Berkshire #371645 v. Payton et al, No. 1:2021cv00689 - Document 8 (W.D. Mich. 2022)
Court Description: OPINION; signed by Magistrate Judge Ray Kent (fhw)
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Berkshire &#035;371645 v. Payton et al Doc. 8 Case 1:21-cv-00689-RSK ECF No. 8, PageID.38 Filed 02/25/22 Page 1 of 12 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______ RANDY BERKSHIRE, Plaintiff, v. Case No. 1:21-cv-689 Honorable Ray Kent SHERRY PAYTON et al., Defendants. ____________________________/ OPINION This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. Plaintiff paid the full requisite filing fee on August 26, 2021. Pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure, Plaintiff consented to proceed in all matters in this action under the jurisdiction of a United States magistrate judge. (ECF No. 5.) Under Rule 21 of the Federal Rules of Civil Procedure, a court may at any time, with or without motion, add or drop a party for misjoinder or nonjoinder. Fed. R. Civ. P. 21. Applying Rules 18, 20, and 21 regarding joinder, the Court will drop Defendants Johnson, Jackson, Visser, Karel, and Jones from this action and dismiss Plaintiff’s claims against them without prejudice. 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. Dockets.Justia.com Case 1:21-cv-00689-RSK ECF No. 8, PageID.39 Filed 02/25/22 Page 2 of 12 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 concludes that Plaintiff’s claims against Defendant Payton may proceed. Discussion Factual Allegations Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Kinross Correctional Facility (KCF) in Kincheloe, Chippewa County, Michigan. The events about which he complains, however, occurred at the Earnest C. Brooks Correctional Facility, (LRF) in Muskegon Heights, Muskegon County, Michigan. Plaintiff sues Warden Shane Jackson, Classification Director Dara Johnson, Prison Counselor Brent Jones, General Office Assistants Sherry Payton and Amy Karel, and Social Worker Erik Visser. Plaintiff alleges that on or about February 20, 2020, his mother purchased a Valentine’s Day card that she “scripted with a personal sentimental message.” (ECF No. 1, PageID.4.) On June 6, 2020, his mother sent him a birthday card that again contained a “personal sentimental message.” (Id., PageID.5.) On June 20, 2020, his mother mailed him a Father’s Day card that also contained a “personal sentimental message.” (Id.) Plaintiff avers that all three of these cards were received, opened, and rejected by Defendant Payton. (Id., PageID.4–5.) Plaintiff maintains that he never received notice of these rejections and was not given the opportunity to challenge them. (Id.) Plaintiff goes on to allege that in September of 2020, he requested that he be placed in the institutional school porter job assignment. (Id., PageID.5.) He claims that Defendant Johnson, an African-American, denied him the assignment under a pretext that Plaintiff “did not have the CMT certificate qualification for the position.” (Id.) Plaintiff claims that Defendant 2 Case 1:21-cv-00689-RSK ECF No. 8, PageID.40 Filed 02/25/22 Page 3 of 12 Johnson discriminates by delegating these assignments to African-American prisoners and/or those affiliated with the Moorish Science Temple of America. (Id.) Plaintiff next alleges that he is a chronic care inmate who suffers from Crohn’s disease. (Id., PageID.9.) He claims that he tested positive for COVID-19 on November 6, 2020. (Id., PageID.12.) Plaintiff avers that Defendant Jackson “condoned, encouraged, or acquiesced in his employees’ intentional abject failure to abide by safety procedures [for COVID-19] instituted by the MDOC.” (Id., PageID.13.) Plaintiff claims that he suffered a variety of maladies “inextricably caused by COVID-19,” including exacerbation of his Crohn’s disease. (Id., PageID.14.) Plaintiff goes on to allege that on November 8, 2020, while suffering from COVID19, he requested mental health services for severe depression. (Id.) He alleges that the request was forwarded to Defendant Visser, his social worker. (Id.) Plaintiff alleges that Defendant Visser failed to evaluate him or render mental health treatment, which contributed to Plaintiff’s “inability to eat and unkempt physical appearance for nearly a two-week period.” (Id., PageID.15.) Finally, Plaintiff alleges that in November of 2020, he was subscribed to the Prison Legal News’s monthly newsprint journal. (Id.) He claims that on January 22, 2021, Defendant