Opinion
Case No. 4:00-cv-8.
Dated: February 11, 2000.
JUDGMENT
In accordance with the opinion filed this date:
IT IS ORDERED that plaintiff's action be dismissed for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915A and 42 U.S.C. § 1997e(c).
For the same reasons that the court dismisses the action, the court discerns no good-faith basis for an appeal. 28 U.S.C. § 1915(a)(3); McGore v. Wriggilesworth, 114 F.3d 601, 611 (6th Cir. 1997).
This is a dismissal as described by 28 U.S.C. § 1915(g).
OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. Plaintiff has paid the $150.00 civil action filing fee. 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 42 U.S.C. § 1997e(c); 28 U.S.C. § 1915A. 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.
Discussion I. Factual Allegations
Plaintiff is presently incarcerated at the Muskegon Correctional Facility ("MCF"). In his complaint, he sues the Director of the Michigan Department of Corrections, William Martin; Warden Terry Pitcher, Resident Unit Manager David Shottey, Mark Malone, Librarian Gerard Gresels, Grievance Coordinator Bruce Maybee, School Principal Michael Barnett, Assistant Deputy Warden R. Thibault, and Prisoners' Fund Supervisor Kathie Ayotte. Plaintiff's complaint concerns the denial of library photocopying services, despite plaintiff's ability to pay.
The following facts are as alleged by plaintiff. Apparently, the practice at MCF is to permit prisoners to use the copy machine by inserting a card that has funds electronically stored on it. An inmate may have a maximum of $75.00 on the card for use over a two-week period. On January 19, 2000, plaintiff had $80.15 worth of copying, and he believed that he would have additional copying needs in the following weeks. Plaintiff did not have enough funds on his card to pay for his copying. He submitted requests for disbursement from his prison trust account.
Defendant Shottey refused to sign the requests and told plaintiff that he would have to use up the money on his store card, and then wait two weeks to have additional funds put on the card. Plaintiff indicated that he could not wait that long. Librarian Gresels refused to copy plaintiff's legal papers without a disbursement signature from Shottey. Plaintiff alleges that Shottey conspired with all of the other defendants, except MDOC Director William Martin and Mark Malone. Regarding Malone, plaintiff contends that he refused to allow plaintiff to submit disbursements for photocopying on three occasions, and told plaintiff to go ahead and sue him.
According to plaintiff, prison policy does not require photocopying to be paid for through use of the store card, and the prison store is not authorized to provide photocopying services. Plaintiff alleges that the refusal to allow him to use the library's photocopying service is effectively denying him "meaningful access to the documents that are required by Courts, Clerks, attorneys, and U.S. Senator Spencer Abraham's request." (Compl. at 4.) Plaintiff does not identify the nature of the litigation that allegedly was affected by the denial of photocopying services. He only states that approximately $27.00 of the $80.15 was for the Michigan Court of Appeals, and the remaining $53.00 was to satisfy a request from Senator Abraham. Senator Abraham's letter is attached to plaintiff's complaint. The letter does not indicate what subjects plaintiff was attempting to have addressed, and only mentions plaintiff's "concerns."
Plaintiff contends that defendants have violated his right of access to the courts and the Racketeer Influenced and Corrupt Organizations Act ("RICO"). Plaintiff also contends that he has been discriminated against because he is white, and he knows a black prisoner who had a balance of $100.25 on his prison store card. Further, plaintiff asserts that defendants have violated the prison policy, which provides that all libraries shall provide prisoners copies of items for legal documents for a reasonable fee. See MICH DEP'T OF CORR., Policy Directive 05.03.115, ¶ W (effective Jan. 30, 1995). He also contends that defendants have violated policy by refusing to recognize that photocopying services are not on the state-mandated prisoner store list. See MICH. DEP'T OF CORR., Policy Directive 04.02.130, Attach. A (effective Sept. 6, 1999).
For relief, plaintiff requests a declaratory judgment that his constitutional rights have been violated and an injunction to prevent defendants from refusing further copying services and from increasing copying fees. Plaintiff also seeks compensatory and punitive damages totaling $15,000,000 (fifteen million dollars).
II. Exhaustion of available administrative remedies
As a threshold matter, plaintiff has not demonstrated exhaustion of his available administrative remedies. Pursuant to 42 U.S.C. § 1997e(a), a prisoner bringing an action with respect to prison conditions under 42 U.S.C. § 1983 must exhaust available administrative remedies. A district court must enforce the exhaustion requirement sua sponte. Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.), cert. denied, 119 S.Ct. 88 (1998); accord Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir. 1999). A prisoner must exhaust available administrative remedies, even if the prisoner may not be able to obtain the specific type of relief he seeks in the state administrative process. See Hartsfield v. Vidor, No. 98-1914, ___ F.3d ___, 1999 WL 10841118, at *3 (6th Cir. Dec. 3, 1999) (to be reported at 199 F.3d 305); Wyatt, 193 F.3d at 878-79;Freeman v. Francis, 196 F.3d 641, 643 (6th Cir. 1999).
Plaintiff's claims are the type of claim that may be grieved. See MICH. DEP'T OF CORR., Policy Directive 03.02.130, ¶ E (effective October 11, 1999) (may grieve "alleged violations of policy and procedure or unsatisfactory conditions of confinement"). A prisoner must allege and show that he has exhausted all available administrative remedies and should attach to his § 1983 complaint the administrative decision disposing of his complaint, if the decision is available. Brown, 139 F.3d at 1104. To assist prisoners in meeting this requirement, this Court's form complaint advises prisoners to attach copies of documents evidencing exhaustion. The form complaint, which is required by local rule, is disseminated to all the prisons. See W.D. MICH. LCIVR 5.6(a). Plaintiff has chosen to forego use of the form complaint in this action. He has failed to attach any document evidencing exhaustion of administrative remedies.
In Michigan, prisoners commonly bring their claims in a three-step process, which generally means filing a grievance with the Step I grievance coordinator, appealing to the warden at Step II, and concluding with an appeal to the MDOC Director at Step III. See MICH. DEP'T OF CORR., Policy Directive 03.02.130 (effective Oct. 11, 1999). Plaintiff alleges that his grievances are being "spinned" by Grievance Coordinator Bruce Maybee and that grievances "take too long to remedy whereas Plaintiff has Court deadlines or Appeals or MOTIONS, or AMENDMENTS that do not require notice from the Courts." (Compl. at 6-7.) Plaintiff also states that more than ninety percent of the grievances are dismissed "thereby causing long delays in procedural process that defendants have total control over." (Compl. at 7.)
It is unclear what plaintiff means by his contention that the Grievance Coordinator Bruce Wybee is "spinning" his grievances. Presumably, plaintiff means that Maybee is not properly processing the grievances. However, a rejection of a grievance maybe appealed. Policy Directive 03.02.130, ¶ H. Also, if a grievant does not receive a timely Step I response, the grievant may appeal to Step II. Policy Directive 03-02.130, ¶ T. The Sixth Circuit has held that a "plaintiff must continue to the next step in the grievance process within the time frame set forth in the regulations if no response is received from prison officials or if the prisoner is not satisfied with the response. Hartsfield, 1999 WL 1084118, at *3. An inmate cannot abandon the process before completion and claim that he has exhausted his remedies. Id. Thus, Maybee's "spinning" of grievances does not excuse plaintiff's failure to complete the grievance process.
Further, there is no merit in plaintiff's argument that the grievance process is futile because it takes too long and because defendants have control over the process. The Sixth Circuit, in unpublished decisions, has explicitly rejected these types of futility arguments. See Alford v. Vakilian, No. 984079, 1999WL 775772, at *1 (6th Cir. Sept. 24, 1999) ("Although Alford argues in a conclusory fashion that it would be futile to exhaust his administrative remedies, review of the remedies provided in OHIO ADMIN. CODE § 5120-9-31 indicates that they are adequate to address his concerns."); Lane v. Russell, No. 98-3533, 1999 WL 196528, at *2 (6th Cir. March 22, 1999) ("Lane's stated belief that exhaustion would have been futile because he would have had to present his claim to the prison officials he sues in this case cannot excuse him from the explicit statutory language requiring exhaustion of `available' administrative remedies."), cert. denied, 120 S.Ct. 235 (1999). Consequently, the Court finds that plaintiff has not presented any reason to excuse his failure to exhaust available administrative remedies, despite the lack of exhaustion, the Court may dismiss plaintiff's action on the merits, The Court need not first require exhaustion when the claim may be dismissed because it is, "on its face, frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief" 42 U.S.C. § 1997e(c)(2); Brown, 139 F.3d at 1103. Plaintiff's complaint fails to state a claim upon which relief can be granted.
