Bills et al v. Klee

Filing 90

ORDER (1) Overruling Plaintiff's 88 Objections to 79 Report and Recommendation, (2) Adopting Recommended Disposition of 79 Report and Recommendation, and (3) Granting in Part and Denying in Part Defendants' 75 Motion for Summary Judgment. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RICKEY BILLS,
Plaintiff,

Case No. 15-cv-11414
Hon. Matthew F. Leitman

v.
PAUL KLEE, et al.,
Defendants.
__________________________________________________________________/
ORDER (1) OVERRULING PLAINTIFF’S OBJECTIONS (ECF No. 88)
TO REPORT AND RECOMMENDATION (ECF No. 79),
(2) ADOPTING RECOMMENDED DISPOSITION OF REPORT
AND RECOMMENDATION, AND (3) GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT (ECF No. 75)
Plaintiff Rickey Bills is a state inmate in the custody of the Michigan
Department of Corrections (the “MDOC”). In this prisoner civil-rights action,
Bills alleges that the Defendants (1) interfered with his right to access the courts, (2)
denied him procedural due process under the MDOC’s grievance procedures, and
(3) retaliated against him for filing lawsuits. (See Sec. Am. Compl., ECF No. 67.)
On October 5, 2018, Defendants moved to dismiss Bills’ claims. (See Mot., ECF No.
75.) Defendants titled their motion as one for “summary judgment,” but they do not
seek summary judgment under Federal Rule of Civil Procedure 56. Instead they

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seek dismissal under Federal Rule of Civil Procedure 12(b)(6) due to Bills’ “fail[ure]
to state a claim on which relief can be granted.” (Id., PageID.626-628.)
On July 7, 2019, the assigned Magistrate Judge issued a report and
recommendation (the “R&R”) in which he recommended that the Court grant
Defendants’ motion in part and deny the motion in part. (See R&R, ECF No. 79.)
Bills filed objections to the R&R on October 30, 2019. (See Objections, ECF No.
88.) Defendants did not file any objections. For the reasons that follow, Bills’
objections are OVERRULED, and the recommended disposition of the R&R is
ADOPTED.
I
In the R&R, the Magistrate Judge thoroughly explained the allegations and
procedural history of this action, and the Court will not repeat those matters in detail
here. (See R&R, ECF No. 79, PageID.788-793.) In summary, Bills’ claims stem
from an order that the Ingram County Circuit Court entered on October 7, 2008, in
a lawsuit that Bills had filed in that court (the “2008 State Court Order”). In the
2008 State Court Order, the Ingham County Circuit Court directed the MDOC to
“retain 50% of all future deposits of [Bills] until the sum of $138.75 is accrued to
satisfy” an outstanding filing-fee debt that Bills owed in that case. (ECF No. 1,
PageID.13.) Bills alleges several of the Defendants refused to comply with the 2008
State Court Order, did not retain any funds deposited with the MDOC on his behalf,
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and never attempted to send those funds to the Ingram County Circuit Court to
extinguish his debt. Bills says that as a result of these failures, he was barred from
filing new actions or appeals in the state courts. See Mich. Comp. Laws §
600.2963(8) (“A prisoner who has failed to pay outstanding fees and costs as
required under this section shall not commence a new civil action or appeal until the
outstanding fees and costs have been paid”). Bills further claims that prison
grievances he filed related to this misconduct were wrongly denied. Finally, Bills
says that Defendants retaliated against him due to his history of filing lawsuits.
While Bills’ Second Amended Complaint is not entirely clear, he appears to
be bringing the following claims against the following Defendants:
 Bills claims that Defendants James Eaton, the grievance coordinator at the
Adrian Correctional Facility (the “ARF”), and Renee Diver, the business
office manager at the ARF, violated his right to due process when they
violated the MDOC’s grievance procedures;
 Bills claims that Defendants Eaton, Paul Klee, the warden of the ARF,
Sherman Campbell, a deputy warden of the ARF, Lee McRoberts, a deputy
warden of the ARF, and Vaughn Stewart, an employee in the accounting
office at the ARF, interfered with his access to the courts by mishandling
money in his prison account and refusing to comply with the directive in the

