David E. CLARK, Plaintiff-Appellant, v. N. JOHNSTON, et al., Defendants-Appellees.
No. 09-3068.
United States Court of Appeals, Sixth Circuit.
Jan. 25, 2011.
410 Fed. Appx. 804
BEFORE: KENNEDY, COLE, and ROGERS, Circuit Judges.
Although Rivera is not the law of this circuit, we note that it is distinguishable from Abbott because, in Rivera, the state-court judgment could be enforced (that is, the defendant could collect the debt) in a manner that did not give rise to the cause of action for unfair tactics; as such, the conduct was severable from the state-court judgment. In Abbott, however, the state-court judgment created a right to pension benefits that would give rise to the cause of action regardless of how it was enforced, because the cause of action was for the taking of the pension benefits in and of itself. The § 1983 claim against Thornton is more analogous to Abbott than to Rivera. Here, the state-court judgment gave Harvest Missionary Baptist Church (“Harvest“) the right to title to a property and authorized Thornton to transfer that title in the event that the Edwards companies neglected to do so. Thornton‘s transfer of that title was a strict execution of the state-court judgment. The Edwards companies’ claim-that Thornton unconstitutionally transferred title because he should have known that the state-court judgment was void-is an attack on the judgment itself, because there is no method that Thornton or Harvest could have used to enforce the judgment that would not have given rise to this claim. As such, Abbott applies, and the claim is subject to Rooker-Feldman.
Second, relying on Gilbert v. Illinois State Board of Education, 591 F.3d 896, 901-02 (7th Cir.2010), and Kelley v. Med-1 Solutions, 548 F.3d 600, 605-06 (7th Cir.2008), the Edwards companies argue that an exception to Rooker-Feldman applies because they were not afforded a “reasonable opportunity” to litigate their § 1983 claim in state court. However, as noted in Kelley, 548 F.3d at 607, this Court has eliminated the “reasonable opportunity” exception. See Abbott, 474 F.3d at 330. Because the § 1983 claim against Thornton is not severable and no exception applies, it is barred by the Rooker-Feldman doctrine and we lack subject matter jurisdiction to consider it.
Therefore, we AFFIRM the dismissal of the Edwards companies’ claims for the reasons stated above and in the district court‘s opinion.
Plaintiff David E. Clark challenges the district court‘s grant of summary judgment for defendants, Art James and L. Johnson, in Clark‘s claim under
I.
In March 2007, Clark, a prisoner in the Ohio State Penitentiary (OSP) acting pro se, filed a civil rights complaint against various prison officials pursuant to
On June 27, 2007, Clark filed an amended complaint with the district court. This complaint included the same thirteen defendants and added four more named defendants and one John Doe. In his amended complaint, Clark alleged violations of his Fourteenth Amendment property rights, equal protection rights, First Amendment rights, Sixth Amendment rights, and Eighth Amendment rights. Clark claimed that prison staff “conspir[ed] to violate [his] constitutional rights both for [his] participation and testimony in federal court in a class action against [the prison], and for [his] complaints against some of them individually.” In particular, Clark asserted that he was deprived of various items of personal property in violation of established prison policy, selectively chosen by prison officials for enforcement action, retaliated against for filing complaints and grievances against prison officials, threatened by a prison official, denied access to the courts through the deprivation of his legal property, placed in segregation pursuant to false conduct reports, and entrapped into making a forbidden three-way telephone call and subsequently punished for this call.
On July 12, 2007, the district court dismissed all of Clark‘s claims sua sponte and pursuant to
Shortly thereafter, Clark moved to alter or amend this
In January 2008, the magistrate judge submitted his Interim Report and Recommendation in regard to Clark‘s motion to alter or amend the
Plaintiff claims that he was unable to plead the non-frivolous nature of his claims because he is unable to remember the basis of his claims without access to the legal materials that he alleges the prison officials seized. Plaintiff further claims that he intends to file a Rule 26(B) Application for Reopening of Appeal and a federal habeas corpus petition. Lastly, Plaintiff contends that he can show good cause as to why he did not file a 26(B) motion within 90 days, as the Rule requires, and he contends that he is able to make a strong showing of actual innocence that would permit him to file a petition for habeas corpus that would otherwise be barred.
