Johnson v. Daniels
| Decision Date | 09 August 1990 |
| Docket Number | No. 89-2012,89-2012 |
| Citation | 909 F.2d 1483 |
| Parties | Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Fingal E. JOHNSON, Plaintiff-Appellant, v. Chris DANIELS; G.B. BROWN; Robert ATHERTON, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
BEFORE: KEITH and RALPH B. GUY, Jr., Circuit Judges; and BAILEY BROWN, Senior Circuit Judge.
Fingal E. Johnson, a pro se Michigan state prisoner, appeals a summary judgment dismissing his civil rights suit filed under 42 U.S.C. Sec. 1983 and Sec. 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 grant of summary judgment to the extent it dismissed Johnson's first three enumerated claims; however, we shall reverse the summary judgment to the extent it dismissed Johnson's fourth claim asserted under the fourteenth amendment equal protection clause.
Summary judgment was properly entered for the defendants as to Johnson's first three claims because there was no genuine issue of material fact regarding these claims and the defendants were entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Johnson's allegations regarding his first claim are vague and conclusory and hence failed to state a cause of action. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987); Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir.1987). As for his second claim, after weighing the competing interests involved, we conclude that the rejection of the magazines is reasonably related to legitimate penological interests because the magazines contain many photographs of female nudes engaging in raw and very explicit acts of homosexuality. See Thornburgh v. Abbott, 109 S.Ct. 1874, 1882-84 (1989). We also note that Johnson concedes in his reply brief that the regulation in issue "appears to be fair on its face and impartial in its appearance." Finally, Johnson's procedural due process rights were likewise not denied merely because his hearing was not conducted before the proper prison panel. Cf. Olim v. Wakinekona, 461 U.S. 238, 250 (1983).
Summary judgment, however, was not properly entered regarding Johnson's last claim that the magazines were denied him disparately and unfairly, in violation of his fourteenth amendment equal protection rights. The district court believed that the defendants' denials of any improper motive were sufficient to warrant summary judgment for them on plaintiff's equal protection claim because Johnson had not refuted defendants' motion for summary judgment with sworn testimony as required by Fed.R.Civ.P. 56(e). How...
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