Smith v. Ludwick et al

Filing 92

OPINION AND ORDER granting 83 Motion for Summary Judgment; adopting 88 Report and Recommendation and Overruling Plaintiff's Objections. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHARLES SMITH,
Plaintiff,
v.

CASE NUMBER: 10-12955
HONORABLE VICTORIA A. ROBERTS
UNITED STATES DISTRICT COURT JUDGE

WAYNE DEVERNEY, KRIS
NAFFZIGER, JILL BROWN,
RUTH HALL, TRAVIS GAGER
and RHONDA MARTINEZ,
Defendants
______________________________/

OPINION AND ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION AND OVERRULING PLAINTIFF’S OBJECTIONS
I. INTRODUCTION
Plaintiff Charles Smith (“Mr. Smith”), a Michigan state prisoner at the St. Louis
Correctional Facility(“SLF”), brings this pro se1 action under 42 U.S.C. § 1983 alleging that
Defendants violated his constitutional rights when they open various pieces of legal mail
addressed to him. Mr. Smith seeks (1) declaratory relief that Defendants violated his
constitutional rights, (2) injunctive relief ordering Defendants to act in compliance with his
constitutional rights, (3) compensatory and punitive damages, and (4) reasonable fees and costs.
This case was referred to the Magistrate Judge for pretrial matters. It is now before the
Court on Defendants’ objections to the Magistrate Judge’s Report and Recommendation
(“R&R”) concerning Defendant’s Motion for Summary Judgment, and Mr. Smith’s renewed

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Mr. Smith was represented by counsel from November 30, 2010, the day on which he filed his
Amended Complaint (Dkt. 23), through February 10, 2012 (See Dkt. 53).

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Motion to Compel.2
The R&R recommends that Defendants’ Motion for Summary Judgment be granted, and
that Mr. Smith’s Motion to Compel be denied as moot. The Court ADOPTS the R&R.
II. Statement of Facts
The R&R sets forth a thorough and accurate account of the factual allegations in the
Complaint. (See Dkt. 88).
III. STANDARD OF REVIEW
A. Summary Judgment
The Magistrate Judge's R&R is dispositive. Accordingly, this Court conducts a de novo
review of specific objections made to the Magistrate Judge’s R&R. 28 U.S.C. § 636(b)(1)(b).
The failure to specifically object to the R&R waives any right to appeal. Smith v. Detroit Fed’n
of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). This Court may accept, reject, or
modify, in whole or in part, the findings or recommendations to which objection is made. 28
U.S.C. § 636(b).
A party is entitled to summary judgment if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The facts must be viewed in the light most favorable to the non-moving party.
Matsushita Electric Industries Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving
party bears the burden of “showing ... that there is an absence of evidence to support the
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On November 14, 2012, the Court ordered Defendants to produce time cards for inspection.
(Dkt. 74). Defendants produced the time cards, but did not provide Mr. Smith with copies of them. Mr.
Smith filed a Motion to Compel the copies arguing that he needed them to respond to Defendants’ Motion
for Summary Judgment. (Dkt. 78). The Court denied Mr. Smith’s request, but allowed him to re-file a
request with his response to Defendants’ Motion for Summary Judgment (Dkt. 80), since the time cards
may be necessary to support Mr. Smith’s factual assertions. (See Dkt. 85).

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nonmoving party’s case” by citing to materials in the record. Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). If the nonmoving party has the ultimate burden of proof at trial, he must present
sufficient evidence in the record establishing more than a “metaphysical doubt,” but a genuine
issue of material fact. Matsushita, 475 U.S. at 586.
IV. ANALYSIS
A. Issues Mr. Smith does not object to in the R&R: the Court ADOPTS
Mr. Smith does not object to the Magistrate Judge’s recommendation that the following
claims be dismissed:
1) official-capacity claims against Defendants Evans and Martinez;
2) claims for physical injury or emotional distress; and
3) Objection #2 – Mr. Smith’s claims against Defendant Gager.
The Court ADOPTS these portions of the R&R. And, to clarify, Mr. Smith admits that
only Defendant Gager was personally involved in opening the Fed-Ex package that arrived on
August 18, 2009. Mr. Smith does not specifically object to the recommendation that this claim
be dismissed against all other defendants. Mr. Smith also does not object to the recommendation
that all legal mail claims against Defendant Gager, other than the Fed-Ex package, be dismissed.
4) Objection #3 – claims against Defendants Martinez and Naffziger
Mr. Smith admits that only Defendants Martinez and Naffziger were involved in the
September 8, 2009 and December 21, 2009 legal mail claims. Mr. Smith does not object to the
recommendation that these two legal mail claims be dismissed against all other defendants. Mr.
Smith also does not object to the recommendation that any other claims made against Defendants
Martinez and Naffziger, other than Sept. 8 and Dec. 21, be dismissed.

