Bell #293656 v. LaFond et al

Filing 10

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

DUANE WILLIAM BELL,
Plaintiff,

Case No. 2:12-cv-299

v.

Honorable Gordon J. Quist

TAMARA LAFOND, 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, and Plaintiff has paid the initial
partial filing fee. 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 a claim.

Factual Allegations
Plaintiff Duane William Bell, a state prisoner confined at the Kinross Correctional
Facility (KCF), filed this civil rights action pursuant to 42 U.S.C. § 1983 against Defendants
Assistant Resident Unit Supervisor Tamara LaFond, Assistant Deputy Warden James Young, and
Warden Mitch Perry, all of whom were employed at the Newberry Correctional Facility (NCF)
during the pertinent time period.
Plaintiff alleges that on December 27, 2011, while he was confined at NCF, he gave
a civil rights complaint to Defendant LaFond to be mailed out using the expedited legal mail form.
On January 13, 2012, Defendant Young told Plaintiff that his mail was accidently mailed to the
Alger Maximum Facility (LMF) and that Plaintiff should check the contents to make sure nothing
was missing. Plaintiff did so and confirmed that everything was present. Plaintiff states that
according to policy, he was supposed to be present when his legal mail was opened. Plaintiff
contends that another inmate named Epps, whose mail had also been sent to LMF, told him that he
suspected Defendant Young of intercepting the mail because he was filing an appeal of a misconduct
he had received. When Plaintiff returned to the housing unit, he had another inmate send out his
mail so that it would not be intercepted by Defendant Young. Plaintiff then called his mother and
informed her of what had taken place.
On January 15, 2012, Plaintiff’s mother subsequently called Defendant Young and
asked him about the mail situation. Defendant Young informed her that it had been accidentally sent
to LMF. Ms. Bell asked for a copy of the expedited mail form and Defendant Young told her she
would have to contact Defendant LaFond. Ms. Bell then called LMF and was told that they did not
have any knowledge of Plaintiff’s mail coming to their facility. An investigation was conducted by
LMF property room officer Hill, and it was discovered that the mail would not have been opened
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by them because it was addressed to a government agency. In addition, any mail belonging to a
prisoner at another facility would have been logged in, but there was no record of Plaintiff’s mail
arriving at LMF. Ms. Bell filed a Freedom of Information Act request on February 16, 2012,
requesting any logged documentation regarding Plaintiff’s legal mail from LMF. FOIA Coordinator
Borsch responded, “No information concerning any legal mail belonging to Plaintiff ever came to
[LMF] with another prisoner or otherwise, nor by any other name.”
On January 30, 2012, business manager George Sevarns responded to Plaintiff’s step
I grievance by stating that his mail had been accidentally packed in another inmate’s property when
that inmate was transferred to LMF. It also indicated that after the mail was discovered, it was
inspected and returned to NCF, where it was given to Plaintiff. Plaintiff filed a step II grievance and
Defendant Perry responded that the cause of Plaintiff’s mail being sent to LMF was human error and
that he did not have to provide Plaintiff with the name of the inmate in whose property Plaintiff’s
mail was allegedly packed. Plaintiff’s mother subsequently filed a complaint with the MDOC
Northern Regional Administrator, Teri-Ann Sherry, whose secretary contacted staff at LMF. LMF
verified that they never had any of Plaintiff’s mail. Ms. Bell also filed a formal complaint with the
U.S. Postmaster General.
Plaintiff claims that Defendants’ conduct violated his rights under the First and
Eighth Amendments, and seeks damages and equitable relief.

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Discussion
I.

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, 45-46 (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)
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.
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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).
Plaintiff appears to be complaining that his outgoing mail was opened outside of his
presence after being intercepted by Defendants. Plaintiff attaches a copy of the step II response to
his complaint. In this response, Defendant Perry states:
You claim that on January 13, 2012, legal mail, which you had sent out via
Expedited Legal Mail Service through [Defendant LaFond] almost three weeks prior,
had been returned to you. [Defendant Young] handed you the mail, claiming that it
had been sent to another facility. The envelope was torn open, and had no indication
on it of it going to any other facility. In the appeal you allege that it is clear that
[Defendant LaFond] and others, arbitrarily violated policy. You demand proof of the
Respondent’s investigation.
The Respondent Business Manager G. Sevarns, indicates that you were interviewed.
He found that according to [Defendant LaFond], the mail in question was
accidentally packed into another prisoner’s property, and transferred to LMF. Upon
it being discovered, the mail was sent back to NCF. [Defendant Young] returned the
mail to you, with an explanation as to what had happened. He also had you confirm
that all of your paperwork was there, and that nothing was missing. During the
grievance interview, you stated that you sent the paperwork home to your mother,
rather than sending it to the destination you had initially intended to send it.
Due to human error, your mail was accidentally packed into another prisoner’s
property during an emergency pack-up, sent to another facility, and later returned to
you. Upon returning the mail to you, and also confirming that none of your
documents were missing, [Defendant Young] apologized to you for the incident.
Staff were also reminded of the importance of the proper handling of legal mail. It
is determined at this level that the response provided at Step I has adequately
addressed the issue presented; therefore, your Step II appeal is denied.
(See Plaintiff’s Exhibit G, docket #1-1, p. 18 of 20.)
A prisoner 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 [ ].”
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Martin v. Kelley, 803 F.2d 236, 240 n.7 (6th Cir.1986) (quoting Pell v. Procunier, 417 U.S. 817,
822); see Turner v. Safley, 482 U.S. 78 (1987). It is well established that “[l]awful incarceration
brings about the necessary withdrawal or limitation of many privileges and rights, a retraction
justified by the considerations underlying our penal system.” 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
Pell, 417 U.S. at 822-823; Procunier v. Martinez, 416 U.S. 396, 412 (1974)).
Interference with a prisoner’s outgoing mail is constitutional if it is reasonably related
to legitimate penological interests. Thornburg v. Abbott, 490 U.S. 401, 413 (1989). To determine
whether a prison official’s actions are reasonably related to a legitimate penological interest, the
Court must assess an official’s actions by reference to the following factors: (1) whether there exists
a valid, rational connection between the prison regulation and the legitimate governmental interest;
(2) whether there remain alternative means of exercising the right; (3) the impact that
accommodation of the asserted constitutional right will have on guards and other inmates, and on
the allocation of prison resources generally; and (4) whether there are ready alternatives available
that fully accommodate the prisoner’s rights at de minimis cost to valid penological interests.
Turner v. Safley, 482 U.S. 78, 89-90 (1987).
The Michigan Department of Corrections does not limit the amount of outgoing mail
a prisoner can send, and it generally allows prisoners to send sealed mail. See MDOC Policy
Directive 05.03.118, ¶¶ Q, R (eff. 09/14/09) (Defendants’ Exhibit 3). In circumstances where there
is a significant potential for systemic abuse by prisoners, they are required to submit mail unsealed.
In situations where a prisoner is being loaned money or is asking for expedited mail handling, the
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MDOC requires a verification of the need for such services. In the vast majority of cases, the
MDOC requires prisoners to pay for the cost of postage. Id. at ¶ N. The MDOC loans indigent
prisoners the equivalent of postage necessary for mailing 10 first class letters per month. Once a
prisoner has used this postage, he may qualify for a postage loan if the mail he is seeking to send
qualifies under the policy. In order to determine if this is the case, the inmate is required to submit
the mail unsealed. Prisoners must also submit mail unsealed if they are requesting expedited legal
mail handling. Id. at ¶¶ J-M, O. Without this requirement, the expedited mail program would be
subject to abuse and the purpose of providing this service would be defeated.
The mail at issue in this case was sent out by Plaintiff as expedited mail. Therefore,
it had already been presented to Defendant LaFond unsealed. The mail was returned to him with
nothing missing. The mail was not incoming mail from Plaintiff’s attorney or from the Attorney
General’s Office, which Plaintiff was entitled to have opened in his presence. Lavado v. Keohane,
992 F.2d 601, 607-09 (6th Cir. 1993). There is no indication that Defendants attempted to prevent
Plaintiff from re-sending the mail. Moreover, Plaintiff fails to allege that Defendants’ conduct
prevented him from filing a non-frivolous direct appeal, habeas corpus application, or civil rights
claim, as is required to show a denial of access to the courts. Thaddeus-X v. Blatter, 175 F.3d 378,
391 (6th Cir. 1999) (en banc). Therefore, Plaintiff’s First Amendment claims are properly
dismissed.
Plaintiff also claims that Defendants violated his Eighth Amendment rights. 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
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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, 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)). Plaintiff’s claims in this case
do not implicate the Eighth Amendment.
Conclusion
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 pursuant to 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
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$455.00 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 $455.00 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.

Dated: January 9, 2013

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE