909 F.2d 1483 (6th Cir. 1990), 89-2012, Johnson v. Daniels

• Citation: 909 F.2d 1483
• Party Name: Fingal E. JOHNSON, Plaintiff-Appellant, v. Chris DANIELS; G.B. BROWN; Robert ATHERTON, Defendants-Appellees.
• Case Date: August 09, 1990
• Court: United States Courts of Appeals, U.S. Court of Appeals — Sixth Circuit

Page 1483

909 F.2d 1483 (6th Cir. 1990)

Fingal E. JOHNSON, Plaintiff-Appellant,

v.

Chris DANIELS; G.B. BROWN; Robert ATHERTON, Defendants-Appellees.

No. 89-2012.

United States Court of Appeals, Sixth Circuit

August 9, 1990

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)

E.D.Mich.

VACATED AND REMANDED.

BEFORE: KEITH and RALPH B. GUY, Jr., Circuit Judges; and BAILEY BROWN, Senior Circuit Judge.

ORDER

Fingal E. Johnson, a pro se Michigan state prisoner, appeals a summary judgment dismissing his civil rights suit filed under 42 U.S.C. § 1983 and § 1985. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Seeking monetary damages, Johnson sued an assistant deputy warden (Daniels) and a mail room supervisor (Brown), both of whom are employees of the Michigan Department of Corrections and are employed at the State Prison of Southern Michigan. Johnson alleged that: (1) they denied him letters containing semi-nude photos of his girlfriend and postcards; (2) they denied him copies of Hustler and Club International that were sent to him by the publishers; (3) they conducted a hearing in these matters before an improperly constituted hearing panel; and (4) they are selectively enforcing their regulation regarding the possession of the magazines by allowing only the white inmates to have the magazines because the magazines only depict nudes of white women. Johnson alleged that these actions violated his first amendment right to receive mail, and his fourteenth amendment rights to due process and equal protection of the law. It is observed that a third person (Atherton) was also named in Johnson's complaint, but service of process was never completed on him, and the suit proceeded against only Daniels and Brown.

Upon consideration of the defendants' motion for summary judgment, the magistrate recommended dismissing the suit because the prison regulation in issue (PD-BCF-63.03) was valid as already determined in Hunter v. Koehler, 618 F.Supp. 13 (W.D.Mich. 1984), because Johnson received a proper hearing regarding the deprivation of his materials, and because Johnson had failed to supply sworn testimony to refute the defendants' motion for summary judgment that showed they had not acted in derogation of plaintiff's equal protection rights. Upon de novo review in light of Johnson's objections, the district court adopted the magistrate's report and recommendation and granted summary judgment for the defendants, thus dismissing Johnson's suit.

Johnson has filed a timely appeal and requests the appointment of counsel in his appellate brief.

Upon review we shall affirm the district court's...