Colvin #192744 v. Heyns et al

Filing 5

OPINION; Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KENNETH COLVIN,
Plaintiff,

Case No. 1:15-cv-70

v.

Honorable Janet T. Neff

DANIEL H. HEYNS et al.,
Defendants.
____________________________________/
OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
The Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation
Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321 (1996), the Court is required to dismiss any
prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a
claim upon which relief can be granted, or seeks monetary relief from a defendant immune from
such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s
pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s
allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504
U.S. 25, 33 (1992). Applying these standards, the Court will dismiss on grounds of immunity or for
failure to state a claim Plaintiff’s claims against Defendantd Heyns, Burt, Jackson and Pallas. The
Court also will dismiss Plaintiff’s conditions-of-confinement, due process, and access-to-the-courts
claims.

The Court will serve the remaining claims against Defendants Morefield, McDonald,

Winger and West.

Factual Allegations
Plaintiff Kenneth Colvin presently is incarcerated with the Michigan Department of
Corrections (MDOC and housed at the Kinross Correctional Facility (KCF). The actions about
which he complains occurred while he was housed at KCF and at the Muskegon Correctional
Facility (MCF). Plaintiff sues MDOC Director Daniel H. Heyns and Administrative Law Judge
Donald J. Pallas, as well as the following MCF officials: Warden S. L. Burt; Deputy Warden
(unknown) Jackson; Correctional Officers (unknown) Morefield and (unknown) McDonald;
Resident Unit Manager Jeanine Winger; and Prison Counselor Bryan West.
According to the complaint, on July 18, 2014 at about 10:40 a.m., Plaintiff left the
Unit 3 game room and walked to the unit officer’s desk. He asked Defendant Morefield to contact
Ms. Crawford, who is not a defendant in this action. Defendant Morefield rubbed his head and
angrily informed Plaintiff that he would contact Ms. Crawford and ask her to call Plaintiff out to see
her. Defendants Winger and West also were standing at the desk. Plaintiff began to speak with
Defendant Winger, advising her that bleach-water solution was not being distributed every Saturday,
as Winger had informed Plaintiff would happen on July 2, 2014. Plaintiff specifically requested that
she directly instruct Defendant Morefield and Correctional Officer (unknown) McDonald to
distribute the bleach water the following day, Saturday, July 19, 2014. Winger explained to Plaintiff
that the bleach-water solution is first used to clean the unit’s shower and bathrooms. After those are
clean, the water is distributed for unit cleaning. Defendant Bryan West overheard the conversation
and told Plaintiff that he needed to stop complaining about everyone in the unit and “do [his] own
time.” (Compl., ¶ 6, docket #1, Page ID#3.) Plaintiff informed West that he was not talking to him.
West allegedly pointed his finger at Plaintiff and told him that he was tired of his “shit.” (Id.) While

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Plaintiff was objecting to West’s language and tone, he saw Defendant Morefield pull out and aim
his taser at Plaintiff. Plaintiff asked Morefield if he was going to fire his taser. He heard Defendant
West tell Morefield to shoot Plaintiff with the taser. Without warning Plaintiff, Morefield activated
the taser, shooting Plaintiff in the chest. After Plaintiff was on the ground, Morefield stood over
Plaintiff and fired the taser again. Plaintiff was then placed in handcuffs and taken to segregation,
where he remained until July 30, 2014.
Shortly thereafter, Defendant West issued Plaintiff a misconduct ticket for threatening
behavior, alleging,
At 1040 while talking with Prisoner Colvin #192744 (3-234-A) he became
very angry and with his fists closed from approximately 2 feet away screamed at me,
[“]Fuck you! You ain’t shit, you ain’t nobody to me. I’ll fuck you up!” After
prisoner stated this he was told to calm down. He continued to yell and with his fist
closed and advanced towards me. Taser was deployed by Officer Morefield.
(Id., ¶ 18, Page ID#4.) On July 29, 2014, Defendant Pallas found Plaintiff guilty of the threateningbehavior misconduct charge. Pallas indicated that he had reviewed both the taser usage report and
the unit’s video footage. The usage report, which was prepared by Morefield, stated that Plaintiff
was warned to back away and calm down, but he did not do so. The report indicated that a second
burst was filed when Plaintiff struggled to remove the probes. Pallas held that the video did not
show that Plaintiff had made an abrupt, aggressive move toward West. Pallas therefore concluded
that the allegation that Plaintiff had advanced toward West with the intent to strike him was
unfounded. Pallas found, however, that Plaintiff was upset and had made a verbal threat against
West. He therefore upheld the ticket for threatening behaviour.
Plaintiff complains that he never engaged in threatening behavior, and he contends
that the ticket was issued in retaliation for his grievances and complaints. He alleges that, on July

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15, 2014, only three days before the incident, he had filed a grievance about the failure to distribute
the weekly bleach-water solution. He named Defendants Morefield and McDonald in the grievance.
Plaintiff alleges that the issue was again raised in the Warden’s Forum meeting of August 26, 2014.
While Plaintiff was in segregation, Defendant McDonald packed Plaintiff’s personal
and legal property. McDonald issued a Notice of Intent to Conduct an Administrative Hearing
(NOI), which indicated that, during pack-up, Plaintiff’s papers and books would not all fit in his
three footlockers and duffel bag. McDonald therefore confiscated the excess materials, and the NOI
informed Plaintiff that he must decide what property he wished to keep. McDonald, however, failed
enter the property into the logbook, and the property was misplaced. The NOI hearing was never
held because the property could not be found. Plaintiff contends that he did not have excess
property. He asserts that he had an excess-property hearing in June 2014, at which time he
demonstrated that his property fit into the footlockers and duffel bag. Plaintiff therefore contends
that his property was unlawfully removed, and he asserts that McDonald took the action in
retaliation for Plaintiff’s complaints to Defendant Winger and others about the bleach water.
Plaintiff next complains that, when he was taken to segregation, he was placed in one
of the 16 “dry cells,” which are cells that “have no ‘running’ water, basins, toilets, or nonflushable
portable waste containers.” (Id., ¶ 44, Page ID#9.) Plaintiff asserts that the occupants of the 16 dry
cells may use only one toilet and shower, to which they must be escorted by two staff members.
Plaintiff complains that understaffing and limited facilities led segregation prisoners to throw bodily
waste from their room windows, resulting in a stench. Plaintiff alleges that on a number of
occasions, especially during the night or early-morning hours, he waited hours to go to the restroom.
On one occasion, he had to vomit out his window because there was no guard to escort him.

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In addition, Plaintiff complains that, on June 27, 2014, Defendant Heyns issued a
Director’s Office Memorandum (DOM), reducing mandatory law library access from six to four
hours per week, because the advent of an Electronic Law Library (ELL) allowed quicker research,
necessitating fewer library hours. See MICH. DEP’T OF CORR., Director’s Office Memorandum
2014-31. In DOM 2014-31, Heyns also issued notice that the MDOC would soon be removing
“hard copy” publications and that all prisoners needed to become adept at using ELL. (Compl., ¶
52, Page ID#11.) In addition, on October 25, 2014, KCF Law Library posted a memorandum
informing prisoners that a new library callout system was being implemented. Under the new
system, prisoners were required to specify on their library-callout requests how many hours of ELL
access and how many hours of library study time they were requesting. When called out for one,
prisoners would not be allowed to use the other. In addition, prisoners were informed that, even if
they currently were receiving repeat callouts, they were required to submit new kites conforming
with the policy. Both policies permitted additional library time when necessary under MICH. DEP’T
OF

CORR., Policy Directive 05.03.115 or when resources permitted. Plaintiff complains that the

elimination of hard-copy resources will prevent segregation prisoners from obtaining legal materials.
He also alleges that the MDOC provides insufficient ELL machines. Further, he complains that
prisoners like himself have not been trained on ELL. Finally, he asserts that he is researching
several cases, and four hours of library time each week is insufficient.
Next, Plaintiff complains that Defendant Pallas violated his rights by refusing to
allow Plaintiff to view the videotape of the incident in which he was shot by the taser, on the
grounds that the video would provide Plaintiff information about surveillance capability. Plaintiff
argues that, under the MDOC hearing handbook, he should have been allowed to see the video. He

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asserts that prisoners routinely are denied the opportunity to view videos and that the reasons offered
by Pallas are merely pretextual.
In sum, Plaintiff raises six counts in his complaint: (1) Defendant Morefield used
excessive force in violation of the Eighth Amendment and committed a state-law assault and battery
when he twice discharged his taser into Plaintiff’s chest, and Defendants West and Winger violated
the Eighth Amendment by failing to protect Plaintiff from Morefield; (2) Defendants Morefield and
McDonald retaliated against Plaintiff for filing grievances in violation of the First Amendment; (3)
Defendant McDonald deprived Plaintiff of his property without due process in violation of the Fifth
and Fourteenth Amendments; (4) Defendants Heyns, Burt and Jackson authorized or approved the
inhumane conditions of confinement in the MCF segregation unit, depriving Plaintiff of his rights
under the Eighth Amendment; (5) Defendant Heyns deprived Plaintiff of his right to access the law
library and thereby deprived him of his right to access the courts; and (6) Defendant Pallas deprived
Plaintiff of his right to due process when he refused to allow Plaintiff to view the videotape before
finding him guilty of misconduct. Plaintiff seeks injunctive relief on Count 4 and 5, together with
nominal, compensatory and punitive damages on all counts.
Discussion
I.

Immunity

Plaintiff alleges in Count 6 that Defendant Pallas, acting as a hearings officer,
violated his right to due process under the Fourteenth Amendment by failing to allow him to view
the videotape of the taser incident in order to prepare for and defend against his misconduct charge.
Plaintiff seeks relief only in the form of damages.

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The Sixth Circuit, recognizing that a Michigan hearings officer has adjudicatory
functions spelled out by statute in the nature of an administrative law judge, has held that hearings
officers are entitled to absolute judicial immunity from damages in relation to actions within the
officer’s authority. Shelly v. Johnson, 849 F.2d 228, 229 (6th Cir. 1988); MICH. COMP. LAWS
§§ 791.251-255. See also Williams v. McGinnis, Nos. 02-1336, 02-1837, 2003 WL 245352, at *2
(6th Cir. Jan. 31, 2003) (recognizing that Michigan’s prison hearings officers are entitled to absolute
immunity); Thompson v. Mich. Dep’t of Corr., No. 01-1943, 2002 WL 22011, at *1 (6th Cir. Jan.
2, 2002) (same); Gribble v. Bass, No. 93-5413, 1993 WL 524022, at *2 (6th Cir. Dec. 16, 1993)
(same). Plaintiff’s action fails because Defendant Pallas, as a hearings officer, is absolutely immune
from suit for damages under the circumstances of this case.
Moreover, even if Plaintiff had attempted to seek injunctive relief, it would not be
available under § 1983. Under the 1996 amendments to that statute, injunctive relief “shall not be
granted” in an action against “a judicial officer for an act or omission taken in such officer’s judicial
capacity . . . unless a declaratory decree was violated or declaratory relief was unavailable.” 42
U.S.C. § 1983; accord Savoie v. Martin, 673 F.3d 488, 496 (6th Cir. 2012). Plaintiff does not allege
that a declaratory decree was violated or that declaratory relief was unavailable. Consequently, any
claim for injunctive relief is barred. Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999).
For these reasons, Defendant Pallas will be dismissed from the action.
II.

Failure to state a claim

A complaint may be dismissed for failure to state a claim if it fails “‘to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While

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a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more
than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.”). The 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 679. 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.” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – that the
pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)); see also Hill
v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility
standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1)
and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a
right secured by the federal Constitution or laws and must show that the deprivation was committed
by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Dominguez v.
Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). Because § 1983 is a method for vindicating
federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to
identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271
(1994).

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A.

Retaliation

Petitioner alleges that Defendant West issued a false misconduct ticket against him,
ostensibly in retaliation for Plaintiff’s having filed grievances and making complaints to Winger
about Defendants’ failure to distribute bleach-water solution throughout the unit on Saturdays.
Plaintiff also alleges that Defendant West instructed Defendant Morefield to fire his taser and
Defendant Morefield did so in retaliation for Plaintiff’s complaints. In addition, Plaintiff alleges
that, for the same reason, Defendant McDonald retaliated against him by falsely issuing an NOI,
confiscating Plaintiff’s property, and ultimately misplacing the property so that Plaintiff could not
challenge its confiscation.
Retaliation based upon a prisoner’s exercise of his or her constitutional rights violates
the Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). In order
to set forth a First Amendment retaliation claim, a plaintiff must establish that: (1) he was engaged
in protected conduct; (2) an adverse action was taken against him that would deter a person of
ordinary firmness from engaging in that conduct; and (3) the adverse action was motivated, at least
in part, by the protected conduct. Id. Moreover, a plaintiff must be able to prove that the exercise
of the protected right was a substantial or motivating factor in the defendant’s alleged retaliatory
conduct. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
Plaintiff’s retaliation claim against Defendant West for writing a misconduct ticket
will be dismissed. A prisoner’s claim that he was falsely accused of a major misconduct is barred
where there has been a finding of guilt. See Peterson v. Johnson, 714 F.3d 905, 917 (6th Cir. 2013)
(holding that a factual finding in a major misconduct proceeding has preclusive effect and is not

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subject to challenge in a § 1983 action). Plaintiff was charged and, following a hearing, convicted
of a major misconduct. He therefore may not relitigate the issue in this action.
The Court concludes that Plaintiff’s remaining retaliation allegations are sufficient
to state a claim.1
B.

Due Process

Plaintiff alleges that Defendant McDonald deprived him of his property without due
process when he improperly confiscated Plaintiff’s property and ultimately deprived Plaintiff of it.
Plaintiff’s due process claim is barred by the doctrine of Parratt v. Taylor, 451 U.S.
527 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327 (1986). Under Parratt, a person
deprived of property by a “random and unauthorized act” of a state employee has no federal
due process claim unless the state fails to afford an adequate post-deprivation remedy. If an
adequate post-deprivation remedy exists, the deprivation, although real, is not “without due process
of law.” Parratt, 451 U.S. at 537. This rule applies to both negligent and intentional deprivation
of property, as long as the deprivation was not done pursuant to an established state procedure. See
Hudson v. Palmer, 468 U.S. 517, 530-36 (1984). Because Plaintiff’s claim is premised upon
allegedly unauthorized acts of a state official, he must plead and prove the inadequacy of state postdeprivation remedies. See Copeland v. Machulis, 57 F.3d 476, 479-80 (6th Cir. 1995); Gibbs v.
Hopkins, 10 F.3d 373, 378 (6th Cir. 1993). Under settled Sixth Circuit authority, a prisoner’s failure
to sustain this burden requires dismissal of his § 1983 due-process action. See Brooks v. Dutton, 751
F.2d 197 (6th Cir. 1985).

1

The Court notes that, while a major misconduct ticket bars a prisoner from contesting the misconduct
underlying the ticket, it does not bar a claim of excessive force arising out of the same incident. See Peterson, 714 F.3d
at 917. As discussed, infra, the Court will order the excessive-force claim served.

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Plaintiff has not sustained his burden in this case. Plaintiff has not alleged that state
post-deprivation remedies are inadequate. Moreover, numerous state post-deprivation remedies are
available to him. First, a prisoner who incurs a loss through no fault of his own may petition the
institution’s Prisoner Benefit Fund for compensation. MICH. DEP’T OF CORR., Policy Directive
04.07.112, ¶ B (effective Dec. 12, 2013). Aggrieved prisoners may also submit claims for property
loss of less than $1,000 to the State Administrative Board. MICH. COMP. LAWS § 600.6419; MDOC
Policy Directive 03.02.131 (effective Oct. 21, 2013). Alternatively, Michigan law authorizes actions
in the Court of Claims asserting tort or contract claims “against the state and any of its departments,
commissions, boards, institutions, arms, or agencies.” MICH. COMP. LAWS § 600.6419(1)(a). The
Sixth Circuit specifically has held that Michigan provides adequate post-deprivation remedies for
deprivation of property. See Copeland, 57 F.3d at 480. Plaintiff does not allege any reason why a
state-court action would not afford him complete relief for the deprivation, either negligent or
intentional, of his personal property. Accordingly, Plaintiff’s due-process claim against Defendant
McDonald will be dismissed.
C.

Eighth Amendment – Excessive Force

Plaintiff alleges that Defendant Morefield used excessive force against him, in
violation of the Eighth Amendment, when he twice fired his taser into Plaintiff’s chest. Plaintiff
contends that Defendant West, by instructing Morefield to fire his taser under these circumstances,
also violated the Eighth Amendment. Further, Plaintiff alleges that Defendants Winger and West
witnessed and failed to protect Plaintiff from Morefield’s excessive use of force. The Court
concludes that, at this juncture, the allegations are sufficient to warrant service of the excessive-force
claim.

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D.

Eighth Amendment – Conditions of Confinement

Plaintiff alleges that the conditions of confinement in the MCF segregation unit
violated the Eighth Amendment, and that Defendants Heyns, Burt and Jackson are responsible for
the violation. Plaintiff contends that, because of limited staffing and the lack of toilet access in
segregation cells, segregation prisoners sometimes throw their human waste through their windows.
He complains about both the lack of opportunities to use the toilets and the stench caused by the
other prisoners’ conduct. In addition, Plaintiff alleges that, during his two-week placement in
segregation, he had to wait uncomfortably long to use the toilet and that, on one occasion, he
vomited through his window because no guard was available to take him to the toilet.
The Eighth Amendment imposes a constitutional limitation on the power of the states
to punish those convicted of crimes. Punishment may not be “barbarous” nor may it contravene
society’s “evolving standards of decency.” Rhodes v. Chapman, 452 U.S. 337, 345-46 (1981). The
Amendment, therefore, prohibits conduct by prison officials that involves the “unnecessary and
wanton infliction of pain.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987) (per curiam) (quoting
Rhodes, 452 U.S. at 346). The deprivation alleged must result in the denial of the “minimal civilized
measure of life’s necessities.” Rhodes, 452 U.S. at 347; see also Wilson v. Yaklich, 148 F.3d 596,
600-01 (6th Cir. 1998). The Eighth Amendment is only concerned with “deprivations of essential
food, medical care, or sanitation” or “other conditions intolerable for prison confinement.” Rhodes,
452 U.S. at 348 (citation omitted). Moreover, “[n]ot every unpleasant experience a prisoner might
endure while incarcerated constitutes cruel and unusual punishment within the meaning of the
Eighth Amendment.” Ivey, 832 F.2d at 954.

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In order for a prisoner to prevail on an Eighth Amendment claim, he must show that
he faced a sufficiently serious risk to his health or safety and that the defendant official acted with
“‘deliberate indifference’ to [his] health or safety.” Mingus v. Butler, 591 F.3d 474, 479-80 (6th
Cir. 2010) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994) (applying deliberate indifference
standard to medical claims); see also Helling v. McKinney, 509 U.S. 25, 35 (1993) (applying
deliberate indifference standard to conditions of confinement claims)).
To the extent that Plaintiff complains about the deprivations suffered by other
prisoners, he lacks standing to bring the claims. Newsom v Norris, 888 F.2d 371, 381 (6th Cir.
1989); Raines v. Goedde, No. 92-3120, 1992 WL 188120, at *2 (6th Cir. Aug. 6, 1992). As a
layman, Plaintiff may only represent himself with respect to his individual claims, and may not act
on behalf of other prisoners. See O’Malley v. Brierley, 477 F.2d 785 (3d Cir. 1973); Lutz v. LaVelle,
809 F. Supp. 323, 325 (M.D. Pa. 1991); Snead v. Kirkland, 462 F. Supp. 914, 918 (E.D. Pa. 1978).
With respect to Plaintiff’s complaint about the smells in the unit, he fails to allege
facts meeting the objective prong of the deliberate-indifference standard. Although long-term
unsanitary conditions violate the Eighth Amendment, see Rhodes, 452 U.S. at 348, Plaintiff does not
allege that the smells he faced posed a substantial risk of serious harm as required by Helling, 509
U.S. at 35. In Abdur-Reheem-X v. McGinnis, No 99-1075, 1999 WL 1045069, at *3 (6th Cir. 1999),
the Sixth Circuit rejected a prisoner’s claim that his Eighth Amendment rights were violated when
he was forced to smell the odor of feces from the nearby cell of a mentally ill prisoner. Similarly,
in Bey v. Luoma, No. 2:06-cv-243, 2009 WL 884630, *3 (W.D. Mich. 2009), this Court rejected a
prisoner’s claim that the smell of human feces subjected him to a grave health risk, despite the fact
that the prisoner alleged he experienced nausea and headaches.

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Plaintiff does not claim that he experienced physical symptoms caused by the smells.
In addition, Plaintiff does not allege that his own cell was contaminated or that prison officials fail
to ensure any incidents are cleaned up. He merely alleges that individuals in the unit sometimes
throw their feces and urine from their windows. Such allegations fall short of demonstrating an
objectively serious risk to his health or safety caused by the smell of human waste in the segregation
unit. See Helling, 509 U.S. at 35-36.
In addition, Plaintiff complains that he experienced discomfort on some occasions
while waiting to use the toilet. Mere discomfort is insufficient to state an Eighth Amendment claim.
See Hudson v. McMillian, 503 U.S. 1, 25 (1992). Similarly, the fact that correctional officers failed
on one occasion to take Plaintiff to the toilet before he vomited falls short of an Eighth Amendment
violation. See Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001) (holding that
allegations about temporary inconveniences do not demonstrate that the conditions fell beneath the
minimal civilized measure of life’s necessities as measured by a contemporary standard of decency);
Hartsfield v. Vidor, 199 F.3d 305, 310 (6th Cir. 1999) (stating that “deprivations of fresh water and
access to the toilet for a 20-hour period, while harsh, were not cruel and unusual punishment”).
For all these reasons, Plaintiff fails to allege an Eighth Amendment violation based
on the conditions of his confinement. Since this is the only claim raised against Defendants Burt
and Jackson, they will be dismissed for failure to state a claim.
E.

Access to the Courts

Plaintiff contends that Defendant Heyns adopted an unconstitutional policy governing
law library access. Specifically, he complains that, in 2014, Defendant Heyns imposed restrictions

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on the number of library hours available to prisoners and limitations on the availability of hardbacked materials, without providing training in the use of the ELL system.
It is well established that prisoners have a constitutional right of access to the courts.
Bounds v. Smith, 430 U.S. 817, 821 (1977). The principal issue in Bounds was whether the states
must protect the right of access to the courts by providing law libraries or alternative sources of legal
information for prisoners. Id. at 817. The Court further noted that in addition to law libraries or
alternative sources of legal knowledge, the states must provide indigent inmates with “paper and pen
to draft legal documents, notarial services to authenticate them, and with stamps to mail them.” Id.
at 824-25. The right of access to the courts also prohibits prison officials from erecting barriers that
may impede the inmate’s accessibility to the courts. See Knop v. Johnson, 977 F.2d 996, 1009 (6th
Cir. 1992).
An indigent prisoner’s constitutional right to legal resources and materials is not,
however, without limit. In order to state a viable claim for interference with his access to the courts,
a plaintiff must show “actual injury.” Lewis v. Casey, 518 U.S. 343, 349 (1996); see also Talley-Bey
v. Knebl, 168 F.3d 884, 886 (6th Cir. 1999); Knop, 977 F.2d at 1000. In other words, a plaintiff
must plead and demonstrate that the shortcomings in the prison legal assistance program or lack of
legal materials have hindered, or are presently hindering, his efforts to pursue a nonfrivolous legal
claim. Lewis, 518 U.S. at 351-53; see also Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996).
The Supreme Court has strictly limited the types of cases for which there may be an actual injury:

Bounds does not guarantee inmates the wherewithal to transform themselves into
litigating engines capable of filing everything from shareholder derivative actions to
slip-and-fall claims. The tools it requires to be provided are those that the inmates
need in order to attack their sentences, directly or collaterally, and in order to
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challenge the conditions of their confinement. Impairment of any other litigating
capacity is simply one of the incidental (and perfectly constitutional) consequences
of conviction and incarceration.
Lewis, 518 U.S. at 355. “Thus, a prisoner’s right to access the courts extends to direct appeals,
habeas corpus applications, and civil rights claims only.” Thaddeus-X v. Blatter, 175 F.3d 378, 391
(6th Cir. 1999) (en banc). Moreover, the underlying action must have asserted a non-frivolous
claim. Lewis, 518 U.S. at 353; accord Hadix v. Johnson, 182 F.3d 400, 405 (6th Cir. 1999) (Lewis
changed actual injury to include requirement that action be non-frivolous).
In addition, the Supreme Court squarely has held that “the underlying cause of
action . . . is an element that must be described in the complaint, just as much as allegations must
describe the official acts frustrating the litigation.” Christopher v. Harbury, 536 U.S. 403, 415
(2002) (citing Lewis, 518 U.S. at 353 & n.3). “Like any other element of an access claim, the
underlying cause of action and its lost remedy must be addressed by allegations in the complaint
sufficient to give fair notice to a defendant.” Id. at 416.
In the instant case, Plaintiff fails entirely to allege that he has suffered actual injury.
He asserts only that he has a number of pending legal cases and that four hours per week are
insufficient. Such allegations fall far short of the pleading standard describe in Christopher, 536
U.S. at 415-16. Instead, they are largely conclusory and theoretical, and Plaintiff has offered no
specific facts supporting his claim. Indeed, as provided and Policy Directive 05.03.115, ¶ O, a
prisoner who “has a court deadline requiring additional time in the law library may request
additional time from the librarian or designee.” Further, in DOM 2014-31, Defendant Heyns
expressly declared that the policy directive would continue to be followed. These procedures

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undermine any inference of actual injury from the fact that Plaintiff has multiple lawsuits pending.

Plaintiff’s allegations concerning the changes in the policy governing law-library
privileges therefore fail to support a claim that he was denied access to the courts. Because
Plaintiff’s only remaining claim against Defendant Heyns is his adoption and implementation of the
law-library policy, the Court will dismiss Defendant Heyns from the action.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Heyns, Burt, Jackson and Pallas will be dismissed on grounds of
immunity or for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42
U.S.C. § 1997e(c). The Court also will dismiss Plaintiff’s conditions-of confinement, due process,
and access-to-the-courts claims. The Court will serve the remainder of the complaint against
Defendants Morefield, McDonald, Winger and West.
An Order consistent with this Opinion will be entered.

Dated:

February 12, 2015

/s/ Janet T. Neff
Janet T. Neff
United States District Judge

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