Kenny #265257 v. Washington

Filing 7

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

JAMES MICHAEL KENNY,
Plaintiff,
v.

Case No. 2:17-cv-1
Honorable Gordon J. Quist

HEIDI E. WASHINGTON,
Defendant.
_____________________________/
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 will be dismissed for failure to state
a claim.
Factual Allegations
Plaintiff, James Michael Kenny, filed this pro se civil rights action pursuant to 42
U.S.C. § 1983 against Defendant MDOC Director Heidi E. Washington. In his complaint, Plaintiff
alleges that Defendant is responsible for the MDOC’s policy directives, and that his rights have been
violated by Policy Directive 05.03.115 and Policy Directive 05.03.116.

Plaintiff claims that on October 24, 2016, Plaintiff requested help from the prison
librarian in finding an Ohio Supreme Court case on LexisNexis because Plaintiff believed it would
be helpful in his criminal appeal. The librarian attempted to find the case for Plaintiff, but was
unsuccessful. Plaintiff states that he did not bother to ask for the case through inter-library loan
services because he was indigent. Plaintiff states that under Policy Directive 05.03.115 ¶ F, copies
from other libraries become the property of the prisoner, who is then responsible for the cost of the
copies and any required postage. The policy also states that funds shall not be loaned for this
purpose.
On November 21, 2016, Plaintiff was in the prison library working on his criminal
appeal. Plaintiff informed the librarian that he needed two copies of a nine page motion, which was
due in one week. The librarian asked Plaintiff if the documents could be reproduced without a copy
machine, and Plaintiff indicated that they could. The librarian looked at Plaintiff’s account balance
and noted that he had only seven cents remaining. The librarian informed Plaintiff that he could not
make copies because Policy Directive 05.03.116 ¶ N prohibits loans for copying a document which
can otherwise be reproduced by the prisoner, except if the document is notarized or was created for
the prisoner through the Legal Writer program. Plaintiff asked the librarian how he was supposed
to reproduce a “50+ page Delayed Application for Leave to Appeal when he needs at least 5 copies
of that coming up very soon” for the Michigan Court of Appeals. The librarian stated that he did
not know. Plaintiff states that it took him from 7:00 p.m. until 2:37 a.m. to manually rewrite his
motion using two sheets of carbon paper. Plaintiff states that he needed an original for the trial
court, a copy for the Clinton County Prosecuting Attorney, and a copy for his records. Plaintiff
mailed out his motion later that morning after being given a legal postage loan.
On November 23, 2016, the librarian denied Plaintiff photocopies of policy directives
and a director’s office memorandum, which Plaintiff planned to use as exhibits. Plaintiff was also
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denied a copy of the two page form used to commence a civil rights action in federal court1.
Plaintiff states that the librarian told him that pursuant to Policy Directive 05.03.116 ¶ O, he would
have to show the librarian his pleadings to prove that the documents were required for filing with
the court. Plaintiff did not file a direct appeal of his criminal conviction, and the time to file a
delayed application for leave to appeal expired on November 28, 2016. Plaintiff states that he knew
he would be denied copies so he filed a “motion for a directed verdict of acquittal” in the trial court,
in order to “buy himself some more time.” Plaintiff claims that the fact that he is being denied
copies of his appellant’s brief due to lack of funds violates his right of access to the courts. Plaintiff
also claims that prison libraries currently have a contract with the LexisNexis Service, which is not
an adequate substitute for the old law books.
Plaintiff states that Defendants violated his rights under the First, Eighth and
Fourteenth Amendments. Plaintiff seeks injunctive relief.
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

1

The denial of such a form could not prevent Plaintiff from filing a civil rights action because prisoners may
obtain free copies of the form for filing a civil rights action from the United States Court Clerk for the Western District
of Michigan upon request.

