Conley v. Hess

• Court: District Court, W.D. Michigan
• Decided: May 12, 2020
• Docket: 1:20-cv-00168
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______

ROBERT LEE CONLEY,

Plaintiff, Case No. 1:20-cv-168

v. Honorable Paul L. Maloney

JOHN HESS et al.,

Defendants. ____________________________/ OPINION This is a civil rights action brought under 42 U.S.C. § 1983 by a person detained in the Ionia County Jail. Under Rule 21 of the Federal Rules of Civil Procedure, a court may at any time, with or without motion, add or drop a party for misjoinder or nonjoinder. Fed. R. Civ. P. 21. The Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), further requires the Court to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards, the Court will dismiss, without prejudice, Plaintiff’s claims against Defendants Rafler, Albrecht, and Unknown Party because they are misjoined. The Court will also dismiss, with prejudice, Plaintiff’s complaint against Defendants Hess, Merrit, and Little, as well as Plaintiff’s First Amendment claim that Defendant Ross censors Plaintiff’s outgoing mail, for failure to state a claim. The Court will serve the remaining First Amendment claim against Defendant Ross. Discussion I. Factual Allegations Plaintiff is presently detained at the Ionia County Jail where he is apparently awaiting trial. The events about which he complains occurred at that facility. Plaintiff sues Ionia

County Jail employees Captain John Hess, Sergeants Chad Merrit and Dan Little, Officers Cathy Ross and Doug Rafler, Doctor Jon Albrecht, and Nurse Unknown Party. Plaintiff challenges alleged Ionia County Jail policies and further alleges a series of discrete events from October 2019 to February 2020. Plaintiff alleges that Ionia County Jail has a “postcard-only” policy for incoming mail, and Defendant Ross apparently rejects Plaintiff’s mail that fails to comply with the policy. Ross has rejected books Amazon sent to Plaintiff. Plaintiff asserts that the policy restricts his ability to receive mail from his wife, including legal research she has done online. He claims the research from his wife is important because the jail has denied him access to a law library to do his own research. However, his wife’s efforts to send him the research are impeded by the

postcard-only policy. Because personal mail must be sent only by postcard, Plaintiff alleges that his wife must pay an attorney to send his wife’s printouts as legal mail. Plaintiff further alleges that his “out[]going mail almost never gets to who [Plaintiff] send[s] it.” (Compl., ECF No. 1, PageID.5.) Plaintiff alleges that most of the mail he sends, he sends to his wife. One letter he attempted to send returned to him three times. Plaintiff asserts that he “wrote some legal stuff on the back of the envelope” and suggests that his mail has been returned as a result. (Id.) When the mail was returned a third time, an officer explained that they had forgotten to stamp it. Plaintiff filed grievances on Ross to jail supervisors claiming that she had censored his mail. Plaintiff claims that the replies he received from Defendants Hess, Merrit, and Little failed to respond to Ross’ conduct. Plaintiff does not attribute any further specific conduct to Ross in the remainder of the complaint. Instead, Plaintiff alleges a series of unrelated claims. Plaintiff alleges that his due

process rights were violated when he was placed in segregation for three days and lost privileges related to a misconduct charge. Plaintiff also alleges that he was searched and had items seized in violation of the Fourth Amendment when he returned to the jail after weekday release. In another series of allegations, Plaintiff asserts that he is being kept from exercising as often as he would like, that the air temperature in the jail is too cold, and that inmates receive only one washcloth and must share nail clippers. Plaintiff further alleges that health care professionals failed to adequately treat his rotator cuff injury and failed to test him for sexually transmitted infections after he asserted that he had unprotected sex with a woman presumably outside the jail. Plaintiff additionally alleges that the collective conditions he faces constitute a “campaign of harassment.”

