Williams 225280 v. Stevenson

• Court: District Court, W.D. Michigan
• Decided: January 17, 2020
• Docket: 1:19-cv-00863
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______

DONNELL WILLIAMS,

Plaintiff, Case No. 1:19-cv-863

v. Honorable Robert J. Jonker

UNKNOWN STEVENSON et al.,

Defendants. ____________________________/ OPINION This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), the Court is required 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 Plaintiff’s complaint for failure to state a claim. Discussion I. Factual allegations Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Carson City Correctional Facility (DRF) in Carson City, Montcalm County, Michigan. The events about which he complains occurred at that facility. Plaintiff sues Prison Counselors Unknown Stevenson and Unknown Fleisher, Corrections Officer Unknown Sanchez, and Mailroom Administrative Officer Unknown Dine. Plaintiff alleges that on August 8, 2019, he told corrections officers numerous times that he needed to send out legal mail. Corrections officers did not call a Resident Unit Manager or Prison Counselor to help Plaintiff send out his legal mail. On August 9, 2019, Plaintiff again

asked corrections officers to call a Resident Unit Manager or Prison Counselor numerous times so that he could send out his legal mail. Plaintiff states that the officers failed to respond to his requests. Plaintiff’s sister called the prison to complain about Plaintiff’s inability to send out legal mail, but a prison employee hung up on her. On August 12, 2019, Plaintiff filed a step I grievance regarding his inability to send out his legal mail. At approximately 12:50 p.m., Defendant Stevenson called Plaintiff out for legal mail rounds. Plaintiff gave Defendant Stevenson one envelope of legal mail and another to send to a family member. Defendant Stevenson told Plaintiff that he was going to have Defendant Sanchez shake down Plaintiff’s cell in retaliation for filing a grievance on him and his co-workers.

Shortly thereafter, Defendant Sanchez shook down Plaintiff’s cell and told Plaintiff that it was in retaliation for Plaintiff’s grievance. On August 13, 2019, Plaintiff gave Defendant Fleisher an envelope and disbursement form in order to send mail to a family member. Plaintiff states that he wanted his family member to call the prison and complain about the refusal to process Plaintiff’s grievances. Plaintiff’s mail was returned to him on August 15, 2019, after it had been opened and read by staff. On August 16, 2019, Plaintiff filed a step I grievance on Defendants Stevenson, Fleisher, and Dine, for refusing to process his indigent mail. On August 19, 2019, Plaintiff filed a staff corruption grievance on MDOC Director Heidi Washington, Warden Randy Rewerts, Deputy Warden J. Schiebner, and Assistant Deputy Warden B. Pung for refusing to discipline their employees. The Inspector’s office failed to process the grievance. Plaintiff claims that Defendants violated his rights under the First Amendment. Plaintiff seeks damages and equitable relief. II. 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). III. Access to the Courts Plaintiff claims that Defendants interfered with his ability to send out legal mail between August 8, 2019, and August 12, 2019. In Bounds v. Smith, 430 U.S. 817 (1977), the Supreme Court recognized a prisoner’s fundamental right of access to the courts. While the right of access to the courts does not allow a State to prevent an inmate from bringing a grievance to court, it also does not require the State to enable a prisoner to discover grievances or litigate effectively. Lewis v. Casey, 518 U.S. 343 (1996). Thus, Bounds did not create an abstract, free- standing right to a law library, litigation tools, or legal assistance. Id. at 351 (1996). Further, the

right may be limited by legitimate penological goals, such as maintaining security and preventing fire or sanitation hazards. See Acord v. Brown, No. 91-1865, 1992 WL 58975 (6th Cir. March 26, 1992); Hadix v. Johnson, No. 86-1701, 1988 WL 24204 (6th Cir. March 17, 1988); Wagner v. Rees, No. 85-5637, 1985 WL 14025 (6th Cir. Nov. 8, 1985). To state a claim, Plaintiff must show that the interference with his outgoing mail caused actual injury in his pursuit of a legal claim. Lewis, 518 U.S. at 351; Talley-Bey, 168 F.3d at 886; Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996); Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996); Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir. 1985). An inmate must make a specific claim that he was adversely affected or that the litigation was prejudiced. Harbin-Bey v. Rutter, 420 F.3d 571, 578 (6th Cir. 2005); Vandiver v. Niemi, No. 94-1642, 1994 WL 677685, at *1 (6th Cir. Dec. 2, 1994). “Examples of actual prejudice to pending or contemplated litigation include having a case dismissed, being unable to file a complaint, and missing a court-imposed deadline.” Harbin-Bey, 420 F.3d at 578 (citing Jackson v. Gill, 92 F. App’x 171, 173 (6th Cir. 2004)).

The Supreme Court has strictly limited the types of cases for which there may be an actual injury: Bounds does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.

Lewis, 518 U.S. at 355. “Thus, a prisoner’s right to access the courts extends to direct appeals, habeas corpus applications, and civil rights claims only.” Thaddeus- X v. Blatter, 175 F.3d 378, 391 (6th Cir. 1999) (en banc). Moreover, the underlying action must have asserted a non-frivolous claim. Lewis, 518 U.S. at 353; accord Hadix v. Johnson, 182 F.3d 400, 405 (6th Cir. 1999) (Lewis changed actual injury to include requirement that action be non-frivolous).

In addition, the Supreme Court squarely has held that “the underlying cause of action . . . is an element that must be described in the complaint, just as much as allegations must describe the official acts frustrating the litigation.” Christopher v. Harbury, 536 U.S. 403, 415 (2002) (citing Lewis, 518 U.S. at 353 & n.3). “Like any other element of an access claim, the underlying cause of action and its lost remedy must be addressed by allegations in the complaint sufficient to give fair notice to a defendant.” Id. at 416. Plaintiff has failed to allege any such prejudice. Therefore, Plaintiff fails to state a claim that his First Amendment right of access to the courts was violated. IV. Interference with grievance process Plaintiff claims that Defendants interfered with his use of the grievance process. Plaintiff has no due process right to file a prison grievance. The courts repeatedly have held that there exists no constitutionally protected due process right to an effective prison grievance procedure. See Hewitt v. Helms, 459 U.S. 460, 467 (1983); Walker v. Mich. Dep’t of Corr., 128

F. App’x 441, 445 (6th Cir. 2005); Argue v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003); Young v. Gundy, 30 F. App’x 568, 569-70 (6th Cir. 2002); Carpenter v. Wilkinson, No. 99-3562, 2000 WL 190054, at *2 (6th Cir. Feb. 7, 2000); see also Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (collecting cases). Michigan law does not create a liberty interest in the grievance procedure. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983); Keenan v. Marker, 23 F. App’x 405, 407 (6th Cir. 2001); Wynn v. Wolf, No. 93- 2411, 1994 WL 105907, at *1 (6th Cir. Mar. 28, 1994). Because Plaintiff has no liberty interest in the grievance process, Defendants’ conduct did not deprive him of due process. Nor was Plaintiff’s right to petition the government violated by Defendant’s failure to process or act on his grievances. The First Amendment “right to petition government does not

guarantee a response to the petition or the right to compel government officials to act on or adopt a citizen’s views.” Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999). Moreover, Defendants’ actions have not barred Plaintiff from seeking a remedy for his grievances. See Cruz v. Beto, 405 U.S. 319, 321 (1972). “A prisoner’s constitutional right to assert grievances typically is not violated when prison officials prohibit only ‘one of several ways in which inmates may voice their complaints to, and seek relief, from prison officials’ while leaving a formal grievance procedure intact.” Griffin v. Berghuis, 563 F. App’x 411, 415-16 (6th Cir. 2014) (citing N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 130 n.6 (1977)). Indeed, Plaintiff’s ability to seek redress is underscored by his pro se invocation of the judicial process. See Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982). Even if Plaintiff had been improperly prevented from filing a grievance, his right of access to the courts to petition for redress of his grievances (i.e., by filing a lawsuit) cannot be compromised by his inability to file institutional grievances, and he therefore cannot demonstrate

the actual injury required for an access-to-the-courts claim. See, e.g., Lewis, 518 U.S. at 355; Bounds, 430 U.S. at 821-24. The exhaustion requirement only mandates exhaustion of available administrative remedies. See 42 U.S.C. § 1997e(a). If Plaintiff were improperly denied access to the grievance process, the process would be rendered unavailable, and exhaustion would not be a prerequisite for initiation of a civil rights action. See Ross v. Blake, 136 S. Ct. 1850, 1858-59 (2016) (reiterating that, if the prisoner is barred from pursuing a remedy by policy or by the interference of officials, the grievance process is not available, and exhaustion is not required); Kennedy v. Tallio, 20 F. App’x 469, 470 (6th Cir. 2001). In light of the foregoing, the Court finds that Plaintiff fails to state a cognizable claim.

