United States District Court, W.D. Michigan, Northern Division
HOLMES BELL UNITED STATES DISTRICT JUDGE.
a civil rights action brought by a state prisoner under 42
U.S.C. § 1983, alleging violations of the First and
Fourteenth Amendments. On August 24, 2016, United States
Magistrate Judge Timothy P. Greeley issued a Report and
Recommendation (“R&R”) recommending that
Plaintiff's motion for summary judgment (ECF No. 83) be
denied and that Defendants' motion for summary judgment
(ECF No. 81) be granted in part and denied in part. (ECF No.
93.) The matter is before the Court on Defendants' (ECF
No. 94) and Plaintiff's (ECF No. 95) objections to the
Court is required to make a de novo determination of those
portions of the R&R to which specific objection has been
made, and may accept, reject, or modify any or all of the
Magistrate Judge's findings or recommendations. 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b). “[A] general
objection to a magistrate's report, which fails to
specify the issues of contention, does not satisfy the
requirement that an objection be filed. The objections must
be clear enough to enable the district court to discern those
issues that are dispositive and contentious.”
Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).
filed two objections. First, Plaintiff objects to the
Magistrate Judge's conclusion that a motion made under
Mich. Ct. R. 6.502 is not protected by the Constitution.
Second, Plaintiff objects to the Magistrate Judge's
conclusion that Defendant Smith is entitled to qualified
Access to Courts Claim
cites Thaddeus-X v. Blatter, 175 F.3d 378, 391 (6th
Cir. 1999) (en banc), to support his argument that a 6.500
motion is a collateral attack on his conviction, and as such,
is the equivalent of a habeas petition in federal court. But
Thaddeus-X specifically provides that a
prisoner's right to access the courts extends to
“direct appeals, habeas corpus applications, and civil
rights claims only.” Thaddeus-X, 175 F.3d at
391. A 6.500 motion is neither a direct appeal nor a habeas
application. See Pennsylvania v. Finley, 481 U.S.
551, 555 (1987) (explaining that there is no right to counsel
in post-conviction motions); Allen v. Yukins, 366
F.3d 396 (6th Cir. 2004) (explaining that the filing of a
post-conviction motion will toll a prisoner's habeas
clock). But this Court has opined that “[a] state court
collateral action is the equivalent of a habeas petition in
federal court and certainly constitutes a collateral attack
on a prisoner's sentence.” Hughes v.
Toombs, No. 1:97-CV-773, 1999 LEXIS 12092, at *(W.D.
Mich. Aug. 4, 1999). “Thus, such actions are
protected.” Id. (citing Lewis, 518
U.S. at 355). Further, state collateral actions, like a 6.500
motion, may be necessary to the successful pursuit of federal
habeas relief because prisoners are required to first exhaust
all available state remedies. 28 U.S.C. § 2254(b)(1)(A).
Plaintiff has a right to access state courts for relief from
judgment under Hughes, he still must show “an
actual injury to state a claim for denial of access to the
courts.” Lewis, 518 U.S. at 349. According to
the Sixth Circuit, “in Lewis[, ] the Supreme
court held that only prisoners with non-frivolous underlying
claims can have standing to litigate an access-to-courts
action.” Hadiz v. Johnson, 173 F.3d 958, 964
(6th Cir. 1999). Thus, “even if someone delays a case
or prevents it from coming to court, an actual injury will
not be found unless the underlying claim would have been
successful.” Mikko v. Davis, 342 F.Supp.2d
643, 647 (E.D. Mich. 2004).
Plaintiff's deposition, he testified that he had
difficulties litigating his cases because Defendants
confiscated police reports, trial transcripts, and legal
books. (Pl's. Dep., ECF No. 82-2, PageID.425-26.) But
Plaintiff admitted that he never missed any deadlines or had
any of his cases dismissed as a result of Defendants'
conduct. (Id.) Plaintiff alleges that he could not
file his 6.502 motion because Defendants confiscated it, and
he could not reproduce the motion because he did not have
copies of his transcripts. (ECF No. 84, PageID.463.)
Plaintiff admitted that he filed a request to get another
copy of his transcripts, and had an attorney working on his
criminal appeal. (ECF No. 82-2, PageID.426.)
has not shown that his 6.500 motion would have been
successful if not for Defendants' actions. In fact, the
Michigan Court of Appeals denied Plaintiff's motion for
“lack of merit in the grounds presented.” (ECF
No. 84-2, PageID.474.) Plaintiff argues that the court denied
his motion because he was forced to file without transcripts.
(Id. at PageID.472.) But the court did not provide
an explanation for the denial. Plaintiff has only shown that
Defendants' actions prevented him from filing the motion
with transcripts. Without further information on the validity
of the motion, Plaintiff has failed to show actual injury as
required under Lewis. Rumsey v. Mich. Dep't
of Corr., 327 F.Supp.2d 767, 779 (E.D. Mich. 2004);
Mikko, 342 F.Supp.2d at 646 (granting
defendant's motion to dismiss for failure to state a
claim when plaintiff failed to show actual injury).
Therefore, even if Plaintiff's objection is correct, it
does not affect the Magistrate Judge's recommendation to
grant summary judgment in favor of Defendants on this claim.
alleges that Defendants confiscated his legal property in
retaliation for filing lawsuits. Defendant Smith moved to
dismiss Plaintiff's retaliation claim based on qualified
immunity because he lacked personal involvement. (ECF No. 82,
PageID.407-09.) Qualified immunity is an affirmative defense
that extends to government officials performing discretionary
functions. See Harlow v. Fitzgerald, 457 U.S. 800,
817-18 (1982). Government officials acting within the scope
of their authority are entitled to qualified immunity as long
as their conduct does “not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known.” Id. at 818. It
protects “all but the plainly incompetent or those who
knowingly violate the law.” Humphrey v. Mabry,
482 F.3d 840, 847 (6th Cir. 2007). The Sixth Circuit applies
a two-part test to determine whether a government official is
entitled to the defense of qualified immunity: (1) whether
the plaintiff has shown a violation of a
constitutionally-protected right; and, if so, (2) whether
that right was clearly established such that a reasonable
official would have understood that his behavior violated
that right. Shehee v. Luttrell, 199 F.3d 295,
299-300 (6th Cir. 1999).
argues that Defendant Smith is not entitled to qualified
immunity because he refused to notify Michigan's
Department of Licensing and Regulatory Affairs
(“LARA”) that Plaintiff claimed to have legal
property. Plaintiff contends that Defendant Smith had a clear
legal duty to notify LARA once Plaintiff made this claim, and
his refusal to do was a contributing factor to the violation
of Plaintiff's constitutional rights.
Smith argues that he did not have the final authority to make
a decision whether Plaintiff's property was legal or
personal, and that Defendant Clark was the ultimate decision
maker. Defendant Smith cites the Michigan Department of
Corrections Policy Directive 04.07.112 in support. (ECF No.
82-4, PageID.434-35, ¶ O.) The policy directive provides
that, “[i]f the prisoner's property exceeds
allowable limits due to items claimed to be legal property, a
hearing shall ...