Karel provided him notice that the December 2020 issue had been rejected because it included an article about a former corrections officer. (Id.) Defendant Jones upheld the rejection at a hearing. (Id., PageID.16.) Plaintiff seeks declaratory relief as well as compensatory, punitive, and nominal damages. (Id., PageID.21.) Misjoinder Federal Rule of Civil Procedure 20(a) limits the joinder of parties in a single lawsuit, whereas Federal Rule of Civil Procedure 18(a) limits the joinder of claims. Rule 20(a)(2) 3 Case 1:21-cv-00689-RSK ECF No. 8, PageID.41 Filed 02/25/22 Page 4 of 12 governs when multiple defendants may be joined in one action: “[p]ersons . . . may be joined in one action as defendants if: (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action.” Rule 18(a) states: “A party asserting a claim . . . may join, as independent or alternative claims, as many claims as it has against an opposing party.” Courts have recognized that, where multiple parties are named, as in this case, the analysis under Rule 20 precedes that under Rule 18: Rule 20 deals solely with joinder of parties and becomes relevant only when there is more than one party on one or both sides of the action. It is not concerned with joinder of claims, which is governed by Rule 18. Therefore, in actions involving multiple defendants Rule 20 operates independently of Rule 18. . . . Despite the broad language of Rule 18(a), plaintiff may join multiple defendants in a single action only if plaintiff asserts at least one claim to relief against each of them that arises out of the same transaction or occurrence and presents questions of law or fact common to all. 7 Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 1655 (3d ed. 2001), quoted in Proctor v. Applegate, 661 F. Supp. 2d 743, 778 (E.D. Mich. 2009), and Garcia v. Munoz, No. 08-1648, 2008 WL 2064476, at *3 (D.N.J. May 14, 2008); see also United States v. Mississippi, 380 U.S. 128, 142–43 (1965) (joinder of defendants is permitted by Rule 20 if both commonality and same transaction requirements are satisfied). Therefore, “a civil plaintiff may not name more than one defendant in his original or amended complaint unless one claim against each additional defendant is transactionally related to the claim against the first defendant and involves a common question of law or fact.” Proctor, 661 F. Supp. 2d at 778 (internal quotation omitted). When determining if civil rights claims arise from the same transaction or occurrence, a court may consider a variety of factors, including, “‘the time period during which the alleged acts occurred; whether the acts . . . are related; whether more 4 Case 1:21-cv-00689-RSK ECF No. 8, PageID.42 Filed 02/25/22 Page 5 of 12 than one act . . . is alleged; whether the same supervisors were involved, and whether the defendants were at different geographical locations.’” Id. (quoting Nali v. Mich. Dep’t of Corr., No. 07-10831, 2007 WL 4465247, at *3 (E.D. Mich. Dec. 18, 2007)). Permitting the improper joinder in a prisoner civil rights action also undermines the purpose of the PLRA, which was to reduce the large number of frivolous prisoner lawsuits that were being filed in the federal courts. See Riley v. Kurtz, 361 F.3d 906, 917 (6th Cir. 2004). Under the PLRA, a prisoner may not commence an action without prepayment of the filing fee in some form. See 28 U.S.C. § 1915(b)(1). These “new fee provisions of the PLRA were designed to deter frivolous prisoner litigation . . . ‘by making all prisoner [litigants] . . . feel the deterrent effect created by liability for filing fees.’” Williams v. Roberts, 116 F.3d 1126, 1127–28 (5th Cir. 1997) (quoting Jackson v. Stinnett, 102 F.3d 132, 136–37 (5th Cir. 1996)). The PLRA also contains a “three-strikes” provision requiring the collection of the entire filing fee after the dismissal for frivolousness, etc., of three actions or appeals brought by a prisoner proceeding in forma pauperis, unless the statutory exception is satisfied. 28 U.S.C. § 1915(g). The “three strikes” provision was also an attempt by Congress to curb frivolous prisoner litigation. See Wilson v. Yaklich, 148 F.3d 596, 603 (6th Cir. 1998). The Seventh Circuit has explained that a prisoner like Plaintiff may not join in one complaint all of the defendants against whom he may have a claim, unless the prisoner satisfies the dual requirements of Rule 20(a)(2): Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against different defendants belong in different suits, not only to prevent the sort of morass that [a multi]-claim, [multi]-defendant suit produce[s] but also to ensure that prisoners pay the required filing fees—for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g) . . . . 