175 F.3d 378 (6th Cir. 1999), 95-1837, Thaddeus-X v. Blatter

Docket Nº:95-1837.
Citation:175 F.3d 378
Party Name:THADDEUS-X and Earnest Bell, Jr., Plaintiffs-Appellants, v. BLATTER, et al., Defendants-Appellees.
Case Date:March 08, 1999
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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175 F.3d 378 (6th Cir. 1999)

THADDEUS-X and Earnest Bell, Jr., Plaintiffs-Appellants,

v.

BLATTER, et al., Defendants-Appellees.

No. 95-1837.

United States Court of Appeals, Sixth Circuit

March 8, 1999

Argued Dec. 10, 1997.

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Paul D. Reingold (argued and briefed), Ann Arbor, MI, for Plaintiff-Appellant Thaddeus-X.

Thaddeus-X, Baraga, MI, pro se.

Earnest Bell, Jr., Jackson, MI, pro se.

Susan Przekop Shaw, Linda M. Olivieri (argued and briefed), Office of the Attorney General, Corrections Division, Lansing, MI, for Fnu Karazim, Graham, Bildner and Sparks.

Susan Przekop Shaw, Lansing, MI, for Sixto Orozco.

Todd R. Marti (briefed), Office of the Attorney General, Corrections Litigation Section, Columbus, OH, for Amicus Curiae.

Before: MARTIN, Chief Judge; ENGEL, MERRITT, KENNEDY, NELSON, RYAN, BOGGS, NORRIS, SURHEINRICH, SILER, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, Circuit Judges.

PER CURIAM.

The en banc court is divided in this case, but not equally. Eight members of the court favor a decision to affirm in part, vacate in part, and remand in accordance with the opinion written by Judge Moore. There are three separate opinions concurring in part and dissenting in part from Judge Moore's opinion, which the eight other members of the court join in varying combinations. 1

Judge Kennedy (joined by Judges Boggs, Suhrheinrich, and Batchelder) dissents from Part III.A.4. of Judge Moore's opinion, insofar as it concludes that defendants Graham, Bildner, and Blatter are potentially liable to plaintiffs. Judge Kennedy's opinion accepts defendant Karazim as potentially liable to Thaddeus-X. The rest of the court accepts the potential liability

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of not only Karazim but also of the three other defendants.

Part III.B.1. of Judge Moore's opinion concludes that X's assistance was necessary for Bell effectively to access the courts. Judge Suhrheinrich (joined by four others) argues for limiting this derivative right to a particular lawsuit on Bell's behalf and against creating a "generalized right to help Bell file inchoate lawsuits." Judge Merritt (joined by Judges Kennedy and Boggs) dissents from the reasoning of this subpart, although he believes that here such help was protected due to a written agreement executed by the prisoners and the prison. Therefore, a majority of the court holds that X's retaliation claim with respect to his assistance in Bell's litigation should proceed.

Seven members of the court, through the opinions of Judges Suhrheinrich and Kennedy, agree with the adoption of the Bart v. Telford standard in Part III.B.2. of Judge Moore's opinion (for eight), but disagree with the decision in Judge Moore's opinion to remand on Bell's claim. They would decide the issue as a matter of law in Karazim's favor against Bell, as did the district court. Judge Merritt concurs in the result of Judge Moore's opinion on this issue, thereby providing a majority for remanding this claim for application of the Bart standard.

As to the Eighth Amendment claim discussed in Judge Moore's Part III.C., Judge Kennedy (joined by Judges Boggs, Suhrheinrich, and Batchelder) would dismiss it as to defendants Graham, Bildner, and Blatter. The other members of the court are in agreement with the result achieved in Judge Moore's opinion.

Finally, Judge Merritt's opinion (joined by Judges Kennedy, Boggs, Suhrheinrich, and Batchelder) recommends remand to the district court, but with instructions to stay further proceedings pending administrative exhaustion. The rest of the court agrees that a remand to the district court for further proceedings in that court is appropriate.

Hence, the en banc court VACATES the district court's grant of summary judgment on plaintiff Bell's retaliation claim against defendant Karazim and the grant of summary judgment on plaintiff X's retaliation and Eighth Amendment claims against defendants Karazim, Graham, Bildner, and Blatter; and AFFIRMS the remainder of the district court's judgment. We therefore REMAND the case to the district court for proceedings consistent with this order.

OPINION

MOORE, Circuit Judge.

