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Porter v. Barsch

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

November 3, 2017

TODD MICHAEL PORTER, Plaintiff,
v.
ANN BARSCH, et al., Defendant.

          ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING PLAINTIFF'S APPEAL OF MAGISTRATE JUDGE ORDER

          GORDON J. QUIST, UNITED STATES DISTRICT JUDGE.

         Plaintiff, Todd Porter, brought a civil rights action pursuant to 42 U.S.C. § 1983 against former Alger Correctional Facility librarian Janice Yoak, arguing that she violated his right of access to the courts and retaliated against him when she refused to provide Plaintiff true copies of a complaint that he filed in Ingham County Circuit Court challenging his misconduct conviction for possession of a weapon. On August 31, 2017, Magistrate Judge Greeley entered an order denying Plaintiff's motion to substitute a defendant party. Magistrate Judge Greeley also issued a Report and Recommendation (R & R) on September 5, 2017, recommending that the Court deny Plaintiff's motion for partial summary judgment and grant Defendant's motion for summary judgment. Plaintiff has filed an appeal to Magistrate Judge Greeley's August, 31, 2017 order. In addition, Plaintiff objected to the R & R on September, 26, 2017, (ECF No. 78), after being granted an extension; Defendant responded to the objection on October 10, 2017. (ECF No. 79.)

         Objection to the R & R

         The magistrate judge concluded that Plaintiff's claims fail because they are barred by the Eleventh Amendment; injunctive relief is moot; and there was not a genuine issue of material fact as to Defendant Yoak's qualified immunity. The magistrate judge further discerned that there was no good-faith basis for an appeal of the R & R if the Court adopts it.

         Pursuant to 28 U.S.C. § 636(b), upon receiving objections to a report and recommendation, the district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” After conducting a de novo review of the R & R, Plaintiff's objections, Defendant's response, and the pertinent portions of the record, the Court concludes that the R & R should be adopted.

         Plaintiff's objection states that the R & R “handles the substantive question (and the extensive facts of the case) with short thrift [sic], misconstrues or ignores key evidence and argument, and reaches the wrong conclusion with improper analysis, ” insisting that the question of whether a constitutional violation occurred be answered “before we can get to whether remedies are precluded or an affirmative defense exists.” (ECF No. 78 at PageID.892.)

         The Court finds no basis in these statements. The R & R consistently applies controlling law to the facts of the case. Redressability, i.e. the remedies question, is a core element of standing and is not a “mere pleading requirement[] but rather an indispensable part of the plaintiff's case.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2136 (1992). Accordingly, it is fundamental civil procedure that, in Plaintiff's words, “we [] get to whether remedies are precluded or an affirmative defense exists” now.

         Plaintiff failed to object to the R & R's conclusion that his claims against Defendant in her official capacity are barred by the Eleventh Amendment. Review of this question is therefore deemed waived. See, e.g., Thrower v. Montgomery, 50 F. App'x 262, 263-64 (6th Cir. 2002).

         As Defendant noted in her response, Plaintiff misapplied Lewis v. Casey by arguing that it established that Plaintiff suffered an actual injury; the citation does not address the metes and bounds of an access-to-courts claim and its accompanying injury. 518 U.S. 343, 353 n.3, 116 S.Ct. 2174, 2181 n.3 (1996). Plaintiff failed to address the R & R's conclusion that access-to-courts claims are limited to direct and collateral attacks on criminal sentences and lawsuits challenging conditions of confinement and that, therefore, Plaintiff failed to allege a violation of a clearly established right to overcome Defendant's qualified immunity. (ECF No. 74 at PageID. 870-72 (citing Lewis, 518 U.S. at 353-55, 116 S.Ct. at 2181-82; Thaddeus-X v. Blatter, 175 F.3d 378, 391 (6th Cir. 1999) (en banc).) Plaintiff fails to cite any controlling law directly on point to demonstrate a violation of a clearly established right. Plaintiff asserted that the magistrate judge “was even more confused in thinking this was an ‘unlimited copies' case rather than a ‘basic supplies' case.” (ECF No. 78 at PageID.901.) Despite Plaintiff's use of quotation marks, the magistrate judge never discussed “unlimited copies.”[1] Plaintiff fails to distinguish the cases cited and discussed in the R & R.

