Varner v. Schrock et al
ORDER ADOPTING REPORT AND RECOMMENDATION 28 ; granting defendant's motion for summary judgment; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
KEVIN SCOTT VARNER, # 947347,
L. PAUL BAILEY,
HONORABLE PAUL L. MALONEY
ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Kevin Varner, a prisoner, filed this complaint in September 2014. Varner alleged,
while he was detained at the Berrien County Jail, he was denied access to a law library, which
interfered with his rights to access the courts. Varner has since amended his complaint, although the
gist of the claim remains the same, he was denied access to legal materials. Varner now argues the
lack of access to legal materials interfered with ability to defend against a civil forfeiture. Defendant
L. Paul Bailey filed a motion for summary judgment. (ECF No. 13.) The magistrate judge reviewed
the motion and issued a report recommending Defendant’s motion be granted. (ECF No. 28.)
Varner filed objections. (ECF No. 29.)
After being served with a report and recommendation (R&R) issued by a magistrate judge,
a party has fourteen days to file written objections to the proposed findings and recommendations.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). A district court judge reviews de novo the portions of
the R&R to which objections have been filed. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Only
those objections that are specific are entitled to a de novo review under the statute. Mira v.
Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per curiam).
The magistrate judge recommends granting Bailey’s motion because Varner has not
identified any non-frivolous defense that might have been raised if he had access to a law library.
Since the complaint was filed, Varner has been convicted and sentenced, moved to a facility run by
the Michigan Department of Corrections, and now has access to a law library. In his objection,
Varner now argues that an illegal search and seizure can be a meritorious defense to a civil
forfeiture.1 Varner misstates the law. Property seized in contravention of the Fourth Amendment’s
prohibition on seizures without probable cause may not be used in criminal prosecutions, but that
property is still subject to civil forfeiture. In re Forfeiture of $180,975, 478 Mich. 444, 458-59, 734
N.W.2d 489, 497 (Mich. 2007). The property may be forfeited if there is a preponderance of
untainted evidence connecting the property to illegal activity. Id. 478 Mich. at 471, 734 N.W.2d at
504. Therefore, even if Varner was able to prevail on appeal and successfully suppress drug
evidence that formed the basis of his criminal conviction, the phone and cash would still be subject
to a civil forfeiture action. Finally, although the Sixth Circuit has not so ruled, other federal circuit
courts have found that a prisoner’s lack of access to legal materials to challenge civil forfeiture
actions does not create a constitutional claim for denial of access to the courts. See Garcia v.
Wyoming, 587 F.App’x 464, 468 (10th Cir. 2014); Wilson v. Blankenship, 163 F.3d 1284, 1291 (11th
Varner apparently filed a motion to suppress in his criminal action, which was denied
and is now on appeal.
Finding no support for the sole objection, the Report and Recommendation (ECF No. 28) is
ADOPTED as the opinion of this Court. Defendant Bailey’s motion to dismiss (ECF No. 13) is
GRANTED, which terminates all pending claims. IT IS SO ORDERED.
September 9, 2015
/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge
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