(Compl., ECF No. 1, PageID.23.) Plaintiff seeks compensatory and punitive damages as well as declaratory and injunctive relief. II. Misjoinder Plaintiff has joined seven Defendants in this action connecting unrelated policies and a series of discrete events during the span from October 2019 to February 2020. Federal Rule of Civil Procedure 20(a) limits the joinder of parties in single lawsuit, whereas Federal Rule of Civil Procedure 18(a) limits the joinder of claims. Rule 20(a)(2) governs when multiple defendants may be joined in one action: “[p]ersons . . . may be joined in one action as defendants if: (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action.” Rule 18(a) states: “A party asserting a claim . . . may join, as independent or alternative claims, as many claims as it has against an opposing party.” Courts have recognized that, where multiple parties are named, as in this case, the

analysis under Rule 20 precedes that under Rule 18: Rule 20 deals solely with joinder of parties and becomes relevant only when there is more than one party on one or both sides of the action. It is not concerned with joinder of claims, which is governed by Rule 18. Therefore, in actions involving multiple defendants Rule 20 operates independently of Rule 18. . . . Despite the broad language of Rule 18(a), plaintiff may join multiple defendants in a single action only if plaintiff asserts at least one claim to relief against each of them that arises out of the same transaction or occurrence and presents questions of law or fact common to all. 7 Charles Allen Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice & Procedure Civil § 1655 (3d ed. 2001), quoted in Proctor v. Applegate, 661 F. Supp. 2d 743, 778 (E.D. Mich. 2009), and Garcia v. Munoz, No. 08-1648, 2007 WL 2064476, at *3 (D.N.J. May 14, 2008); see also Neitzke v. Williams, 490 U.S. 319, 328 (1989) (joinder of defendants is not permitted by Rule 20 unless both commonality and same transaction requirements are satisfied). Therefore, “a civil plaintiff may not name more than one defendant in his original or amended complaint unless one claim against each additional defendant is transactionally related to the claim against the first defendant and involves a common question of law or fact.” Proctor, 661 F. Supp. 2d at 778. When determining if civil rights claims arise from the same transaction or occurrence, a court may consider a variety of factors, including, “the time period during which the alleged acts occurred; whether the acts . . . are related; whether more than one act . . . is alleged; whether the same supervisors were involved, [sic] and whether the defendants were at different geographical locations.” Id. (quoting Nali v. Mich. Dep’t of Corr., No. 07-10831, 2007 WL 4465247, at *3 (E.D. Mich. Dec. 18, 2007)). Permitting the improper joinder in a prisoner civil rights action also undermines the purpose of the PLRA, which was to reduce the large number of frivolous prisoner lawsuits that were being filed in the federal courts. See Riley v. Kurtz, 361 F.3d 906, 917 (6th Cir. 2004)

(discussing purpose of PLRA). Under the PLRA, a prisoner may not commence an action without prepayment of the filing fee in some form. See 28 U.S.C. § 1915(b)(1). These “new fee provisions of the PLRA were designed to deter frivolous prisoner litigation by making all prisoner litigants feel the deterrent effect created by liability for filing fees.” Williams v. Roberts, 116 F.3d 1126, 1127-28 (5th Cir. 1997). The PLRA also contains a “three-strikes” provision requiring the collection of the entire filing fee after the dismissal for frivolousness, etc., of three actions or appeals brought by a prisoner proceeding in forma pauperis, unless the statutory exception is satisfied. 28 U.S.C. § 1915(g). The “three strikes” provision was also an attempt by Congress to curb frivolous prisoner litigation. See Wilson v. Yaklich, 148 F.3d 596, 603 (6th Cir. 1998).