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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.
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 claims that Policy Directives 05.03.115 and 05.03.116, and the fact that the
law library now relies on the Lexis database instead of law books, all violate his First Amendment
right of access to the courts. As noted above, Policy Directive 05.03.115 ¶ F provides that copies
from other libraries become the property of the prisoner, who is then responsible for the cost of the
copies and any required postage. The policy also states that funds shall not be loaned for this
purpose. Policy Directive 05.03.116 ¶ N prohibits loans for copying a document which can

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otherwise be reproduced by the prisoner, except if the document is notarized or was created for the
prisoner through the Legal Writer program.
In Bounds v. Smith, 430 U.S. 817 (1977), the Supreme Court recognized a prisoner’s
fundamental right of access to the courts. While the right of access to the courts does not allow a
State to prevent an inmate from bringing a grievance to court, it also does not require the State to
enable a prisoner to discover grievances or litigate effectively. Lewis v. Casey, 518 U.S. 343 (1996).
Thus, Bounds did not create an abstract, free-standing right to a law library, litigation tools, or legal
assistance. Id. at 351 (1996). Further, the right may be limited by legitimate penological goals, such
as maintaining security and preventing fire or sanitation hazards. See Acord v. Brown, No. 91-1865,
1992 WL 58975 (6th Cir. March 26, 1992); Hadix v. Johnson, No. 86-1701, 1988 WL 24204 (6th
Cir. March 17, 1988); Wagner v. Rees, No. 85-5637, 1985 WL 14025 (6th Cir. Nov. 8, 1985).
To state a claim, an inmate must show that any shortcomings in the library, litigation
tools, or legal assistance caused actual injury in his pursuit of a legal claim. Lewis, 518 U.S. at 351;
Talley-Bey, 168 F.3d at 886; Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996); Pilgrim v. Littlefield,
92 F.3d 413, 416 (6th Cir. 1996); Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir. 1985). An inmate
must make a specific claim that he was adversely affected or that the litigation was prejudiced.
Vandiver v. Niemi, No. 94-1642, 1994 WL 677685, at *1 (6th Cir. Dec. 2, 1994). Particularly, an
inmate cannot show injury when he still has access to his legal materials by request, Kensu, 87 F.3d
at 175, when he fails to state how he is unable to replicate the confiscated documents, Vandiver,
1994 WL 677685, at *1, or when he could have received the material by complying with the limits
on property, e.g., where he had the opportunity to select the items that he wanted to keep in his cell,
or when he had an opportunity to purchase a new footlocker that could hold the property. Carlton
v. Fassbender, No. 93-1116, 1993 WL 241459, at *2 (6th Cir. July 1, 1993).

