Horecek v. Seaman et al
ORDER Adopting Re: 89 Report and Recommendation, and Granting Defendant's Second Motion for Summary Judgment. Signed by District Judge Marianne O. Battani. (BThe)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 08-10866
Hon. Marianne O. Battani
Magistrate Judge Paul Komives
LORI SEAMAN, et al.,
ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
AND GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT
Before the Court are Plaintiff’s Objections (Doc. 90) to the Magistrate Judge Paul
Komives’s July 11, 2013 Report and Recommendation (Doc. 89). The Magistrate
Judge recommended that Defendants’ Second Motion for Summary Judgment be
The Court reviewed the pleadings, including Plaintiff’s objections. For the
reasons that follow, the Court ADOPTS the Report and Recommendation and GRANTS
Defendants’ Motion for Summary Judgment.
Plaintiff Daniel Horacek filed his Complaint on March 3, 2008, alleging violations
of 42 U.S.C. § 1983. Plaintiff alleges that during his pretrial detention at the Oakland
County Jail from June 24, 2005, through July 5, 2006, Defendants violated his rights by
repeatedly opening his legal mail outside his presence. The Court referred this matter
to Magistrate Judge Paul Komives for all pretrial proceedings pursuant to 28 U.S.C. §
In his Report and Recommendation (“R&R”), Magistrate Judge Komives
recommended that Defendants’ motion be granted.
FACTS AND PROCEDURAL HISTORY
This case is currently in its fifth year of litigation, due in part to various delays on
both sides of the case. Plaintiff filed a pro se civil rights complaint under 42 U.S.C. §
1983 on March 3, 2008, alleging that several defendants violated his First, Sixth, and
Fourteenth Amendment rights by (1) opening and reading his legal mail outside his
presence, in violation of jail policy; (2) providing him with inadequate legal research
materials; and (3) monitoring his telephone conversations with his attorney. Defendants
filed a motion for summary judgment in September 2008, and, in January 2009, Plaintiff
filed a motion for leave to amend his complaint. In the Magistrate Judge’s August 2009
R&R, he recommended that summary judgment be granted for all defendants except
the Jane/John Doe mailroom defendants that Plaintiff sought leave to amend his
complaint to add. Magistrate Judge Komives also recommended that summary
judgment be granted on all claims except the legal mail claim. This Court adopted this
R&R in September 2009.
The two Jane/John Doe Defendants, Aaron Alley and Carol Wilkerson, were
added in September 2009 by an Order from this Court. Service of process was not
completed on these two defendants until March 2011. In the interim, counsel was
appointed, and the two added Defendants moved to dismiss because of failure by
Plaintiff to file an amended complaint by the deadline, because they were not served
within the time limit in Fed. R. Civ. P. 4(m), and asserting the statute of limitations was
passed. In July 2011, the Magistrate Judge recommended in his R&R that this motion
to dismiss be denied. This Court ordered this R&R adopted in September 2011.
Defendants Alley and Wilkerson filed a second motion for summary judgment in
September 2012, arguing that (1) they are entitled to judgment on the pleadings under
Fed. R. Civ. P. 12(c) because Plaintiff’s complaint fails to state a claim upon which relief
can be granted; (2) they are entitled to summary judgment under Fed. R. Civ. P. 56; (3)
they are entitled to summary judgment due to qualified immunity; and (4) Plaintiff’s
complaint should be dismissed for want of prosecution. Plaintiff filed a motion to extend
the deadline for his response in March 2013 because his attorney abandoned his case,
was disbarred, and possessed his documents. This Court ordered for Plaintiff to be
provided copies of documents from this case, and Horacek filed his substantive
response in April 2013. Defendants replied to this response in May 2013. The
Magistrate Judge filed his R&R in July 2013, recommending that Defendants’ motion for
summary judgment be granted.
STANDARD OF REVIEW
In cases where a magistrate judge submitted a report and recommendation, and
a party has properly filed objections to it, the district court must conduct a de novo
review of those parts of the report and recommendation to which the party objects. 28
U.S.C. § 636(b)(1)(c). The district “court may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.” Id. A party
waives any right to challenge a magistrate judge’s finding by failing to object to it. United
States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005).
The requirement of de novo review “is a statutory recognition that Article III of the
United States Constitution mandates that the judicial power of the United States be
vested in judges with life tenure.” United States v. Shami, 754 F.2d 670, 672 (6th Cir.
1985). Accordingly, Congress enacted 28 U.S.C. § 636(b)(1) to “insure that the district
judge would be the final arbiter” of a matter referred to a magistrate judge. Flournoy v.