5 Case 1:21-cv-00689-RSK ECF No. 8, PageID.43 Filed 02/25/22 Page 6 of 12 A buckshot complaint that would be rejected if filed by a free person—say, a suit complaining that A defrauded the plaintiff, B defamed him, C punched him, D failed to pay a debt, and E infringed his copyright, all in different transactions— should be rejected if filed by a prisoner. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); see also Brown v. Blaine, 185 F. App’x 166, 168–69 (3d Cir. 2006) (allowing an inmate to assert unrelated claims against new defendants based on actions taken after the filing of his original complaint would have defeated the purpose of the three strikes provision of PLRA); Patton v. Jefferson Corr. Ctr., 136 F.3d 458, 464 (5th Cir. 1998) (declining to allow “litigious prisoners to immunize frivolous lawsuits from the ‘three strikes’ barrier by the simple expedient of pleading unexhausted habeas claims as components of § 1983 suits”); Shephard v. Edwards, No. C2-01-563, 2001 WL 1681145, at *1 (S.D. Ohio Aug. 30, 2001) (declining to consolidate prisoner’s unrelated various actions so as to allow him to pay one filing fee, because it “would improperly circumvent the express language and clear intent of the ‘three strikes’ provision”); Scott v. Kelly, 107 F. Supp. 2d 706, 711 (E.D. Va. 2000) (denying prisoner’s request to add new, unrelated claims to an ongoing civil rights action as an improper attempt to circumvent the PLRA’s filing fee requirements and an attempt to escape the possibility of obtaining a “strike” under the “three strikes” rule). Under these circumstances, to allow Plaintiff to proceed with improperly joined claims and Defendants in a single action would permit him to circumvent the PLRA’s filing fee provisions and allow him to avoid having to incur a “strike” for purposes of § 1915(g), should any of his claims turn out to be frivolous. Courts are therefore obligated to reject misjoined complaints like Plaintiff’s. See Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011). The Court will look to the first named Defendant and the earliest clear factual allegations involving that Defendant to determine which portions of the action should be 6 Case 1:21-cv-00689-RSK ECF No. 8, PageID.44 Filed 02/25/22 Page 7 of 12 considered related.1 Plaintiff names Defendant Payton as the First Defendant in the caption of the complaint, and his allegations related to Defendant Payton are the first raised in his complaint. As noted supra, Plaintiff avers that Defendant Payton denied him due process and freedom of speech when she rejected three cards sent to him by his mother without giving him notice and an opportunity to respond. (ECF No. 1, PageID.4–5.) The conduct by Defendants Johnson, Jackson, Visser, Karel, and Jones is wholly unrelated to the conduct of Defendant Payton. Plaintiff does not suggest any relationship between his claims against Defendants Johnson, Jackson, Visser, Karel, and Jones, on the one hand, and Defendant Payton, on the other. Plaintiff has, therefore, improperly joined Defendants Johnson, Jackson, Visser, Karel, and Jones. Because the Court has concluded that Plaintiff has improperly joined Defendants Johnson, Jackson, Visser, Karel, and Jones to this action, the Court must determine an appropriate remedy. Under Rule 21 of the Federal Rules of Civil Procedure, “[m]isjoinder of parties is not a ground for dismissing an action.” Id. Instead, Rule 21 provides two remedial options: (1) misjoined parties may be dropped on such terms as are just; or (2) any claims against misjoined parties may be severed and proceeded with separately. See Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 572–73 (2004) (“By now, ‘it is well settled that Rule 21 invests district courts with authority to allow a dispensable nondiverse party to be dropped at any time . . . .’”) (quoting Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 832 (1989)); DirecTV, Inc. v. Leto, 467 F.3d 842, 845 (3d Cir. 2006); Carney v. Treadeau, No. 2:07-cv-83, 2008 WL 485204, at *2 (W.D. 1 The analysis of joinder must start somewhere. Joinder of parties would seem, necessarily, to start with the firstnamed party because joinder of parties is not an issue until an additional party is named. By accepting the first-named party as the foundation for the joinder analysis, the Court is considering the issue of joinder of parties as Plaintiff has presented it in his complaint. 