Bergey #596779 v. Tribley et al

Filing 6

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

ROBERT BERGEY,
Plaintiff,
v.

Case No. 2:15-cv-43
Honorable Gordon J. Quist

LINDA TRIBLEY 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. 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 against Defendants Penrose, Perttu,
Russell, Barber, and MacLeod will be dismissed for failure to state a claim. The Court will order
service of the complaint against Defendants Klingforth, Tribley, McGuire and Yon.
Factual Allegations
Plaintiff Robert Lyle Bergey is a state prisoner presently incarcerated with the
Michigan Department of Corrections (MDOC) at Carson City Correctional Facility, though the
events about which he complains occurred while he was incarcerated at Ojibway Correctional

Facility (OCF). Most of the Defendants are MDOC employees located at OCF: Warden Linda
Tribley, “Mailroom - GOA” Brenda Klingforth, “Mailroom - GOA” Jeannine MacLeod, Inspector
Michael S. Yon, Assistant Resident Unit Supervisor (ARUS) Ronda McGuire, “A / HI” (Unknown)
Penrose, and Resident Unit Manager (RUM) T. Perttu. Plaintiff also sues MDOC Grievance Section
Manager Richard D. Russell and Ombudsman Keith Barber of the Office of Legislative Corrections
Ombudsman. (Compl., docket #1, Page ID##2-3.)
According to the complaint, Plaintiff’s “personal” outgoing mail has been opened and
read by MDOC officials, including Warden Tribley and OCF mailroom staff. (Id. at Page ID#3.)
Plaintiff became aware of what was happening in January 2013, when his grandmother informed
him that all of his mail to her since December 2012 had been opened and then taped closed.
MDOC policies prohibit prisoners from sending mail that “is a threat to the security,
good order, or discipline of the facility, may facilitate or encourage criminal activity, or may
interfere with the rehabilitation of the prisoner,” including the following:
1. Mail violating federal or state law.
2. Mail violating postal regulations.
3. Mail containing physical contraband, which is defined as any property that
a prisoner is not specifically authorized to possess or that is from an
unauthorized source. This includes postage stamps, except that a prisoner
may receive a single stamped self-addressed envelope from an attorney, a
court, or a legitimate religious organization.
4. Mail containing a criminal plan or conspiracy.
5. Mail containing threats.
6. Mail addressed to anyone who has objected to receiving mail from the
prisoner sending the mail. This only applies after the prisoner has been
notified of the objection. A prisoner who continues to send mail to a person
who has objected to receiving mail from that prisoner after receiving notice
of the objection also may be subject to discipline in accordance with PD
03.03.105 “Prisoner Discipline”.
7. Mail for the purpose of operating a business enterprise while within the
facility.
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(MDOC Policy Directive 05.03.118 ¶ D (Sept. 14, 2009), docket #1-1.) Plaintiff contends that OCF
Operating Procedure 05.03.118 (effective April 1, 2013) provided that if a prison official had
reasonable grounds to believe that a prisoner is sending mail in violation of the foregoing policy,
the prisoner would be issued a notice of violation and a hearing would be conducted on the matter.
If, after a hearing, it was determined that the mail violates the policy, then the mail could be opened
and inspected.1 Plaintiff asserts that he never received notice or a hearing before his mail was
opened.
On February 21, 2013, Plaintiff attempted to send a letter to his grandparents which
made “unflattering and derogatory” remarks about Warden Tribley and mailroom staffer Jeannine
MacLeod. (Compl., Page ID#5.) The letter was opened and read by mailroom staff. The mail was
turned over to Inspector Yon, who issued Plaintiff a misconduct ticket for insolence.2 When
Plaintiff sent kites to mailroom staff asking why his mail had been opened, they ignored him.
On September 5, 2013, Plaintiff received notice from mailroom staffer Brenda
Klingforth that another of his letters was rejected because “[Plaintiff] is currently serving on CSC.
The content of his outgoing mail may interfere with his rehabilitation; content contains sexual
fantasizing.” (Notice of Package Mail/Rejection, docket #1-1, Page ID#10.)3 Plaintiff states that
the letter contained a “fictional story” for his grandparents depicting “sex that was legal,
consen[s]ual, and . . . between adults.” (Compl., Page ID#5.) Plaintiff sent a kite to Defendant
Klingforth complaining that his letter did not depict criminal behavior and that she did not have a
basis for opening his mail. (See Ex. 3 to Compl., docket #1-1, Page ID#11.) ARUS McGuire
1
Plaintiff contends that OCF Operating Procedure 05.03.118 was changed on M arch 15, 2014, so that it no
longer requires notice and a hearing before a prisoner’s mail is opened.

2

According to a misconduct report attached to the complaint, Plaintiff waived his right to a hearing on the ticket
and received a sanction of three days of loss of privileges. (Ex. 1 to Compl., docket #1-1, Page ID#9.)
3

Plaintiff’s MDOC profile indicates that he is serving sentences for two counts of criminal sexual conduct (CSC)
in the fourth degree with a person between the ages of 13 and 16, one count of CSC in the third degree with a person
between the ages of 13 and 15, and one count of assault with intent to commit sexual penetration. See
http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=596779 (visited Apr. 30, 2015).

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conducted a hearing on the issue and determined that the mail should be destroyed because it “may
interfere with [Plaintiff’s] rehabilitation” for his CSC offenses. (Ex. 4 to Compl., Administrative
Hr’g Rep., docket #1-1, Page ID#12.) Plaintiff asserts that these findings are “prejudice and
discrimative [sic]” towards him, because they are not based on any violation of policy. (Compl.,
Page ID#5.)
Plaintiff subsequently filed a grievance complaining that his mail was opened and
read by mailroom staff without prior notice. Mailroom staffer Jeannine MacLeod met with Plaintiff
and informed him that he is “on a Red Flag list not to send or receive mail [to or from] Jennifer
Hiller,” and that MDOC staff can open his mail as long as they have reasonable grounds to do so.
(Id.) The grievance was denied.4 Plaintiff appealed the denial of his grievance; Warden Tribley
denied the appeal at Step II of the grievance process5 and Grievance Section Manager Russell denied
it at Step III. Plaintiff filed another grievance about Klingforth and Tribley’s “discriminatory”
reason for rejecting his outgoing mail, and ARUS McGuire’s alleged prejudice against him. (Id.)
The respondent, Defendant Penrose, denied the grievance as duplicative of a previous one.
Defendants Russell and Barber subsequently affirmed the denial on appeal.
Plaintiff filed another grievance in December 2013 after he learned that another letter
had been opened by prison officials before it was mailed. Defendant Perttu denied the grievance
and Defendants Tribley and Russell upheld the denial on appeal. Plaintiff sought further relief from
Ombudsman Barber, but he has not received a response.

4
In the Step I Grievance Response, the reviewer noted that Plaintiff was added to the facility’s “Red Flag list
after W arden Tribley received a telephone call requesting a stop of mail to and from Jennifer Hiller, (15 years old)[.]”
(Ex. 6 to Compl., docket #1-1, Page ID#14.)

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In her response, W arden Tribley noted that Plaintiff had been placed on a watch list due to his “contact with
a victim,” that “[v]arious complaints [had] been received regarding [his] unwanted mail,” and that Plaintiff contacted
a victim “through JPay accounts she set up using a false name[.]” (Ex. 7 to Compl., docket #1-1, Page ID#15.)
According to the warden, inspection of Plaintiff’s mail was warranted due to his “continued abuse of the system and
violation of policy[.]” (Id.)

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Based on the foregoing, Plaintiff claims that Defendants have improperly interfered
with his personal letters to family and friends, in violation of the Constitution and MDOC policy.
As relief, he seeks damages and an injunction requiring the MDOC to expunge his misconduct
conviction and to change its policy regarding review of personal mail.
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, 47 (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)).

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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.
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).