Marshall, 842 F.2d 875, 878 (6th Cir. 1987).
Because the motion relies on matters outside the pleadings, the R&R correctly
treated Defendants’ motion as one for summary judgment, although Defendants also
moved for judgment on the pleadings under Fed. R. Civ. P. 12(c) and for dismissal for
want of prosecution under Fed. R. Civ. P. 41(b) and Local Rule 41.2. Neither party has
objected to this treatment, so this Court will also construe Defendants’ motion as solely
one for summary judgment. See Sullivan, 431 F.3d at 984 (6th Cir. 2005).
Federal Rule of Civil Procedure 56(a) authorizes the Court to grant summary
judgment if there is no genuine dispute as to any material fact and that the movant is
entitled to judgment as a matter of law. There is no genuine dispute of material fact if
there is not a factual dispute that could affect the legal outcome on an issue. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether to grant
summary judgment, this Court “must construe the evidence and draw all reasonable
inferences in favor of the nonmoving party.” Hawkins v. Anheuser-Busch, Inc., 517 F.3d
321, 332 (6th Cir. 2008). However, “a party opposing a properly supported motion for
summary judgment ‘may not rest upon the mere allegations or denials of his pleading,
but . . . must set forth specific facts showing that there is a genuine issue for trial.’”
Anderson v. Liberty Lobby, Inc., 477 U.S. at 248 (1986) (quoting Fed. R. Civ. P. 56(e)).
In the R&R, the Magistrate Judge noted that the only remaining claims were
Plaintiff’s legal mail claims against defendants Aaron Alley and Carol Wilkerson. (Doc.
89 at 6). The Magistrate Judge found that because Plaintiff failed to point to any
specific evidence that indicates that the defendants Alley and Wilkerson were
responsible for opening his legal mail outside his presence, summary judgment for the
defendants was proper (Doc. 89 at 8). The Magistrate Judge also found that Plaintiff
could not show that any of his mail was opened pursuant to a jail policy or that it was
done intentionally as opposed to negligently. (Doc. 89 at 9). Plaintiff now brings several
objections to the R&R, which are all without merit because he does not set forth specific
facts showing there is a genuine dispute of material fact for trial.
To state a civil rights claim under 42 U.S.C. § 1983, a Plaintiff must set forth
facts that, viewed favorably, establish (1) the deprivation of a right secured by the
Constitution or laws of the United States; and (2) this deprivation was caused by a
person acting under color of state law. See Burley v. Gagacki, No. 12-1820, 2013 WL
4767178 (6th Cir. Sept 6, 2013) (citing Sigley v. City of Parma Heights, 437 F.3d 527,
533 (6th Cir. 2006)). To establish liability against an individual defendant acting under
color of state law, a plaintiff must show that the defendant was “personally involved.”
See Binay v. Bettendorf, 601 F.3d 640, 647 (6th Cir. 2010) (holding personal
involvement required in the context of an excessive force claim).
As Magistrate Judge Komives pointed out, an inmate does have some
constitutional rights regarding legal mail. The Sixth Circuit has acknowledged that “the
opening of ‘legal mail’ should generally be in the inmate’s presence in accordance with
appropriately drafted and uniformly applied regulations.” Kensu v. Haigh, 87 F.3d 172
(6th Cir. 1996) (citing Wolff v. McDonnell, 418 U.S. 539 (1974)). In Wolff v. McDonnell,
the Supreme Court noted that prison staff “acceding to a rule whereby the inmate is
present when mail from attorneys is inspected, have done all, and perhaps even more,
than the Constitution requires.” Id. at 577.
But mere negligent opening of legal mail does not constitute a constitutional civil
rights claim under § 1983. See R&R, Doc. 89 at 6 (collecting cases).
Plaintiff first disputes the Magistrate Judge’s acceptance of Defendant Alley’s
statement in his affidavit that he was not responsible for handling mail during the
relevant time period (Doc. No. 90 at 1). In an attempt to rebut this statement, Plaintiff
claims that Defendant Alley’s January 29, 2009 affidavit “clearly claims” that Defendant
Alley was responsible for handling mail (Doc. No. 90 at 1-2). Horacek also claims that
Alley’s later affidavit and other interrogatories given during discovery by other
defendants were contrary to the first affidavit (Doc. No. 90 at 2).
