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Simmons v. Liedel

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

July 16, 2019

JUAN SIMMONS, Plaintiff,
S. LIEDEL et al., Defendants.



         This is 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 against Defendants Liedel, Thompson, Ledford, Kelly, and McLean for failure to state a claim, under 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). In addition, all of Plaintiff's claims against Defendant Oja will be dismissed for failure to state a claim, with the exception of Plaintiff's claim that Defendant Oja violated Plaintiff's First Amendment rights when, on December 9, 2018, in retaliation for Plaintiff's filing of an administrative grievance, Defendant Oja wrote a misconduct ticket against Plaintiff.


         I. Factual allegations

         Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Chippewa Correctional Facility (URF) in Kincheloe, Michigan. The events about which he complains occurred at that facility. Plaintiff sues several MDOC employees at URF: mailroom staff person S. Liedel; Resident Unit Manager Unknown Thompson; Prisoner Counselors Unknown Ledford and Unknown Kelly; Corrections Officer Unknown Oja; and Grievance Coordinator M. McLean.

         On May 16, 2018, Plaintiff entered pleas of guilty to charges of armed robbery, Mich. Comp. Laws § 750.529; assault with intent to do great bodily harm, Mich. Comp. Laws § 750.84; and felony firearm, Mich. Comp. Laws § 750.227b, in the Wayne County Circuit Court. See (visited June 10, 2019). On June 12, 2018, the court sentenced Plaintiff to 4 to 25 years for armed robbery and 4 to 10 years for assault with intent to do great bodily harm. Id. Those concurrent sentences were to be served consecutively to a sentence of 2 years for felony firearm. Id. On July 11, 2018, the court appointed attorney Gerald Ferry, 20816 E. 11 Mile Road, Suite 202, St. Clair Shores, Michigan, to serve as Plaintiff's appellate counsel. (Wayne Cty. Cir. Ct. Order, ECF No. 1-2, PageID.19.)

         Plaintiff alleges that he and attorney Ferry visited by institutional video on October 11, 2018. During that visit, attorney Ferry advised Plaintiff that: (1) he was mailing copies of the trial court transcripts and brief to Plaintiff; (2) he would be filing the brief within 2 weeks; (3) Plaintiff should immediately review the brief and transcripts to inform Ferry of any issues Plaintiff would like to raise; and (4) Plaintiff had an 84-day time limit to file a pro per brief.[1] (Compl., ECF No. 1, PageID.4-5.)

         On December 3, 2018, Defendant Liedel prepared a notice of package/mail rejection for mail addressed to Plaintiff. (Notice of Package/Mail Rejection, ECF No. 1-1, PageID.17.) The notice indicated that Plaintiff had received mail: “a package of 1 lb. 2 oz of paperwork . . . too voluminous to search. Legal mail was written in marker on the outside of the envelope; however, [the package] appears to be sent from a member of the pu[b]lic as the return address does not appear to be from a legal entity.” (Id.) The notice identified the policies under which the mail was being rejected:

FF. Only mail received directly from an attorney or a law firm, a legitimate legal service organization, the department of Attorney General, a prosecuting attorney's office, a court, a clerk of the court, a Friend of the Court office, or the Office of the Legislative Corrections Ombudsman is considered legal mail, and only if the mail is clearly identified on the face of the envelope as being from one of the above. It is not sufficient for the envelope to be simply marked “legal mail.”
OO. Mail which prevents an effective search may provide a means of introducing controlled substances, for example Suboxone or Fentanyl, or other contraband which poses a threat to the security, good order, or discipline of the facility.


         On December 6, 2018, Defendant Oja delivered the rejection notice to Plaintiff. Plaintiff requested an administrative hearing. He specifically requested a copy of the envelope to determine if URF had promptly processed the mail. Plaintiff was concerned about the two-month delay between his attorney's promise to send the materials and the processing of the materials at URF. Plaintiff wanted to see the postmark to determine if that delay was the fault of URF.

         Defendants Liedel, Ledford, Kelly, and Thompson either failed to investigate to Plaintiff's satisfaction, participated in the administrative hearing, or communicated the result to Plaintiff. The rejection was upheld. Plaintiff was offered the opportunity to send the mail home. The alternative to sending the material home was its destruction.

