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United States of America United States District Court for the Western District of Michigan Northern Division Case 2:14-cv-00255-GJQ-TPG ECF No. 74, PageID.<pageID> Filed 09/05/17 Page 1 of 16 UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION TODD MICHAEL PORTER, Plaintiffs, v. Case No. 2:14-cv-255 Hon. GORDON J. QUIST ANN BARSCH, et. al., Defendants. __________________________________/ REPORT AND RECOMMENDATION This is a civil rights action brought by former state prisoner Todd Michael Porter pursuant to 42 U.S.C. § 1983. Plaintiff’s amended complaint alleges that former Alger Correctional Facility librarian Janice Yoak refused to provide Plaintiff with true copies of a complaint that he filed in the Ingham County Circuit Court challenging his misconduct conviction for possession of a weapon. Plaintiff was ordered to serve true copies on the MDOC and the Michigan Attorney General’s Office, and to file a certificate of service. Defendant Yoak refused to provide Plaintiff with true copies of his complaint and Plaintiff never filed a certificate of service in the Ingham County Circuit Court. As a result, Plaintiff’s complaint was dismissed. Plaintiff asserts that Defendant Yoak violated his right of access to the courts and retaliated against him when she refused to provide Plaintiff with true copies of his complaint for service of process. Plaintiff filed a motion for summary judgment (ECF No. 59). Defendant filed a motion for summary judgment (ECF No. 60). Case 2:14-cv-00255-GJQ-TPG ECF No. 74, PageID.<pageID> Filed 09/05/17 Page 2 of 16 On June 27, 2011, Plaintiff was found guilty of the misconduct charge of possession of a weapon. Plaintiff received 30 days detention and 30 days loss of privilege. The hearing officer explained: On 6/16/11 it was discovered that the prisoner had a weapon made of sharpened metal rod and a cloth/pencil/ thread handle. Prisoner knew he had the weapon as it was taped to the underside of his locker. Prisoner had no authorization to have the weapon. Prisoner claims that the weapon did not belong to him, but to his roommate, Fisher. If that is true, that is not a defense as the prisoner acknowledged that he knew of the weapon but he allowed the weapon to be in his room and did not notify staff about the presence of the weapon. (Prisoner wrote in his letter to the inspector dated the same day that he received this misconduct report. “I know that he had a weapon because he told me, but said it was outside . About a week or so ago, he came to me and told me that a black came to him and told him that he had left a ‘burner.’” In his statement for his hearing, he acknowledged that he had searched his room and “could feel something behind (the locker).) Prisoner would be guilty as an accomplice. Prisoner, however, is not believed that he had nothing to do with the weapon. First of all, he knew exactly how the weapon had been made. He knew that the pencil came from his cell and that the thread came from the bottom of Fisher’s jacket. Prisoner had too much knowledge for him to be credible in his assertion that he did not know that the weapon was in his cell. Second, prisoner’s anger over the fact that he did not believe that the weapon was worthy of that title because “it was nothing but a little piece of wire” sounded more in ownership than anything else. Prisoner was trying to minimize the item, which would be consistent with it belonging to him. Reporting staff member factual and is credible as to what occurred. Prisoner failed to rebut the presumption of possession contained in PD 03.03.105(F) and, even if he had, he would still be guilty of the charge as an accomplice as he knew that there was a weapon in the cell as he had felt “something” and knew that Fisher had it. Charge upheld. (ECF No. 59, PageID.363). Plaintiff’s request for rehearing was denied. 2 Case 2:14-cv-00255-GJQ-TPG ECF No. 74, PageID.