Bergey #596779 v. Tribley et al

Filing 43

ORDER ADOPTING REPORT AND RECOMMENDATION 41 re 34 : Defendants' Motion 34 for Summary Judgment is GRANTED; case closed; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

ROBERT BERGEY #596779,
Plaintiff,
v.

Case No. 2:15-CV-43

LINDA TRIBLEY and BRENDA
KLINGFORTH,

HON. GORDON J. QUIST

Defendants.
/

ORDER ADOPTING REPORT AND RECOMMENDATION
On August 31, 2016, Magistrate Judge Greeley issued a Report and Recommendation (R
& R) in which he recommended that the Court grant Defendants’ motion for summary judgment.
(ECF No. 41 at PageID.247-48.) Plaintiff timely filed an objection. (ECF No. 42.) After
conducting a de novo review of the R & R, Plaintiff’s Objection, and pertinent portions of the
record, the Court concludes that the R & R should be adopted.
This suit stems from Defendants allegedly censoring Plaintiff’s outgoing mail.
Defendant Tribley is the Warden at Ojibway Correctional Facility. Tribley put Plaintiff on the
prison’s “Red Flag” list after Tribley received a complaint from the mother of Plaintiff’s minor
victim that Plaintiff was attempting to contact that victim through mail communication. The
“Red Flag” list subjected Plaintiff’s incoming and outgoing mail to screening to ensure that the
mail was not being sent to the victim. Defendant Klingforth works in the mail room at the
prison, and on September 5, 2013, and flagged a piece of Plaintiff’s outgoing mail because “the
contents of his outgoing mail may interfere with [Plaintiff’s] rehabilitation: content contains
sexual fantasizing.” (ECF No. 1-1 at PageID.10.) ARUS McGuire conducted a hearing six days
later and determined that the piece of mail should be destroyed. (Id. at PageID.12.)

Plaintiff sued Tribley, Klingforth, McGuire, and other prison employees, alleging that
Defendants violated his First Amendment rights by censoring his mail. Plaintiff’s claims as to
McGuire and all other Defendants were dismissed for failure to exhaust administrative remedies.
(ECF No. 23.) Tribley and Klingforth moved for summary judgment, arguing that (1) the policy
of screening of Plaintiff’s mail did not violate Plaintiff’s First Amendment rights, and (2) they
were not personally involved in actually rejecting and destroying the piece of mail in question.
(ECF No. 34.) Magistrate Judge Greeley recommended granting Defendants’ motion.
“[P]rison policies that regulate outgoing legal mail must [1] further ‘an important or
substantial governmental interest unrelated to the suppression of expression,’ and [2] may not
limit prisoners' First Amendment freedoms more than necessary to protect the governmental
interest involved.” Washington v. Davis, 416 F. App'x 563, 564 (6th Cir. 2011) (quoting
Procunier v. Martinez, 416 U.S. 396, 413–14, 94 S. Ct. 1800, 1811 (1974) overruled in part by
Thornburgh v. Abbott, 490 U.S. 401, 109 S. Ct. 1874 (1989)). Screening Plaintiff’s mail
satisfies the first requirement, as rehabilitation and preventing a prisoner from harassing victims
are valid governmental interests. See Martinez, 416 U.S. at 412, 94 S. Ct. at 1811 (“The
identifiable governmental interests at stake in this task are the preservation of internal order and
discipline, the maintenance of institutional security against escape or unauthorized entry, and the
rehabilitation of the prisoners.”)

(footnote omitted).

Defendants satisfied the second

requirement because Plaintiff’s mail was inspected piece-by-piece, Defendants only flagged the
mail that contained sexually explicit content, and the mail was finally rejected only after a
hearing attended by Plaintiff.
Plaintiff’s central contention is that summary judgment is inappropriate because
Defendants have not produced a copy of the letter in question, leaving an issue of fact as to

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whether rejecting the mail actually furthered a governmental interest.
PageID.251.)

(ECF No. 42 at

Whether or not an “as-applied” challenge to the screening has any merit,

Defendants were not sufficiently personally involved in the rejection of the mail. “Persons sued
in their individual capacities under § 1983 can be held liable based only on their own
unconstitutional behavior.” Heyerman v. Cnty. of Calhoun, 680 F.3d 642, 647 (6th Cir. 2012).
ARUS McGuire has been dismissed from the case on other grounds. Defendant Tribley merely
placed Plaintiff on the “Red Flag” for legitimate reasons, and Defendant Klingforth merely
flagged a suspicious piece of outgoing mail for further review.
Therefore,
IT IS HEREBY ORDERED that the Report and Recommendation issued on August 31,
2016 (ECF No. 41) is hereby ADOPTED.
IT IS FURTHER ORDERED that Defendants’ motion for summary judgment (ECF
No. 34) is GRANTED.
A separate judgment shall issue
This case is concluded.

Dated: December 27, 2016

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

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