(Citations omitted.) Though the magistrate judge “agree[d] with Judge Lioi‘s application of the law and [found] no clear error,” he urged the trial judge to use her discretion under
Clark moved for summary judgment on the issue of qualified immunity in June 2008. In his motion, Clark argued that he was engaged in constitutionally protected conduct when defendants took adverse actions against him, that these adverse actions were motivated by this constitutionally protected conduct, and that defendants would not have taken these actions had the protected conduct not occurred. Further, Clark claimed that “by failing to respond in the time [allotted] pursuant to
The magistrate judge, in his second Interim Report and Recommendation, suggested that the district court deny Clark‘s motion, grant defendants’ motion in part, and deny defendants’ motion in part. In particular, the magistrate judge recommended that the district court grant defendants’ motion for summary judgment on qualified immunity “insofar as it relates to alleged acts taken in retaliation for Plaintiff‘s pursuit of: an informal grievance that he voiced to [ODRC] chief legal counsel during his tour of OSP; appeals from his criminal conviction; or other grievances upon which Plaintiff was attempting to exhaust his administrative remedies,” and “insofar as it relates to [Clark‘s] participation in a federal class action suit against OSP ... and Defendant Johnson‘s alleged participation in a false conduct report dated June 2, 2005.” However, the magis-
After the magistrate judge issued his recommendation, the defendants moved for leave to withdraw and amend their responses to the request for admissions pursuant to
In December 2008, the district court issued a Memorandum Opinion and Order granting defendants’ motion for leave to withdraw their response to the request for admissions, and granting defendants’ motion for summary judgment on the issue of qualified immunity. In regard to the motion for leave to withdraw, the district court framed the defendants’ request as follows:
[Defendants] argue that the requests went beyond the permissible scope of discovery on qualified immunity. They seek leave to withdraw the May 7th responses or, in the alternative, for an order that, even if the deemed admissions are not withdrawn, they are not relevant to the issue of qualified immunity and, therefore, have no bearing on the analysis for the motions for summary judgment.
Regarding defendants’ motion for summary judgment, the district court stressed its previous
Although the complaint makes mention of the fact that plaintiff was a party to the federal class action law suit, it never alleges that Johnson and James, the only remaining defendants, had any knowledge of his participation in that litigation and, more importantly, the complaint never alleges any nexus between the defendants’ adverse behavior (i.e., the alleged false conduct reports) and his participation in prior litigation.
Plainly put, the complaint does not allege that the three allegedly false conduct reports were motivated by retaliation for plaintiff‘s participation in the now-closed federal class action lawsuit. Instead, according to the district court, Clark alleged that the May 12, 2005 conduct report was motivated by Clark‘s complaints to the ODRC official, Clark implied that the May 5, 2005 conduct report, if anything, was motivated by these same complaints, and Clark failed to assert that the June 5, 2005 conduct report was done in retaliation for participating in the class action suit. Finally, the district court appeared to imply that summary judgment would be appropriate even if it had not granted defendants’ motion to withdraw their responses to admissions, when noting that “even if there were an outright admission that James entrapped Plaintiff into a disciplinary violation, there is nothing to establish that it was done in retaliation for participating in a class action lawsuit.” Clark now appeals these rulings.
II.
As a preliminary matter, Clark alleges that the district court should have considered both his original and amended complaints in making its rulings, but Clark did not clearly incorporate the former with his filing of the latter. When a pleading is amended pursuant to
III.
