Nelson #630619 v. Davids et al, No. 1:2021cv00023 - Document 15 (W.D. Mich. 2021)
Court Description: OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)
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Nelson &#035;630619 v. Davids et al Doc. 15 Case 1:21-cv-00023-PLM-RSK ECF No. 15, PageID.53 Filed 04/22/21 Page 1 of 9 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______ LUSTER RAY NELSON, II, Plaintiff, v. Case No. 1:21-cv-23 Honorable Paul L. Maloney UNKNOWN DAVIDS 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 Factual allegations Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Ionia Correctional Facility (ICF) in Ionia, Ionia County, Michigan. The events about which he complains occurred at that facility on July 28, 2020. Plaintiff sues ICF Warden Dockets.Justia.com Case 1:21-cv-00023-PLM-RSK ECF No. 15, PageID.54 Filed 04/22/21 Page 2 of 9 Unknown Davids, Prisoner Counselors Unknown Jex and Unknown Amboy, Resident Unit Manager Unknown Oversmith, and Correctional Officers Unknown Yore, Unknown Morgan, Unknown Reese, Unknown Noadal, and Unknown Thayer. Plaintiff alleges that, on July 28, 2020, he was scheduled for a hearing with the Kalamazoo County Circuit Court for divorce proceedings. The hearing was scheduled to take place using video equipment and the Zoom Video Conferencing platform. Plaintiff was ready to participate, but the ICF staff were either unwilling or unable to make it happen. As a result, the divorce judgment and issues regarding his child were resolved without Plaintiff. When Plaintiff was eventually brought back to his cell, he was told the hearing would be rescheduled. But it was not. Plaintiff contends that each defendant played some role in preventing Plaintiff’s participation in the hearing. Plaintiff contends that Defendants thereby interfered with Plaintiff’s access to the courts in violation of the First Amendment. Plaintiff also claims, in conclusory fashion, that each defendant acted against Plaintiff in retaliation for a lawsuit he filed. Plaintiff seeks hundreds of thousands of dollars in compensatory and punitive damages. Motion to amend Plaintiff has moved to amend his complaint (ECF No. 9). By way of his amendment, Plaintiff seeks to add Defendant Chad Glifford, the ICF litigation coordinator. Federal Rule of Civil Procedure 15(a)(1) provides that a party may amend his pleading once as a matter of course. Accordingly, Plaintiff’s motion to amend his complaint to add Defendant Chad Glifford will be granted. 2 Case 1:21-cv-00023-PLM-RSK ECF No. 15, PageID.55 Filed 04/22/21 Page 3 of 9 Motions to appoint counsel Plaintiff has filed three motions asking the Court to appoint counsel on his behalf. (ECF Nos. 3, 11, 13.) Indigent parties in civil cases have no constitutional right to a courtappointed 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. Ct., 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. Plaintiff’s requests for appointment of counsel will therefore be denied. Motion for extension of time to pay initial partial filing fee By order entered January 12, 2021, the Court granted Plaintiff’s motion for leave to proceed in forma pauperis (ECF No. 5). As required by 28 U.S.C. § 1915, the Court directed Plaintiff to pay an initial partial filing fee of $10.67 within 28 days. When he filed his complaint, Plaintiff had more than sufficient funds to pay the initial partial filing fee in this case and another, Nelson v. Yuhas et al., No. 1:20-cv-1256 (W.D. Mich.). He has not paid in either case. Instead, he asked for an extension of 120 days to pay the initial partial filing fee. Plaintiff has not provided a compelling reason for the delay. Because Plaintiff had sufficient funds to pay the initial partial filing fees, the Court will deny his motion for extension. Plaintiff’s failure to pay the fee would 3 Case 1:21-cv-00023-PLM-RSK ECF No. 15, PageID.56 Filed 04/22/21 Page 4 of 9 support dismissal of the complaint without prejudice. Nonetheless, because Plaintiff’s complaint lacks merit, as set forth fully below, the Court will dismiss Plaintiff’s complaint with prejudice. 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. 4 Case 1:21-cv-00023-PLM-RSK ECF No. 15, PageID.57 Filed 04/22/21 Page 5 of 9 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). A. Access to the courts It is well established that prisoners have a constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817, 821 (1977). The principal issue in Bounds was whether the states must protect the right of access to the courts by providing law libraries or alternative sources of legal information for prisoners. Id. at 817. The Court further noted that in addition to law libraries or alternative sources of legal knowledge, the states must provide indigent inmates with “paper and pen to draft legal documents, notarial services to authenticate them, and with stamps to mail them.” Id. at 824–25. The right of access to the courts also prohibits prison officials from erecting barriers that may impede the inmate’s access to the courts. See Knop v. Johnson, 977 F.2d 996, 1009 (6th Cir. 1992). An indigent prisoner’s constitutional right to legal resources and materials is not, however, without limit. In order to state a viable claim for interference with his access to the courts, a plaintiff must show “actual injury.” Lewis v. Casey, 518 U.S. 343, 349 (1996); see also Talley-Bey v. Knebl, 168 F.3d 884, 886 (6th Cir. 1999); Knop, 977 F.2d at 1000. In other words, a plaintiff must plead and demonstrate