Rodgers v. Hawley

14 F. App'x 403

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 22, 2001
• Docket: Nos. 99-2219, 99-2311
• Status: Published

Opinions

GWIN, District Judge.

Ronald Irvin, an inmate at the Marquette Branch Prison, brought suit against various prison employees under 42 U.S.C. § 1988. Proceeding pro se, Irvin alleged violations of his First Amendment right to send mail, to access the courts, and to be free from retaliation for accessing the courts. The district court granted summary judgment to the prison employees, a judgment Irvin now challenges on appeal. For the reasons, set forth below, we AFFIRM the judgment of the district court.

I

On March 12, 1996, several Marquette Branch Prison inmates filed this 42 U.S.C. § 1983 action in the United States District Court for the Western District of Michigan. Citing unsafe incarceration conditions, these inmates sued various prison employees for denial of their due process rights. On August 2, 1996, the inmates filed an amended complaint adding Ronald Irvin as a plaintiff and adding allegations that prison employees interfered with both prison mail and inmates’ access to legal assistance.

The prison employees moved for summary judgment on the inmates’ § 1983 claim. Irvin filed a separate response to this motion. In his response, Irvin specifically alleged that Gerard Kedzierzawski and David Kirkwood, both grievance coordinators at the Marquette Branch Prison, interfered with his attempts to grieve the conditions of his confinement. Irvin also alleged that Kedzierzawski and Kirkwood retaliated against him for attempting to pursue his grievances.

A federal magistrate judge recommended granting the prison employees’ motion for summary judgment. The magistrate judge found no evidence to support the inmates’ claim that the prison employees interfered with prison mail. As for Irvin’s allegations regarding interference with his right to access the courts, the magistrate judge observed that Irvin failed to allege any actual injury.

However, the magistrate judge noted that Irvin had not alleged retaliation in the second amended complaint. Thus, he concluded Irvin had not properly raised his retaliation claim. He recommended giving Irvin thirty days to add his retaliation claim in an amended complaint.

The district court adopted the magistrate judge’s recommendation. The court thus granted summary judgment to the prison employees on the inmates’ mail rights and court access claims. Further, the court gave Irvin thirty days to add his retaliation claim.

Irvin did so. In response, Kedzierzawski and Kirkwood filed a second motion for summary judgment. Finding insufficient evidence to support Irvin’s retaliation claim, the magistrate judge recommended granting this motion. The district court adopted the recommendation.

On appeal, Irvin says the district court erred in rejecting his § 1983 claim. He contends that evidence shows Renea Bradley, the Marquette Branch Prison’s mail room supervisor, delayed sending one of his letters to a fellow inmate because it contained legal information, thus violating his right to send mail. He also says the record supports his claim that Kedzierzawski and Kirkwood violated his right to access the courts by preventing him from processing his grievances. Finally, Irvin argues that evidence shows Kedzierzawski and Kirkwood retaliated against him for filing grievances by ignoring his grievances and denying him postage stamps, hygiene items, and over-the-counter medications.

We now consider Irvin’s appeal.¹

II

We review a district court’s grant of summary judgment de novo. Doren v. Battle Creek Health Sys., 187 F.3d 595, 597 (6th Cir.1999). Accordingly, we affirm a grant of summary judgment if there are no genuine issues of material fact such that the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

III

A

Irvin first contends that the district court erred in granting judgment to Bradley on his mail rights claim under § 1983. He says Bradley intentionally delayed delivery of a certified letter he sent to a fellow inmate based on its legal content. Such content-based interference with prisoner mail, according to Irvin, runs afoul of the First Amendment.

Irvin is correct. A prisoner has a First Amendment right to send mail. Hudson v. Palmer, 468 U.S. 517, 547, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). A restriction on this right is valid “only if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Interfering with a prisoner’s right to send mail simply because the letter contains legal information bears no relation to a legitimate penological interest. Antonelli v. Sheahan, 81 F.3d 1422, 1431-32 (7th Cir.1996) (finding allegations that prison official opened and intentionally delayed delivery of legal mail sufficient to state First Amendment claim); cf. Turner, 482 U.S. at 89, 107 S.Ct. 2254 (“Moreover, the governmental objective must be a legitimate and neutral one. We have found it important to inquire whether prison regulations restricting inmates’ First Amendment rights operated in a neutral fashion, without regard to the content of the expression.”).