Because Clark failed to establish that the underlying claim he was allegedly retaliated for had any merit-one of the elements required to prove a First Amendment retaliation claim-no constitutional violation occurred. The district court was therefore warranted in finding defendants immune from suit and, thus, in granting summary judgment on this issue in their favor. Clark alleges that defendants are not entitled to qualified immunity because they violated his First Amendment rights when they retaliated against him after he complained to an ODRC official visiting the prison about the general conditions of the prison.3 In order to demonstrate a First Amendment retaliation claim, Clark needed to prove among other things that he engaged in protected conduct in the first place. Siggers-El v. Barlow, 412 F.3d 693, 699 (6th Cir.2005) (citing Thaddeus-X v. Blatter, 175 F.3d 378, 393 (6th Cir.1999) (en banc)).
Clark failed to show that he was engaged in protected conduct when the defendants allegedly retaliated against him. Although “[a]n inmate has an undisputed First Amendment right to file grievances against prison officials on his own behalf, ... [t]his right is protected ... only if the grievances are not frivolous.” Herron v. Harrison, 203 F.3d 410, 415 (6th Cir.2000). In other words, an inmate‘s pursuit of grievances against prison officials can constitute protected conduct for purposes of a retaliation claim, but “only to the extent that the underlying claims ha[ve] merit.” Id.
Summary judgment was proper for Clark‘s retaliation claim based on the complaints he made about OSP officials to an ODRC official because there was no basis shown for the underlying complaint. Though Clark continually asserts that he complained to the ODRC official in an attempt to gain access to his legal property, and, by doing so, gain access to the courts, he fails to present any evidence regarding the legitimacy of his complaints regarding his legal property or regarding his denial of access to courts. In his amended complaint, Clark alleges only that he “was speaking to the chief legal counsel for the [ODRC] about [his] confiscated legal property when the UMA (Unit Management Administrator) interjected himself in the conversation, he didn‘t like [Clark‘s] complaints about [the UMA‘s] job
Then when defendant James was telling [the ODRC official] that he and other staff had been trying to help plaintiff with his property issue and plaintiff pointed out to [the ODRC official] that defendant James hadn‘t even answered the complaint on the issue that he had instructed plaintiff to send, James ordered plaintiff to go to his cell for no reason (even though plaintiff hadn‘t eaten lunch yet).
Neither filing demonstrates that Clark‘s complaints about the defendants’ job performance were legitimate, nor that his complaints about the defendants failing to answer his previous grievances were not frivolous. Thus, Clark failed to show that he was engaged in protected conduct when the defendants acted adversely against him. Without such a showing, Clark cannot make out a constitutional violation, and defendants are entitled to qualified immunity on this retaliation claim.
Clark relies on Siggers-El v. Barlow to support his argument for reversal, but that case is distinguishable. Siggers-El involved an inmate‘s suit against a prison official for allegedly transferring the inmate in retaliation for the inmate‘s complaining to the official‘s supervisors that the official had not authorized disbursements from the prisoner‘s account to pay his lawyer. 412 F.3d at 696. The defendant in Siggers-El moved for summary judgment on the basis of qualified immunity and the district court denied this motion. Id. On appeal, this court upheld the district court‘s denial despite the defendant‘s arguments that Siggers-El failed to demonstrate that he was engaged in protected conduct or that he suffered an adverse action. Id. at 699-702. In particular, the defendant argued “that although a prisoner has a right to file non-frivolous lawsuits and grievances, a prisoner may not, as the Plaintiff did, orally complain to an officer‘s superior regarding the officer‘s conduct,” because that “is ‘inconsistent with [plaintiff‘s] status as a prisoner or with the legitimate penological objectives of the corrections system.‘” Id. at 699 (alteration in original). However, this court did not accept that the defendant accurately characterized Siggers-El‘s conduct, as the conduct was not merely going over defendant‘s head, but rather was “part of [Siggers-El‘s] attempt to access the courts,” which prisoners have a constitutional right to do. Id. Moreover, we explained that the record did not support the defendant‘s contention that Siggers-El‘s actions conflicted with legitimate penological objectives, as the defendant admitted that Siggers-El did nothing wrong and the defendant‘s supervisors legitimated Siggers-El‘s complaints by responding to them. Id. at 700-01.