The Seventh Circuit has explained that a prisoner like Plaintiff may not join in one complaint all of the defendants against whom he may have a claim, unless the prisoner satisfies the dual requirements of Rule 20(a)(2): Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against different defendants belong in different suits, not only to prevent the sort of morass that [a multi]-claim, [multi]-defendant suit produce[s] but also to ensure that prisoners pay the required filing fees—for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g) . . . . A buckshot complaint that would be rejected if filed by a free person—say, a suit complaining that A defrauded the plaintiff, B defamed him, C punched him, D failed to pay a debt, and E infringed his copyright, all in different transactions— should be rejected if filed by a prisoner. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); see also Brown v. Blaine, 185 F. App’x 166, 168-69 (3d Cir. 2006) (allowing an inmate to assert unrelated claims against new defendants based on actions taken after the filing of his original complaint would have defeated the purpose of the three strikes provision of PLRA); Patton v. Jefferson Corr. Ctr., 136 F.3d 458, 464 (5th Cir. 1998) (discouraging “creative joinder of actions” by prisoners attempting to circumvent the PLRA’s

three-strikes provision); Shephard v. Edwards, No. C2-01-563, 2001 WL 1681145, at *1 (S.D. Ohio Aug. 30, 2001) (declining to consolidate prisoner’s unrelated various actions so as to allow him to pay one filing fee, because it “would improperly circumvent the express language and clear intent of the ‘three strikes’ provision”); Scott v. Kelly, 107 F. Supp. 2d 706, 711 (E.D. Va. 2000) (denying prisoner’s request to add new, unrelated claims to an ongoing civil rights action as an improper attempt to circumvent the PLRA’s filing fee requirements and an attempt to escape the possibility of obtaining a “strike” under the “three strikes” rule). To allow Plaintiff to proceed with these improperly joined claims and defendants in a single action would permit him to circumvent the PLRA’s filing fee provisions and allow him to avoid having to incur a “strike” for

purposes of by § 1915(g), should any of his claims turn out to be frivolous. Under Rule 21 of the Federal Rules of Civil Procedure, “[m]isjoinder of parties is not a ground for dismissing an action.” Instead, Rule 21 provides two remedial options: (1) misjoined parties may be dropped on such terms as are just; or (2) any claims against misjoined parties may be severed and proceeded with separately. See Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 572-73 (2004) (“By now, ‘it is well settled that Rule 21 invests district courts with authority to allow a dispensable nondiverse party to be dropped at any time . . . .’”); DirecTV, Inc. v. Leto, 467 F.3d 842, 845 (3d Cir. 2006); Carney v. Treadeau, No. 2:07-cv-83, 2008 WL 485204, at *2 (W.D. Mich. Feb. 19, 2008); Coal. to Defend Affirmative Action v. Regents of Univ. of Mich., 539 F. Supp. 2d 924, 940 (E.D. Mich. 2008); see also Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674, 682 (6th Cir. 1988) (“[D]ismissal of claims against misjoined parties is appropriate.”). “Because a district court’s decision to remedy misjoinder by dropping and dismissing a party, rather than severing the relevant claim, may have important and potentially adverse statute-of-limitations consequences, the discretion delegated to the trial judge to dismiss

under Rule 21 is restricted to what is ‘just.’” DirecTV, 467 F.3d at 845. At least three judicial circuits have interpreted “on such terms as are just” to mean without “gratuitous harm to the parties.” Strandlund v. Hawley, 532 F.3d 741, 745 (8th Cir. 2008) (quoting Elmore v. Henderson, 227 F.3d 1009, 1012 (7th Cir. 2000)); see also DirecTV, 467 F.3d at 845. Such gratuitous harm exists if the dismissed parties lose the ability to prosecute an otherwise timely claim, such as where the applicable statute of limitations has lapsed, or the dismissal is with prejudice. Strandlund, 532 F.3d at 746; DirecTV, 467 F.3d at 846-47; Michaels Bldg. Co., 848 F.2d at 682. The Court therefore will look to Plaintiff’s first set of factual allegations in