But Bradley’s alleged delivery delay occurred in September 1996. Irvin, along with the other inmates, asserted their mail rights claim on August 2, 1996, the date they filed the second amended complaint. Irvin cannot rely on evidence of an event that occurred after he filed his claim as support for that claim. The filing of an action fixes the controversy. If he desired to litigate events occurring after he filed his mail rights claim, Irvin needed to file a supplemental pleading under Fed. R.Civ.P. 15(d), which provides that “the court may ... permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented.”

Irvin never filed a supplemental pleading alleging Bradley’s failure to timely deliver his legal mail. This allegation was thus never before the district court. The district court, then, did not err in failing to credit evidence supporting this phantom allegation.

B

Irvin next challenges the district court’s grant of judgment to Kedzierzawski and Kirkwood on his court access claim under § 1983. He says evidence shows Kedzierzawski and Kirkwood prevented him from pursuing grievances.

The First Amendment affords prisoners a right of access to the courts. “Like others, prisoners have the constitutional right to petition the Government for redress of their grievances, which includes a reasonable right of access to the courts.” Hudson, 468 U.S. at 523, 104 S.Ct. 3194; Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). This right “extends to direct appeals, habeas corpus applications, and civil rights claims only.” Thaddeus-X v. Blatter, 175 F.3d 378, 391 (6th Cir.1999).

Prison officials deny prisoners their right to access the courts by depriving them of a “reasonably adequate opportunity” to challenge their sentence or conditions of confinement. Bounds, 430 U.S. at 828, 97 S.Ct. 1491; Lewis v. Casey, 518 U.S. 343, 354-55, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). However, depriving prisoners of this opportunity only “in some theoretical sense” will not establish a violation of the right to access the courts. Lewis, 518 U.S. at 351, 116 S.Ct. 2174. Rather, a prisoner must show prison officials’ conduct inflicted an “actual injury,” 1. e., that the conduct hindered his efforts to pursue a nonfrivolous legal claim. Id. at 351-53,116 S.Ct. 2174.

Thus, to prevail, Irvin must prove Kedzierzawski and Kirkwood prevented him from pursuing a legitimate legal claim. Irvin says his own testimony establishes two such actual injuries.

First, Irvin testifies that Kirk-wood failed to return one of his grievances until after the time for an appeal had expired. Second, Irvin testifies that Kedzierzawski and Kirkwood arranged to deny him an indigent store order for postage stamps. He now says he needed a stamp to appeal a misconduct report that implicated his due process rights.²

This evidence does not establish an actual injury. Even if Kirkwood prevented Irvin from appealing a grievance, the record gives no indication whether this grievance had any potential merit. Nor does the record show whether Irvin’s grievance stated a civil rights claim — prisoners grieve many conditions of their confinement; not all rise to the level of a constitutional violation. And most important, Kirkwood’s alleged misdeed occurred after Irvin filed his court access claim.³ As noted, Irvin cannot support his court access claim by citing evidence of an event that allegedly occurred after he filed his claim.

Likewise, Irvin cannot prove an actual injury based solely on his inability to obtain a postage stamp. He must show that he needed a postage stamp to pursue a nonfrivolous civil rights claim. Irvin offers no such evidence. He merely invites speculation as to how his inability to obtain postage stamps deprived him of meaningful access to the courts.

Lacking evidence of an actual injury, Irvin cannot sustain his court access claim.

C

Finally, Irvin appeals the district court’s grant of judgment to Kedzierzawski and Kirkwood on his retaliation claim under § 1983. According to Irvin, the record contains ample evidence showing Kedzierzawski and Kirkwood sought to stop his grievances through intimidation.

Prisoners have a First Amendment right to file grievances and access the courts without suffering retaliation for so doing. Thaddeus-X, 175 F.3d at 388. To establish a violation of this right, a plaintiff must prove three elements: (1) the prisoner engaged in protected conduct, (2) an adverse action was taken that would deter a person of ordinary firmness from continuing to engage in that conduct, and (3) the adverse action was motivated, at least in part, by the prisoner’s protected conduct. Id. at 394.