7 Case 1:21-cv-00689-RSK ECF No. 8, PageID.45 Filed 02/25/22 Page 8 of 12 Mich. Feb. 19, 2008); Coal. to Defend Affirmative Action v. Regents of Univ. of Mich., 539 F. Supp. 2d 924, 940 (E.D. Mich. 2008); see also Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674, 682 (6th Cir. 1988) (“[D]ismissal of claims against misjoined parties is appropriate.”). “Because a district court’s decision to remedy misjoinder by dropping and dismissing a party, rather than severing the relevant claim, may have important and potentially adverse statute-oflimitations consequences, the discretion delegated to the trial judge to dismiss under Rule 21 is restricted to what is ‘just.’” DirecTV, 467 F.3d at 845. At least three judicial circuits have interpreted “on such terms as are just” to mean without “gratuitous harm to the parties.” Strandlund v. Hawley, 532 F.3d 741, 745 (8th Cir. 2008) (quoting Elmore v. Henderson, 227 F.3d 1009, 1012 (7th Cir. 2000)); see also DirecTV, 467 F.3d at 845. Such gratuitous harm exists if the dismissed parties lose the ability to prosecute an otherwise timely claim, such as where the applicable statute of limitations has lapsed, or the dismissal is with prejudice. Strandlund, 532 F.3d at 746; DirecTV, 467 F.3d at 846–47. In this case, Plaintiff brings causes of action under 42 U.S.C. § 1983. For civil rights suits filed in Michigan under § 1983, the statute of limitations is three years. See Mich. Comp. Laws § 600.5805(10); Carroll v. Wilkerson, 782 F.2d 44 (6th Cir. 1986) (per curiam); Stafford v. Vaughn, No. 97-2239, 1999 WL 96990, at *1 (6th Cir. Feb. 2, 1999). The statute of limitations begins to run when the aggrieved party knows or has reason to know of the injury that is the basis of his action. Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996). The statute of limitations, however, is subject to tolling. The Sixth Circuit has recognized that, in prisoner civil rights actions, the statute of limitations is tolled for the period during which a plaintiff’s available state administrative remedies were being exhausted. See Brown v. Morgan, 209 F.3d 595, 596–97 (6th Cir. 2000). 8 Case 1:21-cv-00689-RSK ECF No. 8, PageID.46 Filed 02/25/22 Page 9 of 12 The Prison Litigation Reform Act amended 42 U.S.C. § 1997e to provide: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a) (1999) . . . . This language unambiguously requires exhaustion as a mandatory threshold requirement in prison litigation. Prisoners are therefore prevented from bringing suit in federal court for the period of time required to exhaust “such administrative remedies as are available.” For this reason, the statute of limitations which applied to Brown’s civil rights action was tolled for the period during which his available state remedies were being exhausted. Id. at 596 (citing Harris v. Hegmann, 198 F.3d 153, 157–59 (5th Cir. 1999) (per curiam), and Cooper v. Nielson, 194 F.3d 1316, 1999 WL 719514 (9th Cir. 1999)). The Sixth Circuit noted that because it could not determine when the period of exhaustion expired, the appropriate remedy was to remand the case to the District Court to “consider and decide the period during which the statute of limitations was tolled and for such other proceedings as may be necessary.” Id. at 597. Furthermore, “Michigan law provides for tolling of the limitations period while an earlier action was pending which was later dismissed without prejudice.” Kalasho v. City of Eastpointe, 66 F. App’x 610, 611 (6th Cir. 2003). Plaintiff alleges that Defendants Johnson, Jackson, Visser, Karel, and Jones engaged in conduct in September 2020, throughout 2020 with respect to the COVID-19 pandemic, November 2020, and January 2021. (ECF No. 1.) Whether or not Plaintiff receives the benefit of tolling during the administrative exhaustion period, see Brown, 209 F.3d at 596, and during the pendency of this action, Kalasho, 66 F. App’x at 611, Plaintiff has sufficient time in the limitations period to file new complaints against Defendants Johnson, Jackson, Visser, Karel, and Jones, and he will not suffer gratuitous harm if these Defendants are dismissed. Accordingly, the Court will exercise its discretion under Rule 21 and drop Defendants