United States District Court, W.D. Michigan, Northern Division
J. QUIST UNITED STATES DISTRICT JUDGE.
a civil rights action brought by a state prisoner under 42
U.S.C. § 1983. Under the Prison Litigation Reform Act,
Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), 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, the Court will dismiss
Plaintiff's complaint for failure to state a claim
against Defendants Ojibway Correctional Facility, Michigan
Department of Corrections, Hamel, Washington, and Russell.
is presently incarcerated with the Michigan Department of
Corrections (MDOC) at the Muskegon Correctional Facility
(MCF) in Muskegon, Muskegon County, Michigan. The events
about which he complains, however, occurred at the Ojibway
Correctional Facility (OCF) in Marenisco, Gogebic County,
Michigan. Plaintiff sues OCF, the MDOC, MDOC Director Heidi
Washington, and MDOC Office of Legal Affairs Manager Richard
Russell, together with the following OCF officials: Warden
Kathy Olsen; Grievance Coordinator T. Hamel; Mail Room
Manager (unknown) Hill; and Office Manager (unknown) Lacount.
complaint involves the handling of his legal mail by OCF
personnel. Plaintiff contends that he has completed the
paperwork required to receive special handling of his legal
alleges that, on March 14, 2018, Plaintiff's attorney Mr.
Ferry sent a letter to Plaintiff, advising him that his
appeal had been denied and that Plaintiff needed to file a
motion for reconsideration that presented new evidence and/or
that he needed to file an application for leave to appeal to
the Michigan Supreme Court. Attorney Ferry's package also
contained copies of Plaintiff's trial transcripts, lower
court proceedings, unspecified new evidence, an application
for leave to appeal, and a Michigan Supreme Court package.
Ferry initially mailed the documents to the Earnest C. Brooks
Correctional Facility (LRF), where Plaintiff previously was
housed. Plaintiff, however, had been transferred to OCF. LRF
forwarded the package to OCF, which rejected the mail and
returned it to Attorney Ferry. Ferry reconfirmed
Plaintiff's new address and remailed the package on April
1, 2018, to Plaintiff at OCF, which OCF rejected again.
April 6, 2018, Attorney Ferry sent Plaintiff a legal letter,
advising Plaintiff of his attempts to send the documents that
Plaintiff required for his motion for reconsideration and
application for leave to appeal to the Michigan Supreme
Court, all of which had been rejected by OCF, despite being
marked “legal mail” and being certified. The
letter also advised Plaintiff of his upcoming deadlines.
April 11, 2018, Plaintiff filed a grievance about his
rejected mail, advising that the handling violated policy and
resulted in Plaintiff missing his deadline to file a motion
for reconsideration. Defendant Hill responded that legal mail
was required to be marked “legal mail” and only
counted if it was received directly from the attorney or
other legitimate legal source through an official carrier.
Plaintiff complains that the mail was appropriately marked
and that the rejection of his mail was not handled according
to policy, which would have required that he receive notice
and a hearing on the rejection and that the mail be held for
15 days for this purpose.
sent a kite to Defendant Warden Olson on an unspecified date.
Defendant Olson responded on April 27, 2018, indicating that
Plaintiff should allow the grievance process to proceed.
Olson advised Plaintiff that, if he had specific issues, he
should kite Defendant Lacount, who was the mailroom staff
person. Plaintiff kited Defendant Lacount, who advised him
that OCF had introduced a new policy to ensure that they make
copies of any mail rejection. Plaintiff advised that another
prisoner had his legal mail delivered after the mailroom had
looked up the suspicious attorney address, and he asked why
his legal mail had not received the same treatment. Lacount
responded that Plaintiff's incoming mail was handwritten.
2, 2018, Plaintiff received a letter from the State Appellate
Defender Office (SADO) Deputy Director Kathy Swedlow, who
advised that the failure to deliver Attorney Ferry's
March 14 and April 1, 2018, letters was beyond Attorney
Ferry's control. Swedlow placed the fault on the MDOC.
sent a kite to Defendant Olson on May 10, 2018. He met with
Defendants Olson and Lacount, and he asked why, when Attorney
Ferry's legal mail to Plaintiff was both certified and
labeled “legal mail, ” OCF rejected the mail
twice without informing Plaintiff, thereby denying Plaintiff
his right to seek reconsideration in the court of appeals and
leave to appeal to the supreme court. On May 24, 2018,
Defendant Olson advised Plaintiff that the first of
Ferry's mailings was in an envelope that the prison did
not accept, the return address was “G. Ferry, ”
and the words “Legal Mail” were handwritten. In
addition, the mailing was transferred from another facility.
Olson explained that the mailroom had made the determination
that the envelope did not meet prison policy and therefore
returned the mailing. Plaintiff argues, however, that the
response is unsatisfactory, as the prison did not maintain a
copy of the envelope or a record of its receipt, so they are
fabricating reasons, in violation of prison policy. In
addition, he contends, OCF again rejected Attorney
Ferry's mailing, demonstrating that they had a policy of
rejecting legal mail without notice to the prisoner.
30, 2018, Plaintiff sent a kite to Defendant Hill complaining
that his legal mail was being opened before he received it.
Defendant Hill responded that some courts sent envelopes
sealed only with tape, rather than by wetting the flap.
wrote to Defendant Olson on June 12, 2018, advising her that
the mail being sent by Attorney Ferry was related to his case
and that the rejections of his mail caused him to miss court
dates. Olson advised Plaintiff that he should have Mr. Ferry
send it again, and she informed Plaintiff that there was
nothing more that she could do. She referred Plaintiff to the
law library for help handling his appeal.
12, 2018, Plaintiff was called to the control center for
legal mail. When he arrived, he found that his letter of June
5, 2018, which was directed to the United States Marshal, had
been returned to the prison. The letter also had been opened
and was damaged. The captain in the control center told
Plaintiff that he had never seen that happen before and that
the mail apparently never left OCF. Plaintiff wrote to
Defendant Olson, complaining that his mail was being
interfered with, going and ...