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2008 State Court Order that funds from his prison account be sent to the
state court to satisfy his outstanding debt; and
 Bills claims that Defendant Kristopher Steece, deputy warden of the
Macomb County Correctional Facility, unlawfully retaliated against him for
exercising his constitutional right to file lawsuits against prison officials by
transferring Bills from the Macomb County Correctional Facility to the
Kinross Correctional Facility.
Defendants deny that Bills is entitled to relief. They moved to dismiss all of
his claims on October 5, 2018. (See Mot., ECF No. 75.)
II
The Magistrate Judge issued the R&R on July 8, 2019. (See R&R, ECF No.
19.) In the R&R, the Magistrate Judge recommended that the Court grant in part
and deny in part Defendants’ motion.
First, the Magistrate Judge recommended that the Court dismiss Bills’ due
process claim against Defendants Eaton and Diver that arose out of the handling of
Bills’ grievances. The Magistrate Judge explained that “[t]he Sixth Circuit and other
circuit courts have held that there is no constitutionally protected due process right
to an effective prison grievance procedure.” (Id. quoting Smith v. Lincoln, 2011 WL
529833, at *2 (W.D. Mich. Feb. 8, 2011).) See also McGee v. Grant, 863 F.2d 883,
1998 WL 131414, at *1 (6th Cir. 1998) (“[I]nmate grievance procedures are not
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constitutionally required in state prison systems, therefore, any failure on the part of
defendants to follow grievance procedures does not give rise to a § 1983 claim”).
He therefore concluded that Bills had “failed to state a due process claim against
Defendants Eaton and Diver based on a violation of the MDOC’s grievance
procedure.” (R&R, ECF No. 79, PageID.795.)
Next, the Magistrate Judge recommended that the Court allow Bills to proceed
with his access-to-the-courts claim against Defendants Diver and Stewart in their
individual (but not official) capacities. (See id., PageID.797-807.) The Magistrate
first explained that “Bills’ allegations make clear that the only defendants who are
even potentially liable …. for the failure to collect and apply his funds pursuant to
the [2008 State Court Order] are defendants Diver and Stewart.” (Id., PageID.801.)
And the Magistrate Judge concluded that “Bills should at least be entitled to take
discovery into the role these two defendants played, if any, regarding the handling
of Bills’ funds.” (Id., PageID.802.) The Magistrate then determined that Diver and
Stewart were not entitled to qualified immunity because “there is at least a factual
question as to whether defendants Diver and Stewart failed to comply with the 2008
state court Order knowing it would result in denying Bills access to the courts.” (Id.,
PageID.807.)
With respect to Bills’ access-to-the-courts claim against Defendants Webb,
Klee, Campbell, and McRoberts, the Magistrate Judge recommended that the Court
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dismiss the claim against those Defendants. The Magistrate concluded that Bills had
alleged only “that he had complained to these defendants about the failure of other
prison officials to properly collect and apply his funds, and that he felt their
responses were inadequate and did not help to resolve the problem.” (Id.,
PageID.802.) The Magistrate determined that “such allegations are insufficient to
trigger Section 1983 liability.” (Id.)
Finally, the Magistrate Judge recommended that the Court allow Bills to
proceed with his retaliation claim against Defendant Steece. (See id., PageID.805807.) The Magistrate Judge explained his reasoning as follows:
In his operative complaint, Bills claims that he was
transferred between prisons on March 23, 2017, because
of his alleged propensity to file litigation. Specifically,
Bills claims that Defendant Steece, Deputy Warden at
Macomb Correctional Facility, transferred him to the
Kinross Correctional Facility “because Defendant
Campbell and Defendant Webb informed Steece [] [that]
Plaintiff likes to file lawsuits. Steece directed officials at
Kinross to isolate Plaintiff.” (Doc. #67 at 8). In his
summary judgment motion, Steece’s only specific
argument as to this claim is that Bills failed to exhaust it
through the MDOC grievance procedures. However, the
evidence provided by Steece simply does not permit the
Court to make this determination.
[….]
Regardless of Bills’ assertions, Steece had the burden of
showing, through the submission of competent evidence,
the absence of a material question of fact on the issue of
exhaustion. Because  he failed to do so, his motion for
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summary judgment based on Bills’ alleged failure to
exhaust should be denied.
(Id., PageID.805-807; internal footnote omitted).
III
The Court twice extended the time for Bills to file objections to the R&R. (See
Orders, ECF Nos. 81, 86.) Bills timely filed his objections on October 30, 2019.
(See Objections, ECF No. 88.) Defendants did not file any objections to the R&R.
IV
When a party objects to a portion of a Magistrate Judge’s R&R, the Court
reviews that portion de novo. See Fed. R. Civ. P. 72(b)(3); see also Lyons v. Comm’r
of Soc. Sec., 351 F.Supp.2d 659, 661 (E.D. Mich. 2004). The filing of objections
which raise some issues, but fail to raise others with specificity, will not preserve all
the objections a party might have to a report and recommendation. See Willis v. Sec’y
of HHS, 931 F.2d 390, 401 (6th Cir. 1991).
The Court has no duty to conduct an independent review of the portions of the
R&R to which a party has not objected. See Thomas v. Arn, 474 U.S. 140, 149
(1985). In addition, the failure to file objections to an R&R waives any further right
to appeal. See Howard v. Sec’y of Health and Human Servs., 932 F.2d 505 (6th Cir.
1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.
1987).