V. Retaliation Plaintiff claims that Defendants Stevenson and Sanchez improperly subjected him to a cell search in retaliation for filing grievances. Retaliation based upon a prisoner’s exercise of his or her constitutional rights violates the Constitution. See Thaddeus-X, 175 F.3d at 394. In order to set forth a First Amendment retaliation claim, a plaintiff must establish that: (1) he was engaged in protected conduct; (2) an adverse action was taken against him that would deter a person of ordinary firmness from engaging in that conduct; and (3) the adverse action was motivated, at least in part, by the protected conduct. Id. Moreover, a plaintiff must be able to prove that the exercise of the protected right was a substantial or motivating factor in the defendant’s alleged retaliatory conduct. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). The filing of a prison grievance is constitutionally protected conduct for which a prisoner cannot be subjected to retaliation. See Smith, 250 F.3d at 1037; Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000). Therefore, Plaintiff meets the first part of the test for stating a

retaliation claim as set forth by the Sixth Circuit in Thaddeus-X. As noted above, Plaintiff’s claim of adverse conduct consists of a retaliatory cell shakedown. A cell search which is accompanied by the seizure of documents, excessive force, or a pattern of previous questionable shakedowns may be considered sufficiently adverse to satisfy the adverse-action requirement of Thaddeus-X. See Bell v. Johnson, 308 F.3d 594, 606 (6th Cir. 2002) (citing Walker v. Bain, 257 F.3d 660, 664 (6th Cir. 2001)). See also Reynolds-Bey v. Harris, 428 F. App’x 493, 503-04 (6th Cir. 2011) (citing Tate v. Campbell, 85 F. App’x 413, 417 (6th Cir. 2003)). However, “prisoners are expected to endure more than the average citizen.” Reynolds- Bey, 428 F. App’x at 503 (quoting Siggers-El v. Barlow, 412 F.3d 693, 701 (6th Cir. 2005)).

Routine inconveniences such as “the single search of a prison cubicle would not deter a person of ‘ordinary firmness’ from pursuing constitutional grievances.” Id. (quoting Tate, 85 F. App’x at 417). In this case, Plaintiff fails to allege facts showing that he was subjected to anything more than a single search of his area of control. Therefore, the Court will dismiss Plaintiff’s retaliation claims against Defendants Stevenson and Sanchez. VI. Pending motions Because Plaintiff’s complaint is properly dismissed for failing to state a claim, his pending motion for order “seeking exclusion for the Early Mediation Program” (ECF No. 5) is denied as moot. Plaintiff has also filed a motion to suspend fees and costs (ECF No. 3). Under 28 U.S.C. ' 1915(b)(1) and (2), a prisoner’s obligation to pay the filing fee by way of installments accrues upon the filing of the complaint or appeal. McGore v. Wrigglesworth, 114 F.3d 601, 607 (6th Cir. 1997). All prisoners who file actions or appeals in this Court claiming pauper status remain liable for the full payment of the filing fee by way of installments. 28 U.S.C. ' 1915(b)(1)-

(2). Congress has authoritatively determined the manner in which payment shall be made. This Court lacks authority to alter that process. Accordingly, Plaintiff’s motion to suspend fees and costs (ECF No. 5) is denied. Conclusion Having conducted the review required by the Prison Litigation Reform Act, the Court determines that Plaintiff’s complaint 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 must next decide whether an appeal of this action would be in good faith within the meaning of 28 U.S.C. § 1915(a)(3). See McGore, 114 F.3d at 611. For the same reasons that the Court dismisses the action, the Court discerns no good-faith basis for an appeal.

Should Plaintiff appeal this decision, the Court will assess the $505.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g). If he is barred, he will be required to pay the $505.00 appellate filing fee in one lump sum. This is a dismissal as described by 28 U.S.C. § 1915(g). A judgment consistent with this opinion will be entered. Dated: January 17, 2020 /s/ Robert J. Jonker ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE