Cooper v. Bower

Filing 93

MEMORANDUM OPINION & ORDER Signed by Senior Judge Thomas B. Russell on 2/28/2017 denying 69 Motion for Reconsideration. cc: Counsel, plaintiff pro se(KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
MICHAEL COOPER
v.

PLAINTIFF
CIVIL ACTION NO. 5:15-CV-P249-TBR

SOJNIA BOWER et al.

DEFENDANTS
MEMORANDUM OPINION AND ORDER

This matter is before the Court upon a motion for reconsideration filed by pro se Plaintiff
Michael Cooper (DN 69). In his motion, Plaintiff asks the Court to reconsider his allegations
against certain Kentucky State Penitentiary officials, which were dismissed upon initial
screening pursuant to 28 U.S.C. § 1915A, to reinstate them as Defendants, and to consider new
allegations against new Defendants. For the following reasons, Plaintiff’s motion will be denied.
I. PROCEDURAL HISTORY
Plaintiff initiated this prisoner civil rights action on December 18, 2015. In his initial
complaint (DN 1), he named one Defendant. Plaintiff filed his first amended complaint on
April 4, 2016 (DN 10). The first amended complaint included retaliation claims against twelve
additional Defendants. Plaintiff filed a second amended complaint on April 18, 2016 (DN 12);
this complaint included retaliation and other claims against “all staff mentioned herein.” On
June 20, 2016, the Court conducted an initial review of these complaints, and allowed Plaintiff’s
claims to proceed against sixteen Defendants (DNs 23 & 24). Then, between June 30, 2016, and
August 25, 2016, Plaintiff filed three additional amended complaints. The Court then entered a
Memorandum and Order on September 19, 2016, advising Plaintiff that all of his additional
allegations and claims in this action had to be set forth in one final third amended complaint
(DN 46). Plaintiff was also informed that this third amended complaint would supersede the
three additional amended complaints he had attempted to file. Plaintiff filed his third amended

complaint on September 29, 2016 (DN 52). On November 10, 2016, the Court conducted its
initial screening of Plaintiff’s third amended complaint, allowing certain claims to proceed and
dismissing others (DN 63). The Court also entered a revised Scheduling Order to govern the
development of all of the claims the Court had allowed to proceed (DN 64).
II. LEGAL STANDARD
Plaintiff’s motion is essentially a motion for reconsideration and a motion to amend
and/or supplement his complaint.
The Court may reconsider interlocutory orders under either Federal Rule of Civil
Procedure 54(b) or its inherent, common law authority to control the administration of the case
before it. Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 F. App’x 949, 959 (6th Cir.
2004); Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991); see also Simmerman v. Ace
Bayou Corp., 304 F.R.D. 516, 518 (E.D. Ky. 2015). Reconsideration of an interlocutory order is
appropriate where “there is (1) an intervening change of controlling law; (2) new evidence
available; or (3) a need to correct a clear error or prevent manifest injustice.” Louisville/
Jefferson Cty. Metro Gov’t v. Hotels.com, L.P., 590 F.3d 381, 389 (6th Cir. 2009) (quoting
Rodriguez, 89 F. App’x at 959) (internal quotation marks omitted). The standard vests the Court
with “significant discretion.” Rodriguez, 89 F. App’x at 959 n.7.
Rule 15 of the Federal Rules of Civil Procedure governs the amendment of complaints.
Rule 15 provides that leave to amend should be freely given when justice so requires. The Sixth
Circuit had held that a district court must consider the following factors when determining
whether to grant or deny a motion to amend:
Undue delay in filing, lack of notice to the opposing party, bad faith by the
moving party, repeated failure to cure deficiencies by previous amendments,
undue prejudice to the opposing party, and futility of amendment are all factors
which may affect the decision.
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Richardson v. Rose Transp., Inc., 617 F. App’x 480, 486 (6th Cir. 2015) (quoting Wade v.
Knoxville Utils. Bd., 259 F.3d 452, 458-59 (6th Cir. 2001)
III. ANALYSIS
A. Steven Ford and William Thomas
In his motion, Plaintiff asks the Court to reconsider his claims against Defendants Ford
and Thomas because “they rejected [his] reading material violating [his] First Amendment.”
In its screening of Plaintiff’s third amended complaint, the Court dismissed Plaintiff’s
claims against Defendants Ford and Thomas because Plaintiff only alleged that they did not
intervene and require Defendant Beavers, whom Plaintiff states is their subordinate, to provide
Plaintiff with the copy of the Quran he had received in the mail. In its reading of Plaintiff’s third
amended complaint, it appeared to the Court that Plaintiff sought to hold these Defendants liable
simply because they were copied on a memorandum that Plaintiff received from Defendant
Beavers regarding this issue. The Court held that Plaintiff failed to state a claim against these
Defendants based upon these allegations because government officials cannot be held liable for
the unconstitutional conduct of their subordinates under a theory of respondeat superior.
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Monell v. New York City Dep’t of Soc. Servs., 436
U.S. 658, 691 (1978); Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009).
Plaintiff attaches several exhibits to his motion to reconsider. The first exhibit is a
memorandum from Defendant Ford advising Plaintiff that he received his correspondence
regarding his rejected mail and that Plaintiff had five days to appeal a mail rejection. The
memorandum then notes: “All mail rejections are handled at the warden’s level.” Plaintiff’s
exhibit also includes the memorandum he attached to his third amended complaint which shows
that Defendants Ford and Thomas were copied on a memorandum from Defendant Beavers to
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Plaintiff regarding the rejection of Plaintiff’s mail. These exhibits show that the Court’s initial
analysis of Plaintiff’s claims against these Defendants was correct – Plaintiff has not stated a
claim against these Defendants. As noted in its Memorandum Opinion and Order, “a claimed
constitutional violation must be based upon active unconstitutional behavior.” Grinter v. Knight,
532 F.3d 567, 575-76 (6th Cir. 2008); Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002). The
acts of one’s subordinates are not enough, nor can supervisory liability be based upon the mere
failure to act. Grinter, 532 F.3d at 576; Greene, 310 F.3d at 899; Summers v. Leis, 368 F.3d 881,
888 (6th Cir. 2004). “[A] plaintiff must plead that each Government-official defendant, through
the official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676.
Neither Plaintiff’s allegations nor his exhibits suggest that Defendants Ford or Thomas
engaged in any unconstitutional behavior. Thus, with respect to these Defendants, Plaintiff’s
motion to reconsider will be denied.
B. Sgt. Vinson
Plaintiff states that Sgt. Vinson rejected “legal books ordered by my family violating My
first amendment.” Plaintiff attaches as an exhibit to the motion a mail rejection notice signed by
Sgt. Vinson. Although prisoners do have a constitutional right of access to the courts under
the First Amendment, Bounds v. Smith, 430 U.S. 817, 821(1977), in order to state a claim for
interference with access to the courts, a plaintiff must show an actual injury. Thaddeus-X v.
Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). “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 v. Rutter, 420 F.3d 571, 578 (6th Cir. 2005).
The Supreme Court has held that “the underlying cause of action, whether anticipated or lost, is
an element that must be described in the complaint, just as much as allegations must describe the

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official acts frustrating the litigation.” Christopher v. Harbury, 536 U.S. 403, 415 (2002). Thus,
allowing Plaintiff to amend his complaint to add this claim would be futile because Plaintiff has
failed to allege actual injury or prejudice to any pending legal action as a result of Sgt. Vinson’s
rejection of legal books.
C. Sgt. Charles Roberts and Darmice Ellis
Plaintiff alleges that Sgt. Charles Roberts violated his First Amendment rights by taking
his legal mail from his legal aid, reading it, and using what he read to retaliate against Plaintiff.
Plaintiff also alleges that Darmice Ellis retaliated against him by rejecting a grievance for filing
this action.
Plaintiff’s retaliation claims against Defendants Sgt. Roberts and Ellis would also fail if
Plaintiff were allowed to amend his complaint to include these claims because his allegations are
wholly conclusory. 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 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)). In addition, 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); Vega v. DeRobertis, 598 F. Supp.

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501, 506 (C.D. Ill. 1984). “[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.’” Harbin-Bey, 420 F.3d at
580 (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987)); see also Iqbal, 556
U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”).
As such, the Court will not allow Plaintiff to amend his claim to add these Defendants at
this time because the amendment would be futile.
D. Troy Belt
With regard to Troy Belt, Plaintiff alleges that he watched Plaintiff be attacked by
another inmate, “Kazey Kazee,” and failed to protect him. Plaintiff made these allegations
against Defendant Belt in his first amended complaint (DN 10) and, in its screening of that
amendment, the Court allowed Plaintiff’s claim against Defendant Belt to proceed (DN 23).
Thus, there is no reason to allow Plaintiff to amend his complaint to add this claim.
E. Sgt. George Henson
In his motion, Plaintiff alleges that Defendant Henson violated his First Amendment
rights by opening his legal mail and by neglecting his right to legal assistance. Here, even if the
Court were to allow Plaintiff to amend his complaint to add these additional claims against
Defendant Henson, the amendment would be futile because the allegations fail to state a claim
upon which relief may be granted. This is because Plaintiff has not alleged that he suffered any
actual injury or prejudice to any pending legal action as a result of Defendant Henson’s actions.
See, e.g., Thaddeus-X v. Blatter, 175 F.3d at 394; Harbin-Bey v. Rutter, 420 F.3d at 578 (6th Cir.
2005). Thus, the Court will also deny this amendment as futile.

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IV. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s (DN 69) is
DENIED.
Date:

February 28, 2017

cc:

Plaintiff, pro se
Counsel of Record
4413.011

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