III. Failure to state a claim
A complaint fails to state a claim upon which relief can be granted when it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint. Jones v. City of Carlisle, 3 F.3d 945, 947 (6th Cir. 1993), cert. denied, 510 U.S. 1177 (1994). 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); Street v. Corrections Corp. of America, 102 F.3d 810, 814 (6th Cir. 1996). 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).
A. Access to the courts
Plaintiff claims that he was denied access to the courts by defendants' refusal to allow him to pay for and make photocopies of legal documents. It is well established that prisoners have a constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817, 821 (1977). The principal issue in Bounds was whether the states must protect the right of access to the courts by providing law libraries or alternative sources of legal information for prisoners. Id. at 817. The Supreme Court further noted that in addition to law libraries or alternative sources of legal knowledge, the states must provide indigent inmates with "paper and pen to draft legal documents, notarial services to authenticate them, and with stamps to mail them." Id. at 824-25.
However, the right of access to the courts "is not interpreted as requiring unlimited access to photocopiers." Hawk v. Vidor, No. 92-2349, 1993 WL 94007, at *1 (6th Cir. March 31, 1993) (citingSands v. Lewis, 886 F.2d 1166, 1169 (9th Cir. 1989). As noted by the Seventh Circuit, "broad as the constitutional concept of liberty is, it does not include the right to xerox." Jones v. Franzen, 697 F.2d 801, 803 (7th Cir. 1983). Rather, to state a claim based on denial of photocopying privileges, the inmate must show that the denial prevented him from exercising his constitutional right of access to the courts. Jones, 697 F.2d at 803; accord Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir. 1985) ("[P]rison regulations which reasonably limit the times, places, and manner in which inmates may engage in legal research and preparation of legal papers do not transgress the constitutionally protected rights so long as the regulations do not frustrate access to the courts."); Johnson v. Parke, 642 F.2d 377, 380 (10th Cir. 1989) ("when an inmates' access to the courts is not unduly hampered by the denial of access to [photocopying] machinery, he cannot complain").
In order to state a viable claim for interference with his access to the courts, a plaintiff must show "actual injury." Lewis v. Casey, 518 U.S. 343, 349 (1996); see also Talley-Bey v. Knebl, 168 F.3d 884, 886 (6th Cir. 1999); Knop v. Johnson, 977 F.2d 996, 1000 (6th Cir. 1992), cert. denied, 507 U.S. 973 (1993). In other words, a plaintiff must plead and demonstrate that the shortcomings in the prison legal assistance program or lack of legal materials have hindered, or are presently hindering, his efforts to pursue a nonfrivolous legal claim. Lewis, 518 U.S. at 351-353; see also Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). The Supreme Court has strictly limited the types of cases for which there may be an actual injury:
Bounds does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.Lewis, 518 U.S. at 355. "Thus, a prisoner's right to access the courts extends to direct appeals, habeas corpus applications, and civil rights claims only." Thaddeus-X v. Blatter, 175 F.3d 378, 391 (6th Cir. 1999) (en banc). Moreover, the underlying action must have asserted a non-frivolous claim. Lewis, 518 U.S. at 353;accord Hadix v. Johnson, 182 F.3d 400, 405 (6th Cir. 1999) (Lewis changed actual injury in the Sixth Circuit to include requirement that action be non-frivolous).
Plaintiff has failed to identify the subject of his litigation or the reason for which he was seeking assistance from Senator Abraham. Thus, there is no indication that plaintiff's "legal documents" concerned the type of action — civil rights or habeas — for which a right of access to the courts does lie. Further, there is no basis from which to determine whether plaintiff's litigation was nonfrivolous, Moreover, even assuming that plaintiff was pursuing nonfrivolous habeas or civil rights claims, plaintiff has not indicated how the lack of copies somehow prevented or hindered him from pursuing those claims. Plaintiff's vague allegations are insufficient to meet the actual injury requirement for a claim of denial of access to the courts. Accordingly, he fails to state a claim for a denial of his right of access to the courts.
Plaintiff claims that defendants' conduct constitutes racketeering in violation of 18 U.S.C. § 1962 (RICO). To sustain a claim, plaintiff must allege that he was injured in his business or property. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 495 (1985) (citing 18 U.S.C. § 1964(c)). Plaintiff has failed to allege such facts. Moreover, his RICO claim is patently frivolous.See, e.g., Worthy v. Thornton, No. 97-4405, 1998 WL 939889, at *2 (6th Cir. Dec. 22, 1998) (affirming district court's dismissal of inmate's RICO claim as frivolous); Williams v. Jabe, Nos. 94-1169, 94-2171, 1995 WL 236688, at *1 (6th Cir. April 21, 1995) (district court did not abuse its discretion in denying inmate's motion to amend to add RICO claim because claim was frivolous), cert. denied 516 U.S. 1067 (1996). Accordingly, the court will dismiss his claim.