Irvin has arguably offered enough evidence to make this showing. By filing multiple grievances against prison employees, Irvin engaged in activity protected under the First Amendment. Herron v. Harrison, 203 F.3d 410, 415 (6th Cir.2000) (holding that an inmate has an “undisputed First Amendment right to file grievances against prison officials on his own behalf’).

Irvin also offers some evidence that he suffered adverse action sufficient to deter a person of ordinary firmness from continuing to pursue grievances. He testifies that Kedzierzawski and Kirkwood refused to file his grievances, often without any explanation. He also offers evidence that they arranged to deprive him of an indigent store order for postage stamps, hygiene items, and over-the-counter medicine.

And the record contains evidence suggesting Kedzierzawski and Kirkwood’s alleged actions were motivated by Irvin’s protected conduct. Irvin testifies that Kirkwood explicitly warned that filing future grievances would cost Irvin benefits. He further testifies that the staff member who denied his prison store order specifically stated the denial stemmed from his grievances.

However, even assuming he has offered enough evidence to sustain his retaliation claim, Irvin cannot necessarily avoid summary judgment. Irvin sues Kedzierzawski and Kirkwood under § 1983. Government actors generally receive qualified immunity in § 1983 actions. Irvin bears the burden of defeating this immunity. Blake v. Wright, 179 F.3d 1003, 1007 (6th Cir.1999). He has not met this burden.

The doctrine of qualified immunity shields state actors from liability based on their discretionary acts. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (holding that “government officials performing discretionary functions generally are shielded from liability for civil damages”). In so doing, the doctrine gives state actors the freedom to perform their official duties without fear that even a slight misstep will trigger their financial ruin. Wyatt v. Cole, 504 U.S. 158, 167, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992) (“Accordingly, we have recognized qualified immunity for government officials where it was necessary to preserve their ability to serve the public good or to ensure that talented candidates were not deterred by the threat of damages suits from entering public service.”).

But state actors lose this immunity when they violate clearly established constitutional rights of which a reasonable person should have known. Harlow, 457 U.S. at 818, 102 S.Ct. 2727. The doctrine thus offers no solace to “the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).

This Circuit follows a three-step process when evaluating an assertion of qualified immunity:

First, we determine whether a constitutional violation has occurred; second, we determine whether the right that was violated was a clearly established right of which a reasonable person would have known; finally, we determine whether the plaintiff has alleged sufficient facts, and supported the allegations by sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.

Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999) (en banc) (quotations omitted) (citing Harlow, 457 U.S. at 818, 102 S.Ct. 2727).

Thus, assuming Kedzierzawski and Kirkwood violated Irvin’s right to be free from retaliation for filing grievances, the question for purposes of qualified immunity is whether this violation involved a “clearly established right of which a reasonable person would have known....” Id.

The right not to suffer retaliation for exercising First Amendment freedoms is clearly established. Cale v. Johnson, 861 F.2d 943, 949-50 (6th Cir.1988). The contours of that right, however, have evolved in the last several years.

Until recently, this Circuit analyzed retaliation claims as alleging substantive due process violations. Retaliatory conduct violated substantive due process only when it shocked the conscience. McLaurin v. Cole, 115 F.3d 408, 410-11 (6th Cir.1997) (citing Cale, 861 F.2d at 949-50).

In 1999, this Circuit disavowed the substantive due process standard for retaliation claims.⁴ Thaddeus-X, 175 F.3d at 387-88. Such claims now fall directly under the First Amendment. Retaliatory conduct is actionable under the First Amendment when it would dissuade a person of ordinary firmness from continuing to engage in protected conduct. Id. at 394.

In this case, the alleged retaliatory conduct occurred in 1995 and 1996. At that time, the law of this Circuit required that actionable retaliation shock the conscience or involve an egregious abuse of government power.⁵ McLaurin, 115 F.3d at 410-11.

Kedzierzawski and Kirkwood’s alleged retaliatory acts do not meet this heightened standard. A reasonable juror would not find an isolated deprivation of postage stamps and other nonessential items shocking to the conscience. Likewise, the occasional failure to process a grievance is no egregious abuse of government power.

Because they did not violate constitutional rights that were clearly established at the time of their actions, Kedzierzawski and Kirkwood are entitled to qualified immunity on Irvin’s retaliation claim.⁶

IV

For the reasons stated above, we AFFIRM the district court’s grant of summary judgment to defendants in both Nos. 99-2219 and 99-2311.

1 . The district court did not address, and the parties have not briefed on appeal, whether the Prison Litigation Reform Act of 1996 ("PLRA”) applies to Irvin’s § 1983 claim. When applicable, the PLRA requires the administrative exhaustion of a prisoner’s § 1983 claim. 42 U.S.C. § 1997e(a). Because we find that the application of the PLRA would have no effect on the disposition of this case, we will not address this issue sua sponte.

2 . Irvin offered this testimony in his verified amended complaint. Executed under the penalty of perjury, a verified complaint has “the same force and effect as an affidavit” for evidentiary purposes. Williams v. Browman, 981 F.2d 901, 905 (6th Cir.1992); 28 U.S.C. § 1746.

3 . The inmates filed their second amended complaint on August 2, 1996. Irvin says Kirkwood failed to return the grievance later that month.

4 . In Thaddeus-X, this court, sitting en banc, concluded that the United States Supreme Court’s decision in Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), established that a retaliation claim asserted under an enumerated constitutional right should be analyzed under that right rather than the more amorphous substantive due process standard. 175 F.3d at 388 ("To the extent that our prior decisions have imposed the ‘shocks the conscience' test when prisoners claim retaliation in violation of an enumerated constitutional right, they are in conflict with the Supreme Court’s decisions in Graham and its progeny and are no longer the law of this Circuit.”).

5 . In his dissent, Judge Clay suggests that the shocks-the-conscience test did not govern Kedzierzawski and Kirkwood’s conduct in 1995 and 1996. He says the new standard for retaliation claims adopted in Thaddeus-X "did not effect a profound change in the law ...,” but merely recognized the standard for retaliation claims "long ago established” by the United States Supreme Court’s decision in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). We disagree.

In Graham, the Supreme Court held only that the reasonableness test explicitly set forth in the Fourth Amendment governs excessive force claims, rather than the shocks the conscience test applicable to substantive due process claims. Id. at 395, 109 S.Ct. 1865. The Court found that the showing required to make out a § 1983 claim required reference to the constitutional right underlying the claim. Graham involved an excessive force claim. Thus, the Court concluded that such a claim should be tested under the Fourth Amendment, which provides individuals with "the right ‘to be secure in their persons ... against unreasonable ... seizures’ of the person.” Id. Because "the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing these claims.”

But in this case, Irvin makes a First Amendment retaliation claim. Unlike the Fourth Amendment involved in Graham, the First Amendment does not express any substantive standard governing intrusions on the rights guaranteed thereunder. Including no explicit standard, the First Amendment could not have alerted Kedzierzawski and Kirkwood that they were violating Irvin’s First Amendment rights.

This Circuit’s treatment of retaliation claims supports this conclusion. Graham was decided in 1989. Yet in 1997, this Circuit affirmed the shocks the conscience test for First Amendment retaliation claims. McLaurin v. Cole, 115 F.3d 408 (6th Cir. 1997). If it not initially clear to this Circuit that Graham abandoned the shocks the conscience test, then Kedzierzawski and Kirk-wood ought not have recognized as much.

Any suggestion that a standard other than the shocks the conscience test applies to First Amendment retaliation claims did not crystalize until Thaddeus-X. However, as noted the text, the retaliatory conduct alleged in this case occurred well before Thaddeus-X. At the time of these acts, Irvin had only a clearly established right to be free from retaliatory conduct that shocks the conscience.

6 . Although Kedzierzawski and Kirkwood raised the defense, the district court did not rely on qualified immunity in granting judgment on Irvin’s retaliation claim. We may nevertheless base our affirmance on qualified immunity. Andrews v. Ohio, 104 F.3d 803, 808 (6th Cir. 1997) (holding that this court can affirm on any ground supported by the record, even if not cited by the district court).