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V
The Court first turns to Bills’ objections to the R&R. The Court has carefully
considered his objections and overrules them.
A
Bills’ primary objection is that, contrary to the Magistrate Judge’s conclusion
in the R&R, Defendants Webb, Campbell, Klee, and McRoberts did far more than
just offer “inadequate responses” to his complaints about the misapplication of his
funds. (R&R, ECF No. 79, PageID.802.) Bills insists that each of these Defendants
personally “played a major part” in failing to comply with the 2008 State Court
Order that blocked his access to the state courts. (Objections, ECF No. 88, PageID.
928-933.)

Bills therefore asserts that the Magistrate Judge erred when he

recommended dismissing Bills’ claims against these Defendants.

The Court

disagrees.
Simply put, Bills has not sufficiently alleged that Defendants Webb,
Campbell, Klee, and McRoberts “played a major part” in preventing him from
accessing the state courts. In Bills’ Second Amended Complaint, he acknowledges
that it was the responsibility of the ARF “business office” to “follow[] court orders”
like the 2008 State Court Order. (Sec. Am. Compl. at ¶32, ECF No. 67, PageID.601.)
And Bills does not allege any facts in the Second Amended Complaint that could
tend to establish that Defendants Webb, Campbell, Klee, and McRoberts played any
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role in the failure of the ARF’s business office to comply with the 2008 State Court
Order or the failure of that office to properly manage his funds. Bills has therefore
failed to plausibly link the conduct of Defendants Webb, Campbell, Klee, and
McRoberts to his lack of access to the state courts.
Bills counters that Defendants Webb, Campbell, Klee, and McRoberts were
personally involved in blocking his access to the state courts. In the objections, for
example, he asserts that Defendant Webb “ha[d] the authority” to “solve any and all
issues” related to Bills’ funds but that Webb refused to do so. (Objections, ECF No.
88, PageID.928.) Bills says instead that Webb “told” him “that any money that []
Bills receive[d] in[] his prison account [would] not go[] toward any court[] orders
nor court[] filing fees.” (Id.) Bills further maintains that Defendant Webb “made it
clear to me that I would not be filing any more ‘lawsuit[s]’ anytime soon.” (Id.)
Likewise, Bills says that Defendant Campbell “personally participated with the
other[s] to keep [Bills] from paying the ‘court.’” (Id., PageID.929.) According to
Bills, Defendant Campbell told him that “they … will not pay anything to the court.”
(Id.) And Bills insists that Defendant Klee “could [] very well [have] end[ed] the
misconduct [] but he wanted to interfere and cause obstruction.” (Id., PageID.931.)
These contentions presented in Bills’ objections do not save Bills’ claims for two
reasons.

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First, Bills may not establish the personal involvement of Defendants Webb,
Campbell, Klee, and McRoberts through new allegations raised for the first time in
his objections. As explained above, in Bills’ Second Amended Complaint, he does
not plead any facts that could plausibly establish that these Defendants were
personally involved in alleged refusal of the ARF business office to comply with the
2008 State Court Order. And Bills “cannot amend his complaint, which is the
operative pleading in this matter, by simply including new factual allegations in his
briefing in opposition to the motions for summary judgment.” Hubbard v. Select
Portfolio Servicing, Inc., 2017 WL 3725475, at *3 (E.D. Mich. Aug. 30, 2017)
(overruling objection to report and recommendation where objection “constitute[d]
[] attempt to supplement the factual allegations in [the plaintiff’s] complaint”). See
also Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000) (“[I]ssues raised
for the first time in objections to magistrate judge's report and recommendation are
deemed waived”). Thus, Bills’ new allegations cannot form a basis for disturbing
the recommended disposition of the R&R.1

1

Ordinarily, at this point, the Court would allow a pro se litigant the opportunity to
file an amended complaint. But Bills has already received such an opportunity –
twice. Bills first filed this action in 2015. (See Compl., ECF No. 1.) Since that
time, the Court has twice granted motions filed by Bills requesting leave to amend.
(See Orders, ECF Nos. 12, 66.) In addition, the Court appointed distinguished pro
bono counsel for Bills in 2017 (see Order, ECF No. 58), but Bills could not get along
with that counsel, and counsel subsequently withdrew. Under these circumstances,
the Court is not willing to allow Bills to file yet another amended pleading at this
time.
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Second, even if the Court were to consider Bills’ new allegations, they are not
sufficiently specific.