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An inmate must make a specific claim that he was adversely affected or that the
litigation was prejudiced. Harbin-Bey v. Rutter, 420 F.3d 571, 578 (6th Cir. 2005); Vandiver v.
Niemi, No. 94-1642, 1994 WL 677685, at *1 (6th Cir. Dec. 2, 1994). “Examples of actual prejudice
to pending or contemplated litigation include having a case dismissed, being unable to file a
complaint, and missing a court-imposed deadline.” Harbin-Bey, 420 F.3d at 578 (citing Jackson v.
Gill, 92 F. App’x 171, 173 (6th Cir. 2004)).
With regard to Plaintiff’s claim that he was denied copies, the Court notes that the
Sixth Circuit has repeatedly held that the constitutional right of access to the courts does not entitle
prisoners to free access to photocopying machinery. See, e.g., Bell-Bey, v. Toombs, No. 93-2405,
1994 WL 105900 (6th Cir. Mar. 28, 1994) (“the law is settled that an inmate does not enjoy a federal
constitutional right to unlimited free photocopying services”); Hawk v. Vidor, No. 92-2349, 1993
WL 94007, *1 (6th Cir. Mar. 31, 1993) (“the right to have access to the courts is not interpreted as
requiring unlimited access to photocopiers”); Al- Jabbar v. Dutton, No. 92-5004, 1992 WL 107016,
at *1 (6th Cir. May 19, 1992) (“a prisoner's right of access to the courts does not guarantee him
unlimited photocopying at the state’s expense”); Bond v. Dunn, No. 89-6181, 1989 WL 149988, at
*1 (6th Cir. Dec. 12, 1989) (“The constitutional right of access to the courts does not require that
prison officials provide inmates free access to photocopying machinery.”); Fazzini v. Gluch, No. 882147, 1989 WL 54125, *2 (6th Cir. May 23, 1989) (“The right of access to the courts does not
require that prison officials provide free, unlimited access to photocopy machines.”). In the absence
of actual injury, Plaintiff fails to state a claim of constitutional significance.
Plaintiff is currently serving three concurrent sentences he received on May 26, 2016,
as the result of being a fourth-degree habitual offender. Plaintiff claims that as an indigent prisoner,
he was denied copies of a nine page motion that he wished to file in the state court regarding his
criminal appeal. However, Plaintiff concedes that he was able to produce the copies by hand with
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the use of carbon paper, but complains that it took several hours. Plaintiff was able to mail out his
motion the next day, on November 22, 2016. Plaintiff states that the motion was “for a directed
verdict of acquittal” and that he filed it in the trial court in order to buy himself time to file a delayed
application for leave to appeal, which was otherwise due on November 28, 2016. Plaintiff explains
that he knew he would be denied copies as an indigent prisoner, and did not have enough time to
make the necessary copies of his appeal by hand so that he could mail it prior to November 28,
2016. However, Plaintiff fails to explain why he was unable to complete his appeal during the sixmonth period between his sentencing and the date that his delayed application was due in the
Michigan Court of Appeals. Nor does Plaintiff explain why he did not file a single copy of his
application for appeal along with an explanation of his inability to complete the copies in a timely
manner in an attempt to get a court order for copies to be made. Finally, Plaintiff does not allege
that any actual attempt to appeal in the Michigan Court of Appeals has been denied at this point.
Because Plaintiff fails to allege any specific facts showing that MDOC Policy Directives were the
cause of any actual injury to his state court appeal, Plaintiff’s access to courts claim on this basis is
properly dismissed.
Plaintiff also claims he was denied copies of policy directives that he planned to use
as exhibits in the instant case because he did not want to show the librarian his pleadings to prove
that the attachments were necessary. However, neither the lack of policy directives as exhibits nor
the fact that Plaintiff’s complaint was not filed on the proper form prevented Plaintiff from filing
his complaint in this case. In fact, as noted above, Plaintiff may obtain free copies of the complaint
form by contacting the Clerk’s Office and, moreover, the Court has access to the MDOC Policy
Directives via the MDOC’s website. Therefore, Plaintiff was not prejudiced in his pursuit of this
action by the lack of copies or the fact that he was not provided with the form for filing a § 1983
complaint.
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Finally, Plaintiff claims that the shift in prison law libraries from books to an online
database, such as LexisNexis, compromised his ability to pursue his legal remedies. This assertion
is clearly baseless. Neitzke, 490 U.S. at 327. Plaintiff has offered no legally supportable reason that
he cannot file an action. He desires a law library. The right of access to the courts has never been
equated with the access of legal materials at the prison library. Walker, 771 F.2d at 932; see also
Lewis, 518 U.S. at 351 (a sub-par library or legal assistance program does not establish relevant
actual injury). By his allegation that he is unable to file a lawsuit, it is clear that Plaintiff means that
he was unable to file the quality of the lawsuit that he desired, not that he was unable to file a lawsuit
at all. Even though Bounds gave inmates the tools to attack their sentences and challenge their
conditions of confinement, the inability of an inmate to become a “litigating engine” is “simply one
of the incidental (and perfectly constitutional) consequences of conviction and incarceration.” Id.
at 353-54. Because Plaintiff cannot show actual injury or that he has suffered any litigation-related
detriment, Plaintiff fails to state a claim for denial of access to the courts.
Plaintiff also claims that the provisions in MDOC Policy Directives 05.03.115 and
05.03.116, which deny indigent prisoners loans for copies of certain types of documents, violate the
Equal Protection Clause of the Fourteenth Amendment because they discriminate against indigent
prisoners. The Equal Protection Clause commands that no state shall “deny to any person within
its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. A state practice
generally will not require strict scrutiny unless it interferes with a fundamental right or discriminates