determining which portion of the action should be considered related. Plaintiff’s first allegations assert Defendant Ross rejected a delivery of three books sent to Plaintiff from Amazon. (See Compl., ECF No. 1, PageID.4.) These allegations further connect to Defendants Hess’, Merrit’s, and Little’s denials of Plaintiff’s grievances filed against Defendant Ross for rejecting the delivery of books as well as to the challenge of the jail’s mail policies. Plaintiff’s allegations connect no Defendant other than Hess, Merrit, and Little to the first transaction or occurrence involving Plaintiff and Defendant Ross. As a result, none of the other Defendants—Rafler, Albrect, and Unknown Party—is transactionally related to Plaintiff’s first claim involving Defendant Ross. Moreover, it is clear that no question of law or fact is common to all Defendants. See Fed. R. Civ. P. 20(a)(2)(B). In this case, Plaintiff brings causes of action under 42 U.S.C. § 1983. For civil rights suits filed in Michigan under § 1983, the statute of limitations is three years. See Mich. Comp. Laws § 600.5805(10); Carroll v. Wilkerson, 782 F.2d 44 (6th Cir. 1986) (per curiam);

Stafford v. Vaughn, No. 97-2239, 1999 WL 96990, at *1 (6th Cir. Feb. 2, 1999). Furthermore, “Michigan law provides for tolling of the limitations period while an earlier action was pending which was later dismissed without prejudice.” Kalasho v. City of Eastpointe, 66 F. App’x 610, 611 (6th Cir. 2003). All of Plaintiff’s actions against the remaining three Defendants occurred since October 2019, well within the three-year period of limitations. Those claims are not at risk of being time-barred. Plaintiff therefore will not suffer gratuitous harm if the improperly joined Defendants are dismissed. Accordingly, the Court will exercise its discretion under Rule 21 and dismiss

Defendants Rafler, Albrecht, and Unknown Party from the action, without prejudice to the institution of new, separate lawsuits by Plaintiff against those Defendants. See Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997) (“In such a case, the court can generally dismiss all but the first named plaintiff without prejudice to the institution of new, separate lawsuits by the dropped plaintiffs”); Carney, 2008 WL 485204, at *3 (same). III. Failure to State a Claim A complaint may be dismissed for failure to state a claim if it fails “‘to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). The court must determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “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 679. Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)); see also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i)).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the federal Constitution or laws and must show that the deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994). IV. First Amendment Plaintiff alleges that Defendant Ross rejects Plaintiff’s incoming mail unless it is a postcard, thereby rejecting deliveries of books and mail from Plaintiff’s wife that includes legal printouts. Plaintiff also arguably alleges that Defendant Ross inhibits his ability to send mail out of the jail. A. Incoming Mail Although there is no question that the First Amendment applies to a prisoner’s receipt of incoming mail, the right is subject to limitation by legitimate penological interests.

Sheets v. Moore, 97 F.3d 164, 166 (6th Cir. 1996); Knop v. Johnson, 977 F.2d 996, 1012 (6th Cir. 1992). The Supreme Court has held that prison regulations allowing a warden to reject any publication for good reason pursuant to specific criteria did not violate the First Amendment because the regulations were reasonably related to legitimate penological interests. Thornburgh v. Abbot, 490 U.S. 401, 413 (1989). Emphasizing the extreme deference accorded to prison officials, the Supreme Court stated: We deal here with incoming publications, material requested by an individual inmate but targeted to a general audience. Once in the prison, material of this kind reasonably may be expected to circulate among prisoners, with the concomitant potential for coordinated disruptive conduct. Furthermore, prisoners may observe particular material in the possession of a fellow prisoner, draw inferences about their fellow’s beliefs, sexual orientation, or gang affiliations from that material, and cause disorder by acting accordingly. As the Deputy Solicitor General noted at oral argument: “The problem is not. . . in the individual reading the material in most cases. The problem is in the material getting into the prison.” In the volatile prison environment, it is essential that prison officials be given broad discretion to prevent such disorder. Thornburg, 490 U.S. at 412-13 (citations omitted). The Court applied four factors relevant to the inquiry whether the restriction is reasonably related to legitimate penological interests: (1) whether there is a valid rational connection between the regulation and the legitimate governmental interest which it allegedly furthers, (2) whether there are alternative means by which the inmate may exercise the right impinged, (3) what impact the accommodation of the inmate’s constitutional right will have on guards, other inmates, or the allocation of prison resources generally, and (4) the existence or absence of ready alternatives to the regulation in question. Turner v. Safley, 482 U.S. 78, 88-91 (1987) (cited in Thornburgh, 490 U.S. at 414-18). Upon initial review, the Court concludes that Plaintiff’s allegations related to the “postcard-only” policy and rejection of books and mail providing legal research from his wife are sufficient to state a First Amendment claim against Defendant Ross.