         Plaintiff was never provided a copy of the envelope to determine if the delay was the fault of his attorney or URF. Plaintiff alleges that because of the rejection of his legal materials, he was unable to submit a Standard 4 brief in his direct appeal raising three specific issues:

1. Ineffective assistance of trial counsel on plea offer. Trial attorney coerced appellant to take a plea after Trial Judge THREATENED TO DISMISS ALL CHARGES.
2. Ineffective assistance of counsel for failure to contest prosecution withholding VIDEO CAMERA FOOTAGE of . . . Arrest & Search. The VIDEO CAMERA FOOTAGE depicts Detroit Police Officers THREATENING my pregnant girlfriend and myself to take the children unless I admit to the Crime and that we must Consent to a Search of the premises.
3. Ineffective Assistance of Counsel for failure to investigate discovery to contest lack of Probable Cause, Search & Seizure, and failed to file a Suppression Motion.

(Compl., ECF No. 1, PageID.7.)

         Plaintiff either filed a grievance regarding the matter on December 7, 2018, or at least expressed his intention to do so. Plaintiff claims that Defendant Oja threatened Plaintiff the same day: “Mr. Simmons, my PC's say you are giving them shit about your Legal Mail from your Attorney, filing Complaints, and when my PC's tell me you are giving them problems, writing grievances, I handle it.” (Compl., ECF No. 1, PageID.11.) Plaintiff claims Oja made good on the threat on December 9, 2018. On that date, Oja called Plaintiff to the Prisoner Counselor Office, took pictures of Plaintiff's tattoos, and stated:

You have tat[t]oos that you didn't have when you arrived in the Michigan Department of Corrections. I'm writing you a Misconduct Report for DANGEROUS CONTRABAND. Contrary to PD-03.03.105 Attachment A Page 2 which states: “(030) ‘POSSESSION OF DANGEROUS CONTRABAND' “Unauthorized possession of a TAT[T]OO DEVICE, like I told you, when my PC's (Prison Counselor) tell me you cause problems for them, filing complaints and grievances about your Legal Mail, I cause problems for you.”

(Id.) On December 12, 2018, hearing officer O'Brien found Plaintiff guilty of the Class I Misconduct. Plaintiff received a sanction of 15 days of Top Lock. There was no evidence that Plaintiff actually possessed a tattoo device. The finding of guilt was based on the assistance Plaintiff provided to the tattoo artist who used a tattoo device on Plaintiff.

         Even before the URF mailroom processed Plaintiff's package from Attorney Ferry, on November 26, 2018, Attorney Ferry had filed Plaintiff's delayed application for leave to appeal. See (search Michigan Court of Appeals docket number 346499, visited June 10, 2019). The Michigan Court of Appeals denied leave on January 3, 2019. Id. The court of appeals denied relief a mere 38 days after the filing of Plaintiff's application for leave to appeal. Thus, to the extent Plaintiff was entitled to file a Standard 4 brief, Plaintiff was never allowed his 84-day period or even a 7-day period following a notice of submission.

         Plaintiff filed a pro per motion for reconsideration on January 18, 2019. Id. It is not clear from Plaintiff's complaint whether he raised his three “Standard 4” issues in that motion. The court of appeals denied relief on February 26, 2019. Id. Plaintiff then filed a pro per application for leave to appeal on April 24, 2019, presumably raising the three ineffective-assistance-of-counsel issues he raises in this complaint. He filed the complaint in this case the next day.

         Plaintiff claims that just days before he filed this action, on April 15, 2019, at 2:45 p.m., Defendant Thompson visited Plaintiff's cell and woke Plaintiff up. Thompson gave Plaintiff a direct order to report to the lobby officer's desk and threatened Plaintiff with a disobeying-a-direct-order misconduct ticket and an out-of-place misconduct ticket. Then, Thompson stated: “I remember you, I'm going to come wake you up at 6:00 a.m. Why were you sleeping at 2:30 in the afternoon. You are the one writing grievances on all of us for your Legal Mail. I'll be back to wake you up again.” (Id., PageID.10.)

         Plaintiff claims Defendant McClean failed to process a grievance Plaintiff filed against Defendant Oja for the retaliatory contraband misconduct and then failed to process grievances and complaints Plaintiff filed against McClean for McClean's failure to process the Oja grievance.

         Plaintiff claims all of the Defendants colluded to deny Plaintiff equal protection and due process. Plaintiff claims further that the Defendants colluded to interfere with his legal mail and thereby deny Plaintiff access to the courts. Finally, Plaintiff claims that all the Defendants colluded to retaliate against ...

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