Jones #260563 v. Bonevelle

Filing 13

ORDER ADOPTING IN PART REPORT AND RECOMMENDATION 4 as the opinion of the Court, except with respect to dismissal of Plaintiff's First Amendment retaliation claim. All claims in Plaintiff Jessie Jone's complaint, other than his First Amendment retaliation claim, are dismissed for failure to state a claim pursuant to 28 U.S.C. 1915(e)(2), 1915A, and 42 U.S.C. 1997e(c) ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN N O R T H E R N DIVISION

J E S S I E E. JONES #260563, P l a in tif f , F ile No. 2:08-CV-133 v. H O N . ROBERT HOLMES BELL M A R Y BONEVELLE, D e f e n d a n t. / M E M O R A N D U M OPINION AND ORDER ADOPTING THE REPORT AND RECOMMENDATION IN PART U n ite d States Magistrate Judge Timothy P. Greeley issued a Report and R e c o m m e n d a tio n ("R&R"), recommending that Plaintiff Jessie Jones's 42 U.S.C. § 1983 p ris o n e r civil rights action be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A(b), and 4 2 U.S.C. § 1997e(c), for failure to state a claim. (Dkt. No. 4.) Plaintiff has filed objections to the R&R. (Dkt. No. 6.) For the reasons that follow, Plaintiff's objections are denied and th e R&R is adopted as the opinion of the Court, except with respect to Plaintiff's First A m e n d m e n t retaliation claim. T h is Court is required to conduct a de novo review of those portions of a R&R to w h i c h specific objections are made, and may accept, reject, or modify any or all of the M a g is tra te Judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P . 72(b).

I. P la in tif f 's first, second, fifth, sixth, and seventh objections are denied because they c h a llen g e statements of the law in the R&R that are correct. P la in tif f 's third and fourth objections are that the R&R construed his complaint as a lle g in g that he was improperly found guilty of a major misconduct or as challenging the re su lts of the misconduct hearing. The R&R determined that Plaintiff's claim is barred by th e habeas exception to § 1983 claims set forth in Heck v. Humphrey, 512 U.S. 477 (1994). P la in tif f responds that he is not claiming that he was improperly found guilty based on the e v id e n c e at the hearing, but that he was denied his right to procedural due process at the h e a r in g because Plaintiff, as a result of Defendant's actions, was not able to present exhibits, s u b m it witness statements, a list of witnesses, and other relevant documents in his defense. P la in tif f asserts that his claim should not be barred by Heck because no disciplinary or good tim e credits were forfeited by him. (Dkt. No. 6, Objs. 3.) However, this assertion contradicts h is complaint, in which he asserts that the actions of Defendants resulted in ten days being f o rf e ite d from his release date. (Compl. ¶ 5.) To the extent that Plaintiff has asserted a c o g n iza b le claim for violation of due process, his claim is similar to that of the prisoner in E d w a r d s v. Balisok, 520 U.S. 641 (1997), in which the prisoner complained that "he was c o m p le te ly denied the opportunity to put on a defense [at his misconduct hearing] through s p e c if ic a lly identified witnesses who possessed exculpatory evidence . . . ." Id. at 646. The C o u rt found that this claim challenging the procedures used at the misconduct hearing was

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b a r r e d by Heck because it necessarily implied the invalidity of the deprivation of his good tim e credits. Id. Similarly, Plaintiff's procedural challenge to his misconduct hearing n e c e s s a r il y implies the invalidity of the result and the consequent forfeiture of credits to w a rd s reduction of the duration of his confinement. Thus, Plaintiff's third and fourth o b je c tio n s will be denied and his due process claim will be dismissed. P lain tiff 's fifteenth objection relates to his claim that Defendant retaliated against him b y destroying his materials related to the misconduct hearing, preparing a false report for the h e a rin g investigator, and confiscating legal materials from his cell. The R&R determined th a t Defendant's actions were not sufficiently adverse to deter a person of ordinary firmness f ro m engaging in protected conduct. However, the Sixth Circuit has held, in an opinion cited b y Plaintiff, that evidence of the confiscation of legal materials may be sufficient to meet the a d v e rs e action prong of the test for retaliation under the First Amendment. See Bell v. J o h n s o n , 308 F.3d 594, 604 (6th Cir. 2002) (noting that "a number of cases from other c irc u its have held that confiscating an inmate's legal papers and other property constitutes s u f f ic ie n t injury to support a First Amendment retaliation claim"). As the court in Bell e x p la in e d , while "certain threats or deprivations are so de minimis that they do not rise to the lev e l of being constitutional violations, this threshold is intended to weed out only in c o n se q u e n tia l actions . . . ." Id. at 603. Moreover, whether Defendant's alleged conduct is capable of deterring a person of ordinary firmness is generally a question of fact. Id. at 6 0 3 ("[I]n most cases, the question of whether an alleged retaliatory action poses a sufficient d e te rr e n t threat to be actionable will not be amenable as a matter of law.").

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T h e R&R also noted that a plaintiff must show that the adverse action was motivated b y the plaintiff's protected conduct. In this case, Plaintiff has alleged that Defendant's c o n d u c t was motivated by the filing of grievances and a lawsuit; Plaintiff alleges that D ef en d an t told Plaintiff that "You'll never see these legal documents again, as long as I'm H .I., I'll make sure you're found guilty on every misconduct, you'll learn about suing me." (D k t. No. 1, Compl. ¶ 2.) Plaintiff's allegations are sufficient, at this stage, to satisfy the c a u sa tio n element of the retaliation claim. Thus, the Court rejects the determination of the R & R that Plaintiff has failed to state a claim for retaliation under the First Amendment. P la in tif f 's remaining objections relate to his access-to-courts claim. The Court agrees w ith the R&R that Plaintiff fails to state a claim of denial of access to the courts because he h a s failed to allege actual injury. See Lewis v. Casey, 518 U.S. 343, 351-53 (1996). A c c o r d i n g l y, I T IS HEREBY ORDERED that Plaintiff's objections to the Report and R e c o m m e n d a tio n of the Magistrate Judge (Dkt. No. 6) are DENIED, except objection f if te e n , regarding dismissal of Plaintiff's First Amendment retaliation claim, is GRANTED. I T IS FURTHER ORDERED that the Report and Recommendation (Dkt. No. 4) is A P P R O V E D and ADOPTED in PART as the opinion of this Court, except with respect to d is m is s a l of Plaintiff's First Amendment retaliation claim. I T IS FURTHER ORDERED that all claims in Plaintiff Jessie Jones's complaint, o th e r than his First Amendment retaliation claim, are DISMISSED for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A, and 42 U.S.C. § 1997e(c). Dated: July 15, 2009 /s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE 4