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Kenny v. Washington

United States District Court, W.D. Michigan, Northern Division

July 21, 2017

JAMES MICHAEL KENNY, Plaintiff,
v.
HEIDI E. WASHINGTON, Defendant.

          OPINION

          GORDON J. QUIST UNITED STATES DISTRICT JUDGE.

         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 denied a copy of the two page form used to commence a civil rights action in federal court[1]. 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 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 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, ...


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