Johnson, Jackson, Visser, Karel, and Jones from this suit, dismissing Plaintiff’s claims against them without prejudice to the institution of new, separate lawsuits. See Coughlin v. Rogers, 9 Case 1:21-cv-00689-RSK ECF No. 8, PageID.47 Filed 02/25/22 Page 10 of 12 130 F.3d 1348, 1350 (9th Cir. 1997) (“In such a case, the court can generally dismiss all but the first named plaintiff without prejudice to the institution of new, separate lawsuits by the dropped plaintiffs”); Carney, 2008 WL 485204, at *3 (same). If Plaintiff wishes to procced with his claims against the dismissed Defendants, he shall do so by filing new civil actions on the form provided by this Court, see W.D. Mich. LCivR 5.6(a), and paying the required filing fee or applying in the manner required by law to proceed in forma pauperis.2 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 2 As fully discussed in this opinion, Plaintiff is cautioned that he must limit all future actions to Defendants and claims that are transactionally related to one another. The Court may, in its discretion and without further warning, dismiss any future complaint, or part thereof, filed by Plaintiff that contains claims that are misjoined. 10 Case 1:21-cv-00689-RSK ECF No. 8, PageID.48 Filed 02/25/22 Page 11 of 12 ‘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). Plaintiff maintains that Defendant Payton violated his First and Fourteenth Amendment rights when she rejected three greeting cards sent to him by his mother. A prisoner’s right to receive mail is protected by the First Amendment.” Knop v. Johnson, 977 F.2d 996, 1012 (6th Cir. 1992) (citing Pell v. Procunier, 417 U.S. 817, 822 (1974)). “Mail is one medium of free speech, and the right to send and receive mail exists under the First Amendment.” Al-Amin v. Smith, 511 F.3d 1317, 1333 (11th Cir. 2008) (citing City of Cincinnati v. Discovery Network, Inc., 501 U.S. 410, 427 (1993) (“[T]he use of the mails is as much a part of free speech as the right to use our tongues.”) (internal quotes omitted)). A prisoner, however, retains only those First Amendment freedoms which are “not inconsistent with his status as a prisoner or with legitimate penological objectives of the corrections system [ ].” Martin v. Kelley, 803 F.2d 236, 240 n.7 (6th Cir. 1986) (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974); see Turner v. Safley, 482 U.S. 78 (1987). Incoming mail has long been recognized to pose a greater threat to prison order and 11 Case 1:21-cv-00689-RSK ECF No. 8, PageID.49 Filed 02/25/22 Page 12 of 12 security than outgoing mail. Thornburgh v. Abbott, 490 U.S. 401 (1989); Turner, 482 U.S. at 78. And the possibility that incoming mail might introduce contraband into the prison is so obvious that courts have routinely upheld the right of prison officials to inspect incoming mail for contraband despite First Amendment free speech protection. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 574–76 (1974). Intertwined with the First Amendment right to receive mail is the fact that Plaintiff does have a liberty interest in receiving his mail. See Stanley v. Vining, 602 F.3d 767, 770 (6th Cir. 2010) (citing Procunier v. Martinez, 416 U.S. 396, 418 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989)). Here, Plaintiff avers that he never received the three greeting cards sent to him by his mother. Nothing in his complaint suggests that they were rejected because they contained contraband. Plaintiff further alleges that Defendant Payton never provided him notice of the rejections and, therefore, he had no opportunity to challenge them before the greeting cards were returned to his mother. At this juncture, Plaintiff’s allegations are sufficient to set forth First and Fourteenth Amendment claims against Defendant Payton. Conclusion Having reviewed Plaintiff’s complaint under Rule 21 of the Federal Rules of Civil Procedure, and concluded that certain parties are misjoined, the Court will drop as parties Defendants Johnson, Jackson, Visser, Karel, and Jones and dismiss without prejudice Plaintiff’s claims against them. Having conducted the review required by the Prison Litigation Reform Act, the Court determines that Plaintiff’s First and Fourteenth Amendment claims against Defendant Payton may proceed. An order consistent with this opinion will be entered. Dated: February 25, 2022 /s/ Ray Kent Ray Kent United States Magistrate Judge 12
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