against a suspect class of individuals. Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976).
Plaintiff does not suggest that he is a member of a suspect class, and “prisoners are not considered
a suspect class for purposes of equal protection litigation.” Jackson v. Jamrog, 411 F.3d 615, 619
(6th Cir. 2005); see also Wilson v. Yaklich, 148 F.3d 596, 604 (6th Cir.1998). Similarly, poverty
is not a suspect or quasi-suspect classification. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411
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U.S. 1, 28 (1973). In addition, prisoners do not have a fundamental right to photocopies under the
Constitution.
Because neither a fundamental right nor a suspect class is at issue, Plaintiff’s claim
is reviewed under the rational basis standard. Club Italia Soccer & Sports Org., Inc. v. Charter Twp.
of Shelby, 470 F.3d 286, 298 (6th Cir. 2006). “Under rational basis scrutiny, government action
amounts to a constitutional violation only if it ‘is so unrelated to the achievement of any
combination of legitimate purposes that the court can only conclude that the government’s actions
were irrational.’” Id. (quoting Warren v. City of Athens, 411 F.3d 697, 710 (6th Cir. 2005)). To
prove his equal protection claim, Plaintiff must demonstrate the challenged policies involved
“intentional and arbitrary discrimination” by the state “and that there is no rational basis for the
difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
Plaintiff fails to state a claim that indigent prisoners are denied equal protection by
provisions in Policy Directives 05.03.115 and 05.03.116. As noted above, Policy Directive
05.03.115 ¶ F provides:
Librarians shall establish and maintain cooperative relationships with
other libraries as set forth in PD 05.03.110 “Institutional Library
Services” to enable prisoners to have access to additional legal
research items through inter-library loans, when available, or to
purchase photocopies of items not available in the institutional law
library. If a prisoner requests the law librarian or designee to obtain
an item from another library, the librarian or designee shall submit
the request to the other library as soon as practicable after the request
is received. Copies from other libraries become the property of the
prisoner and the prisoner is therefore responsible for the cost of those
copies, including any required postage; funds shall not be loaned for
this purpose.
In addition, Policy Directive 05.03.116 ¶ N states:
Prisoners who lack sufficient funds to pay for copies of documents
in their possession, or available to them in the law library, which are
necessary for the prisoner to file with the court or serve on a party to
a lawsuit shall be loaned funds to pay for the copying. Funds shall not
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be loaned, however, for copying a document which can otherwise be
reproduced by the prisoner, except if the document is notarized or
was created for the prisoner through the Legal Writer Program and
as otherwise required by court order for service of a federal lawsuit.
Policy Directive 05.03.116 ¶ O provides:
A prisoner may be required to present documentation (e.g., court rule,
copy of the pleading) to show that requested copies are necessary. If
the prisoner presents his/her personal legal materials, staff shall read
only those portions that are necessary to determine whether the
copies will be provided and, if applicable, whether funds will be
loaned. If a loan is approved, it shall be considered an institutional
debt and collected as set forth in PD 04.02.105 “Prisoner Funds.”
As noted above, poverty is not a suspect classification. San Antonio Indep. Sch. Dist.,
411 U.S. at 28. As a consequence, the prison’s policy regarding copies for indigent prisoners need
only be rationally related to a legitimate governmental interest. See United States v. Kras, 409 U.S.
434, 446 (1973); Hampton v. Hobbs, 106 F.3d 1281, 1286 (6th Cir. 1997). In the related issue of
the cost of prisoner mail, the MDOC states:
MICH. DEP’T OF CORR., Policy Directive 05.03.118 ¶ J. The state
unquestionably has an interest in limiting the cost of mailing charges
it incurs on behalf of indigent prisoners. The requirement of a court
order constitutes an entirely rational basis for effecting that interest.
Moreover, the policy does not preclude a prisoner from pursuing his
claims, it merely requires that the prisoner obtain the necessary order.
And the policy expressly instructs the prisoner that he must seek a
court order for substituted service or to use certified mail.
The Court concludes that this interest is equally applicable to the cost of prisoner copies. Moreover,
the policies challenged by Plaintiff do not preclude a prisoner from pursuing his claims, but merely
limit copies to the items which are actually required in order to pursue those claims and to those
items which cannot be replicated in another fashion. Therefore, Plaintiff’s Fourteenth Amendment
claim is properly dismissed.
Finally, Plaintiff claims that MDOC policies regarding copies violate the Eighth
Amendment because requiring a prisoner to make numerous copies by hand constitutes cruel and
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unusual punishment. 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 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).
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)). “Routine discomfort is ‘part
of the penalty that criminal offenders pay for their offenses against society.’” Hudson v. McMillian,
503 U.S. 1, 9 (1992) (quoting Rhodes, 452 U.S. at 347). As a consequence, “extreme deprivations
are required to make out a conditions-of-confinement claim.” Id.
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. The Court concludes that the act of copying documents
by hand does not rise to the level of an Eighth Amendment deprivation. Therefore, Plaintiff’s
Eighth Amendment claim is properly dismissed.
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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
$505.00 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 $505.00 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: July 21, 2017

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

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