         The R & R provides a well-reasoned and well-supported basis for determining that Defendant reasonably believed that the action she took was justified. (ECF No. 74 at PageID.873-76.) Plaintiff's only persuasive counter to these conclusions is that he could not have used the money from his commissary account to make the copies he sought; if this is indeed accurate, the R & R listed a number of other bases that could have led Defendant to reasonably believe her actions were justified, unrelated to the financial issue. (Id. at 875-76.) This issue is not dispositive.

         Plaintiff disagrees with the R & R's statement that “his pleadings are subject to less stringent standards than those prepared by attorneys.” (Id.) (citing Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285 (1979); Haines v. Kerner, 404 U.S. 519, 92 S.Ct.594 (1972)). Plaintiff states that “the federal magistrate forgets Plaintiff was operating in the underlying case in the Michigan court system, not federal, ” and that under Michigan law, a pro se litigant is held to the same standard as a licensed attorney. (ECF No. 78 at PageID.905) (citing Baird v. Baird, 368 Mich. 536, 539, 118 N.W.2d 427, 428 (1962)). Regardless of whether the magistrate judge “forgot” the issue was before the Michigan courts, the R & R was correct in applying Estelle and Gamble. Plaintiff misstates the Baird holding, expanding what was a narrow holding into a broad one.[2] In fact, Michigan courts have repeatedly applied the Estelle and Haines holding that pro se litigants are held to less stringent standards. See, e.g., People v. Herrera, 204 Mich.App. 333, 339, 514 N.W.2d 543, 546 (1994); Brock v. Winding Creek Homeowners Ass'n, No. 328848, 2017 WL 1488994, at *2 (Mich. Ct. App. Apr. 25, 2017) (“a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers, ” (quoting Estelle, 429 U.S. at 106, 197 S.Ct. at 292) (internal quotations omitted)); LaCoss v. Birkett, No. 207666, 2000 WL 33423175, at *2 (Mich. Ct. App. Apr. 21, 2000).

         Plaintiff objects to the R & R's conclusion that the injunctive relief Plaintiff seeks is moot. As noted by the Defendant, Plaintiff does not rely on nor address the correct standard. Injunctive relief is “unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again- a likelihood of substantial and immediate irreparable injury.” City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 1670 (1983) (internal quotation marks omitted) (finding that the “speculative nature” of the claims at issue precluded equitable relief). Plaintiff is no longer incarcerated, and Defendant Yoak has retired. However, Plaintiff argues that “Plaintiff's hypothetically [sic] assertion that he may commit a crime in the future and be housed at the Alger Correctional Facility when Defendant Yoak returns to service from retirement shows lack of impossibility of reoccurrence.” (ECF No. 78 at PageID.907.) Although Plaintiff is correct that such a wild series of events is not impossible, that is not the standard and does not begin to scratch the surface of the Lyons likelihood standard.

         Plaintiff's final objections to the R & R focus on his retaliation claim. The R & R concluded that Plaintiff could not meet his requisite burden and cannot establish a genuine issue of material fact to defeat summary judgment. (ECF No. 74 at PageID.877.) As discussed, Defendant acted reasonably, and her actions could not be described as “adverse.”

         Plaintiff repeatedly argues that the warden issued a “command” that a copy be made for Plaintiff, based on a quote from his two grievances that Plaintiff “should resubmit [his] request for one copy . . . and that one copy will be made.” (ECF No. 78 at PageID.909. However, Plaintiff conveniently omits the noun in the quoted passage, which begins “[l]ibrary staff have indicated that you should resubmit your request . . .” (ECF No. 59-23 at PageID.458) (emphasis added). The “library staff indicated, ” not “the warden commands.” The warden's signature does not change which actor indicated that Plaintiff should resubmit his request. This was a statement of what the library staff, i.e. Defendant, sought in responding to Plaintiff's grievances. Later, when Plaintiff did resubmit his request, Defendant denied it because of “inadequate funds, and does not qualify for a legal photocopy loan.” (ECF No. 59-26 at PageID.464.) ...


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