Plaintiffs-Appellants Earnest Bell and Thaddeus-X, 1 inmates at the State Prison of Southern Michigan at Jackson, appeal the grant of summary judgment against them on their claims of retaliation by prison officials for their efforts to litigate a civil rights claim on plaintiff Bell's behalf, and X appeals the grant of summary judgment on his Eighth Amendment claim. The essence of the complaints, brought under 42 U.S.C. § 1983, is that prison officials first threatened, and then took, steps to penalize the inmates for their litigative activities. For the reasons discussed below, we vacate in part and remand for proceedings consistent with this opinion.

I. BACKGROUND

  1. Facts

    On April 20, 1994, inmates Bell and X executed a "Legal Assistance Request and Agreement," approved by a prison official pursuant to official prison policy, stating that X would "help [Bell] with any [and] all legal concerns." Joint Appendix ("J.A.") at 15 (Complaint p 9); Dist. Ct. Docket # 4 (copy of agreement). For the next month, X discussed legal matters with Bell and other prisoners on a daily basis and helped

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    Bell file a lawsuit against prison officials. Although the record on appeal does not disclose the nature of this lawsuit, the complaint states that it is "civil litigation [against] high-ranking MDOC [Michigan Department of Corrections] employees." J.A. at 24 (Complaint p 50). Defendant Karazim--one of the four corrections officials named as defendants in the suit--passed legal materials between the two inmates during this time.

    Plaintiffs allege that beginning May 23, 1994, prison officials began to harass them and to attempt to hinder the legal proceedings against the warden and other prison officials. X alleges that defendant Karazim told him to stop giving legal advice to Bell and others on that day, refused to give either plaintiff paper and pens from then on, and stopped passing legal materials between them even after being shown the legal assistance agreement. On June 7, 1994, X complained in writing to a case worker about the lack of paper and pens. On June 8, 1994, Karazim told X that he (Karazim) and his friends were going to "f_ck" X because of the Bell lawsuit, and defendant Blatter told X that he was being moved "on base," to the lowest floor of the administrative segregation area where mentally ill patients are housed, for filing too many lawsuits and grievances. J.A. at 17 (Complaint pp 17-19).

    From June 8, 1994, forward, all of the defendants allegedly refused to pass legal materials between the plaintiffs, or to provide them with paper or pens. Defendant Karazim allegedly told Bell that he had been assigned to harass Bell for suing the warden and deputies, and Karazim began bringing him cold food, adding that this treatment would continue until the lawsuit against the warden was dropped. Defendants Graham and Bildner are alleged to have told X (and other prisoners) repeatedly that he was put on base, and specifically next to an inmate who refused to wash, to punish him for filing lawsuits. They reportedly said that "no one [could] stop them [from] punishing" him and "now see how well you can con[cen]trate on your legal work with all the sh_t and noi[s]e down here, it's people like you that stressed-out our buddy Sgt. Garrison. A few months down here will stress you out [and] you won't be able to file no lawsuits." J.A. at 19 (Complaint pp 26-28).

    The complaint goes on to allege a list of unpleasant and unhealthy conditions that obtain "on base," including: that the mentally ill prisoners throw human waste and urine at each other and at guards making X afraid to leave his cell, that the foul odor is constant and made X ill and unable to eat, that the other prisoners flood the gallery with water and bang their footlockers so loudly that X cannot sleep, that the adjacent prisoner urinates through the door of his cell and refuses to bathe or flush his toilet, and that this area of the prison is cleaned only on the rare occasions when "deputies or a tour" are expected.

    Defendants deny the allegations of Bell and X. They claim that it was not their job to pass legal materials between prisoners, and that if the plaintiffs were ever denied pens and paper, it was because no supplies were available. Defendant Blatter claims that X was moved on base for unspecified "Department rule violations" at the request of Deputy Tamminga and that X had been assigned to the only available cell on base. Karazim claims cold food was delivered only when the menu called for such, and Graham and Bildner deny knowledge of a legal assistance agreement between Bell and X.

  2. Procedural History

    The pro se complaint filed in the U.S. District Court for the Eastern District of Michigan alleges denial of access to courts, retaliation for accessing courts, and Eighth Amendment violations, among others. 2

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    The defending prison officials moved to dismiss for failure to state a claim on which relief can be granted and for summary judgment. The matter was assigned to Magistrate Judge Pepe, who issued a Report and Recommendation that advised dismissal of plaintiffs' equal protection and due process (specifically, a state-created liberty interest in giving or receiving legal assistance) claims, but denial of summary judgment on the access to courts, First Amendment retaliation, and Eighth Amendment claims. Upon receipt of the defendants' objections to the magistrate judge's report, District Judge Zatkoff issued his opinion and judgment granting defendants' motion for summary judgment on all counts. Both parties filed timely notices of appeal.

    A panel of this court concluded that the...

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