Civil Rights Clinic, Michigan State University et al v. Washington et al
Filing
19
OPINION AND ORDER granting 12 Reasserted Motion to Dismiss. Signed by District Judge Marianne O. Battani. (BThe)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NICK SUCIU, III, et al.,
CASE NO. 12-12316
Plaintiff,
HON. MARIANNE O. BATTANI
v.
HEIDI WASHINGTON, et al.,
Defendants.
/
OPINION AND ORDER GRANTING DEFENDANTS’
REASSERTED MOTION TO DISMISS
Before the Court is Defendants' Reasserted Motion to Dismiss. (Doc. No. 12). The
Court heard oral argument on Plaintiffs’ motion on September 13, 2012, and at the
conclusion of the hearing informed the parties that it would take the motion under
advisement. The Court has reviewed all the filings and, for the reasons that follow,
Defendants’ Motion is GRANTED.
I. FACTS
Plaintiffs Nick Suciu, III, Gerald Lorence, Craig Davis, Dory Barton, and Lee
Somerville filed suit on behalf of themselves and all similarly situated attorneys who
represent or seek to represent incarcerated individuals confined with the Michigan
Department of Corrections (“MDOC”). Defendants are employees of the MDOC: Daniel
Heyns is the Director of MDOC; Heidi Washington is the Warden of Charles Egeler
Reception and Guidance Center (Egeler); Shirlee Harry is the Warden of Pugsley
Correctional Facility (Pugley). Plaintiffs assert that Defendants violated 42 U.S.C. § 1983
by restricting the time and place of visitation with prisoners.
According to Plaintiffs’ First Amended Complaint (FAC), since June 13, 2011,
Defendants, under the direction of Heyns, “have unreasonably restricted, without a valid,
rational connection to a legitimate penological interest, the ability of civil and criminal
attorneys to meet with incarcerated individuals, to have confidential visits and to develop
attorney-client relationships with incarcerated clients, potential clients or witnesses.” (FAC
at 1). When the MDOC instituted the new visiting days and visiting hours restrictions on
June 13, 2011, it eliminated Tuesday and Wednesday visiting hours altogether. Standard
visiting hours vary from prison to prison, and attorneys are required to abide by the
visitation restrictions; however, the policy provides for exceptions. Specifically, MDOC
Policy 05.03.140 at Paragraph N allows for an attorney or representative acting on the
attorney’s behalf, on official business with the prisoner to “visit outside of standard visiting
hours with prior approval of the Warden or designee.” (Doc. No. 8, Ex 2). According to the
FAC, individual wardens are instructed not to approve exceptions absent “extenuating
circumstances” such as “an imposed deadline such as a filing deadline or a hearing date.”
(FAC at ¶¶ 32-34). Prior to the current policy, attorneys were not required to show
extenuating circumstances to visit incarcerated individuals outside the standard vising
hours.
MDOC also has a policy directive covering confidentiality during attorney client
visits. Paragraph B of PD 05.03.116 reads in relevant part, “If requested by the attorney,
staff shall arrange a location where the visit can be conducted without being overheard by
staff or other prisoners. Whenever possible, such a request should be made in advance
of the visit to assist in planning for a private room or other area.” (Doc. No. 8, Ex. D).
In Count I, Plaintiffs allege a violation of their First Amendment right to communicate
2
with clients who are incarcerated in Michigan prisons in that MDOC restricted visitation
without a legitimate penological interest. (FAC at ¶¶100-103). In Count II Plaintiffs allege
a violation of their First Amendment Right to associate with clients, potential clients, and/or
possible witnesses who are incarcerated in Michigan prisoners (FAC at ¶¶ 105-106). In
Count III, Plaintiffs allege violations of their Sixth Amendment Right of Counsel to Visit with
Clients; and in Count IV, their Sixth Amendment Right to Confidential Communications.
III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) allows a district court to dismiss a complaint
that fails “to state a claim upon which relief can be granted.” In assessing the motion, the
court “must construe the complaint in a light most favorable to the plaintiff, and accept all
of [the] factual allegations as true. When an allegation is capable of more than one
inference, it must be construed in the plaintiff's favor.” Bloch v. Ribar, 156 F.3d 673, 677
(6th Cir. 1998) (internal citation omitted). To survive a motion to dismiss, the complaint must
allege grounds entitling plaintiff to relief, which requires “more than labels and conclusions
[or] a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). The “[f]actual allegations must be enough to raise a right to relief
above the speculative level.” Ashcroft v. Iqbal, 556 U.S. 662, 668(2009) (“Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do
not suffice.”). A 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 678. The Court must accept the well-pleaded factual allegations as true. Hensley
3
Mfg. v. ProPride, Inc., 579 F.3d 603 (6th Cir. 2009) (citing Twombly, 550 U.S. at 555).
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.” Id. (quoting
Twombly, 550 U.S. at 556.).
III. ANALYSIS
Section 1983 does not provide for substantive rights; it is “a method for vindicating
federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 266 (1994). It reads in
relevant part:
Every person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for
redress. . . .
42 U.S.C. § 1983.
To plead a § 1983 violation, a plaintiff must allege facts from which it may be inferred
that (1) he was deprived of a federal right, and (2) a person who committed the alleged
violation acted under color of state law. West v. Atkins, 487 U.S. 42, 28 (1988).
Here, there is no dispute regarding the status of the actors; therefore, the Court
addresses whether Plaintiffs suffered any deprivations of rights secured by the Constitution.
A. Sixth Amendment
The Sixth Amendment guarantees criminal defendants the right to effective
assistance of counsel, but it “only applies to a defendant's trial and first appeal as of right,
not to appeals afforded on a discretionary basis, collateral proceedings, or civil proceedings
4
such as civil rights claims challenging prison conditions.” Bourdon v. Loughren, 386 F.3d
88, 96 (2d Cir. 2004) (citing Pennsylvania v. Finley, 481 U.S. 551, 555-57 (1987)). Even the
afforded protections have limits, however, as the U.S. Supreme Court has held that “when
a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89
(1987). Examples of unconstitutional limits on prisoners' rights to counsel include a ban on
all visits by paralegals employed by criminal defense counsel and repeated delays in
meetings between prisoners and attorneys that resulted in attorneys forgoing the meetings.
Benjamin v. Fraser, 264 F.3d 175, 187 (2d Cir. 2001).
Although the parties do not raise constitutional limitations relative to standing they do
dispute whether Plaintiffs have standing to pursue the Sixth Amendment claims of others
as advanced in Counts III and IV of the Amended Complaint. Specifically, Plaintiffs pursue
claims on behalf of their clients, potential clients, and witnesses.
Typically, a party “must assert his own legal rights and interests, and cannot rest his
claim to relief on the legal rights or interests of third parties. Warth v. Seldin, 422 U.S. 490,
499 (1975). Nevertheless, third-party standing to assert the rights of another may exist,
provided “the party asserting the right has a close relationship with the person who
possesses the right; and there is a hindrance to the possessor's ability to protect his own
interests." Kowalski v. Tesmer, 543 U.S. 125, 129-30 (2004) (citations omitted). The parties
disagree as to whether the elements are satisfied.
a. Close Relationship
In Kowalski, the Supreme Court reviewed a Michigan statute that denied appointed
appellate counsel to indigent defendants who pleaded guilty, absent some exception.
5
Kowalski, 543 U.S. at 127–28. Two attorneys filed suit, invoking a future attorney-client
relationship with “as yet unascertained Michigan criminal defendants who will request, but
be denied, the appointment of appellate counsel, based on the operation of the statute.” Id.
at 131. At the outset of its analysis, the Court observed that although it had recognized an
existing attorney-client relationship as sufficient to confer third-party standing, 543 U.S. at
130, a “hypothetical” attorney-client relationship with future indigent defendants who would
be denied appellate counsel was not close enough to support standing. Id., 543 U.S. at
130–31.
Here, Plaintiffs' relationship with hypothetical future clients is no closer than the
relationship of the defense attorneys in Kowalski. An attorney client relationship does not
exist relative to potential clients or witnesses. Consequently, the Court finds that a close
relationship, sufficient to meet the first prong of the test, exists only between Plaintiffs and
their existing clients. Therefore, the Court directs its attention to whether those existing
prisoner clients face a hindrance in protecting their own interests relative to visitation.
b. Hindrance
According to Plaintiffs, existing prisoner clients are hindered from advancing their own
constitutional rights because prisoners likely are unaware that their attorneys have been
denied visits. Further, these prisoners lack the legal skills to bring a challenge to the visiting
restrictions. The Court disagrees.
Certainly, counsel would disclose information about a denied visit to a client. Further,
the claim arising from this violation are not complex factually or legally. This Court finds that
the type of hindrance necessary to allow third-party standing is not met.
In the alternative, Plaintiffs argue that to the extent that prisoners request injunctive
6
relief, their claims would be moot because the criminal appeals as of right would be finalized
before the civil lawsuit challenging the delay or denial of visitation could be resolved.
Without question, “imminent mootness” is a recognized basis for satisfying the second prong
of the test. See Singleton v. Wulff, 428 U.S. 106, 118 (1976) (according physicians thirdparty standing because of the “imminent mootness” of a pregnant woman's challenge to a
statute restricting the circumstances in which pregnant women may receive medicaid
benefits for abortions); Craig v. Boren, 429 U.S. 190, 192–93 (1976) (permitting vendor to
continue equal protection challenge to a statute prohibiting certain alcohol sales to male
minors when the named plaintiff turned 21 during the course of the litigation).
Nevertheless, the Court disagrees with Plaintiffs' contention that “imminent
mootness,” is a sufficient hindrance here.
Prisoners may pursue relief through the
grievance process and through the courts. These methods would be effective to resolve the
issue before any loss of standing. In Kowalski, the Supreme Court found the hindrance
prong of the test was not satisfied because an indigent denied appellate counsel had other
means by which to pursue a denial of constitutional rights, including appeal and collateral
review. Plaintiffs’ attempts to distinguish the situation here are not persuasive. Therefore,
this Court finds that the second prong of the Kowalski test is not satisfied. Because
Plaintiffs lack standing to bring the Sixth Amendment claims, Counts III and IV are
dismissed.
