Tanner v. Watson et al
Filing
60
OPINION AND ORDER denying 54 , 55 Motion for Summary Judgment. Signed by District Judge John Corbett O'Meara. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HATTIE TANNER,
Plaintiff,
CASE NO. 07-14579
HON. JOHN CORBETT O’MEARA
MAGISTRATE JUDGE PAUL J. KOMIVES
v.
KATRINA BORTHWELL
and VERNITA MOSES,
Defendants.
___________________________/
OPINION AND ORDER DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiff Hattie Tanner is an inmate in the custody of the Michigan Department of
Corrections (“MDOC”) and is currently incarcerated at the Women’s Huron Valley Correctional
Facility (“WHV”) in Ypsilanti, Michigan. On October 26, 2007, while incarcerated at the
Robert Scott Correctional Facility (“SCF”) in Plymouth, Michigan, Plaintiff filed this pro se
civil rights action under 42 U.S.C. § 1983, claiming that SCF staff defendants Watson, Andrews,
Chalk, Stringer-Hill, Borthwell and Moses violated her rights under the U.S. Constitution by
impeding her access to the courts.
This court has previously ruled upon two dispositive motions in this case. Defendants
Watson, Borthwell, Moses, and Stringer-Hill filed a motion for summary judgment on January 7,
2008, arguing lack of exhaustion under the Prison Litigation Reform Act. On August 6, 2008,
the court entered an order adopting Magistrate Judge Komives’s July 17, 2008 report and
recommendation and denying the January 7, 2008 dispositive motion.
1
On November 10, 2008, defendants Borthwell, Stringer-Hill, Moses and Watson filed a
motion for summary judgment and dismissal. On August 10, 2009, the court entered an order
adopting the June 3, 2009 report and recommendation of Magistrate Judge Komives and denying
the motion.
On January 21, 2009, the parties stipulated to the dismissal of Plaintiff’s claims against
defendants Watson, Andrews, Chalk, and Stringer-Hill. Therefore, the only remaining
defendants are Borthwell and Moses.
On January 23, 2009, this court granted Plaintiff leave to amend her complaint for the
purposes of omitting claims pertaining to dismissed parties and clarifying the factual allegations
in the initial complaint. Five (5) days later, on January 28, 2009, Plaintiff filed an amended
complaint against defendants Borthwell and Moses. The sole cause of action in the amended
complaint is denial of access to the courts. Plaintiff’s demand for judgment seeks an award of
compensatory and punitive damages, as well as interests and costs, including reasonable attorney
fees.
Pursuant to Magistrate Judge Komives’s July 26, 2010 scheduling order, the discovery
deadline was September 15, 2010, and the dispositive motion deadline was October 15, 2010.
However, the discovery deadline was extended by stipulation to December 15, 2010. Ultimately,
the dispositive motion deadline was extended by stipulation to March 15, 2011.
Currently before the court is defendants Borthwell and Moses’s March 15, 2011 motion
for summary judgment.1 Defendants argue that they are entitled to qualified immunity because
1
Docket Entry #54 is only the motion itself. Number 55 contains the motion, the brief
and several attachments. The court will deem these one motion.
2
Tanner has shown nothing more than negligence.
On March 18, 2011, the court entered an order requiring Plaintiff to file any response on
or before April 18, 2011. Plaintiff filed her response on April 18, 2011; and Defendants filed a
reply on May 6, 2011.
STANDARD OF REVIEW
Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil
Procedure. The party against whom relief is sought may move for summary judgment at any
time. Fed. R. Civ. P. 56(b). Summary judgment will be granted when “there is no genuine issue
as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c). A court considering a motion for summary judgment views all facts and
inferences in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The burden is initially on the moving party to
show the absence of a genuine issue of material fact as to an essential element of the nonmovant’s case. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989) (citing
Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). A court may consider the plausibility of the
moving party’s evidence. Matsushita, 475 U.S. at 587-88. Summary judgment is also proper
where the moving party shows that the non-moving party is unable to meet its burden of proof.
Celotex, 477 U.S. at 326.
Responding to a motion under Rule 56(c), the non-moving party cannot rest merely on
the pleadings alone. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 246 (1986). Instead, the nonmoving party has an obligation to present “significant probative evidence” to show that “there is
[more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris
3
Companies, Inc., 8 F.3d 335, 339-40. (6th Cir. 1993). When the non-moving party fails to
adequately respond to a summary judgment motion, a district court is not required to search the
record to determine whether genuine issues of material fact exist. Street 886 F.2d at 1479-80.
Instead, the court may rely upon the “facts presented and designated by the moving party.”
Guarino v. Brookfield Township Trustees, 980 F.2d 399, 404 (6th Cir. 1992).
After examining the evidence designated by the parties, the court determines “whether
the evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law. Booker v. Brown & Williamson
Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989) (quoting Anderson, 477 U.S. at 251-52).
Summary judgment will not be granted “if the evidence is such that a reasonable jury could
return a verdict for the non-moving party.” Anderson, 477 U.S. at 248.
LAW AND ANALYSIS
On November 7, 2005, Judge Victoria Roberts entered judgment denying Plaintiff’s
petition for a writ of habeas corpus in Tanner v. Yukins, Case No. 04-71155 (E.D. Mich.).
Pursuant to Fed. R. App. P. 4(a)(1)(A), Plaintiff had thirty (30) days to file her Notice of Appeal
with this court. The parties do not dispute that Plaintiff’s notice of appeal had to be filed by
December 8, 2005. Because Plaintiff is functionally illiterate, Plaintiff requested that a prison
legal writer assist her in preparing a Notice of Appeal and Motion for Leave to Proceed on
Appeal in forma pauperis. On or about November 15, 2005, Plaintiff met with the legal writer2
to discuss her case. On or about November 17, 2005, with the assistance of the legal writer,
2
In her August 31, 2009 deposition, plaintiff mentions Gail Guzikowski, currently at
WHV, as a legal writer, as well as Sybil Padgett and Julia Wigley, both currently at WHV, as
people who helped her with paperwork.
4
Plaintiff requested that SCF release a Certificate of Account Activity to append to her motion for
leave to proceed on appeal in forma pauperis as required by Fed. R. App. P. 24(a)(5). However,
SCF returned a certificate for the incorrect time period.
Plaintiff made a second request for a Certificate of Account Activity; and the correct
certificate was prepared by SCF on December 5, 2005, and received by the legal writer that day-only three days before the filing deadline. The legal writer scheduled a “call-out” for Plaintiff to
visit the law library on December 6, 2005, to sign her prepared notice of appeal and motion for
leave to proceed on appeal in forma pauperis.
Plaintiff’s housing unit, Auburn A, was on “lock-down” status from December 3, 2005,
to December 8, 2005. According to Watson, the warden had authorized the lock-down.
Defendants Borthwell and Moses explain that “[d]uring the week of December 2, 2005, high
ranking officials from [WHV] placed Plaintiff’s unit on ‘lockdown’ because a set of keys to the
facility were missing.” Defs.’ mot. br. at 5.
According to Plaintiff, defendant Borthwell refused Plaintiff’s repeated requests to allow
her to attend her “call-out” to the law library on December 6, 2005. When Plaintiff explained
that she needed to go to the law library to sign her notice of appeal because of her filing
deadline, Defendant Borthwell allegedly replied, “too bad.” Defendant Moses also refused to
allow Plaintiff to attend her “call-out” to the law library, stating that she could not allow any
prisoner movement in Plaintiff’s residential unit.
Several other inmates in Plaintiff’s residential unit, however, were permitted to attend
scheduled medical “call-outs” or leave the residential unit for other reasons during the lockdown. For example, on Wednesday, December 7, 2005, Borthwell signed a yard pass for Lynn
Cuadra to go to the mental health center for outpatient therapy; and on Thursday, December 8,
5
2005, Borthwell signed a yard pass for D. Alexander to go to Room 232 for GED testing.
Plaintiff requested to speak to shift command about her urgent need to attend her “call-out” to
the law library, but defendant Borthwell refused Plaintiff’s request.
Because Plaintiff could not attend her “call-out” to the law library, the legal writer sent
her the prepared notice of appeal and motion for leave to proceed on appeal in forma pauperis
via inter-institutional mail on December 6, 2005, for Plaintiff to sign and file. Plaintiff
repeatedly requested that Defendants deliver her legal mail. Plaintiff, however, did not receive
her notice of appeal and motion for leave to proceed on appeal in forma pauperis until December
8, 2005, after the 4:00 p.m. count, when there was no prison staff member available to mail the
documents on her behalf to meet the December 8, 2005 deadline.
Plaintiff signed her filings and placed them in the hands of defendant Moses for mailing
as soon as possible at 10:45 a.m. the morning of December 9, 2005. An expedited legal mail
receipt was filed for Plaintiff that day; and her notice of appeal was received and filed by this
court on December 13, 2005.3
On December 23, 2005, this court granted Plaintiff a certificate of appealability on two of
her habeas claims. However, because compliance with Fed. R. App. P. 4(a) is mandatory, Baker
v. Raulie, 879 F.2d 1396, 1398 (6th Cir. 1989) (per curiam), the Sixth Circuit ordered that
Plaintiff’s appeal be dismissed.
Prior to September 2006, Plaintiff repeatedly requested of Defendants and others,
verbally and in writing, “to provide her with verification of the lock-down status of her
3
Because a pro se prisoner’s notice of appeal is considered “filed” under Fed. R. App. P.
4(a)(1) at the moment of delivery to prison authorities for forwarding to the district court,
Houston v. Lack, 487 U.S. 266, 266 (1988), Plaintiff’s notice of appeal is considered filed as of
December 9 and not December 13. Regardless, both dates are past the December 8 deadline.
6
residential unit for the dates of December 3, 2005 to December 8, 2005 to assist her in her
federal habeas appeal.” Am. Compl. at ¶ 36. On April 25, 2007, Plaintiff received the requested
verification.
Plaintiff describes her September 18, 2007 motion for relief from judgment or order; her
October 10, 2007 motion for reconsideration; and her October 23, 2007 notice of appeal filed on
October 12, 2007 as “explaining that her untimely filing was due to the lock-down of her
residential unit from December 3, 2005 to December 8, 2005, and Defendants’ refusal to permit
her to attend her law library ‘call-out’ on December 6, 2005 or to deliver her legal mail so that
she could sign and file the Notice of Appeal prepared for her by the prison legal writer.” Id. at ¶
27.4
On September 26, 2007, Judge Roberts denied the motion for relief from judgment; and
on October 12, 2007, she denied the motion for reconsideration. Then, on October 31, 2007,
Judge Roberts entered an order in Plaintiff’s habeas case denying a certificate of appealability
and denying leave to proceed on appeal in forma pauperis. On August 5, 2008, the Sixth Circuit
entered an order in Plaintiff’s habeas case denying her request for a certificate of appealability
and denying as moot her motion for pauper status.
4
During 2006, Plaintiff filed at least three grievances: SCF-2006-07-02397-28e; SCF2006-12-04067-28e; and SCF-2006-12-04213-03f. SCF-04213 alleged that librarian Leach
failed to process Plaintiff’s appeal and asked for Librarian Leach or the warden to verify that
SCF “Auburn A” had been on lockdown.
7
Magistrate Judge Komives’s June 3, 2009 report and recommendation, which the court
accepted and adopted on August 10, 2009, reached two conclusions. First, he concluded, “[t]he
facts, viewed in the light most favorable to Plaintiff, show Defendants violated Plaintiff's
constitutional right of access to the courts[.]” June 3, 2009 R & R at 8-17. Within this
recommendation, he noted that (a) “[t]he amended complaint sufficiently alleges the personal
involvement of Defendants[,]”5 (b) “[g]enuine issues of material fact exist as to whether injury to
Plaintiff was the result of prison regulations reasonably related to a legitimate penological
interest[,]” (c) “[g]enuine issues of material facts exist as to whether Defendants’ actions were
the result of isolated negligence[,]” and (d) “[g]enuine issues of material fact exist as to whether
Defendants caused Plaintiff’s injury.” Id.
Second, he concluded, “defendants were not protected from this action by the Eleventh
Amendment or qualified immunity[.]” Id. at 17-22. Within this recommendation, he noted that
(a) “[d]efendants are not entitled to Eleventh Amendment immunity because the Plaintiff sued
Defendants in their individual capacities[,]” and (b) “[d]efendants are not entitled to qualified
5
This portion of the report and recommendation stated the following with respect to
defendants Moses and Borthwell:
Because the amended complaint sufficiently alleges specific acts and omissions
by Defendants Moses and Borthwell, summary judgment based on failure to
allege personal involvement of defendants is not warranted. . . .
[T]he amended complaint alleges that Moses and Borthwell directly prevented
Plaintiff from timely filing her Notice of Appeal.
Because the complaint does sufficiently allege the personal involvement of
Defendants Moses and Borthwell in Plaintiff’s injury, Defendants are not entitled
to summary judgment based on failure to allege personal involvement of
defendants.
Id. at 11-12.
8
immunity because Plaintiff’s constitutional right of access to the courts was clearly established
under the circumstances.”
Plaintiff was deposed on August 31, 2009, three weeks after the entry of this court’s
August 10, 2009 order. Tanner described Moses as “a very nice person.” Tanner thought that
Moses would try to help her, and Tanner did not feel that Moses was “trying to hurt [Tanner] in
any way[.]” Tanner dep. at 40. However, Tanner also testified that during the week of December
6, 2005, she tried to talk to Vernita Moses but did not.
Tanner also answered questions about Borthwell. To begin, Tanner thought that
Borthwell had an attitude back in December 2005. Id. at 41. According to Plaintiff, she
approached Borthwell about library callout, but Borthwell responded that there were no
movements. Plaintiff responded that she had a callout for her legal work. Plaintiff also
mentioned that she had a deadline. Borthwell responded, “I don’t think they’re going to make
it.” Plaintiff asked Borthwell if she could ask Moses about Plaintiff’s deadline. Borthwell did
so, but when she returned she stated, “Ms. Moses said she was under order.” Tanner claims she
asked Borthwell about contacting a shift commander or someone else; however, Borthwell
responded that it was an order, and no one was moving in and out of the unit.
Tanner did not know for a fact that the conversation with Borthwell occurred on
December 6; however, Tanner thought it was the same day she was on callout and agreed that “it
was probably a couple of days before the date that this was due that [she] had this discussion
with . . . Borthwell[.]” Id. at 43, 50.
9
Tanner attested that she did not “recall having any discussions with any [MDOC]
officials, corrections officers, ARUS’s, RUM’s, anybody, on [December 7] about [her] legal
papers[.]” Id. at 51-52. Tanner agreed that she received the papers at issue around 4:00 p.m. on
December 8. Plaintiff recalled attempting to find Moses that day to have her papers mailed;
however, Moses was gone for the day. According to Plaintiff, she gave Moses the legal mail on
December 9, 2005. Id. at 53-55.
Defendant Katrina Borthwell was deposed on September 24, 2010. Borthwell explained
that each unit has a mailbox, a prisoner could put the mail or a kite in the mailbox him or herself,
and “[a]ll mail is picked up on the midnight shift.” Borthwell dep. at 27. However, Borthwell
also explained that expedited legal mail at SCF goes through the ARUS’s such as Moses and that
there must be a signature and time on it. Id. As for delivery of mail to an inmate, Borthwell
explained that it is passed out by the second shift (2:00 p.m. to 10:00 p.m.) staff. Id. at 29.
Borthwell also testified about the December 7 yard pass to inmate Cuadra and the December 8
yard pass to inmate Alexander.