Siggers-El did not suffer from the same deficiency in his argument as Clark does in this case because the prison supervisors, and even the defendant himself, legitimated Siggers-El‘s informal complaints. The problem with Clark‘s case is not that his complaint was informally made, but that it has not been shown to have had any merit. However, unlike the district court in Clark‘s case, the district court in Siggers-El‘s case did not address the merits of his complaint, and the defendant did not contest that on appeal. Because Clark did not establish any constitutional violation, the district court correctly granted summary judgment in favor of defendants.4
Clark‘s remaining claims were dismissed early in the proceedings for failure to state a claim. Unlike the retaliation claim discussed above, these dismissals were pursuant to
A.
Clark adequately pleaded a First Amendment retaliation claim against the defendants based on his participation in a class action lawsuit and the filing of other complaints and grievances, which allegedly led to the confiscation of his personal and legal property.5 “To state a claim alleging retaliation for exercising a constitutional right, a plaintiff must show that (1) he engaged in protected conduct; (2) that defendant took an adverse action against him ...; and (3) that the adverse action was taken (at least in part) because of the protected conduct.” Id. at 440 (citing Thaddeus-X, 175 F.3d at 394). Clark clearly pleaded the first element. We have already noted that the filing of grievances against OSP officials constitutes protected conduct as long as the grievance is not frivolous, and there is no duty to plead that a grievance is not frivolous in order to survive dismissal at the pleading stage. See id.
As for the second element, “[i]n order to determine whether actions of lesser severity [than administrative segregation] merit being deemed ‘adverse’ for purposes of a retaliation claim,” this court must ask whether the “adverse action is one that would ‘deter a person of ordinary firmness’ from the exercise of the right at stake.” Thaddeus-X, 175 F.3d at 396 (quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir.1982)). “[W]hile certain threats or deprivations are so de minimis that they do not rise to the level of being constitutional violations, this threshold is intended to weed out only inconsequential actions, and is not a means whereby solely egregious retaliatory acts are allowed to proceed past summary judgment.” Id. at 398. In Bell v. Johnson, 308 F.3d 594 (6th Cir.2002), this court found that evidence showing that defendants left plaintiff‘s cell in disarray, confiscated his legal papers with-
As for the third element, “[b]ecause the question is whether the adverse action was taken (at least in part) because of the protected conduct, the causation inquiry centers on the defendant‘s motive.” Thomas, 481 F.3d at 441. It cannot be said that Clark has failed to state any claim for retaliation upon which relief may be granted, especially when considering the less stringent pleading requirements for pro se litigants. In his complaint, Clark alleges that his constitutional rights were violated “both for [his] participation and testimony in federal court in a class action against OSP, and for [his] complaints against some of them individually.” Clark further claims that the “2.4 cubic feet and pack-up procedures” were inadequate, and that application of them to him violated his First Amendment rights “because these adverse actions were taken against [him] for exercising [his] rights to access the courts and filing complaints and grievances.” According to these allegations, Clark might be able to put forth evidence connecting these officers’ actions to Clark‘s involvement in a class action lawsuit, entitling Clark to relief for retaliation. Even if it is unlikely that Clark will prove these facts, that does not make dismissal appropriate. See id. at 437. Thus, Clark adequately pleaded retaliation, through the confiscation of his property, for his involvement in a class action lawsuit and his filing of other complaints and grievances.67
B.