B. First Amendment
In support of their First Amendment claims, Plaintiffs contend that the MDOC has
placed arbitrary and unreasonable restrictions on the times and days they are allowed to
visit with their clients, potential clients and/or witnesses. Because freedom of association
7
“is among the rights least compatible with incarceration [and] curtailment of that right must
be expected in the prison context,” Overton v. Bazzetta, 539 U.S. 126 (2003), Plaintiffs
face challenges in succeeding on their claims.
Plaintiffs assert that the restrictions serve no legitimate penological interest. As
support for their contention, Plaintiffs rely on a series of communications regarding the
changes to visitation from a MDOC employee and declarations from two former MDOC
employees. Although Defendants raised no challenge to these exhibits, and in fact attach
an email from a MDOC employee, before addressing the merits, the Court must decide
whether to consider the exhibits offered by Plaintiffs in support of their response.
Rule 12(d) provides that “[i]f, on a motion under Rule 12(b)(6). . .matters outside the
pleadings are presented to and not excluded by the court, the motion must be treated as
one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). A court may consider
“documents incorporated into a complaint by reference and matters of which a court may
take judicial notice” without converting the motion into one for summary judgment. Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007).
The MDOC communications are referenced in the FAC and are part and parcel of the
claims advanced by Plaintiffs. Therefore, the Court finds consideration appropriate in the
context of a Rule 12(b)(6) motion. The declarations of the former MDOC employees,
however, are not. Therefore, those declarations play no role in the Court’s analysis.
Although prisoners have a general constitutional right to visit with their legal counsel,
the right is not absolute. “Prison officials may restrict such attorney-client contacts through
reasonable administrative rules and practices for the maintenance of prison security and
order, provided the rules do not “unjustifiably obstruct” [a] plaintiff's ability to consult with his
8
attorney.” Howard v. Cronk, 526 F. Supp. 1227, 1229 (S.D.N.Y. 1981). Accord King v.
Caruso, 542 F. Supp.2d 703, 713 (E. D Mich. 2008) (observing that “[p]rison officials may
impinge on a prisoner and his visitor’s First Amendment rights if their actions are reasonably
related to legitimate penological interest”).
Certainly, the visiting hours limitations obstruct the availability of professional
representation. Prior to the imposition, attorneys could visit from 8 a.m. to 8 p.m., Monday
through Friday, and on weekends with an advance phone call. In contrast, now attorneys
can visit five days--Monday, Thursday, Friday, Saturday, and Sunday, during standard
visiting hours, which are not as lengthy. Because limitations are allowed, the issue before
this Court is whether the limitations obstruct unreasonably. The Court finds that the
limitations are not unreasonably obstructive. Notably, attorneys may get prior approval to
visit outside the standard visiting hours. The fact that Defendants did not approve the prior
requests of some Plaintiffs does not alter the analysis because the facts as alleged reflect
that the requests for visits outside the standard visiting hours were based upon personal
convenience. The First Amended Complaint contains no allegations that a warden denied
a request in light of extenuating circumstances.
Nor is the analysis altered by the MDOC communications. In the first email, dated
June 14, 2011, Norma Killough, a MDOC employee, recommends that despite the new
visiting schedule, attorney visits on Tuesday and Wednesdays should not be prohibited.
(Doc. No. 15, Ex. 3). She adds that a prohibition would lead to a court fight. (Id.) The
second email, which was sent June 29, 2011, reiterates the policy of requiring warden
approval for visits outside visiting hours and limits approval to “extenuating circumstances.”
(Doc. No. 15, Ex. 4).
The third email, dated July 20, 2011, provides examples of
9
extenuating circumstances. Even thought the MDOC expressed initial concern about
limiting visits from attorneys, here, no flat ban is in place. Attorneys are required to provide
a reason beyond scheduling convenience to visit a prisoner during nonvisiting hours. (Doc.
No. 15, Ex. 5). The Constitution does not require the MDOC to adjust standard visitation
hours to accommodate an attorney’s schedule. The visiting hours are in effect to maintain
the legitimate penological interest of orderly visitation and institutional security.
Finally, Plaintiffs proceed on the assertion that as counsel, they are entitled to visit
incarcerated clients and communicate in a location that ensures confidentiality. Again the
MDOC policy affords access to a confidential visits, provided an attorney requests it, and
the confidential visiting area is available. Attorneys are instructed that a request should be
made in advance. The First Amended Complaint contains no allegation that an attorney that
complied with the policy to secure a confidential location was denied the opportunity to do
so. Accordingly, the Court finds no cognizable claim under the First Amendment has been
pleaded.
IV.
CONCLUSION
For the reasons stated above, the Court GRANTS Defendants’ Reasserted Motion
to Dismiss.
IT IS SO ORDERED.
s/Marianne O. Battani
MARIANNE O. BATTANI
UNITED STATES DISTRICT JUDGE
Date: October 11, 2012
10
CERTIFICATE OF SERVICE
Copies of this Opinion and Order were mailed and/or electronically filed to counsel of
record on this date.
s/Bernadette M. Thebolt
Case Manager
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?