In the instant motion for summary judgment, defendants Borthwell and Moses contend
that they are entitled to qualified immunity because “Tanner has shown nothing more than
negligence.” Defs.’ mot. br. at 6-10. It is defendants Borthwell and Moses’s position that
“Tanner cannot satisfy either prong of the Pearson test.” Id. at 7.
The United States Supreme Court has stated, “government officials performing
discretionary functions generally are shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
10
reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 817-818 (1982).6
The Sixth Circuit has stated that the qualified immunity inquiry requires a three-step
analysis: “First, we determine whether a constitutional violation occurred; second, we determine
whether the right that was violated was a clearly established right of which a reasonable person
would have known; finally, we determine whether the plaintiff has alleged sufficient facts, and
supported the allegations by sufficient evidence, to indicate that what the official allegedly did
was objectively unreasonable in light of the clearly established constitutional rights.” Williams
v. Mehra, 186 F.3d 685, 690 (6th Cir. 1999) (citing Dickerson v. McClellan, 101 F.3d 1151,
1157-58 (6th Cir.1996)).7
“Once the qualified immunity defense is raised, the burden is on the plaintiff to
demonstrate that the officials are not entitled to qualified immunity.” Silberstein v. City of
Dayton, 440 F.3d 306, 311 (6th Cir. 2006) (citing Barrett v. Steubenville City Schools, 388 F.3d
6
Furthermore, "[u]ntil this threshold immunity question is resolved, discovery should not
be allowed." Harlow, 457 U.S. at 818-819.
7
See also Saucier v. Katz, 533 U.S. 194 (2001), wherein the Supreme Court stated, “A
court required to rule upon the qualified immunity issue must consIder, then, this threshold
question: Taken in the light most favorable to the party asserting the injury, do the facts alleged
show the officer's conduct violated a constitutional right? This must be the initial inquiry.”
Saucier, 533 U.S. at 201 (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)). “If no
constitutional right would have been violated were the allegations established, there is no
necessity for further inquiries concerning qualified immunity. On the other hand, if a violation
could be made out on a favorable view of the parties' submissions, the next, sequential step is to
ask whether the right was clearly established.” Saucier, 533 U.S. at 201. See also Drogosch v.
Metcalf, 557 F.3d 372, 377 (6th Cir. Feb. 25, 2009) (citing Saucier, 533 U.S. at 201). “The
relevant, dispositive inquiry in determining whether a right is clearly established is whether it
would be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Saucier, 533 U.S. at 202.
In 2009, the Supreme Court stated, “[a]lthough we now hold that the Saucier protocol
should not be regarded as mandatory in all cases, we continue to recognize that it is often
beneficial.” Pearson v. Callahan, 129 S.Ct. 808, 818 (Jan. 21, 2009) (emphasis added).
11
967, 970 (6th Cir.2004)).
Importantly, the defense of qualified immunity is best addressed after determining
whether a plaintiff has stated a constitutional claim upon which relief can be granted. “[T]he
better approach to resolving cases in which the defense of qualified immunity is raised is to
determine first whether the plaintiff has alleged a deprivation of a constitutional right at all.
Normally, it is only then that a court should ask whether the right allegedly implicated was
clearly established at the time of the events in question.” County of Sacramento v. Lewis, 523
U.S. 833, 842 n.5 (1998), citing Siegert v. Gilley, 500 U.S. 226, 232 (1991).
In this case defendants Borthwell and Moses argue that Plaintiff cannot set forth a
constitutional violation. They explain that, “because of the lockdown, the legal writer was not
allowed to deliver the Notice to the Plaintiff and Tanner was prohibited from leaving her cell to
go to the law library in order to retrieve, review, sign and file her Notice of Appeal.”
Furthermore, defendants contend, “[e]vidence suggests that the Defendants did not know that the
Plaintiff had time-sensitive legal documents that required filing while the lockdown was in
place.” Defs.’ mot. br. at 6.
In support of their argument that Plaintiff has, at most, alleged negligence, Defendants
point to Tanner’s testimony about her interaction with Borthwell on or about December 6, 2005,
as well as Tanner’s impression that Moses was not trying to hurt Plaintiff and that Moses tried to
help her.
Also, Defendants contend “nothing [they] did actually prevented Tanner from filing her
Notice of Appeal on her own or with assistance from another prisoner in her own unit.” All
Plaintiff had to do, Defendants argue, was “submit a single piece of paper to the District Court
indicating that she intended to appeal Judge Roberts’ decision.” In other words, Plaintiff did not
12
need to wait for a legal brief from her legal writer. Id. at 8.
Additionally, it is Defendants’ position that Tanner “offered no testimony that either
[Borthwell or Moses] refused to accept mail of any kind.” Id. at 8-9. Even if their behavior
inhibited Plaintiff from meeting with a specific, legal writer prisoner by December 8, 2005,
Borthwell and Moses “did not inhibit [Plaintiff] from taking other actions to perfect her appeal.”
Defendants speculate that Tanner “could have asked another prisoner in her housing unit to assist
her.” Id. at 9.
Furthermore, in anticipation of an argument that Plaintiff’s illiteracy “did not permit her
to file anything on her own[,]” Defendants note that “an inmate's lack of legal training, his poor
education, or even his illiteracy does not give a court reason to toll the statute of limitations[.]”
Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002). Also, Defendants claim nothing they did
“prevented Tanner from seeking an extension of time in the District Court pursuant to [Fed. R.
App. P.] 4(a)(5).”8 Id.
It is also Defendants’ position that even if Tanner received the materials around 4:00 p.m.
on December 8, 2005, and Moses had already left for the day, nothing they did “prevented
Tanner from depositing her Notice of Appeal in the institutional mail system on December 8,
2005.” According to Borthwell and Moses, nothing prevented Tanner “from seeking out another
staff member to accept her legal mail[,]” and, even if other SCF staff members refused to accept
Tanner’s mail, “Tanner could have submitted an affidavit to the District Court [or Sixth Circuit]
which indicated that she complied with the ‘prisoner mailbox rule’ set forth in Habeas Rule
8
Fed. R. App. P. 4(a)(5) governs motions for extension of time.
13
3(d)[9] by attempting to give her legal mail to a staff member or placing it in a prison mailbox in
her housing unit on December 8, 2005.” Id. at 9.
Plaintiff responds that Borthwell and Moses’s conduct violated her constitutional right of
access to the courts. Specifically, Plaintiff contends that Defendants’ actions deprived her of
access to the courts, Defendants acted “with the knowledge that their actions would deprive
Plaintiff of access to the courts,” and “Defendants’ interference with Plaintiff’s ability to receive
legal mail or assistance was not reasonably related to a legitimate penological interest[.]” Pl.’s
resp. br. at 16-17.
Attached to Defendants’ May 6, 2011 reply is the May 4, 2011 affidavit of Mound
Correctional Facility (NRF) Administrative Assistant Felipe Perea, who was an Administrative
Assistant at SCF during the events in question. Perea states that “[d]uring the time frame of
December 5, 2005 through December 8, 2005 there were mailboxes in each housing unit for
outgoing U.S. Mail from prisoners and such a mailbox was available for Plaintiff’s use.” Perea
aff. ¶ 4. Therefore, Borthwell and Moses contend, “Tanner still could have deposited her Notice
of Appeal in the mailbox and complied with the prison mailbox rule.” Defs.’ reply at 4.
However, Plaintiff’s August 31, 2001 deposition testimony; Borthwell’s September 24,
2010 deposition testimony; and Perea’s May 4, 2011 affidavit do not change the conclusions
reached by Magistrate Judge Komives in his June 3, 2009 report and recommendation. For
example, it is still the case that genuine issues of material fact exist as to whether injury to
9
Rule 3(d) of the Rules Governing Section 2254 Cases provides that “[a] paper filed by
an inmate confined in an institution is timely if deposited in the institution’s internal mailing
system on or before the last day for filing. If an institution has a system designed for legal mail,
the inmate must use that system to receive the benefit of this rule. Timely filing may be shown
by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of
which must set forth the date of deposit and state that first-class postage has been prepaid.”
14
Plaintiff was the result of prison regulations reasonably related to a legitimate penological
interest, specifically noting that the Turner v. Safley, 482 U.S. 78 (1987), factors weighed in
Plaintiff’s favor. June 3, 2009 R & R at 14-15.
Furthermore, notwithstanding Tanner’s description of Moses as “a very nice person[,]” or
Tanner’s impression that Moses would try to help her, or the statement that Tanner did not feel
that Moses was “trying to hurt [Tanner] in any way[,]” it is still the case that genuine issues of
material fact exist as to whether Defendants’ actions were the result of isolated negligence. As
Magistrate Judge Komives stated:
In this case, Plaintiff alleges that she informed Defendants that she would
miss a court imposed deadline if she was not allowed to attend her ‘call-out’ or
receive her mail. Thus, in the light most favorable to Plaintiff, Defendants acted
with at least knowledge that their actions would cause Plaintiff’s injury. Further,
Plaintiff does not allege one ‘isolated’ incident, but a pattern of obstruction that
involved refusal to allow Plaintiff to attend her ‘call-out’ for the duration of the
lock-down while other prisoners were allowed out of their cells, refusal to deliver
Plaintiff’s mail, and interference with Plaintiff’s appeals to prison authorities and
subsequent grievances.
Id. at 16.
Finally, it is still the case that genuine issues of material fact exist as to whether
Defendants caused Plaintiff’s injury, regarding which Magistrate Judge Komives noted in part,
“Plaintiff has alleged that she was forced to wait until the last minute because she was not
provided with the correct forms until three days before the Notice of Appeal was due, and that
she generally encounters difficulty and delay in any transactions involving writing as a result of
her illiteracy.” Id. at 17. As noted above, Perea’s statement about the availability of mailboxes
15
is countered by Borthwell’s explanation that expedited legal mail at SCF goes through the
ARUS’s, such as Moses, and that there must be a signature and time on it. Perea’s aff. at 27-28.
Citing Holzemer v. City of Memphis, 621 F.3d 512, 527 (6th Cir. 2010) and Hope v.
Pelzer, 536 U.S. 730, 741 (2002), Defendants contend that they “could not have been on notice
that their conduct violated clearly established law.” Borthwell and Moses submit that “[w]hile
inmates undoubtedly had a generic right of access to the courts well before 2005,” they “could
not find a published case similar to the instant case.” Thus, they submit, “reasonable prison
officials would not have known that . . . the actions they took in December 2005 violated clearly
established law.” Defs.’ mot. br. at 10.
Plaintiff responds that her constitutional right of access to the courts was clearly
established at the time of the incident(s) in question, “as it would be clear to reasonable officials
in Defendants’ positions that their conduct violated Plaintiff’s constitutional rights.” Pl.’s resp.
br. at 17-18. Plaintiff argues that “[r]easonable officers in Defendants’ positions would
understand that they would violate Plaintiff’s constitutional right of access to the courts by
refusing to deliver Plaintiff’s legal mail or to allow Plaintiff access to the law library, while
knowing that their actions would interfere with Plaintiff’s ability to timely file her Notice of
Appeal with the Court.” Id. Citing Bounds v. Smith, 430 U.S. 817, 828 (1977) and Simkins v.
Bruce, 406 F.3d 1239, 1243 (10th Cir. 2005),10 Plaintiff claims that “[t]he constitutional right of
access to the courts, with its guarantees of reasonable access to a law library and unimpeded
10
“[T]he principle that unimpeded transmission of inmate legal mail is the ‘most obvious
and formal manifestation’ of the right of access to the courts has been clearly established for
some time now.” Simkins v. Bruce, 406 F.3d 1239, 1243 (10th Cir. 2005) (internal citation
omitted).
16
transmission of legal mail, was well established at the time of Defendants’ actions.” Id. at 18-19.
Furthermore, plaintiff cites Martin v. Lane, 766 F.Supp. 641, 646 (N.D. Ill. 1991), wherein the
district court stated:
Martin claims that he was denied access to the law library. ‘It is now established
beyond doubt that prisoners have a constitutional right of access to the courts.’
Bounds v. Smith, 430 U.S. 817, 821[] (1977). The natural extension of that
guarantee is providing prisoners with reasonable access to law libraries. From
Martin's account, it appears that prisoners could not gain access to the law library
or meet with law clerks while the prison was in lockdown. This is the beginning
of an actionable claim. However, to establish meaningful denial of access to the
courts, a prisoner must take his assertions one step further and make at least some
showing of prejudice. Bruscino v. Carlson, 854 F.2d 162, 167 (7th Cir.1988)[];
[Martin v.] Davies, 694 F.Supp. [528][,] 529 [(N.D. Ill. 1988)]. Martin has not
made such a showing here. When asked in his deposition whether he had suffered
harm from his inability to use the law library, Martin could not put his finger on
any prejudice. (Dep. at 60–62.) Although the lack of access to the library had
caused him to delay the submission of motion papers in one of his cases, he was
not penalized for his late filing. Without a showing of prejudice, Martin cannot
sustain this claim.
Therefore, Plaintiff contends, “reasonable officials in Defendants’ positions would
understand that denying Plaintiff the ability to access the law library or to receive her legal mail
during a lock-down, when they knew that their actions would interfere with Plaintiff’s timely
filing of her Notice of Appeal, and when they permitted others to leave the residential unit for
other reasons, would violate Plaintiff’s constitutional right of access to the courts.” Pl.’s resp.
br. at 19.
Defendants reply that “Tanner had an alternative method of sending out her legal mail on
December 8, 2005.” Defs.’ reply at 4-5. Nonetheless, as Magistrate Judge Komives previously
stated, “the facts, taken in the light most favorable to Plaintiff, are sufficient to show that
Defendants violated Plaintiff’s constitutional right to access the courts by preventing her from
17
receiving legal mail and by preventing her from meeting with a legal writer where she could not
complete her filing alone.” June 3, 2009 R & R at 20.
Specifically, as Magistrate Judge Komives’s noted in his report and recommendation:
. . . a right may be clearly established even if a court has not already Identified a
violation of the right in factually equivalent circumstances. See Russo [v. City of
Cincinnati], 953 F.2d [1036][,] 1042 [(6th Cir. 1992)]; Siggers-El [v. Barlow],
412 F.3d [693][,] 703 (6th Cir. 2005). Although Plaintiff’s factual circumstances
are novel, the general contours of Plaintiff’s right to meet with her legal writer
before the Notice of Appeal was due - and the apparent unlawfulness of the
violation of that right - would have been sufficiently clear to the objectively
reasonable official in Defendants’ position. See, e.g., Bounds, 430 U.S. at 828
(requiring prison authorities to “assist inmates in the preparation and filing of
meaningful legal papers”).
Magistrate Judge Komives further stated:
Ultimately, objectively reasonable prison officers in Defendants’ position would
have known that they may not knowingly and without legitimate penological
justification cause an illiterate inmate to miss a filing deadline and have a case
dismissed by preventing the inmate both from meeting with legal assistants and
from receiving legal mail. The facts, taken in the light most favorable to Plaintiff,
indicate that Defendants acted in a way that objectively reasonable officers would
have known was unlawful.
Id. at 21-22 (internal footnote omitted).
For these same reasons, the court concludes that there is a genuine issue of material fact
as to whether defendants Borthwell and Moses violated a constitutional right that was clearly
established. Therefore, Borthwell and Moses are not entitled to qualified immunity.
ORDER
It is hereby ORDERED that defendants Borthwell and Moses’s March 15, 2011 motion
for summary judgment is DENIED.
s/John Corbett O’Meara
United States District Judge
Date: November 10, 2011
18
I hereby certify that a copy of the foregoing document was served upon counsel of record
on this date, November 10, 2011, using the ECF system.
s/William Barkholz
Case Manager
19
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?