey was “about to do something stupid” was that Bailey
stayed in his cell and collected his possessions from other inmates. 	(Id., PageID.229-
30.) 	Thus, a substantial risk was not obvious.
Therefore, Burton has not established a genuine issue of material facts as to
either prong of his Eighth Amendment deliberate indifference/failure to protect
claim. 	Accordingly, the undersigned respectfully recommends that the Court grant
Defendants’ motion for summary judgement regarding Burton’s Eighth Amendment
Case 2:24-cv-00096-JMB-MV ECF No. 41, PageID.<pageID> Filed 01/13/26 Page 12
of 18

13
claim.
B. Fourteenth Amendment Claims
Defendants argue that Burton’s Fourteenth Amendment claims should be
dismissed for failure to state a claim under Federal Rule of Evidence 12(b)(6). 	(ECF
No. 39, PageID.208.)
The Federal Rules provide that a claim may be dismissed for “failure to state
a claim upon which relief can be granted.” 	Fed. R. Civ. P. 12(b)(6). 	To survive a
Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted
as true, to state a claim for relief that is plausible on its face.” 	Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotation marks omitted). 	Put differently, if plaintiffs
do “not nudge[] their claims across the line from conceivable to plausible, their
complaint must be dismissed.” 	Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
In determining whether a claim has facial plausibility, a court must construe
the 	complaint 	in 	the 	light 	most 	favorable 	to 	the 	plaintiff, 	accept 	the 	factual
allegations as true, and draw all reasonable inferences in favor of the plaintiff.
Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). Those
factual allegations “must contain either direct or inferential allegations respecting all
the material elements to sustain recovery under some viable legal theory.” 	League
of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (internal
Case 2:24-cv-00096-JMB-MV ECF No. 41, PageID.<pageID> Filed 01/13/26 Page 13
of 18

14
citations omitted). “When a court is presented with a Rule 12(b)(6) motion, it may
consider the Complaint and any exhibits attached thereto, public records, items
appearing in the record of the case and exhibits attached to defendant’s motion so
long as they are referred to in the Complaint and are central to the claims contained
therein.” 	Id.
The Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution provides that no state shall “deny to any person within its
jurisdiction the equal protection of the laws.” 	U.S. Const. amend. XIV, § 1. 	To state
an equal protection claim, a plaintiff “must adequately plead that the government
treated the plaintiff ‘disparately as compared to similarly situated persons and that
such disparate treatment either burdens a fundamental right, targets a suspect class,
or has no rational basis.” 	Center for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d
365, 379 (6th Cir. 2011). 	The Supreme Court has also recognized what is referred
to as a “class-of-one” equal protection claim in which the plaintiff does not allege
membership in a particular class or group but instead alleges that he “has been
intentionally treated differently from others similarly situated and that there is no
rational basis for the difference in treatment.” 	Davis v. Prison Health Services, 679
F.3d 433, 441 (6th Cir. 2012).
In his unverified complaint, Burton states that all three remaining Defendants
violated his Eighth and Fourteenth Amendment rights. 	Burton does not clarify how
Defendants 	violated 	his 	Fourteenth 	Amendment 	rights. 	In 	his 	deposition
transcript, Burton says that Officer Beasley and Holley violated his Fourteenth
Case 2:24-cv-00096-JMB-MV ECF No. 41, PageID.<pageID> Filed 01/13/26 Page 14
of 18

15
Amendment equal protection rights by reading his kite over the intercom. 	(ECF No.
39-2, PageID.248.) 	Burton also states that RUM Nurkala violated his Fourteenth
Amendment equal protection rights by not answering his kite. 	(Id., PageID.247.)
Burton’s Complaint fails to plead a Fourteenth Amendment claim. 	Burton
does not assert that Defendants violated his due process or equal protection rights.
In his deposition, Burton asserts equal protection claims against all three Defendants
but has not alleged he experienced disparate treatment compared to other inmates.
Therefore, the undersigned respectfully recommends that the Court dismiss Burton’s
Fourteenth Amendment claims under Federal Rule of Evidence 12(b)(6).
V. 	Qualified Immunity
Defendant argues that he is entitled to dismissal of the complaint against him
based 	upon 	qualified 	immunity. 	“Under 	the 	doctrine 	of 	qualified 	immunity,
‘government officials performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.’”
Phillips v. Roane Cty., 534 F.3d 531, 538 (6th Cir. 2008) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). 	Once a defendant raises the qualified
immunity 	defense, 	the 	burden 	shifts 	to 	the 	plaintiff 	to 	demonstrate 	that 	the
defendant officer violated a right so clearly established “that every ‘reasonable official
would have understood that what he [was] doing violate[d] that right.’” 	Ashcroft v.
al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)).
Case 2:24-cv-00096-JMB-MV ECF No. 41, PageID.<pageID> Filed 01/13/26 Page 15
of 18