C. Equal protection
Plaintiff contends that he has been racially discriminated against because he is white, and he knows a black prisoner who had an available balance of $100.25 on his prison store card, when the limit it $75.00. To establish a violation of the Equal Protection Clause, an inmate must show that the defendants purposefully discriminated against him. Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265 (1977); Copeland v. Machulis, 57 F.3d 476, 480 (6th Cir. 1995). Such discriminatory purpose must be a motivating factor in the actions of the defendants. Arlington Heights, 429 U.S. at 265-66;see also Knop, 977 F.2d at 1013-14 (equal protection violated by a pattern of harassment that shows a selective discriminatory purpose). Conclusory allegations of racial discrimination are insufficient to establish liability. Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir. 1986). All that plaintiff's allegations demonstrate is that it is mere happenstance that another prisoner, who happens to be black, had a higher available balance on his store card than did plaintiff. Plaintiff has failed to make any factual allegations to show that defendants purposefully allowed black prisoners to have higher balances on their cards while denying the same privilege to white prisoners. Accordingly, he fails to state a claim for a violation of his right to equal protection of the laws.
D. Conspiracy
Plaintiff alleges that defendants conspired together to deny him photocopying services. To state a claim for conspiracy, a plaintiff must plead with particularity, as vague and conclusory allegations unsupported by material facts are insufficient.Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987); Smith v. Rose, 760 F.2d 102, 106 (6th Cir. 1985); Pukyrys v. Olson, No. 95-1778, 1996 WL 636140 at *1 (6th Cir. Oct. 30, 1996). A plaintiff's allegations must show (1) the existence or execution of the claimed conspiracy, (2) overt acts relating to the promotion of the conspiracy, (3) a link between the alleged conspirators, and (4) an agreement by the conspirators to commit an act depriving plaintiff of a federal right. Lepley v. Dresser, 681 F. Supp. 418, 422 (W.D.Mich. 1988). "[V]ague allegations of a wide-ranging conspiracy are wholly conclusory and are, therefore, insufficient to state a claim" Hartsfield v. Mayer, No. 95-1411, 1196 WL 43541, at *3 (6th Cir. Feb. 1, 1996). Plaintiff's allegations of a wide-ranging conspiracy among the defendants are vague, conclusory and speculative. Moreover, his claims do not pertain to the deprivation of a federal right. Therefore, plaintiff fails to state a claim for conspiracy.
E. State law claims
Plaintiff alleges that defendants have violated prison policy by refusing to allow him to submit disbursement requests to pay for photocopying services. The failure to follow a policy directive does not rise to the level of a constitutional violation because a policy directive does not create a protectible liberty interest.McVeigh v. Bartlett, No. 94-23347, 1995 WL 236687, at *1 (6th Cir. April 21, 1995); see also Barber v. City of Salem, 953 F.2d 232, 240 (6th Cir. 1992) (failure to comply with the administrative rules does not itself rise to the level of a constitutional violation). Section 1983 does not provide redress for a violation of a state law. Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995); Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir. 1994), cert. denied, 513 U.S. 1158 (1995). To the extent that plaintiff's complaint presents allegations under state law, this court declines to exercise jurisdiction. See Faughender v. City of North Olmsted, Ohio, 927 F.2d 909, 917 (6th Cir. 1991); Coleman v. Huff, 1998 WL 476226, at *1 (6th Cir. Aug. 3, 1998). Accordingly, plaintiff's state law claims are dismissed without prejudice.
Conclusion
Having conducted the review now required by the Prison Litigation Reform Act, the court determines that plaintiff's action fails to state a claim and will therefore be dismissed pursuant to 28 U.S.C. § 1915A(b) and 42 U.S.C. § 1997e(c).
The court must next decide whether an appeal of this action would be in good faith within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997). For the same reasons that the court dismisses the action, the court discerns no good-faith basis for an appeal. Should plaintiff appeal this decision, the court will assess the $105 appellate filing fee pursuant to § 1915(b)(1), See McGore, 114 F.3d at 610-11, unless plaintiff is barred from proceeding in forma pauperis, e.g., by the "three-strikes" rule of § 1915(g). If he is barred, he will be required to pay the $105 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A judgment consistent with this opinion will be entered.