B. Outgoing Mail Plaintiff’s arguable allegations that Defendant Ross has disrupted his outgoing mail in violation of the First Amendment are speculative and conclusory. Conclusory allegations of unconstitutional conduct without specific factual allegations fail to state a claim under § 1983. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff merely alleges that he has had his outgoing mail returned several times and thus that he believes that someone “keep[s] messing with it.” (Compl., ECF No. 1, PageID.5.) He fails to allege any specific conduct much less specific conduct by Defendant Ross. Accordingly, Plaintiff fails to state a claim related to his outgoing mail. V. Respondeat Superior Plaintiff alleges that Defendants Hess, Merrit, and Little denied Plaintiff’s

grievances when Plaintiff reported Defendant Ross’ enforcement of the mail policy. Plaintiff fails to make specific factual allegations against Defendants Hess, Merrit, and Little that are transactionally related to his claim against Ross, other than his claim that they failed to conduct an investigation in response to his grievances. Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior or vicarious liability. Iqbal, 556 U.S. at 676; Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691(1978); Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). A claimed constitutional violation must be based upon active unconstitutional behavior. Grinter v. Knight, 532 F.3d 567, 575-76 (6th Cir. 2008); Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002). The acts of one’s subordinates are not enough, nor can supervisory liability be based upon the mere failure to act. Grinter, 532 F.3d at 576; Greene, 310 F.3d at 899; Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004). Moreover, § 1983 liability may not be imposed simply because a supervisor denied an administrative grievance or failed to act based upon information contained in a

grievance. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). “[A] plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. Plaintiff has failed to allege that Defendants Hess, Merrit, and Little engaged in any active unconstitutional behavior. Accordingly, he fails to state a claim against them. VI. Pending Motion Also pending before the Court is Plaintiff’s motion seeking appointment of counsel. (ECF No. 4.) Indigent parties in civil cases have no constitutional right to a court-appointed attorney. Abdur-Rahman v. Mich. Dep’t of Corr., 65 F.3d 489, 492 (6th Cir. 1995); Lavado v. Keohane, 992 F.2d 601, 604-05 (6th Cir. 1993). The Court may, however, request an attorney to

serve as counsel, in the Court’s discretion. Abdur-Rahman, 65 F.3d at 492; Lavado, 992 F.2d at 604-05; see Mallard v. U.S. Dist. Court, 490 U.S. 296 (1989). Appointment of counsel is a privilege that is justified only in exceptional circumstances. In determining whether to exercise its discretion, the Court should consider the complexity of the issues, the procedural posture of the case, and Plaintiff’s apparent ability to prosecute the action without the help of counsel. See Lavado, 992 F.2d at 606. The Court has carefully considered these factors and determines that, at this stage of the case, the assistance of counsel does not appear necessary to the proper presentation of Plaintiff’s position. Thus, the Court will deny Plaintiff’s request for appointment of counsel. Conclusion Having conducted the review under Federal Rule of Civil Procedure 21, the Court determines that Defendants Rafler, Albrecht, and Unknown Party will be dropped from the case. Plaintiff’s claims against them will be dismissed without prejudice. Further, having conducted the review required by the Prison Litigation Reform Act,

the Court determines that Plaintiff’s complaint against Defendants Hess, Merrit, and Little will be dismissed for failure to state a claim, under 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The Court will also dismiss Plaintiff’s First Amendment claims that Defendant Ross censors his outgoing mail in violation of the First Amendment. The Court will serve the complaint against Defendant Ross. An order consistent with this opinion will be entered.

Dated: May 12, 2020 /s/ Paul L. Maloney Paul L. Maloney United States District Judge