Because Clark did not adequately plead a denial-of-access-to-courts claim, the district court was correct in dismissing this
Clark failed to adequately plead any specific prejudice to a non-frivolous claim that he suffered because of the defendants’ alleged denial of access to courts. In his amended complaint, Clark asserted only that “the confiscation of [his] legal work ha[d] prevented [him] from filing suit for previous acts ... and ha[d] prevented [him] from [fighting] [his] criminal case for the past two years.” Clark did not note any specific claims that he intended to file or any specific appeals to his criminal case that he intended to allege. Accordingly, he also failed to describe his underlying claims or to assert their non-frivolity. Moreover, Clark did not even allege any actual injury because of this denial of access to the courts in his original complaint-that is, reading the two complaints together has no impact on this dismissal.8 Clark relies upon clarifications he made within his motion to alter or amend the district court‘s
The district court‘s dismissal of Clark‘s denial-of-access-to-courts claim was appropriate, even when reviewing it in the context of the relaxed pleading requirements afforded to pro se litigants. In Marshall v. Knight, 445 F.3d 965 (7th Cir.2006), the Seventh Circuit explained that “[t]he requirement that prisoners making access-to-courts claims allege specific prejudice should not be understood as an onerous fact-pleading burden,” 445 F.3d at 968, but the district court did not require such “onerous fact-pleading” in this case. Moreover, Marshall also acknowledges that “notice pleading requires plaintiffs to ‘make specific allegations as to the prejudice suffered because of the defendants’ alleged conduct.‘” Id. (quoting Ortloff v. United States, 335 F.3d 652, 656 (7th Cir.2003)). Though the pleading standard for pro se litigants is liberal, it is not without its limits, and does not “abrogate basic pleading essentials in pro se suits.” Wells v. Brown, 891 F.2d 591, 594 (6th Cir.1989) (citing, among other cases, Merritt v. Faulkner, 697 F.2d 761 (7th Cir.1983), for the proposition that the “duty to be less stringent with pro se complaint does not require court to conjure up [unpleaded] allegations“). Examining the facts and allegations as presented by Clark, the district court had a basis for determining that it was unable to even infer a denial-of-access-to-courts claim. Thus, the district court did not err in dismissing this claim.
Clark also challenges the district court‘s failure to address his additional access to courts claim, which is based on his contention that the 2.4 pack-up policy itself has a chilling effect on prisoner litigation, but Clark also failed to adequately plead this claim. Regarding this claim, Clark‘s amended complaint stated only that “the defendant‘s legal policy also violates access and Equal protection as it restricts those inmates who engage in litigation to only being allowed to [possess] half the [amount] of personal [property] of those who [don‘t] and appears to have been specifically designed to have a chilling effect on inmate litigation.”10 Clark failed to plead any actual injury in relation to this additional denial-of-access-to-courts claim.11 Accordingly, Clark failed to establish any constitutional violation in regard to the pack-up policy itself.
C.
Clark did not adequately plead an equal-protection violation under a “class of one” theory.12 Clark‘s amended complaint
V.
The district court‘s discretionary rulings against Clark throughout this case did not constitute an abuse of discretion. Because “[m]atters of docket control and conduct of discovery are committed to the sound discretion of the district court,” this court “will not interfere with a trial court‘s control of its docket except upon the clearest showing that the procedures have resulted in actual and substantial prejudice to the complaining litigant.” In re Air Crash Disaster, 86 F.3d 498, 516 (6th Cir.1996) (quoting In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir.1982)).
Clark first alleges that “the district court erred in allowing Defendants to withdraw their responses and in failing to consider the admitted facts on summary judgment,” but the district court did not abuse its discretion in permitting this withdrawal.
