Frank Nali v. J. Ekman

355 F. App'x 909
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 9, 2009
Docket08-1599
StatusUnpublished
Cited by113 cases

This text of 355 F. App'x 909 (Frank Nali v. J. Ekman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frank Nali v. J. Ekman, 355 F. App'x 909 (6th Cir. 2009).

Opinions

WHITE, Circuit Judge.

Plaintiff Frank Nali challenges the district court’s dismissal of his civil rights action for failure to state a claim on which relief can be granted. We conclude that Nali stated a claim under the First Amendment, but that the district court properly dismissed his remaining federal claims. We therefore affirm in part, vacate in part and remand for further proceedings.

I

Nali was convicted of extortion in 1992 and was incarcerated at the Ojibway Correctional Facility in Michigan when he filed the instant suit. People v. Nali, No. 247843, 260267, 2005 WL 3556110, at *1 (Mich.Ct.App. Dec. 29, 2005). After prison officials cited him for a major misconduct infraction, Nali sued them and other corrections officials, alleging that they had violated his federal and state civil rights. The magistrate judge recommended that the court dismiss Nali’s federal claims for lack of merit and decline to exercise pendent jurisdiction over his state law claims. The district court adopted the magistrate judge’s report and recommendation, over Nali’s objections.

A

Nali’s seventeen claims can be broadly grouped into three types of federal claims—due process, speech—retaliation and equal protection—and various state-law claims. We affirm the dismissal of the due process and equal protection claims, but reverse as to the speech-retaliation claim.

We do not agree with our dissenting colleague that Nali waived his First Amendment claim.1 Neither the magistrate nor the district court addressed Nali’s First Amendment claim, which alleged that defendant Buda advised defendant Flahaug to write a misconduct ticket in retaliation for Nali’s filing of a grievance against Buda. The magistrate’s report and recommendation concluded in relevant part that Nali’s claims “regarding the allegedly false misconduct convictions remain noncognizable under § 1983” due to the Supreme Court’s holding in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In response, Nali objected to the magistrate’s application of Heck. The district court rejected Nali’s objections. Under the circumstances that it appeared that the report and recommen[911]*911dation recommended dismissal of the First Amendment claim under the Heck doctrine—since the claim was not otherwise addressed—Nali did not forfeit his argument that the First Amendment claim was dismissed in error by failing to specifically address it. Further, “[w]hen a district court fails to rule on a claim, we usually remand for consideration below.” United States v. Kennedy, 220 Fed.Appx. 407, 409 (6th Cir.2007) (unpublished disposition); cf. Nemir v. Mitsubishi Motors Corp., 381 F.3d 540, 552 (6th Cir.2004) (“The district court’s failure to rule on the motion requires that we remand for consideration anew.”).

B

Nali’s allegations appear to state a First Amendment retaliation claim. As this court explained in Smith v. Campbell, 250 F.3d 1032, 1036-37 (6th Cir.2001):

A prisoner retains First Amendment rights that are not inconsistent with his status as a prisoner or with legitimate penological objectives of the corrections system. See Pell v. Procunier, 417 U.S. 817[ 94 S.Ct. 2800, 41 L.Ed.2d 495] (1974). Retaliation based upon a prisoner’s exercise of his or her constitutional rights violates the Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.1999). To establish a First Amendment retaliation claim, the plaintiff must prove that: 1) the plaintiff engaged in activities protected by the Constitution or statute; 2) the defendant took an adverse action that would deter a person of ordinary firmness from continuing to engage in that conduct; and 3) that this adverse action was taken at least in part because of the exercise of the protected conduct.

This court has held that a pro se plaintiffs complaint should only be dismissed for failure to state a claim if it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Herron v. Harrison, 203 F.3d 410, 414 (6th Cir.2000) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). In this light, Nali’s allegation that defendants Buda and Flahaug initiated the March 21, 2007 misconduct citation in retaliation for Nali’s non-frivolous grievance against Buda may entitle him to relief on remand. See Thomas v. Eby, 481 F.3d 434, 440 (6th Cir.2007) (recognizing an inmate’s undisputed First Amendment right to file grievances against prison officials on his own behalf); see also Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.1999); Noble v. Schmitt, 87 F.3d 157, 162 (6th Cir.1996).

Under the Heck doctrine, when success in a prisoner’s § 1983 action would necessarily implicate the lawfulness of the prisoner’s conviction or duration of sentence, “a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” Heck, 512 U.S. at 486-87, 114 S.Ct. 2364. However, in Wilkinson v. Dotson, 544 U.S. 74, 82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005), the Supreme Court clarified that if success on a § 1983 claim “does not mean immediate release from confinement or a shorter stay in prison,” but instead “means at most new eligibility review, which at most will speed consideration of a new parole application,” the habeas exception to § 1983 does not apply. Two years later, this court concluded that under Michigan’s disciplinary credit program, a prisoner’s success on a “§ 1983 claim would not necessarily affect the duration of his sentence because prison officials would retain discretion regarding whether to grant him parole.” Eby, 481 F.3d at 439-40 (citing Mich. Comp. Laws § 800.33(3), (5), and the [912]*912Michigan Court of Appeals’ interpretation of the disciplinary credit program). As a result, the court held that the habeas exception did not apply to the prisoner’s § 1983 claim. Id. at 440.

During the pendency of the instant appeal, Nali’s conviction was vacated and his petition for writ of habeas corpus unconditionally granted. See Nali v. Phillips, 630 F.Supp.2d 807 (E.D.Mich.2009).

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