The new allegations appear to relate primarily to the

unwillingness of Defendants Webb, Campbell, Klee, and McRoberts to take
affirmative action to remedy Bills’ problem accessing the state courts. But the
allegations do not adequately explain how each of these Defendants individually
played a role in the actions of the ARF business office, the entity that Bills
acknowledges is responsible for complying with the 2008 State Court Order. The
Court will allow Bills to take discovery into the circumstances surrounding the ARF
business office’s alleged failure to pay his outstanding fees. And if through that
discovery, Bills uncovers evidence that Defendants Webb, Campbell, Klee, and/or
McRoberts were directly and personally involved in preventing him from accessing
the state courts, the Court may allow him to amend his Second Amended Complaint
at that time.
For all of these reasons, Bills’ objections to the Magistrate Judge’s
recommendation that the Court dismiss his claims brought against Defendants
Webb, Campbell, Klee, and McRoberts are OVERRULED.
B
In Bills’ next objection, he asserts that he has stated viable constitutional
claims against Defendants Eaton and Diver arising out of their denial of his prison
grievances. (See Objections, ECF No. 933-935.) Bills insists that the Magistrate
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Judge failed to recognize that Defendants Eaton and Diver denied those grievances
in retaliation for his exercise of his First Amendment Rights. (See id.) But Bills has
not pleaded a retaliation theory related to the denial of his grievances in the Second
Amended Complaint. Instead, Bills pleads only that Defendants Eaton and Diver
“refused to process” his grievances and “violated [Bills’] due process rights under
the grievance policy.” (Sec. Am. Compl. at ¶¶ 39-42, ECF No. 67, PageID.603.) He
does not allege that they refused to process his grievances in retaliation for any
protected conduct that he may have engaged in. Simply put, Bills pleads no facts in
his Second Amended Complaint that could support such a retaliation claim. And as
explained above, Bills may not include new allegations and theories in his objections
against the Defendants that are not pleaded in his Second Amended Complaint. This
objection is therefore OVERRULED.
C
Finally, Bills objects to the Magistrate Judge’s conclusion that Bills failed to
state a cognizable claim against Defendants Diver and Stewart related to the alleged
theft of $20.00 belonging to his aunt. (See Objections, ECF No. 88, PageID.936937.) In the Second Amended Complaint, Bills alleged that he had agreed to have
the money returned to his aunt. (See Sec. Am. Compl. at ¶25, ECF No. 67,
PageID.600.) Thus, as the Magistrate Judge concluded, because Bills had agreed
that the money would be returned to his aunt, even if the money was never returned,
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“the handling of the money order did not impact Bills’ ability to pursue his state
court action.” (R&R, ECF No. 79, PageID.791.) Bills has not sufficiently explained
in the objections how the Defendants’ retention of his aunt’s $20.00 (or any portion
thereof), even if wrongful, either violated his rights or prevented him from accessing
the courts. This objection is therefore OVERRULED.
VI
As noted above, Defendants have not filed any objections to the R&R. The
Court therefore need not review any portions of the R&R unfavorable to the
Defendants. Thus, the Court will ADOPT the recommended disposition of the R&R
to the extent that it recommends allowing Bills to proceed on his access-to-the-courts
claim against Defendants Diver and Stewart in their individual capacities and his
retaliation claim against Defendant Steece in his individual capacity.
VII
For all of the reasons stated above, IT IS HEREBY ORDERED as follows:
 Bills’ objections to the R&R (ECF No. 88) are OVERRULED;
 The recommended disposition of the R&R (ECF No. 79) is
ADOPTED;
 Defendants’ motion (ECF No. 75) is GRANTED IN PART AND
DENIED IN PART as set forth above. The motion is DENIED
with respect to Bills’ access-to-the-courts claim against Defendants
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Diver and Stewart in their individual capacities only. The motion is
also DENIED with respect to Bills’ retaliation claim against
Defendant Steece. The motion is GRANTED in all other respects.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: February 18, 2020

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on February 18, 2020, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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