Finally, the district court did not abuse its discretion in ruling on additional pre-trial discretionary matters. Clark asserts that the district court abused its discretion in setting aside defendants’ default, granting defendants’ requests for extensions of time and denying similar motions by Clark, and denying Clark‘s motion to file an amended complaint after defendants filed a second answer alleging, for the first time, a statute of limitations defense. In regard to the setting aside of defendants’ default, the federal courts have a strong preference for trials on the merits, Shepard Claims Serv. v. William Darrah & Assocs., 796 F.2d 190, 193 (6th Cir.1986), and a district court properly considers three factors in determining whether to set aside an entry of default: 1) “[w]hether the plaintiff will be prejudiced;” 2) “[w]hether the defendant has a meritorious defense;” and 3) “[w]hether culpable conduct of the defendant led to the default.” Id. at 192. Though Clark challenges the district court‘s findings as to the third element, “[w]here the party in default satisfies the first two requirements for relief and moves promptly to set aside the default before a judgment is entered, the district court should grant the motion if the party offers a credible explanation for the delay that does not exhibit disregard for the judicial proceedings.” Id. at 195. Thus, the district court did not abuse its discretion in accepting the defendants’ entirely credible explanation for their delay in responding to Clark‘s complaint. As for the denial of Clark‘s requests for extension of time and his motion to file an amended complaint, Clark has not shown that the district court acted outside of its “broad discretion in matters of pretrial management, scheduling and docket control.” Kimble v. Hoso, 439 F.3d 331, 336 (6th Cir.2006). Accordingly, the district court did not abuse its discretion in making these rulings.
VI.
For these reasons, we AFFIRM the district court‘s grant of summary judgment in favor of defendants in regard to Clark‘s claim of retaliation based on his complaints to an ODRC official visiting the prison (and allegedly causing him to be placed in segregation), and we AFFIRM the district court‘s dismissal of Clark‘s denial-of-access-to-courts and equal-protection claims. However, we REVERSE the district court‘s dismissal of Clark‘s other claim of retaliation based on his participation in a class action lawsuit and filing of other complaints and grievances (and allegedly leading to the confiscation of his personal and legal property) and REMAND for further proceedings consistent with this opinion.
Notes
A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Subject to Rule 16(e), the court may permit withdrawal and amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. An admission under this rule is not an admission for any other purpose and cannot be used against the party in any other proceeding.
Penrod v. Zavaras, 94 F.3d 1399, 1404 (10th Cir.1996) (reversing grant of summary judgment to defendants on inmate‘s claim that guards conducted harassing cell searches, seized legal materials, refused to provide inmate with hygiene items, and transferred inmate to segregation in retaliation for suit against prison officials); Green v. Johnson, 977 F.2d 1383, 1389-91 (10th Cir.1992) (holding that inmate‘s allegation that guards destroyed his legal materials in retaliation for his filing of suits and grievances stated a cognizable First Amendment claim); Wright v. Newsome, 795 F.2d 964, 968 (11th Cir.1986) (same); Hall v. Sutton, 755 F.2d 786, 787-88 (11th Cir.1985) (holding that inmate alleged sufficient facts to state a claim of First Amendment retaliation based upon the alleged confiscation of his tennis shoes in retaliation for a prior lawsuit against prison officials). Bell, 308 F.3d at 604.
I do not believe though I am required to present and prove all of the grounds I would have raised in [my proposed actions] in my complaint. I couldn‘t do that anyway without the court granting my preliminary injunction request to access my legal materials, because that‘s the point, I can‘t even remember some of my grounds without my confiscated property. But I can relate some of them and the actions in which I [planned] to raise them. There were civil rights actions for the Warden and a Unit Manager manipulating my security and level reviews in retaliation for comments I made about the Warden on the stand and for testifying in general in Austin v. Wilkinson. There was another civil rights action for Sgt. Johnston ordering other officers to write conduct reports on me when it‘s really just her wanting to be the hearing officer on her own conduct reports in retaliation for me filing complaints and grievances against her. As for my criminal case I [planned] to file a 26(b) Application for reopening my appeal due to ineffective assistance of appellate counsel. And I could show good cause why it wasn‘t filed in 90 days. Keep in mind that, among other things, I was only 15 when I was tried as an adult, and I was uneducated and indigent. I was also working on my federal Habeas Corpus for which I can make a strong showing of actual innocence which allows a district court to hear grounds which would otherwise be barred.