A review of the affidavits in question shows that this is not the case. Defendant
Alley’s first affidavit, given January 29, 2009, states that Alley is a clerk in the visitation
department, and that visitation department duties include incoming mail (Doc. No. 85 at
29-30). Defendant Alley’s first affidavit also states that in processing inmate legal mail
he followed the policy and procedure of opening that mail in the presence of the inmate,
and that if legal mail was opened by mistake it was not read, and Alley noted on the
legal mail that it was opened in error (Doc. No. 85 at 30). His first affidavit does not
state whether Alley’s duties included opening mail at the time in question. Alley’s
second affidavit, given September 27, 2012, states that Alley was employed at the
Oakland County Jail since 2002 and that he did not assume responsibility for mail until
2008 (Doc. No. 75-3 at 1). Further, the answers to the interrogatory responses given by
prior defendant Oakland County Sheriff Michael Bouchard did not specifically state
what Alley’s duties were or if they included opening mail at the time in question (Doc.
No. 85 at 24-25). The answers simply state that he was assigned to the department for
that period. Id. There was nothing in the record to show that Defendant Alley actually
had the duty of handling incoming mail for the relevant time period. Notably, Defendant
Alley was one of eighteen deputies or clerks employed in the visitation department at
the time in question. Id.
Plaintiff’s second objection disputes the Magistrate Judge’s conclusion that
Plaintiff does not point to any evidence to contradict Defendants’ assertions (Doc. No.
90 at 2). The specific assertions were that Defendant Wilkerson stated that she never
intentionally opened legal mail, and when she did accidentally, she never read it, and
she made a note on the mail that it was opened accidentally (See R&R, Doc. No. 89 at
7). Both defendants also asserted that they never spoke to Plaintiff regarding his mail
and did not know that there were complaints or concerns regarding his legal mail (See
R&R, Doc. No. 89 at 7).
A review of the exhibits attached to Plaintiff’s response indicates that Plaintiff
does provide a statement in his own affidavit given on January 22, 2009, that he spoke
to Defendant Alley regarding the opening of his legal mail (Doc. No. 85 at 58). Granted,
this does create an issue of fact because Alley said he never spoke to Horacek
regarding his legal mail and Horacek says they did speak about this. However, this
dispute is immaterial because whether or not the two spoke about Plaintiff’s mail is not
dispositive of this action. To be sure, Plaintiff does not allege that Alley said that he
opened Plaintiff’s mail himself; Plaintiff only alleges that they spoke about the subject.
This is not sufficient to create a material factual issue for trial.
Plaintiff’s third objection is very similar to the second. Plaintiff objects to the
Magistrate Judge’s statement that Plaintiff does not identify the specific discovery that
supports his belief that Defendants Alley and Wilkerson were solely responsible for
opening Plaintiff’s legal mail outside his presence (Doc. No. 90 at 2-3). Plaintiff argues
that affidavits from other defendants and Defendants Alley and Wilkerson together with
the interrogatory responses from Oakland County Sheriff Michael Bouchard and prior
defendant Seaman provided Plaintiff with “sufficient belief/evidence at this time that in
fact both Defendant Alley and Defendant Wilkerson were directly and solely
responsible” for opening, reading, and “censoring” his legal mail (Doc. No. 90 at 3).
Even if these documents somehow were sufficient to provide Plaintiff with such a
belief, they are not sufficient to provide this Court with such a belief. Plaintiff must
make specific factual allegations that create a genuine issue of material fact that the
named defendants were responsible for the alleged harm. See Fed. R. Civ. P. 56(e).
Plaintiff does not point to any specific facts in support of his belief. He only makes
conclusory allegations and cites to nearly all of the discovery taken in this case for
A review of this discovery indicates nothing that could be construed as a fact
indicating that Defendants were “directly and solely responsible” for intentionally
opening, reading, and “censoring” Plaintiff’s legal mail. The only thing even remotely
supporting Plaintiff’s assertions is interrogatory responses from Sheriff Bouchard stating
that both Defendants worked in the visitation department and that the department,
which includes eighteen employees, handles incoming mail (Doc. No. 85 at 24-25).
Nothing in the record indicates that these Defendants’ handling of Plaintiff’s mail was
more than mere negligence. Plaintiff does not point to specific facts supporting his
assertions, instead he points to a stack of discovery and states that the discovery
somehow supports his “belief.” Plaintiff’s own affidavits likewise do not contain any
specific facts that support his allegations against Defendants. (Doc. No. 85 at 32-36).
Plaintiff next objects to the Magistrate Judge’s statement that Plaintiff made
“conclusory allegations” in support of his belief that Defendants were responsible for the
opening of legal mail outside his presence (Doc. No. 90 at 3). Instead, Plaintiff argues
that it is Defendants who made conclusory allegations. Plaintiff asserts that he has
presented “objective and verifiable evidence” in support of his claims (Doc. No. 90 at 3).
This is simply not the case. Again, Plaintiff does not state exactly what it was that gave
him his “sufficient belief” that Defendants were “directly and solely responsible” for
opening his legal mail outside of his presence. Plaintiff must point to a specific fact
giving rise to his, and the Court was unable to find anything supporting Horacek in the
discovery he cited. The only thing Plaintiff can show is that some of his legal mail was
opened outside of his presence — but he cannot show that this was done intentionally
or by whom.
Plaintiff next objects to the Magistrate Judge’s conclusion that summary
judgment for Defendants is proper (Doc. No. 90 at 3-4). Again, Plaintiff points to his
“numerous evidence” but does not say what part of it or what specific facts support his
claims against Defendants.
Plaintiff next objects to the Magistrate Judge’s conclusion that “Plaintiff has
pointed to no evidence showing that the alleged opening of legal mail outside his
presence was done intentionally as opposed to negligently.” (Doc. No. 90 at 4). Plaintiff
claims that he has shown that the opening of his legal mail was intentional. For this, he
cites his complaint and his response. A review of these filings does not point to any
specific factual allegations which might show that either Defendant intentionally opened
Plaintiff’s mail. In his original complaint, Plaintiff states that he spoke to a deputy who
delivered his mail about why his legal mail was opened outside of his presence (Doc.
No. 1 at 11). Plaintiff also states that this deputy informed him that all mail, legal mail or
otherwise, is opened, read and inspected by jail staff before being delivered to an
inmate (Doc. No. 1 at 11). But even after amending his complaint to include the
present Defendants’ names, nowhere in the record is there an allegation that either
Defendant was this deputy, or that this deputy said that either Defendant intentionally
opened Plaintiff’s legal mail outside his presence, or anything else tying either
Defendant to his claims.
Plaintiff states that his legal mail was opened twenty-three times outside of his
presence, and that it is unlikely that his mail could have been opened so many times
without it being intentional (Doc. No. 90 at 4-5). Even if this were true, Plaintiff also
must show that it was Defendants who were the ones who intentionally opened his mail
and he has failed to do so. Moreover, other inferences can be taken from the fact that
Horacek’s mail was opened so many times—for instance, perhaps his legal mail was
poorly marked by his attorney, or that all of the mail he considers to be legal mail does
not actually qualify as legal mail for the purposes of the jail policy.
Plaintiff next objects to the Magistrate Judge’s statement that summary judgment
should be granted because Plaintiff has not pointed to any evidence showing that
Defendants opened his legal mail or that the alleged opening of his legal mail was
intentional (Doc. No. 90 at 5). It was already explained that Plaintiff has not shown this
Court any actual evidence, he has not pointed to any specific facts in support of his
Plaintiff next objects to the Magistrate Judge’s statement that Plaintiff failed to
set forth a genuine issue of material fact (Doc. No. 90 at 5-6). As a basis for this
objection, Plaintiff argues that he has set forth material factual disputes as to whether
Defendants opened his legal mail, and whether they did so intentionally. But again,
Horacek does not say what these issues of fact were.
Plaintiff’s final objection to the Magistrate Judge’s R&R is that it fails to address
the issue raised by Plaintiff in his Response to Defendants’ Second Motion for
Summary Judgment on page 6 (Doc. No. 90 at 6). Here, Horacek asserts that the
Defendants’ Second Motion should be rejected because it is duplicative of their first
motion and presented the same legal issues. In addition, in his response, Horacek
asserts that the second motion contains issues that have been waived for failure to
present them in the first motion for summary judgment (Plaintiff’s argument is flawed.
He asserts that Defendants’ second motion must not be duplicative of the first one, yet
must contain issues presented in the first motion or else those issues are waived).
Aside from the contradictory nature of Plaintiff’s objection, this objection lacks merit
because even if the same legal issues were presented, the second motion involves
different defendants than the first motion.
Accordingly, the Court ADOPTS the Magistrate Judge’s recommendation. The
court DISMISSES all of Horacek’s remaining claims.
IT IS SO ORDERED.
s/Marianne O. Battani
MARIANNE O. BATTANI
UNITED STATES DISTRICT JUDGE
DATE: September 19, 2013
CERTIFICATE OF SERVICE
Copies of this Order were mailed and/or e-filed to Plaintiff and counsel of record
on this date.
s/Bernadette M. Thebolt
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