Robinson #182351 v. Washington et al
OPINION; signed by District Judge Hala Y. Jarbou (alm)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
Case No. 1:22-cv-262
Hon. Hala Y. Jarbou
HEIDI E. WASHINGTON, et al.,
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. Plaintiff
has paid the full filing fee for this case. Under the Prison Litigation Reform Act, Pub. L. No. 104134, 110 Stat. 1321 (1996) (PLRA), 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.
§ 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 Plaintiff’s complaint for failure to state a claim against
Defendants Washington, Killough, Card, and Lake. The Court will also dismiss, for failure to state
a claim, Plaintiff’s Fourteenth Amendment due process claims against the remaining Defendants.
Plaintiff’s First Amendment claims against Defendants Bush, Braman, Kecalovic, and Van Beek
remain in the case.
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Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC)
at the Richard A. Handlon Correctional Facility (MTU) in Ionia, Ionia County, Michigan. The
events about which he complains occurred at that facility. Plaintiff sues MDOC Director Heidi E.
Washington, MDOC Deputy Director Jeremy Bush, MDOC Administrative Assistant Norma
Killough, and the following MTU personnel: Warden Melinda Braman, Facility Manager Steven
Card, Grievance Coordinator N. Lake, Unit Counselor J. Van Beek, and mail room employee
First Instance of Mail Rejection
On March 16, 2020, Defendant Kecalovic issued him a “Notice of Package/Mail Rejection
regarding [five] magazines[:] Go Viral Vol 3; Go Viral Vol 2; Go Viral Latina #3; Go Viral Vol
#2, [and] Buttz Milfs.” (Compl., ECF No. 1, PageID.3.) The notice “cited MDOC Policy Directive
05.03.118 Prisoner Mail ‘Unapproved Vendor.’” (Id.) Plaintiff requested a hearing regarding the
rejection. (Id.) On April 1, 2021, Prison Counselor Johnston (not a party) concluded that there was
no violation, and that Plaintiff could have the magazines because they came from the publisher.
(Id.) The five magazines were given to Plaintiff following the hearing. (Id.)
Four days later, Johnston called Plaintiff back to her office and asked for the magazines.
(Id.) She told Plaintiff that a new directive, paragraph YY in MDOC Policy Directive 05.03.118,
stated that “if the hearing officer finds that the mail does not [v]iolate [p]olicy the mail shall be
returned to the mailroom to determine if any other [v]iolations of the [p]olicy exist.” (Id.) If there
are other violations, the mail “shall be processed as set forth in Paragraph[s] VV through XX.”
(Id.) If there are no other reasons to reject the mail, it is “promptly delivered to the prisoner unless
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it is determined by the Warden or designee that the Hearing Officer’s decision was no[t] supported
by policy and a rehearing is ordered.” (Id., PageID.3–4.)
On May 4, 2021, Plaintiff submitted a grievance against Defendants Kecalovic and Card
for violating his due process rights, as well as MDOC Policy Directive 05.03.118 ¶ YY. (Id.,
PageID.4.) Administrative Assistant Williams (not a party) denied the grievance because
Defendant Kecalovic “said that [Plaintiff] was issued another mail rejection on [May 17, 2021]
concerning the [five] magazines.” (Id.)
On June 3, 2021, Plaintiff had another administrative hearing regarding the magazines.
(Id.) Johnston again concluded that the magazines did not violate policy because they were from
the publisher. (Id.)
Six months later, Defendant Van Beek held another hearing regarding the same five
magazines. (Id.) He rejected the magazines because Defendant Kecalovic “didn’t see the approved
publisher name.” (Id.) Plaintiff contends that at all three hearings, he provided proof to “show that
Steven Ward is the [p]ublisher and owner of The Mag Depot[, which] was the publisher.” (Id.)
Second Instance of Mail Rejection
On April 15, 2021, Defendant Kecalovic issued Plaintiff a notice of rejection for three
magazines: “(1) Goat Platinum Edition, photo depicting [b]ondage on page 65; (2) Goat Black
Special Edition[; and] (3) Goat Gold Edition, from unapproved vendor sold by Gyro Magazine,
not directly from the [p]ublisher.” (Id.) Plaintiff requested a hearing. (Id.) On April 27, 2021,
Johnston conducted the hearing and “found that page 65 of Platinum Edition does not appear to be
bondage.” (Id.) She also concluded that Gyro is published by Goat Magazine. (Id., PageID.5.)
Johnston concluded that Plaintiff was allowed to receive the magazines. (Id.)
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On March 24, 2021, Plaintiff filled out a disbursement authorization catalog order form for
three Goat magazines. (Id.) On April 7, 2021, Plaintiff filled out another disbursement form for
four Goat magazines. (Id.) The money was taken from his prisoner trust account. (Id.)
On May 11, 2021, Defendant Kecalovic issued Plaintiff a notice of rejection regarding
three magazines: (1) Goat Platinum; (2) Goat Black Special Edition; and (3) Goat Gold Edition.
(Id.) The reason given was that the mail posed a threat to the security of the facility because it
came from a reshipping company. (Id.) Plaintiff requested a hearing on the rejected magazines.
On May 27, 2021, Defendant Kecalovic issued Plaintiff two notices of rejection regarding
two packages containing three Goat magazines each. (Id.) The reason provided was that the mail
posed a threat to the security of the facility because it came from a reshipping company. (Id.)
Plaintiff requested a hearing. (Id.)
Plaintiff had an administrative hearing regarding the four rejections concerning Goat
magazines on June 3, 2021. (Id.) Johnston served as the hearing officer. (Id.) Plaintiff presented
evidence that no violation occurred. (Id.) Johnston agreed that no violation of policy had occurred,
and that Plaintiff could have the magazines. (Id.)
On August 11, 2021, Johnston told Plaintiff that another administrative hearing regarding
the Goat magazines had to be conducted. (Id., PageID.6.) When Plaintiff asked why, she staid that
Defendant Card and the MDOC Central Office said that the magazines were to be rejected. (Id.)
Plaintiff presented evidence indicating that MDOC Policy Directive 05.03.118 did not state
anything regarding reshipping being a violation. (Id.) The hearing officer postponed the hearing.
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Defendant Van Beek held the administrative hearing regarding the Goat magazines on
December 29, 2021. (Id.) Plaintiff asked why the magazines were being rejected if they did not
violate policy. (Id.) Defendant Van Beek said that Defendants Killough and Card indicated that
the magazines were “not to be let in” and that they should be rejected as possibly posing a threat
to the security of the facility. (Id.)
Based on the foregoing, Plaintiff asserts violations of his First and Fourteenth Amendment
rights.1 (Id.) He seeks compensatory and punitive damages. (Id., PageID.8.)
Overview of MDOC Policy Directive 05.03.118
Plaintiff references MDOC Policy Directive 05.03.118, which governs prisoner mail,
throughout his complaint. Pursuant to the policy, prisoners are permitted to receive books,
magazines, and other publications if they are: (1) “[o]rdered by a member of the public from an
internet vendor identified in Attachment A or from the publisher and sent directly to the prisoner
by the vendor or publisher”; or (2) “[o]rdered by the prisoner from a vendor identified in
Attachment B or from the publisher and sent directly to the prisoner from the vendor or the
publisher.” MDOC Policy Directive 05.03.118 ¶ Z(1), (2) (eff. Mar. 1, 2018). Prisoners’ orders
“must be through established facility ordering procedures.” Id.
Inmates are also prohibited “from receiving mail that may pose a threat to the security,
good order, or operation of the facility, facilitate or encourage criminal activity, or interfere with
the rehabilitation of the prisoner. Id., ¶ NN. Mail depicting acts of bondage are not permitted. Id.,
Plaintiff asserts that he is filing his complaint “on behalf of himself and all other persons similarly
situated.” (ECF No. 1, PageID.1.) Plaintiff, however, lacks standing to assert the constitutional
rights of other prisoners. Newsom v Norris, 888 F.2d 371, 381 (6th Cir. 1989) (citing McGowan v.
Maryland, 366 U.S. 420, 429 (1961)); 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).
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¶ NN(5). Moreover, nude photographs are not permitted “except if included in a publication sent
directly from the publisher or an authorized vendor.” Id., ¶ NN(13). Furthermore, photographs
“depicting actual or simulated sexual acts by one or more persons” are prohibited. Id., ¶ NN(14).
Publications that are not received directly from publishers or approved vendors are also prohibited.
Id., ¶ NN(8).
The policy provides further that when mail is believed to violate policy, a Notice of
Package/Mail Rejection must be prepared and sent to the prisoner. Id., ¶ VV. The notice “shall
identify the specific item believed to be in violation of this policy and why the item is believed to
be in violation of policy.” Id. An administrative hearing must be conducted unless the “prisoner
waives his/her right to a hearing in writing by choosing an allowable disposition for the item.” Id.,
¶ WW. If the hearings officer determines that the mail does not violate this policy, “the mail shall
be returned to the mailroom to determine if any other violations of policy exist.” Id. ¶ YY. “If there
is no other reason to reject the mail pursuant to this policy, the mail shall be promptly delivered to
the prisoner unless it is determined by the Warden or designee that the hearings officer’s decision
was not supported by policy and a rehearing is ordered.” Id.
If a hearings officer determines that a publication violates the policy “based on its written
or pictorial content, the publication shall be submitted in a timely manner to the Warden along
with a copy of the Notice and the Administrative Hearing Report.” Id., ¶ AAA. If the Warden
agrees that the publication violates policy based upon its written content, he or she shall proceed
as set forth below. Id. “In all other cases involving the pictorial content of a publication, the
Warden shall make the final decision. The Warden may maintain a list of publications rejected
under his/her authority due to pictorial content.” Id.
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If the Warden concurs with the hearings officer’s decision that a publication violates policy
based upon written content, the Warden or designee “shall promptly submit copies of the Notice,
the Administrative Hearing Report, the publication’s cover, and a representative sampling of the
specific sections of the publication found to be in violation of this policy to the CFA Deputy
Director2 or designee for a final determination whether the publication violates this policy.” Id.,
¶ BBB. If the CFA Deputy Director or designee agrees that a publication violates policy, it is
placed on the Restricted Publications List. Id., ¶ CCC.
An inmate who disagrees with the outcome of a hearing may file a grievance. MDOC
Policy Directive 05.03.118, ¶ EEE. The inmate may also appeal the proposed rejection within ten
business days after the date of the notice of rejection by sending a letter to the Warden. Id., ¶ FFF.
If the publication at issue was rejected because it was already on the Restricted Publication’s List,
the appeal “shall be forwarded to the CFA Deputy Director or designee through the appropriate
chain of command for review.” Id.
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. Id.; 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
The current CFA Deputy Director is Defendant Bush. See https://www.michigan.gov/documents/
corrections/MDOC_Org_Chart_5_702523_7.pdf (last accessed Apr. 19, 2022).
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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.” Id. 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.” Id. 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); 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
Official Capacity Claims
Plaintiff indicates that he is suing all Defendants in both their individual and official
capacities. (ECF No. 1, PageID.1.) A suit against an individual in his or her official capacity is
equivalent to a suit against the governmental entity; in this case, the MDOC. See Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 71 (1989); Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir.
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1994). As noted above, however, Plaintiff seeks only damages,3 and official capacity defendants
are absolutely immune from monetary damages. See Will, 491 U.S. at 71; Turker v. Ohio Dep’t of
Rehab. & Corr., 157 F.3d 453, 456 (6th Cir. 1998). The Court, therefore, will dismiss Plaintiff’s
claims against Defendants in their official capacities.
Individual Capacity Claims
Claims Against Defendants Washington and Lake
Plaintiff fails to allege that Defendants Washington and Lake took any action against him.
Rather, it appears that Plaintiff seeks to hold these individuals liable due to their respective
supervisory positions. Government officials, however, may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat superior or vicarious
liability. Iqbal, 556 U.S. at 676; Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658,
691(1978); Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). A claimed constitutional violation
must be based upon active unconstitutional behavior. Grinter v. Knight, 532 F.3d 567, 575–76 (6th
Cir. 2008); Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002). The acts of one’s subordinates
are not enough, nor can supervisory liability be based upon the mere failure to act. Grinter, 532
F.3d at 576; Greene, 310 F.3d at 899; Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004).
Moreover, § 1983 liability may not be imposed simply because a supervisor denied an
administrative grievance or failed to act based upon information contained in a grievance. See
Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). “[A] plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has violated the
Constitution.” Iqbal, 556 U.S. at 676.
Plaintiff initially suggests that his complaint includes a request for declaratory judgment, but his
request for relief seeks only damages. (Compl., ECF No. 1, PageID.1, 8.)
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The Sixth Circuit repeatedly has summarized the minimum required to constitute active
conduct by a supervisory official:
“[A] supervisory official’s failure to supervise, control or train the offending
individual is not actionable unless the supervisor either encouraged the specific
incident of misconduct or in some other way directly participated in it.” Shehee,
199 F.3d at 300 (emphasis added) (internal quotation marks omitted). We have
interpreted this standard to mean that “at a minimum,” the plaintiff must show that
the defendant “at least implicitly authorized, approved, or knowingly acquiesced in
the unconstitutional conduct of the offending officers.”
Peatross v. City of Memphis, 818 F.3d 233, 242 (6th Cir. 2016) (quoting Shehee, 199 F.3d at 300,
and citing Phillips v. Roane Cnty., 534 F.3d 531, 543 (6th Cir. 2008)); see also Copeland v.
Machulis, 57 F.3d 476, 481 (6th Cir. 1995) (citing Rizzo v. Goode, 423 U.S. 362, 375–76 (1976),
and Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984)); Walton v. City of Southfield, 995 F.2d
1331, 1340 (6th Cir. 1993); Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989).
Plaintiff fails to allege any facts suggesting that Defendants Washington and Lake
encouraged or condoned the conduct of their subordinates, or authorized, approved or knowingly
acquiesced in the conduct. Indeed, he fails to allege any facts at all about their conduct. His vague
and conclusory allegations of supervisory responsibility are insufficient to demonstrate that
Defendants were personally involved in the events surrounding Plaintiff’s reclassification to
administrative segregation. Conclusory allegations of unconstitutional conduct without specific
factual allegations fail to state a claim under § 1983. See Iqbal, 556 U.S. at 678–79; Twombly, 550
U.S. at 555. Because Plaintiff’s claims against these individuals are premised on nothing more
than respondeat superior liability, his action fails to state a claim against Defendants Washington
Fourteenth Amendment Due Process Claims
Plaintiff alleges violations of his Fourteenth Amendment due process rights. (ECF No. 1,
PageID.6.) The elements of a procedural due process claim are (1) a life, liberty, or property
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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). “Without a protected liberty or property interest, there can be no federal procedural due
process claim.” Experimental Holdings, Inc. v. Farris, 503 F.3d 514, 519 (6th Cir. 2007) (citing
Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 579 (1972)).
It is well established that Plaintiff has a liberty interest in receiving his mail. See Stanley v.
Vining, 602 F.3d 767, 769 (6th Cir. 2010) (citing Procunier v. Martinez, 416 U.S. 396, 428 (1974),
overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989)). The Sixth Circuit has
held that an incoming mail censorship regulation must provide “that notice of rejection be given
to the inmate-recipient” and that the inmate-recipient be given the opportunity to challenge the
rejection. Martin v. Kelley, 803 F.2d 236, 243–44 (6th Cir. 1986). The regulation “must also
provide for an appeal of the rejection decision to an impartial third party.” Id. at 244.
It is clear from Plaintiff’s complaint that he received the process to which he was due.
Plaintiff received notices of mail rejection on each occasion when his magazines were rejected.
He requested hearings on each occasion and was provided those hearings, where he had
opportunities to challenge each rejection. MDOC Policy Directive 05.03.118 also allows for appeal
of the decision, which Plaintiff took advantage of by filing at least one grievance. Because Plaintiff
received the process to which he was due, his Fourteenth Amendment due process claims will be
First Amendment Claims
Plaintiff also contends that the rejection of his incoming magazines violated his First
Amendment rights. (EF No. 1, PageID.6.) A prisoner's right to receive mail is protected by the
First Amendment.” Knop v. Johnson, 977 F.2d 996, 1012 (6th Cir. 1992) (citing Pell v. Procunier,
417 U.S. 817, 822 (1974)). “Mail is one medium of free speech, and the right to send and receive
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mail exists under the First Amendment.” Al-Amin v. Smith, 511 F.3d 1317, 1333 (11th Cir. 2008)
(citing City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 427 (1993) (“[T]he use of the
mails is as much a part of free speech as the right to use our tongues.”) (internal quotes omitted)).
A prisoner, however, retains only those First Amendment freedoms which are “not inconsistent
with his status as a prisoner or with legitimate penological objectives of the corrections system .”
Martin, 803 F.2d at 240 n.7 (quoting Pell, 417 U.S. 817, 822 (1974); see also Turner v. Safley,
482 U.S. 78 (1987). Incoming mail has long been recognized to pose a greater threat to prison
order and security than outgoing mail. Thornburgh v. Abbott, 490 U.S. 401 (1989); Turner, 482
U.S. at 78. And the possibility that incoming mail might introduce contraband into the prison is so
obvious that courts have routinely upheld the right of prison officials to inspect incoming mail for
contraband despite First Amendment free speech protection. See, e.g., Wolff v. McDonnell, 418
U.S. 539, 574–76 (1974).
Given Plaintiff’s allegations, the Court concludes that he has set forth a plausible First
Amendment claim against Defendants Kecalovic and Van Beek. As noted above, Defendant
Kecalovic is the mail room employee who issued the numerous notices of rejection to Plaintiff,
and Defendant Van Beek is the hearings officer who upheld the rejection of the magazines.
Moreover, Plaintiff has alleged that Defendant Card, as the Facility Manager, twice indicated that
the Goat magazines were not to be allowed in the facility. (ECF No. 1, PageID.6.)
Plaintiff also suggests that Defendants Killough, an administrative assistant at the Central
Office and Defendant Card, the MTU Facility Manager, indicated that the magazines were not to
be allowed in the facility. (Id.) Defendant Killough, however, is an administrative assistant at the
Central Office. As set forth above, the CFA Deputy Director, who is currently Defendant Bush,
has the ultimate say as to whether a publication violates policy. See MDOC Policy Directive
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05.03.118, ¶ BBB. Moreover, the Warden of the facility, who is currently Defendant Braman,
makes the final decision regarding pictorial content of publications. Id., ¶ AAA. Given the policy
and Plaintiff’s allegations, the Court infers that Defendants Bush and Braman made the final
decision regarding the magazines, and that Defendants Killough and Card were merely responsible
for passing those decisions on. Accordingly, while the Court will dismiss Plaintiff’s First
Amendment claim against Defendants Killough and Card, Plaintiff’s First Amendment claim
against Defendants Bush and Braman may proceed.
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Washington, Killough, Card, and Lake will be dismissed for failure to
state a claim, under 28 U.S.C. § 1915A(b), and 42 U.S.C. § 1997e(c). The Court will also dismiss,
for failure to state a claim, Plaintiff’s Fourteenth Amendment due process claims against the
remaining Defendants. Plaintiff’s First Amendment claims against Defendants Bush, Braman,
Kecalovic, and Van Beek remain in the case.
An order consistent with this opinion will be entered.
May 10, 2022
/s/ Hala Y. Jarbou
HALA Y. JARBOU
UNITED STATES DISTRICT JUDGE
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