Flakes #407798 v. Brown et al
OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 1:16-cv-418
Honorable Robert J. Jonker
C. BROWN et al.,
This is a civil rights action brought by a state prisoner under 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, Plaintiff’s action will be dismissed for failure to state
Plaintiff Jason Flakes presently is incarcerated with the Michigan Department of
Corrections (MDOC) and housed at the Bellamy Creek Correctional Facility (IBC). He sues the
following IBC officials: Mail Room Officer C. Brown; Assistant Resident Unit Supervisor (ARUS)
J. Buchin; Resident Unit Manager Rufus Wright; Supervisor Arleen Edwards; Warden Tony
Trierweiler; and Grievance Coordinator Mitch Vroman.
Plaintiff alleges that his sister mailed him seven photographs of his female friend.
On July 27, 2015, Defendant Brown sent Plaintiff a Notice of Mail Rejection, based on a
determination that the photographs showed a woman’s naked buttocks, in violation of MICH. DEP’T
OF CORR., Policy Directive 05.03.118 ¶ MM(13).1
Plaintiff requested an administrative hearing. On
August 6, 2015, Plaintiff also filed a grievance (IBC 1508-2164-15A), demanding a timely hearing
and an opportunity to personally review the photographs. Defendant Buchin conducted a hearing
on the mail rejection on August 7, 2015. Buchin showed Plaintiff photocopies of the photographs,
which were redacted with black marker across the buttocks area, so Plaintiff could not get a clear
view of the content of the photographs. Plaintiff complained about his inability to determine the
content of the photos, but Defendant Buchin refused to allow Plaintiff to see the actual contraband,
Paragraph MM of the mail policy lists a series of incoming mail items that are prohibited because they “may
pose a threat to the security, good order, or discipline of the facility, may facilitate or encourage criminal activity, or may
interfere with the rehabilitation of the prisoner.” Subsection 13 of that list bans the following items:
“Nude photographs, except if included in a publication sent directly from the publisher or an
authorized vendor. Nude photographs are defined as any photograph exposing the buttocks, pubic
area or genitalia, or, except if a baby or infant, the female breast below the top of the areola. This
includes exposure through ‘see through’ materials.”
MICH. DEP’T OF CORR., Policy Directive 05.03.118 ¶ MM(13).
indicating that to do so would violate policy and create a threat to the security of the institution and
the staff. But Buchin informed Plaintiff that he personally would view the original photographs
before making his determination. Defendant Buchin then adjourned the hearing.
Immediately after the hearing, Plaintiff wrote to Defendant Trierweiler, ostensibly
on behalf of his sister.2 Plaintiff complained that the photographs were not pornographic, as, despite
the redactions, it could plainly be seen that the woman was wearing either Daisy Duke short-shorts
with a ruffle or a bathing suit. The photographs did not reveal the woman’s genitals. Plaintiff
received a response indicating that he was required to grieve the hearing results and follow the
Defendant Buchin continued the hearing on August 10, 2016. Plaintiff complains that
the photographs still were not available to Plaintiff, but Buchin advised Plaintiff that he had seen the
pictures and could not allow them because the woman had clearly exposed her buttocks. Plaintiff
stated that he had similar pictures already in his cell, and he complained that black women were
being targeted because of their genetics, which cause them to have large thighs, hips and buttocks.
Plaintiff also indicated that a woman wearing a thong was not exposing her bare buttocks.
Defendant Buchin concluded that, although the woman was wearing a bathing suit, she nevertheless
exposed her buttocks. As a result, Buchin held, the pictures violated Policy Directive 05.03.118.
Plaintiff was given the opportunity to either pay to have the pictures mailed back to the sender or
have the pictures destroyed.
Under MICH. DEP’T OF CORR., Policy Directive 05.03.118 ¶ XX, a prisoner who disagrees with the outcome
of a mail-rejection hearing may appeal the result by filing a grievance. However, the policy also permits the sender to
appeal a proposed mail rejection by sending a letter to the facility head within ten days of the Notice of Mail Rejection.
See MICH. DEP’T OF CORR., Policy Directive 05.03.118 ¶ YY. By naming his sister as the person appealing, Plaintiff
apparently attempted to exercise the avenue of appeal reserved for the sender of rejected mail.
Plaintiff filed a second grievance (IBC 1508-2203-07A) on August 10, 2015, arguing
that Defendant Buchin violated his right to due process when he refused to allow Plaintiff to view
the pictures at the hearing and when he determined that the pictures were barred by prison policy.
Plaintiff also alleged that Defendant Buchin was racially biased against Plaintiff’s “black female
friend because she is big and the clothes she worn.” (Attach. to Compl., ECF No. 1-1, PageID.39.)
On August 12, 2015, Plaintiff wrote to Defendant Brown, asking that Brown hold
Plaintiff’s photographs until Plaintiff exhausted his administrative remedies. Brown did not respond.
As a result, on August 20, 2015, Plaintiff filed a third grievance (IBC 1508-2320-15A) against
Brown for failing to respond to the kite.
On August 13, 2015, the Step-I grievance responder, ARUS Beak, denied Plaintiff’s
first grievance (IBC 1508-2164-15A), on the grounds that a grievance could not be filed before the
administrative hearing process was complete. Beak concluded that, because the mail rejection was
still pending, Plaintiff’s grievance did not raise a valid issue. On August 20, 2015, Plaintiff appealed
the grievance to Step II. He submitted his Step-III appeal on September 2, 2015. The Step-III
grievance was denied on December 31, 2016.
Plaintiff was called to the control center on August 26, 2015 to meet with Defendant
Edwards about Plaintiff’s third grievance (IBC 1508-2320-15A). Plaintiff told Edwards that he had
a constitutional right to have his pictures held by the institution until Plaintiff had completed the
grievance process. Edwards told Plaintiff that, in accordance with the hearing decision, Plaintiff’s
pictures would be destroyed unless they were picked up or mailed back to the sender. Plaintiff
alleges that Defendant Edwards’ statement violated prison policy. Plaintiff received Defendant
Edwards’ Step-I grievance response on August 27, 2015. In her response, Edwards stated that
Plaintiff’s photographs would be destroyed unless Plaintiff completed a disbursement form
authorizing them to be returned to sender. Plaintiff filed a Step-II grievance appeal on September
2, 2015. Defendant Trierweiler responded to Plaintiff’s Step-II appeal on September 9, 2015.
Trierweiler concluded that the Step-I response was adequate and appropriate. Plaintiff filed his
Step-III appeal on September 15, 2015. The Step-III grievance was denied on March 15, 2016.
On August 25, 2015, Defendant Robinson sent a memorandum to Plaintiff,
threatening to place Plaintiff on modified grievance access3 if he filed another grievance. Defendant
Trierweiler placed Plaintiff on modified grievance access on August 26, 2015. Plaintiff complains
that the grievance restriction was retaliatory and violated his First, Fifth, Eighth and Fourteenth
Amendment rights. Plaintiff wrote to Defendant Trierweiler on September 3, 2015, complaining that
his placement on modified grievance access was hindering his ability to exhaust his administrative
remedies. Plaintiff claims that Defendants Robinson and Vroman also were placed on notice of
Defendant Wright conducted a Step-I review of Plaintiff’s second grievance (IBC
1508-2203-07A) on September 10, 2015. Wright told Plaintiff that he had seen the rejected pictures,
that he did not see anything indecent about them, and that, if he had reviewed the mail rejection, he
would have allowed the pictures. Wright advised Plaintiff, however, that officials above Wright had
already determined not to allow them into the facility. Wright also agreed with Plaintiff that bigger
women who wore the same outfits as thinner women did not look the same and were therefore
Under MICH. DEP’T OF CORR., Policy Directive 03.02.130 ¶ HH, “[a] prisoner or parolee who files an excessive
number of grievances which are vague, duplicative, raise non-grievable issues, or contain prohibited language as set forth
in Paragraph G, or is found guilty of misconduct for filing an unfounded grievance as set forth in Paragraph L, may have
access to the grievance process limited by the Warden or FOA Area Manager for an initial period of not more than 90
calendar days.” While the prisoner is on modified access, he “shall be able to obtain grievance forms only through the
Step I Grievance Coordinator.” Id. ¶ KK.
treated differently. Wright also explained that the laws of Ionia County were different from MDOC
policy. Wright denied Plaintiff his pictures. Wright agreed to indicate on his grievance response that
the pictures would be held while Plaintiff completed his appeals through Step III. Wright issued his
response on September 14, 2015. Plaintiff alleges that he appealed the denial to Step II by writing
Defendant Trierweiler and informing him that Plaintiff had a right to have his property held until he
completed administrative reviews and that Defendant Trierweiler would violate Plaintiff’s
constitutional rights if he allowed the property to be destroyed. Defendants Vroman and Trierweiler
allegedly gave a retaliatory response to the Step-II grievance. They concurred with Wright’s Step-I
grievance denial and quoted the dictionary definition of “buttocks” to support their finding that the
photos showed an exposed buttocks. They also stated that the photos continued to be held and would
be held until Plaintiff completed his Step-III review. But they indicated that, because the grievance
concerned the same issues raised in Plaintiff’s other grievances, his continuing efforts to pursue his
grievance to Step III could result in a continuation of Plaintiff’s placement on modified grievance
access. Plaintiff appealed to Step III on October 15, 2015, indicating that he wanted the photos
preserved for his anticipated federal-court action. The Step-III grievance was denied on March 22,
2016. Plaintiff complains that he was never given further notice about the status of his photographs
and was never given another opportunity to mail them back.
Plaintiff alleges that Defendants have engaged in acts of racial discrimination, ethnic
intimidation, racial profiling, humiliation, and denial of equal protection by rejecting non-nude
photographs of Plaintiff’s African-American female friend. He also alleges that the photographs
were rejected in violation of prison policy and the First, Fifth, Eighth and Fourteenth Amendments.
Plaintiff seeks compensatory damages, together with declaratory and injunctive relief.
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
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)
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); Street v. Corr.
Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). 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).
Plaintiff alleges that Defendants deprived him of his property without due process of
law, in violation of prison policy and the Fifth and Fourteenth Amendments. Plaintiff does not
specify, but he appears to allege both procedural and substantive due process claims.
Procedural due process
“The Fourteenth Amendment protects an individual from deprivation of life, liberty
or property, without due process of law.” Bazetta v. McGinnis, 430 F.3d 795, 801 (6th Cir. 2005).
To demonstrate a violation of procedural due process, a plaintiff must show the following elements:
(1) a life, liberty, or property interest requiring protection under the Due Process Clause, and (2) a
deprivation of that interest (3) without adequate process. Women’s Med. Prof’l Corp. v. Baird, 438
F.3d 595, 611 (6th Cir. 2006). Analysis of a procedural due process claim involves two steps:
“[T]he first asks whether there exists a liberty or property interest which has been interfered with by
the State; the second examines whether the procedures attendant upon that deprivation were
constitutionally sufficient.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989).
To the extent that Plaintiff alleges that Defendants violated prison policy when they
refused to allow the pictures, Plaintiff fails to state a claim. A defendant’s failure to comply with
an administrative rule or policy does not itself rise to the level of a constitutional violation. Laney
v. Farley, 501 F.3d 577, 581 n.2 (6th Cir. 2007); Brody v. City of Mason, 250 F.3d 432, 437 (6th Cir.
2001); Smith v. Freland, 954 F.2d 343, 347-48 (6th Cir. 1992); Barber v. City of Salem, 953 F.2d
232, 240 (6th Cir. 1992); McVeigh v. Bartlett, No. 94-23347, 1995 WL 236687, at *1 (6th Cir.
Apr. 21, 1995) (failure to follow policy directive does not rise to the level of a constitutional
violation because policy directive does not create a protectible liberty interest). Section 1983 is
addressed to remedying violations of federal law, not state law. Lugar v. Edmondson Oil Co., 457
U.S. 922, 924 (1982); Laney, 501 F.3d at 580-81.
In addition, Plaintiff’s claim that he was denied due process by the unauthorized
taking of his property is barred by the doctrine of Parratt v. Taylor, 451 U.S. 527 (1981), overruled
in other 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 post-deprivation 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).
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.
Further, it is clear that Plaintiff received due process of law. In all cases where a
person stands to be deprived of his life, liberty or property, he is entitled to due process of law. This
due process of law gives the person the opportunity to convince an unbiased decision maker that, for
example, he has been wrongly or falsely accused or that the evidence against him is false. The Due
Process Clause does not guarantee that the procedure will produce a correct decision. “It must be
remembered that even if a state decision does deprive an individual of life, [liberty], or property, and
even if that decision is erroneous, it does not necessarily follow that the decision violated that
individual’s right to due process.” Martinez v. California, 444 U.S. 277, 284, n.9 (1980). “[T]he
deprivation by state action of a constitutionally protected interest in ‘life, liberty or property’ is not
in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due
process of law.” Zinermon v. Burch, 494 U.S. 113, 125 (1990) (emphasis in original). Plaintiff
received notice, a hearing, an opportunity to be heard, and a written decision stating the reasons for
the mail rejection. He also had the opportunity to seek review of the mail rejection through the
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three-step grievance process. Under these circumstances, Plaintiff has received all of the process to
which he was entitled.
Substantive due process
Plaintiff also asserts a violation of his substantive due process rights under the
Fourteenth Amendment, which prohibits states from “depriv[ing] any person of life, liberty, or
property, without due process of law[.]” U.S. Const. amend. XIV. “Substantive due process
prevents the government from engaging in conduct that shocks the conscience or interferes with
rights implicit in the concept of ordered liberty.” Prater v. City of Burnside, Ky., 289 F.3d 417, 431
(6th Cir. 2002). “Substantive due process serves the goal of preventing governmental power from
being used for purposes of oppression, regardless of the fairness of the procedures used.” Pittman
v. Cuyahoga Cnty. Dep’t of Children & Family Servs., 640 F.3d 716, 728 (6th Cir. 2011) (quoting
Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir. 1996)).
“Where a particular [a]mendment provides an explicit textual source of constitutional
protection against a particular sort of government behavior, that [a]mendment, not the more
generalized notion of ‘substantive due process,’ must be the guide for analyzing such a claim.”
Albright v. Oliver, 510 U.S. 266, 266 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989))
(holding that the Fourth Amendment, not substantive due process, provides the standard for
analyzing claims involving unreasonable search or seizure of free citizens, and the Eighth
Amendment provides the standard for such searches of prisoners)). If such an amendment exists,
the substantive due process claim is properly dismissed. Heike v. Guevara, 519 F. App’x 911, 923
(6th Cir. 2013).
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In the instant case, there exist specific constitutional amendments that apply to all of
Plaintiff’s claims. For example, Plaintiff expressly contends that Defendants violated his Eighth
Amendment rights through the same conduct. See Dodson v. Wilkinson, 304 F. App’x 434, 438 (6th
Cir. 2008) (because the Eighth Amendment supplies the explicit textual source of constitutional
protection for claims governing a prisoner’s health and safety, the plaintiff’s substantive due process
claim was subject to dismissal). Similarly, the First Amendment provides an explicit textual source
of constitutional protection for limitations on Plaintiff’s rights to free speech and association. Thus,
the standard applicable to First Amendment claims and not the more generalized notion of
substantive due process should be applied. Graham, 490 U.S. at 395; see also Bell v. Johnson, 308
F.3d 594, 610 (6th Cir. 2002) (holding that, after Graham, the First Amendment standard is the sole
source of substantive protection); Brandenburg v. Housing Auth. of Irvine, 253 F.3d 891, 900 (6th
Cir. 2001) (A “substantive due process right to free speech is duplicative of [a] First Amendment
retaliation claim.”). Likewise, the Fourteenth Amendment Procedural Due Process Clause would
apply to protect Plaintiff’s property interest in the mail-rejection proceedings. Finally, the Equal
Protection Clause governs claims involving allegations of racial discrimination. Consequently,
Plaintiff’s substantive due process claim will be dismissed.
Plaintiff alleges that Defendants discriminated against African-American women in
their application of the prison prohibition on pictures depicting bare buttocks, because AfricanAmerican women tend to have larger thighs, hips and buttocks than women of other races. As a
result, they are more likely to have more buttocks exposed when wearing the same clothes.
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The Equal Protection Clause of the Fourteenth Amendment provides that a state may
not “deny to any person within its jurisdiction the equal protection of the laws,” which is essentially
a direction that all persons similarly situated should be treated alike. U.S. CONST., amend. XIV; City
of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). When a law adversely impacts
a “suspect class” such as one defined by race, alienage, or national origin, or invades a “fundamental
right” such as speech or religious freedom, the rigorous “strict scrutiny” standard ordinarily governs,
whereby such laws “will be sustained only if they are suitably tailored to serve a compelling state
interest.” City of Cleburne, 473 U.S. at 440. However, while a convicted prisoner does not forfeit
all constitutional protections by virtue of his confinement, “lawful incarceration brings about the
necessary withdrawal or limitation of many privileges and rights . . . .” Price v. Johnston, 334 U.S.
266, 285 (1948). “The limitations on the exercise of constitutional rights arise both from the fact
of incarceration and from valid penological objectives – including deterrence of crime, rehabilitation
of prisoners, and institutional security.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987)
(citing, inter alia, Turner v. Safley, 482 U.S. 78, 84 (1987)).
To establish a violation of the Equal Protection Clause, an inmate must show that the
defendants purposefully discriminated against him. Vill. of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 265 (1977). Such discriminatory purpose must be a motivating factor in the
actions of the defendants. Id. at 265-66. “A plaintiff presenting a race-based equal protection claim
can either present direct evidence of discrimination, or can establish a prima facie case of
discrimination under the burden-shifting scheme set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).” Umani v. Mich. Dep’t of Corr., 432 F. App’x 453, 458 (6th Cir. 2011).
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Plaintiff’s conclusory allegations fail to support an equal protection violation. First,
he fails entirely to demonstrate standing to challenge the alleged discriminatory treatment of AfricanAmerican women. As a layman, Plaintiff may only represent himself with respect to his individual
claims; he may not act on behalf of others. See Newsom v Norris, 888 F.2d 371, 381 (6th Cir. 1989);
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). He does not allege that he was
treated differently. He only alleges that certain women were treated differently. Plaintiff lacks
standing to bring such a discrimination claim.
In addition, even if Plaintiff’s allegations are taken to suggest that he, as an AfricanAmerican man, was subject to a discriminatory application of the prison policy on personal nude
pictures, Plaintiff fails to allege sufficient facts to support a claim of intentional race discrimination
by either direct or indirect evidence. See Davis v. Prison Health Servs., 679 F.3d 433, 440 (6th Cir.
2012) (discussing the distinction between direct and indirect methods of proving discrimination).
First, Plaintiff alleges no facts constituting direct evidence of discriminatory motive or purpose. See
Umani v. Mich. Dep’t of Corr., 432 F. App’x 453, 458 (6th Cir. 2011) (citing Johnson v. Kroger
Co., 319 F.3d 858, 865 (6th Cir. 2003)); see also Davis, 679 F.3d at 440. Second, Plaintiff fails to
allege a prima facie claim under the indirect, burden-shifting framework of McDonnell Douglas v.
Green, 411 U.S. 792 (1973). Plaintiff alleges no facts suggesting that a similarly situated white
prisoner was allowed to keep substantially identical pictures. Although Plaintiff claims that pictures
of a thinner white woman wearing the same clothes would not expose as much buttocks, he does not
allege that any similar pictures of heavy, white women were subjected to a different standard or that
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white prisoners were allowed pictures that he was not allowed. He therefore fails to state an equal
Without detailing his theory, Plaintiff broadly complains that Defendants’ conduct
violated the Eighth Amendment. 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. 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,
Plaintiff alleges in a conclusory fashion that application of the mail-rejection policy results in racial profiling
or ethnic intimidation of African-American women. Even assuming that Plaintiff has standing to bring such claims, and
further assuming that claims exist other than those already addressed under the Equal Protection Clause, such claims
would fail for the same reasons as Plaintiff’s equal protection claim: Plaintiff fails to allege any facts suggesting that
the policy was applied in a racially discriminatory fashion.
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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)). “Routine
discomfort is ‘part of the penalty that criminal offenders pay for their offenses against society.’”
Hudson v. McMillian, 503 U.S. 1, 9 (1992) (quoting Rhodes, 452 U.S. at 347). As a consequence,
“extreme deprivations are required to make out a conditions-of-confinement claim.” Id.
Plaintiff’s claim that he was deprived of certain photographs that showed the exposed
buttocks of his female friend fall far short of the sort of extreme deprivation protected by the Eighth
Amendment. He therefore fails to state an Eighth Amendment Claim.
Plaintiff alleges that Defendants denied him his rights under the First Amendment by
refusing to allow him to receive the pictures in issue. Under MDOC policy, a prisoner may send and
receive uncensored mail from any person or organization unless the mail violates policy or an
administrative rule. MICH. DEP’T OF CORR., Policy Directive 05.03.118, ¶ D (effective Sept. 14,
2009). Mail cannot be prohibited solely because its content is “religious, philosophical, political,
social, sexual, unpopular, or repugnant.” Id. However, mail can be prohibited if it is a “threat to the
security, good order, or discipline of the facility, may facilitate or encourage criminal activity, or may
interfere with rehabilitation of the prisoner.” Id. Certain types of incoming mail, which are listed
in the policy, are deemed to pose these risks under all circumstances. For example, the list includes
acts of sadism, masochism, bondage, bestiality, and sexual acts involving children. Id., ¶ MM(5).
The policy also prohibits photographs depicting actual or simulated sexual acts by one or more
persons. Id., ¶ MM(14). In addition, the policy prohibits nude and semi-nude pictures, unless they
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are commercially circulated. Id., ¶ MM(113). Plaintiff contends that the MDOC policy prohibiting
photographs revealing his friend’s buttocks is unconstitutional under the First Amendment.
The Supreme Court considered a challenge to regulations of the Federal Bureau of
Prisons regarding receipt of sexually explicit mail in Thornburgh v. Abbott, 490 U.S. 401 (1989).
The regulations in Thornburgh contained a non-exhaustive list of materials that were banned,
including “sexually explicit material which by its nature or content poses a threat to security, good
order, or discipline of the institution, or facilitates criminal activity.” Id. at 405 n.5. The policy
specifically excluded the following types of sexually explicit material: (1) homosexual (of the same
sex as the institution population), (2) sado-masochistic, (3) bestiality, and (4) involving children.
Id. at 405 n.6.
In evaluating the challenge, the Supreme Court recognized that, because “the judiciary
is ill-equipped to deal with the difficult and delicate problems of prison management, this Court has
afforded considerable deference to the determinations of prison administrators who, in the interest
of security, regulate the relations between prisoners and the outside world.” Thornburgh, 490 U.S.
at 407 (quotation omitted). Further emphasizing this deference, the Supreme Court stated:
We deal here with incoming publications, material requested by an individual inmate
but targeted to a general audience. Once in the prison, material of this kind
reasonably may be expected to circulate among prisoners, with the concomitant
potential for coordinated disruptive conduct. Furthermore, prisoners may observe
particular material in the possession of a fellow prisoner, draw inferences about their
fellow’s beliefs, sexual orientation, or gang affiliations from that material, and cause
disorder by acting accordingly. As the Deputy Solicitor General noted at oral
argument: “The problem is not . . . in the individual reading the material in most
cases. The problem is in the material getting into the prison.” In the volatile prison
environment, it is essential that prison officials be given broad discretion to prevent
Id. at 412-13 (citations omitted).
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In light of the deference owed to prison officials, the Thornburgh Court held that
limits on incoming prisoner publications must be analyzed under the standard applied by the Court
in Turner v. Safley, 482 U.S. 78 (1987), for determining the constitutionality of limits on incoming
personal mail for prisoners; that is, whether the regulations are “reasonably related to legitimate
penological interests.” Thornburgh, 490 U.S. at 409 (citing Turner, 482 U.S. at 89). The Turner
Court identified four factors to be considered in reaching this determination: (1) whether there is
a valid rational connection between the regulation and the legitimate governmental interest which
it allegedly furthers; (2) whether there are alternative means by which the inmate may exercise the
right impinged; (3) what impact the accommodation of the inmate’s constitutional right will have
on guards, other inmates, or the allocation of prison resources generally; and (4) the existence or
absence of ready alternatives to the regulation in question. Thornburgh, 490 U.S. at 414-18 (citing
Turner, 482 U.S. at 88-91). Applying these factors, the Court found that the regulations were
reasonably related to legitimate penological interests and did not violate the First Amendment.
Thornburgh, 490 U.S. at 413.
In unpublished decisions, the Sixth Circuit has addressed challenges to previous
versions of MDOC Policy Directive 05.03.118. See Ward v. Jones, No. 02-1924, 2003 WL
1795736, at *1 (6th Cir. Mar. 31, 2003) (analyzing MDOC Policy Directive 05.03.118, ¶ EE(14)
(effective Jan. 1, 2001), amended ¶ DD(14) (effective Mar. 12, 2001) (prohibiting “photographs
depicting actual or simulated sexual acts”). Applying Turner, the Ward Court concluded that the
2001 policy was reasonably related to the legitimate penological interest of prison security. See
Ward, 2003 WL 1795736, at *2. The Court further noted that Michigan prisoners may still receive
less explicit photographs of an arguably sexual nature. Id. In Rogers v. Martin, 84 F. App’x 577,
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579 (6th Cir. 2003), the Sixth Circuit also upheld a prior version of MDOC Policy Directive
05.03.118, which prohibited the introduction of magazines containing actual or simulated sexual
[T]he MDOC policy did not violate the First Amendment because: (1) it was
rationally related to the goal of a safer prison environment; (2) prisoners had
alternative means of acquiring sexually explicit materials such as written descriptions
of sex acts and nude photographs that do not depict sexual acts; (3) accommodating
the prisoners’ right to receive sexually explicit materials in the form of photographs
of sexual acts could adversely affect prison guards, other inmates, and the allocation
of prison resources by creating a sexually charged atmosphere; and (4) redacting
every publication containing photographs that violate the rule is not a ready
alternative to disposing of the offending magazines because of the administrative
burden of case-by-case redaction. See Turner v. Safley, 482 U.S. 78, 90-91, 107 S.Ct.
2254, 96 L.Ed.2d 64 (1987). Although Rogers argued to the contrary, the defendants
were not required to submit evidence that the banned materials actually caused
problems in the past or are likely to cause problems in the future, as long as it is
plausible that they believed the policy would further a legitimate objective. See, e.g.,
Mauro v. Arpaio, 188 F.3d 1054, 1060 (9th Cir. 1999).
Rogers, 84 F. App’x at 579
This Court has upheld a prior version of Policy Directive 05.03.118, specifically with
respect to the restriction complained of by Plaintiff – the prohibition on nude or partially nude
pictures taken with home-type cameras, as opposed to those that have been published for commercial
use. See Hunter v. Koehler, 618 F. Supp. 13, 16-17 (W.D. Mich. 1984). In Hunter, the court recited
the MDOC’s explanation for the policy:
The intent of this prohibition is to prevent prisoners from receiving nude photographs
of wives or girlfriends, as such photos could cause serious disruption between
prisoners if they are seen by someone other than the prisoner to whom they were sent.
Thus, only nude photos which have been published for commercial use are allowed.
As the photos which were sent to you are not of a commercial nature, you will not be
allowed to receive them .
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Id. at 16. The Hunter court concluded that the MDOC’s explanation articulated a legitimate
penological reason for the ban. In reaching its decision, the Hunter court relied upon Trapnell v.
Riggsby, 622 F.2d 290 (7th Cir. 1980), in which the court specifically approved a similar policy,
holding that a prison regulation prohibiting inmates from possessing or receiving photographs of
nude or seminude women unless the photographs had been published for commercial use was
constitutionally valid. Hunter, 618 F. Supp. at 17 (citing Trapnell, 622 F. Supp. at 293); see also
Giano v. Senkowski, 54 F.3d 1050 (2d Cir. 1995) (upholding ban on nude or partially nude
photographs of spouses or girlfriends, while allowing commercially produced nude pictures);
Thomas v. Croft, No. 2:10-cv-74, 2010 WL 4809227, at *3 (E.D. Mich. Nov. 18, 2010) (observing
that the Supreme Court has upheld more restrictive policies that the one barring individual nude
photographs) (citing Beard v. Banks, 548 U.S. 521 (2006)). As it did in Hunter, this Court concludes
that the ban on non-commercial photographs showing nudity as defined by the policy is rationally
related to a legitimate penological interest in prison safety and avoiding prisoner altercations.
The second prong of the Turner test is whether the prisoners have alternative means
of expression. See Turner, 482 U.S. at 92. The Sixth Circuit has held that prior versions of MDOC
Policy Directive 05.03.118 do not preclude written descriptions of sexual acts, Rogers, 84 F. App’x
at 579, or less explicit photographs of arguably a sexual nature, Ward, 64 F. App’x at 424. Similarly
under the current MDOC Policy Directive 05.03.118, Plaintiff may view nude or partially nude
pictures that are commercially produced, and he may receive letters or books describing nude women
and sexual acts as an alternative means of expression under Turner, 482 U.S. at 92.
The third prong of the Turner test, whether permitting the photographs would have
a significant impact on third parties, also cuts against Plaintiff. As discussed, the possession by some
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inmates of nude or semi-nude photographs of wives and girlfriends can create a source of friction
Under such circumstances, permitting prisoners to possess such pictures
unquestionably can have a significant impact on other prisoners and, by necessity, on the guards who
must mange them if they get into altercations. Senkowski, 54 F.3d at 1056.
The last Turner prong requires Plaintiff to prove that there exists alternatives to the
regulation in question. Here, Plaintiff does not identify any ready alternative, and none is apparent
to the Court. Moreover, Turner does not require prison officials to adopt the least restrictive
alternative to their preferred policy. Turner, 482 U.S. at 90–91. As the Court has discussed, the
prison policy is narrowly directed at its interests; it does not prohibit all erotica. Under such
circumstances, the fourth Turner factor weighs against Plaintiff. Senkowski, 54 F.3d at 1056.
In summary, all four Turner factors weigh in favor of a finding that MDOC Policy
Directive 05.03.118 ¶ MM(13) is reasonably related to the legitimate penological interest of safety
and does not violate the First Amendment on its face. In addition, Plaintiff does not seriously
contend that the policy was unconstitutional as applied. He merely claims that his female friend was
not entirely nude in the photographs, but was dressed in very short shorts or a bikini. And he
concedes by implication that, due to the size of the woman, much if not all of her buttocks were
exposed. The policy does not require full nudity, as it defines “nude” photographs “as any
photograph exposing the buttocks, pubic area or genitalia, or, except if a baby or infant, the female
breast below the top of the areola.” MICH. DEP’T OF CORR., Policy Directive 05.02.118 ¶ MM(14).
As the Court has previously held, the policy does not violate the First Amendment. Accordingly,
the complaint fails to state a First Amendment claim against Defendants either because the policy
is invalid on its face or is invalid as applied.
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Plaintiff contends that Defendants Robinson and Trierweiler retaliated against him
for exercising his First Amendment rights by placing him on modified grievance access. 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)).
The filing of a prison grievance is constitutionally protected conduct for which a
prisoner cannot be subjected to retaliation. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir.
2001); Hall v. Nusholtz, No. 99-2442, 2000 WL 1679458, at *2 (6th Cir. Nov. 1, 2000); Burton v.
Rowley, No. 00-1144, 2000 WL 1679463, at *2 (6th Cir. Nov. 1, 2000). However, the Sixth Circuit
repeatedly has held that placement on modified access does not constitute an adverse action for
purposes of a retaliation claim. See, e.g., Jackson v. Madery, 158 F. App’x 656, 660 (6th Cir. 2005)
(per curiam); Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 446 (6th Cir. 2005); Kennedy v.
Tallio, 20 F. App’x 469, 471 (6th Cir. 2001). Placement on modified access does not deprive a
prisoner of the ability to file civil rights actions in federal court. It merely enables prison officials
to screen a prisoner’s grievances prior to filing to determine whether they are grievable,
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non-frivolous, and non-duplicative. See MICH. DEP’T OF CORR., Policy Directive 03.02.130(II)(PP).
Section 1997e(a) of Title 42, United States Code, requires prisoners to exhaust only “such
administrative remedies as are available” prior to filing suit in federal court. If a prisoner has been
placed on modified access to the grievance procedure and attempts to file a grievance that is deemed
to be non-meritorious, he has exhausted his “available” administrative remedies as required by
§ 1997e(a). Kennedy, 20 F. App’x at 471. Consequently, Plaintiff’s placement on modified access
cannot prevent him from filing claims in federal court.
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s action will be dismissed for failure to state a claim under 28 U.S.C.
§§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c).
The Court must next decide whether an appeal of this action would be in good faith
within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611
(6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no
good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the
$505.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless
Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g).
If he is barred, he will be required to pay the $505.00 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A Judgment consistent with this Opinion will be entered.
June 29, 2016
/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE
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