Drain #235684 v. McCarthy et al

Filing 28

ORDER NOT ADOPTING REPORT AND RECOMMENDATION 23 , and denying defendants' motion for summary judgment 11 ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

D r a i n #235684 v. McCarthy et al

D o c . 28

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

R O B E R T LEE DRAIN #235684, P l a in tif f , F ile No. 2:09-CV-165 v. HON. ROBERT HOLMES BELL R O B IN McCARTHY, et al., D e f e n d a n ts . / O R D E R DECLINING TO ADOPT MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION O n August 11, 2010, United States Magistrate Judge Timothy P. Greeley issued a rep o rt and recommendation ("R&R") recommending that Defendants' motion for summary ju d g m e n t (Dkt. No. 11) be granted and that this action be dismissed in its entirety. (Dkt. No. 2 3 , R&R.) Plaintiff Robert Lee Drain filed objections to the R&R on August 26, 2010. (D k t. No. 26.) This Court is required to make a de novo determination of those portions of the R&R t o which specific objection has been made, and may accept, reject, or modify any or all of th e Magistrate Judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P . 72(b). Plaintiff alleges in his complaint that Defendants violated his First Amendment right to access the courts by failing to supply requested financial information in a timely manner,

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w h ic h prevented Plaintiff from timely filing his application for leave to appeal. The R&R re c o m m e n d s that Defendant McCarthy, Regional Account Manager for the MDOC, be granted summary judgment because Plaintiff has not alleged facts establishing that Defendant M c C a rth y was personally involved in the underlying misconduct which forms the basis of P la in tif f 's claim, (R&R 5). The R&R also recommends that Defendant Tami Paul be g ra n ted summary judgment on the basis of qualified immunity because the right allegedly v io la te d was not clearly established. Plaintiff objects to the recommendation that his claims against Defendant McCarthy b e dismissed because he was denied discovery. In response to Defendants' motion for su m m a ry judgment, Plaintiff filed an affidavit indicating that Defendant McCarthy failed to re m e d y the violation after learning about it, and that Plaintiff needed discovery of the M D O C ' s grievance log book in order to show how many times this issue was reported by in m a tes and what Defendant's McCarthy's response was. (Dkt. No. 18, Pl.'s Resp., Drain A ff . ¶ 8.) The R&R did not address Plaintiff's affidavit. On de novo review the Court concludes that because Plaintiff presented a Rule 56(f) affidavit explaining why he needed discovery to substantiate his claim that Defendant McCarthy had knowledge of his employees' repeated f a ilu re s to process prisoner account requests in a timely fashion and failed to take steps to a d d re ss the problem, it would be premature to dismiss Plaintiff's claims against McCarthy f o r lack of personal involvement.

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P la in tif f also objects to the R&R's conclusion that this case is analogous to Dorn v. L A fle r, 601 F.3d 439 (6th Cir. 2010), because Dorn did not involve a violation of a m a n d a to ry prison policy. Plaintiff notes that the MDOC policy regarding prisoner account s ta te m e n ts provides that the trust account history and certificate "shall be sent to the prisoner w ith in five business days after receipt." PD 04.02.107 ¶ I. Plaintiff contends that this m a n d a to ry language created a substantive due process right. Defendant Paul's alleged failure to comply with an administrative rule or policy does n o t itself rise to the level of a constitutional violation. Laney v. Farley, 501 F.3d 577, 581 n .2 (6th Cir. 2007) ("[A] § 1983 claim may not be based upon a violation of state procedure th a t does not violate federal law."); McVeigh v. Bartlett, No. 94-23347, 1995 WL 236687, a t *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 protectable liberty in te re s t) . In addition, the Substantive Due Process Clause does not provide any basis for relief. " A plaintiff asserting a substantive due process claim faces a virtually insurmountable uphill stru g g le. He must show that the government conduct in question was so reprehensible as to `s h o c k the conscience' of the court." Rimmer-Bey v. Brown, 62 F.3d 789, 791 n.4 (6th Cir. 1 9 9 5 ) (citing Rochin v. California, 342 U.S. 165 (1952); Mertik v. Blalock, 983 F.2d 1353, 1 3 6 7 - 6 8 (6th Cir.1993)). Plaintiff's allegations in this case fail to meet this formidable stan d ard , and, thus, he fails to state a claim that his substantive due process rights were v io la te d . 3

T h e R&R determined that there were issues of fact under Dorn v. Lafler, as to whether D e f en d a n t Paul violated Plaintiff's constitutional rights. The R&R nevertheless recommends th a t Defendant Paul be granted qualified immunity on the basis that Dorn was decided after th e alleged misconduct in this case, and prior to Dorn there was no clearly established law th a t would have put Defendant Paul on notice of "his obligation to ensure mailing within sev en days." (R&R 9.) The Court believes that the Magistrate Judge described the right that was allegedly v io la te d too narrowly. Although there was no clearly established law requiring the prison to respond to requests for prisoner trust account histories within seven days, the law was c le a rly established that prisoners have a constitutional right of access to the courts and that s ta te s have "affirmative obligations to assure all prisoners meaningful access to the courts." B o u n d s v. Smith, 430 U.S. 817, 821, 824 (1977). The Sixth Circuit noted in Dorn, without c ita tio n to authority, that "[c]onsistent with their other affirmative obligations, prisons have a n obligation to timely mail court documents when prisoners have been diligent and punctual i n submitting them to prison officials." 601 F.3d at 444. The Sixth Circuit declined to d e te rm in e what constitutes "a reasonable time within which prison officials should receive d o c u m e n t s from prisoners for their proper submission to the courts." Id. at 444 n.2. The C o u rt concludes that the law was clearly established that ensuring meaningful access to the c o u rts means providing the necessary financial documents that are uniquely within the p ris o n 's possession and control within a reasonable time. In this case Defendant Paul

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in d ic a te s that she received Plaintiff's March 5 kite requesting a court certificate on March 9 , and that she returned it to him on March 17. Whether her delay in processing Plaintiff's re q u e s t was "reasonable" is a question of fact. Finally, the Court questions the statement in the R&R that even if staff had supplied th e information within the time frame provided by MDOC policy, Plaintiff would have m is s e d his filing deadline of March 12. (R&R 8.) While this statement suggests that P la in tif f was not prejudiced by the delay, there are questions of fact presented in the d o c u m e n ta tio n as to whether the filing deadline was March 12 or Mach 21. Accordingly, IT IS HEREBY ORDERED that Plaintiff's objections to the R&R (Dkt. No. 26 ) a re SUSTAINED IN PART and OVERRULED IN PART. I T IS FURTHER ORDERED the August 11, 2009 R&R (Dkt. No. 23) is NOT A D O P T E D as the opinion of the Court. I T IS FURTHER ORDERED that Defendants' motion for summary judgment (Dkt. N o . 11) is DENIED.

Dated: September 30, 2010

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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