<pageID> Filed 09/05/17 Page 3 of 16 Plaintiff filed a Petition for Judicial Review in the Ingham County Circuit Court. On May 7, 2012, Judge Rosemarie E Aquilina issued an order requiring Plaintiff to submit a proof of service within 28 days. The order stated: Petitioner filed an Administrative Appeal with this Court on April 16, 2012. However, Petitioner has failed to file a proof of Service with this Court showing he properly served the Michigan Department of Corrections and the Michigan Attorney General’s Office as required by MCR 7.105(D). This Court now grants Petitioner twenty-eight (28) days from the date of this Order to file his Proof of Service. If this Court does not receive Petitioner’s Proof of Service within twenty-eight (28) days of this Order, this case will be dismissed. (ECF No. 59, PageID.436). Plaintiff filed a motion dated May 18, 2012, in the Ingham County Circuit Court requesting an order to obtain copies of his complaint. Plaintiff explained that he made a request to Defendant Yoak for copies of his complaint on May 15, 2012, but on May 16, 2012, Defendant Yoak denied the request. In the denial, Defendant Yoak stated that copies of the complaint were reproducible by the prisoner and that Plaintiff had already received three copies of the complaint for filing and service on December 8, 2011. Plaintiff stated in his motion that the order from the Circuit Court required “true copies.” Further, Petitioner conceded that he made an error by not serving the Michigan Department of Corrections. Plaintiff filed a grievance on the issue, which was denied at Step I because although MCR 7.105(D) requires true copies, Plaintiff had the ability to make copies that would be “sufficiently close to the original that anyone could understand it” and would be true copies. In addition, Plaintiff had already received three copies of his complaint. Plaintiff was informed that he could resubmit for one copy of his compliant to serve the remaining party. (ECF No. 59. PageID.455). The grievance was upheld at Step II. 3 Case 2:14-cv-00255-GJQ-TPG ECF No. 74, PageID.<pageID> Filed 09/05/17 Page 4 of 16 On June 26, 2012, Judge Aquilina dismissed Plaintiff’s complaint due to his failure to submit a proof of service to the court as required. (ECF No. 59, PageID.459). Plaintiff’s motion for reconsideration was denied on September 17, 2012. (ECF No. 59, PageID.477). Judge Aquilina acknowledged that Plaintiff had served the Attorney General’s Office with a copy of the complaint, but had conceded that he failed to serve the Michigan Department of Corrections. The Court noted that although Plaintiff claimed that he was unable to timely follow its order for proof of service, Plaintiff was able to timely file a Motion for Reconsideration. (PageID.478). Plaintiff argues that he is entitled to summary judgment due to Defendant Yoak’s refusal to provide copies of his complaint which made it impossible for him to serve “true copies” on the Michigan Attorney General and the Michigan Department of Corrections. As a result, Plaintiff argues that he was unable to comply with the order and submit a proof of service because proper service of his complaint was impossible. Defendant Yoak argues that she is entitled to qualified immunity from liability because Plaintiff had already received three copies of his complaint for service, Plaintiff could make his own copies by simply typing new copies, and Plaintiff was not indigent and could have paid for copies instead of using his money to buy personal items from the prison store. Defendant Yoak argues that Plaintiff’s request for injunctive relief is moot because she is no longer employed by the MDOC and Plaintiff has been released from prison. Summary judgment is appropriate only if the moving party establishes that there is no genuine issue of material fact for trial and that he is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). If the movant carries the burden of showing there is an absence of evidence to support a claim or defense, then the party opposing the motion must demonstrate by affidavits, depositions, answers to 4 Case 2:14-cv-00255-GJQ-TPG ECF No. 74, PageID.<pageID> Filed 09/05/17 Page 5 of 16 interrogatories, and admissions on file, that there is a genuine issue of material fact for trial. Id. at 324-25. The nonmoving party cannot rest on its pleadings but must present “specific facts showing that there is a genuine issue for trial.” Id. at 324 (quoting Fed. R. Civ. P. 56(e)). The evidence must be viewed in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Thus, any direct evidence offered by the plaintiff in response to a summary judgment motion must be accepted as true. Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004) (citing Adams v. Metiva, 31 F.3d 375, 382 (6th Cir. 1994)). However, a mere scintilla of evidence in support of the nonmovant’s position will be insufficient. Anderson, 477 U.S. at 251-52. Ultimately, the court must determine whether there is sufficient “evidence on which the jury could reasonably find for the plaintiff.” Id.
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