16
The analysis entails a two-step inquiry. 	Martin v. City of Broadview Heights,
712 F.3d 951, 957 (6th Cir. 2013). 	First, the court must “determine if the facts
alleged make out a violation of a constitutional right.” 	Id. 	(citing Pearson v.
Callahan, 555 U.S. 223, 232 (1982)). 	Second, the court asks if the right at issue was
“‘clearly established’ when the event occurred such that a reasonable officer would
have known that his conduct violated it.” 	Id. (citing Pearson, 555 U.S. at 232). 	A
court may address these steps in any order. 	Id. (citing Pearson, 555 U.S. at 236).
A government official is entitled to qualified immunity if either step of the analysis
is not satisfied. 	See Citizens in Charge, Inc. v. Husted, 810 F.3d 437, 440 (6th Cir.
2016).
In applying the first step of the qualified immunity analysis, a court must
identify “the specific constitutional right allegedly infringed” and determine whether
a violation occurred. 	Graham v. Connor, 490 U.S. 386, 394 (1989). 	The court
considers the state of the law at the second step. 	As the Supreme Court has
observed, “this Court’s case law does not require a case directly on point for a right to
be clearly established, [but] existing precedent must have placed the statutory or
constitutional question beyond debate.” 	White v. Pauly, 580 U.S. 73, 78 (2017)
(internal quotation marks and original brackets omitted) (quoting Mullenix v. Luna,
577 U.S. 7, 11 (2015)). 	As explained by the Supreme Court:
To 	be 	clearly 	established, 	a 	legal 	principle 	must 	have 	a
sufficiently clear foundation in then-existing precedent. The rule must
be “settled law,” Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116
L.Ed.2d 	589 	(1991) 	(per 	curiam), 	which 	means 	it 	is 	dictated 	by
“controlling authority” or “a robust ‘consensus of cases of persuasive
authority,’ ” al–Kidd, supra, at 741–742, 131 S.Ct. 2074 (quoting Wilson
Case 2:24-cv-00096-JMB-MV ECF No. 41, PageID.<pageID> Filed 01/13/26 Page 16
of 18

17
v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). It
is not enough that the rule is suggested by then-existing precedent. The
precedent must be clear enough that every reasonable official would
interpret it to establish the particular rule the plaintiff seeks to apply.
See Reichle, 566 U.S., at 666, 132 S.Ct. 2088. Otherwise, the rule is not
one that “every reasonable official” would know. Id., at 664, 132 S.Ct.
2088 (internal quotation marks omitted).
The “clearly established” standard also requires that the legal principle
clearly prohibit the officer’s conduct in the particular circumstances
before him. The rule’s contours must be so well defined that it is “clear
to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150
L.Ed.2d 272 (2001). This requires a high “degree of specificity.” Mullenix
v. Luna, 577 U.S. ––––, ––––, 136 S.Ct. 305, 309, 193 L.Ed.2d 255 (2015)
(per curiam). We have repeatedly stressed that courts must not “define
clearly established law at a high level of generality, since doing so avoids
the 	crucial 	question 	whether 	the 	official 	acted 	reasonably 	in 	the
particular circumstances that he or she faced.” Plumhoff, supra, at 2023
(internal quotation marks and citation omitted). A rule is too general if
the unlawfulness of the officer’s conduct “does not follow immediately
from the conclusion that [the rule] was firmly established.” Anderson,
supra, at 641, 107 S.Ct. 3034. In the context of a warrantless arrest, the
rule must obviously resolve “whether ‘the circumstances with which [the
particular officer] was confronted ... constitute[d] probable cause.’”
Mullenix, supra, at 309 (quoting Anderson, supra, at 640–641, 107 S.Ct.
3034; some alterations in original).
D.C. v. Wesby, 583 U.S. 48, 63−64 (2018).
In the qualified immunity context, if the facts alleged and evidence produced,
viewed in the light most favorable to the plaintiff, would permit a reasonable juror to
find that the officer violated a clearly established constitutional right, dismissal by
summary judgment is inappropriate. 	Barton v. Martin, 949 F.3d 938, 947 (6th Cir.
2020) (citing Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 400 (6th Cir. 2009)).
For the reasons stated above, in the opinion of the undersigned, there are no
genuine issues of material fact remaining in the case; the record establishes that
Case 2:24-cv-00096-JMB-MV ECF No. 41, PageID.<pageID> Filed 01/13/26 Page 17
of 18

18
Defendants did not violate Plaintiffs’ rights. 	Accordingly, in the opinion of the
undersigned, Defendants are entitled to qualified immunity in their individual
capacities. 	See Phillips v. Roane Cty., 534 F.3d 531, 538 (6th Cir. 2008) (“Under the
doctrine 	of 	qualified 	immunity, 	‘government 	officials 	performing 	discretionary
functions generally are shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known.’” (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982))).
VI. 	Recommendation
In the opinion of the undersigned there are no genuine issues of material facts
regarding Burton’s Eighth Amendment claims. 	Additionally, in the opinion of the
undersigned, Burton has failed to state a claim for which relief may be granted
regarding 	his 	Fourteenth 	Amendment 	claims. 	Accordingly, 	it 	is 	respectfully
recommended that the Court grant Defendants’ motion for summary judgment and
dismiss Burton’s remaining claims.
Dated: 	January 13, 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).
Case 2:24-cv-00096-JMB-MV ECF No. 41, PageID.<pageID> Filed 01/13/26 Page 18
of 18