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5) Objection #4 – Mr. Smith’s claims against Defendant Evans
Mr. Smith does not object to the finding that Defendant Evans did not begin working in
the mail room until October 2010, after the last piece of mail at issue was opened. Likewise, Mr.
Smith does not object to the recommendation that the claims against Defendant Evans should be
dismissed.
The Court ADOPTS the R&R with respect to all of the above issues.
B. Mr. Smith’s objections to the remaining items at issue
1) Objections #2, 3, and 4 – Mr. Smith’s claims against Defendant Gager, Martinez,
Naffziger, Hall and Brown
The Magistrate Judge recommends that Mr. Smith’s claims for opening the Fed-Ex
package and all other legal mail be dismissed.
The Court agrees with the Magistrate Judge that Defendant Gager’s, Martinez’s,
Naffziger’s, Hall’s, and Brown’s actions – if questionable at all – merely amount to negligence;
this is insufficient for a Constitutional violation. See Barker v. Sowders, No. 98-5506, 1999 WL
427170, at *1 (6th Cir. June 15, 1999); Stevenson v. Koskey, 877 F.2d 1435, 1441 (9th Cir. 1989);
Hinderliter v. Hungerford, 814 F. Supp. 66, 68 (D. Kan. 1993); Bryant v. Winston, 750 F. Supp.
733, 734 (E.D. Va. 1990); Williams v. McClain, 708 F. Supp. 1086, 1089 (W.D. Mo. 1989). See
generally, Daniels v. Williams, 474 U.S. 327, 330-33 (1986) (negligence on part of public
officials insufficient to state constitutional civil rights claim).
In his objections, Mr. Smith cites to Merriweather v. Zamora, 569 F.3d 307, 317 (6th Cir.
2009) and Lavado v. Keohane, 992 F.2d 601 (6th Cir. 1993) arguing that the factual issues in his
case are substantially similar to that in Merriweather and Lavado, and that his case should

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proceed to trial.
In Merriweather, a prisoner filed a civil rights suit against prison mail room employees
who routinely opened the prisoner’s properly marked “legal mail” outside of his presence. The
Sixth Circuit held that a “blatant disregard” for mail handling regulations concerning legal mail
violates the Constitution. Id. at 317. The Sixth Circuit found this sort of routine opening of legal
mail amounted to a Constitutional violation. Id.
Merriweather is distinguishable, inasmuch as Mr. Smith fails to demonstrate the
“routine” opening of mail found actionable in Merriweather.
In Lavado, a prisoner filed a similar civil rights suit against prison mail room employees.
The Bureau of Prisons’ regulations followed by the mail room employees in Lavado did not
clearly differentiate between the treatment of legal envelopes and legal packages. The Sixth
Circuit held that “the contours of Lavado's alleged constitutional right” were not sufficiently
clear for the employees’ conduct to violate the constitution. Lavado, 992 F.2d at 609.
Lavado, is distinguishable. Defendants’ misunderstanding of prison policy concerning
handling “criminal legal mail” and “civil legal mail” mirrors the conduct found constitutional in
Lavado. Mr. Smith has not provided enough evidence for the Court to infer that Defendants’
conduct rose above mere negligence.
The Court ADOPTS the R&R concerning Mr. Smith’s claim against Defendant Gager.
4.) Objection #5 – Mr. Smith’s claims against Defendant DeVerney
The Magistrate Judge recommends that Mr. Smith’s claims against Defendant DeVerney
be dismissed; he found that § 1983 liability cannot be based on a failure to act or on a theory of
respondeat superior. Salehpour v. Univ. of Tenn., 159 F.3d 199, 206-07 (6th Cir. 1998). The

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Court agrees.
To be liable under § 1983, a supervisor must have “‘either encouraged the specific
incident of misconduct or in some other way directly participated in it,” or “at least implicitly
authorized, approved, or knowingly acquiesced in the unconstitutional conduct.’” Shehee v.
Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (quoting Hays v. Jefferson Cnty., Ky., 688 F.2d 869,
874 (6th Cir. 1982)).
Defendant DeVerney did not open Mr. Smith’s legal mail. And, there is no evidence to
suggest that DeVerney personally trained mail room employees or told them that only mail
related to criminal matters is considered “legal mail.” The Magistrate Judge found that at most,
DeVerney was aware Mr. Smith’s legal mail was opened and was mistaken as to whether
employees were allowed to open the mail. The Court agrees.
Because the mail room employees’ negligence does not amount to a constitutional
violation, the claims against supervisor DeVerney, are dismissed.
The Court ADOPTS the R&R concerning Mr. Smith’s claims against Defendant
DeVerney.
5.) Objection #7 – Qualified Immunity
Because the Court adopts the Magistrate Judge’s R&R and dismisses Mr. Smith’s claims
on the merits, the Court will not address Mr. Smith’s seventh objection.
V. CONCLUSION
The Magistrate Judge’s R&R is ADOPTED. Defendants’ objections to the Magistrate
Judge’s R&R are OVERRULED. The Court dismisses this matter in its entirety and DENIES
Mr. Smith’s Motion to Compel (pages 26-27 of Response Dkt. 85 ) as moot.

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IT IS ORDERED.

S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: November 26, 2013
The undersigned certifies that a copy of this
document was served on the attorneys and of
record and Charles Smith by electronic means or
U.S. Mail on November 26, 2013.
S/Linda Vertriest
Deputy Clerk

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