that the shortcomings in the prison legal assistance program or lack of legal materials have hindered, or are presently hindering, his efforts to pursue a nonfrivolous legal claim. Lewis, 518 U.S. at 351–53; see also Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). The Supreme Court has strictly limited the types of cases for which there may be an actual injury: 5 Case 1:21-cv-00023-PLM-RSK ECF No. 15, PageID.58 Filed 04/22/21 Page 6 of 9 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). Plaintiff was not denied access to the courts to pursue a direct appeal of his criminal conviction, a habeas corpus application, or a civil rights claim. Accordingly, he has not alleged and cannot show actual injury. Therefore, Plaintiff has failed to state a claim for denial of his constitutional right to access the courts. B. Violation of prison policy directives Plaintiff claims that Defendants’ actions in interfering with his access to divorce proceedings violated ICF’s own policy directives. Claims under § 1983 can only be brought for “deprivations of rights secured by the Constitution and laws of the United States.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982). Section 1983 does not provide redress for a violation of a state law. Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995); Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir. 1994). Therefore, to the extent Plaintiff invokes prison policy, he fails to allege a due process claim. Section 1983 is addressed to remedying violations of federal law, not state law. Lugar, 457 U.S. at 924; Laney v. Farley, 501 F.3d 577, 580–81 & n.2 (6th Cir. 2007). Courts routinely have recognized that a prisoner does not enjoy any federally protected liberty or property interest in state procedure. See Olim v. Wakinekona, 461 U.S. 238, 250–51 (1983); Laney, 501 F.3d at 581 n.2; Brody v. City of Mason, 250 F.3d 432, 437 (6th Cir. 2001); Sweeton v. Brown, 27 F.3d 1162, 1164 (6th Cir. 1994); Smith v. Freland, 954 F.2d 6 Case 1:21-cv-00023-PLM-RSK ECF No. 15, PageID.59 Filed 04/22/21 Page 7 of 9 343, 347–48 (6th Cir. 1992); Barber v. City of Salem, 953 F.2d 232, 240 (6th Cir. 1992). Plaintiff’s allegation that Defendants violated prison policy therefore fails to raise a cognizable federal due process claim. C. Retaliation Plaintiff makes passing reference to the fact that Defendants may have motivated by a desire to retaliate against him because he had filed a lawsuit. 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) (en banc). In order to set forth a First Amendment retaliation claim, a plaintiff must establish three elements: (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)). It is not at all clear from Plaintiff’s allegations whether or not the “lawsuit” he references is protected conduct. But even if the lawsuit were protected conduct, Plaintiff’s allegations entirely fail to provide any facts that might permit the Court to infer that the filing of the lawsuit was a motivating factor in the alleged retaliatory conduct. It is well recognized that “retaliation” is easy to allege and that it can seldom be demonstrated by direct evidence. See Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005); Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987). “[A]lleging merely the ultimate fact of retaliation is insufficient.” Murphy, 833 F.2d at 108. “[C]onclusory allegations of retaliatory motive ‘unsupported by material facts will not be sufficient to state . . . a claim under § 1983.’” 7 Case 1:21-cv-00023-PLM-RSK ECF No. 15, PageID.60 Filed 04/22/21 Page 8 of 9 Harbin-Bey, 420 F.3d at 580 (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538–39 (6th Cir. 1987)); see also Murray v. Unknown Evert, 84 F. App’x 553, 556 (6th Cir. 2003) (in complaints screened pursuant to 28 U.S.C. § 1915A, “[c]onclusory allegations of retaliatory motive with no concrete and relevant particulars fail to raise a genuine issue of fact for trial”) (internal quotations omitted); Lewis v. Jarvie, 20 F. App’x 457, 459 (6th Cir. 2001) (“[B]are allegations of malice on the defendants’ parts are not enough to establish retaliation claims” that will survive § 1915A screening) (citing Crawford-El v. Britton, 523 U.S. 574, 588 (1998)). Plaintiff merely alleges the ultimate fact of retaliation in this action. He has not presented any facts to support his conclusion that Defendants retaliated against him because he filed a lawsuit. Accordingly, his speculative allegation fails to state a claim. Conclusion The Court will grant Plaintiff leave to amend his complaint to add a party. The Court will deny Plaintiff’s motions to appoint counsel. The Court will also deny Plaintiff’s motion to extend the time to pay the initial partial filing fee. Moreover, 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 v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997). For the same reasons the Court concludes that Plaintiff’s claims are properly dismissed, the Court also concludes that any issue Plaintiff might raise on appeal would be frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962). Accordingly, the Court certifies that an appeal would not be taken in good faith. 8 Case 1:21-cv-00023-PLM-RSK ECF No. 15, PageID.61 Filed 04/22/21 Page 9 of 9 This is a dismissal as described by 28 U.S.C. § 1915(g). A judgment consistent with this opinion will be entered. Dated: April 22, 2021 /s/ Paul L. Maloney Paul L. Maloney United States District Judge 9
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