A. First Amendment
Plaintiff complains that Warden Tribley and mailroom staff (Defendants Klingforth

and MacLeod) have opened and inspected his personal mail without grounds for doing so. Inmates
have a First Amendment right to communicate with the outside world by sending and receiving mail.
Thornburgh v. Abbott, 490 U.S. 401, 407 (1989); Turner v. Safley, 482 U.S. 78, 85 (1987). That
right, however, is not absolute. A prisoner retains only those First Amendment freedoms which are
“‘not inconsistent with his status as a prisoner or with the legitimate penological objectives of the
corrections system[].’” Martin v. Kelley, 803 F.2d 236, 240 n.7 (6th Cir. 1986) (quoting Pell v.
Procunier, 417 U.S. 817, 822 (1974)). 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 822-23; Procunier v. Martinez, 416 U.S. 396, 412 (1974)).
Interference with a prisoner’s outgoing mail is constitutional if it “‘further[s] an
important or substantial governmental interest unrelated to the suppression of expression,’ and . . .
[if it] extend[s] no further ‘than is necessary or essential to the protection of the particular

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governmental interest involved.’” Martucci v. Johnson, 944 F.2d 291, 295 (6th Cir. 1991) (quoting
Martinez, 416 U.S. at 413). Security concerns regarding outgoing mail include, but are not limited
to, “escape plans, plans relating to ongoing criminal activity, and threats of blackmail or extortion.”
Thornburgh, 490 U.S. at 412. “It is thus well-settled that prison or jail personnel do not violate the
First Amendment by inspecting and reading an inmate’s outgoing non-legal mail.” Frey v.
Raisanen, No. 2:14-cv-10192, 2014 WL 545794, at *2 (E.D. Mich. Feb. 11, 2014) (citing Caldwell
v. Beard, 305 F. App’x 1, 4 (3d Cir. 2008) (prison officials did not violate the First Amendment by
reading inmate’s outgoing mail to his family); Altizer v. Deeds, 191 F.3d 540, 549 (4th Cir. 1999)
(opening and inspecting an inmate’s outgoing mail is reasonably related to legitimate penological
interests and does not violate the First Amendment); Smith v. Delo, 995 F.2d 827, 830 (8th Cir.
1993) (prison officials are justified in screening outgoing nonlegal mail for escape plans,
contraband, threats, or evidence of illegal activity); Stow v. Grimaldi, 993 F.2d 1002, 1004-05 (1st
Cir. 1993) (state prison practice requiring that non-privileged outgoing mail be submitted for
inspection in unsealed envelopes did not violate prisoner’s constitutional rights); United States v.
Whalen, 940 F.2d 1027, 1035 (7th Cir. 1991) (“[I]t is well established that prisons have sound
reasons for reading the outgoing mail of their inmates.”); Gaines v. Lane, 790 F.2d 1299, 1304 (7th
Cir. 1986) (upholding prison regulations authorizing the inspection of incoming and outgoing
nonlegal mail)); see also Meadows v. Hopkins, 713 F.2d 206 (6th Cir. 1983) (upholding a prison
regulation which authorized the reading of all prisoners’ general correspondence). Consequently,
Plaintiff does not state a First Amendment claim against Defendants Tribley, MacLeod and
Klingforth for opening and inspecting his personal mail.
In two instances, however, Defendants did more than merely open and inspect his
mail. They either stopped him from sending it or punished him for writing it. One of his letters was
rejected by Defendants Klingforth and Tribley because of its sexual content. ARUS McGuire held

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a hearing on the issue and determined that the letter should be destroyed. In addition, Inspector Yon
issued Plaintiff a misconduct ticket for writing a letter which contained unflattering and derogatory
remarks about the warden. At this stage of the proceedings, the Court finds that Plaintiff has stated
First Amendment claim against Defendants Klingforth, Tribley, McGuire and Yon for censoring his
outgoing mail and punishing him for its content. Cf. Martinez, 416 U.S. at 415-16 (invalidating
regulations which permitted officials to censor correspondence containing criticism, disrespectful
comments, or derogatory remarks about prison officials); Loggins v. Delo, 999 F.2d 364, 367-68
(8th Cir. 1993) (finding a First Amendment violation where the prisoner was disciplined for using
insulting language about prison officials in a letter to his brother).
B. Due Process
Plaintiff contends that he is entitled to notice and a hearing before prison officials
open his mail, and that failure to provide this procedure deprives him of due process. The elements
of a procedural due process claim are: (1) a life, liberty, or property 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). Plaintiff’s claim fails
because he does not have a protected property or liberty interest in sending mail without having it
opened and inspected by prison officials.
As indicated supra, Plaintiff does not have a constitutional right to prevent prison
officials from opening and inspecting his personal mail. Plaintiff alleges that there was a prison
policy which required prison officials to provide notice before opening his mail; however, the
presence of a policy does not, in itself, suffice to give rise to a protected liberty interest. In Hewitt
v. Helms, 459 U.S. 460 (1983), the Supreme Court held that the State created a protected liberty
interest in avoiding confinement in segregation because a state statute contained “explicitly
mandatory language” that placed substantive limitations on the discretion of prison officials to place

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prisoners in segregation. Id. at 472. Similarly, Plaintiff ostensibly argues that he has a liberty
interest in sending personal mail without inspection because prison policy limited officers’
discretion as to when mail could be opened, and required that a hearing be held to determine whether
there were reasonable grounds for opening it. The Supreme Court overruled Hewitt in Sandin v.
Conner, 515 U.S. 472, 484 (1995), holding that a prisoner is entitled to the protections of due
process only when a sanction “will inevitably affect the duration of his sentence” or when a
deprivation imposes an “atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Sandin, 515 U.S. at 486-87. Opening and inspecting Plaintiff’s personal
mail does not impose an atypical and significant hardship on him; thus, he cannot claim that he is
entitled to due process for that conduct. “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)).
Plaintiff arguably has a property interest in the mail that was destroyed, but he alleges
that he received notice and a hearing before that occurred; thus, he received all the process to which
he was entitled. See Martinez, 416 U.S. at 417-19 (requiring “minimal procedural safeguards” for
censorship of outgoing mail, including notice of rejection of the mail, an opportunity to protest the
rejection, and review by an official other than the one who originally rejected the mail).
Consequently, Plaintiff does not state a due process claim.
C. Prison Policy
Plaintiff also contends that Defendants violated prison policy, but a violation of
prison policy or state law does not suffice to state a claim under § 1983. Claims under § 1983 can
only be brought for “deprivation of rights secured by the constitution and laws of the United States.”
Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982). Section 1983 does not provide redress for
a violation of a state law. Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995); Sweeton v. Brown,

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27 F.3d 1162, 1166 (6th Cir. 1994). Thus, Defendants’ alleged failure to comply with an
administrative rule or policy does not itself rise to the level of a constitutional violation. Laney v.
Farley, 501 F.3d 577, 581 n.2 (6th Cir. 2007); Brody v. City of Mason, 250 F.3d 432, 437 (6th Cir.
2001); Smith v. Freland, 954 F.2d 343, 347-48 (6th Cir. 1992); Barber v. City of Salem, 953 F.2d
232, 240 (6th Cir. 1992); McVeigh v. Bartlett, No. 94-23347, 1995 WL 236687, at *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 protectible liberty interest).
D. Supervisor Liability
Plaintiff’s only allegations against Defendants Penrose, Perttu, Russell, and Barber
are that they denied his grievances or failed to act in response to them. In addition, the only
remaining allegations that might state a claim against Defendant MacLeod are that she denied his
grievances. Government officials 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 has failed to

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allege that Defendants Penrose, Perttu, Russell, Barber, and MacLeod engaged in any active
unconstitutional behavior. Accordingly, they will be dismissed for failure to state a claim.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s action against Defendants Penrose, Perttu, Russell, Barber, and MacLeod
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 will order service of the complaint against Defendants Klingforth,
Tribley, McGuire, and Yon.
An order consistent with this Opinion will be entered.

Dated: May 20, 2015

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

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