Smith v. Craven

61 F. App'x 159
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 19, 2003
DocketNo. 01-5634
StatusPublished
Cited by19 cases

This text of 61 F. App'x 159 (Smith v. Craven) 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
Smith v. Craven, 61 F. App'x 159 (6th Cir. 2003).

Opinion

ORDER

Robert L. Smith, Jr., a pro se Tennessee prisoner, appeals a district court judgment dismissing his civil rights complaint filed pursuant to 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).

[161]*161Seeking monetary and equitable relief, Smith sued several prison officials (Craven, Eckman, Perez, Pritchard, Harville, Daniels, Thorpe, Futrell, Danford, Blockett, Woods, Scott, Moore, Haggard, and Sawyer) in their individual and official capacities. The defendants were employed by the Corrections Corporation of America (CCA) and worked at Hardeman County Correctional Facility where Smith was housed. Smith essentially asserted that: 1) his personal property and word processing equipment were damaged during a cell search; 2) the defendants violated his right of access to the courts by confiscating his legal papers; 3) the defendants violated his right to due process during disciplinary proceedings; 4) the defendants violated due process by not following Tennessee Department of Correction (TDOC) policies; 5) his confinement in segregation violated his right to be free from cruel and unusual punishment; and 6) the defendants retaliated against him for exercising his rights under the First and Fourteenth Amendments. The district court sua sponte dismissed the action as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), but noted that Smith had failed to demonstrate exhaustion of administrative remedies with regard to his retaliation claim.

Smith has filed a timely appeal and reasserts his retaliation claim.

Smith fails to reassert on appeal the first five claims presented in his complaint. Issues raised in the district court but not on appeal are considered abandoned and are not reviewable. Kocsis v. Multi-Care Mgmt., 97 F.3d 876, 881 (6th Cir.1996). Thus, the dismissal of Smith’s first five claims has not been reviewed.

This court reviews de novo a district court order dismissing a complaint pursuant to 28 U.S.C. § 1915(e). McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997). Where a claim is frivolous or fails to state a claim upon which relief can be granted, the court may dismiss the underlying claim without first requiring the exhaustion of administrative remedies. See 42 U.S.C. § 1997e(c)(2); Brown v. Toombs, 139 F.3d 1102, 1103-04 (6th Cir.1998).

Upon review, we conclude that the district court’s judgment must be affirmed as to all portions of Smith’s retaliation claim which are frivolous or fail to state a claim, despite any exhaustion problems. In his retaliation claim, Smith asserted that the defendants retaliated against him for exercising his rights under the First and Fourteenth Amendments by filing grievances and lawsuits and working as a paid inmate advisor.

To state a First Amendment claim for retaliation, a plaintiff must establish that: 1) he engaged in protected conduct; 2) he suffered an adverse action which would deter a person of ordinary firmness from continuing to engage in the protected conduct; and 3) the adverse action was motivated at least in part by the protected conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.1999). “[I]f a prisoner violates a legitimate prison regulation, he is not engaged in ‘protected conduct,’ and cannot proceed beyond step one.” Id. at 395. But if the plaintiff establishes the three elements, the burden of production then shifts to the defendants to show that their actions would not have been different absent the plaintiffs protected conduct. Id. at 400.

Smith failed to state a claim for retaliation, except for one instance of retaliation which will be discussed last. Generally, Smith did not establish the first element, i.e., that he had engaged in protected conduct with respect to the alleged incidents of retaliation.

[162]*162Smith did not establish that he had engaged in protected conduct before Eckman allegedly refused to move Smith to a nonsmoking unit in retaliation for filing grievances. An inmate has a First Amendment right to file grievances against prison officials, provided that the grievance is non-frivolous. Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir.2001); Herron v. Harrison, 203 F.3d 410, 415 (6th Cir.2000). Smith did not describe any of the grievances preceding Eckmaris decision and thus did not show that the grievances were non-frivolous.

Smith did not establish that any of his actions as an inmate advisor constituted protected conduct. An inmate has no right to assist other prisoners with their legal claims unless legal assistance is necessary to vindicate the other prisoner’s right of access to the courts. Thaddeus-X, 175 F.3d at 395. In Thaddeus-X this court found that a pro se inmate advisor had sufficiently alleged that his legal assistance was necessary by stating in his complaint that the other inmate had no knowledge of the law and was unable to access the court in any meaningful way absent the advisor’s assistance. Id. Smith did not make similar allegations.

Smith did not establish that he engaged in protected conduct by litigating a property claim against the prison in Tennessee small claims court, for which the defendants allegedly retaliated by shaking down his cell on December 5, 2000. A prisoner’s right of access to the courts is limited to direct criminal appeals, habeas corpus applications, and civil rights claims challenging the conditions of confinement. Lewis v. Casey, 518 U.S. 343, 355, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Thaddeus-X, 175 F.3d at 391. The right of access does not extend to a prisoner’s property claim filed in state court.

Smith, however, did establish that he engaged in protected conduct by filing a grievance concerning property confiscated from his cell during the December 5, 2000, shakedown. See Herron, 203 F.3d at 415. The subsequent return of his property indicates that the property had been wrongfully seized and that the grievance was non-frivolous. See id.

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Bluebook (online)
61 F. App'x 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-craven-ca6-2003.