Riley v. Kurtz

Decision Date06 June 1995
Docket NumberNo. 94-CV-71263-DT.,94-CV-71263-DT.
PartiesJimmie Lee RILEY, Plaintiff, v. David T. KURTZ, Defendant.
CourtU.S. District Court — Eastern District of Michigan

Jimmie Lee Riley, pro se.

Anthony P. Govorchin and Christine M. Campbell, Michigan Dept. of Atty. Gen., Corrections Div., Lansing, MI, for defendant.


HOOD, District Judge.

This matter is before the Court on Magistrate Judge Steven D. Pepe's Report and Recommendation dated February 28, 1995. Defendant Kurtz filed an objection thereto.

The Court has had an opportunity to review this matter and finds that the Magistrate Judge reached the correct conclusion for the proper reasons.

The Magistrate Judge's Report indicates that Plaintiff raises two claims. First, Plaintiff claims that defendant retaliated and threatened to retaliate against him for the exercise of his First Amendment Rights. Second, Plaintiff claims that his legal mail was "censored" and read by Defendant.

Retaliation against the exercise of First Amendment rights is itself a violation of the First Amendment. Zilich v. Longo, 34 F.3d 359, 364 (6th Cir.1994). The United States Supreme Court in Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977), used a two-step test for determining cases of alleged retaliation for the exercise of First Amendment rights. First, plaintiff must show that his conduct was constitutionally protected. Second, plaintiff must show that the protected conduct was a substantial motivating factor in the alleged retaliatory conduct.

In deciding a motion to dismiss, the complaint is construed in the light most favorable to plaintiff and its allegations are taken as true. 5A CHARLES A. WRIGHT & ARTHUR MILLER FEDERAL PRACTICE AND PROCEDURE § 1357, at 304 (2d Ed.1990); Westlake v. Lucas, 537 F.2d 857 (6th Cir.1976). The Court agrees with the Magistrate Judge's findings that for purposes of a motion to dismiss, Plaintiff established a prima facie case of retaliation. Plaintiff has shown that his actions of filing or threatening to file complaints against Defendant Kurtz, other appropriate government bodies and/or prison officials are activities that are protected by the First Amendment. Also, Plaintiff has shown that Defendant Kurtz threatened Plaintiff with retaliation.

The Court agrees with the Magistrate Judge's conclusion that as a result of an October 2, 1992 letter written by Plaintiff to the Warden, Defendant's subsequent actions amounted to retaliation. Therefore, Plaintiff has established a claim of retaliation.

As to Plaintiff's First Amendment claim of censorship of his legal mail, the Court agrees with the Magistrate Judge's findings that Plaintiff failed to allege specific facts which would support his claim that his mail was "censored". Conclusory unsupported allegations of constitutional deprivation do not state a claim. Ana Leon T. v. Federal Reserve Bank, 823 F.2d 928, 930 (6th Cir.1987), cert. denied, 484 U.S. 945, 108 S.Ct. 333, 98 L.Ed.2d 360 (1987).

As to Plaintiff's First Amendment claim that Defendant read his legal mail, this Court agrees with the Magistrate Judge that Plaintiff did properly allege facts with specificity that his federal mail was read by Defendant.


IT IS HEREBY ORDERED THAT the Report and Recommendation of Magistrate Judge Pepe dated February 28, 1995, is ACCEPTED and ADOPTED as this Court's findings of facts and conclusions of law;

IT IS FURTHER ORDERED that Defendant's Motion to Dismiss is GRANTED as to plaintiff's claim that his mail was censored; and,

IT IS FURTHER ORDERED that Defendant's Motion to Dismiss and/or for Summary Judgment is DENIED as to Plaintiff's claim under the First Amendment on the issues of retaliation and reading legal mail.


PEPE, United States Magistrate Judge.

Plaintiff is an inmate in the custody of the Michigan Department of Corrections ("MDOC"). He filed this action under 42 U.S.C. § 1983 alleging violations of his constitutional rights. Defendant filed a motion to dismiss and/or for summary judgment. This motion was referred to me for Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

Plaintiff is a frequent litigant in this Court who acknowledges his "aggressive legal activities in the prison setting" (October 2, 1992, letter to Warden William Overton, Def. Ex. A-1, p. 2). He is claiming retaliation and threats of retaliation by the defendant for the exercise of his First Amendment rights, as well as interference with his legal mail.


At all times relevant to this case, plaintiff Riley was incarcerated in the Gus Harrison Correctional Facility ("Harrison") at Adrian, Michigan. At all times relevant to this case, defendant Kurtz was a unit officer at Harrison.

Plaintiff alleges that Kurtz "engaged in unprofessional behavior relating to an assault incident involving another prisoner." Complaint at ¶ 6. He also alleges that Kurtz read plaintiff's "confidential legal correspondence from the federal courts." As a result of this latter action, plaintiff Riley threatened to pursue administrative action against Kurtz and threatened to investigate the possibility of legal action against him. Riley alleges that, as a result of these threats, officer Kurtz threatened to retaliate against plaintiff "whenever the opportunity presented itself."

Riley alleges in his verified complaint that Kurtz had a habit of closing the day room for one hour whenever he found a cigarette butt on the floor. Riley states that, on November 10, 1992, Kurtz closed the day room for an hour, ostensibly because a cigarette butt was found on the floor. Plaintiff states that there was no trash on the floor, suggesting that a more extensive closing of the day room for cleaning was not necessary. Plaintiff states that this action by defendant Kurtz violated an order from the Deputy Warden not to close the room for more than 30 minutes at a time. Riley urged other inmates to write grievances and have the Block Representative register their concerns about Kurtz with the Resident Unit Manager ("RUM").

Riley states that the RUM subsequently asked him what the problem was. Plaintiff replied that Kurtz was the problem.

A short while later, Riley received a pass to go to the law library. He alleges that he was in the library for about an hour when several officers converged on him and escorted him to the segregation unit. He states that he was told by a sergeant in the segregation unit that Kurtz heard that Riley singled Kurtz out as a "problem." Plaintiff alleges that Kurtz fabricated a disciplinary charge against plaintiff in retaliation for Riley's complaining about Kurtz's conduct in closing the day room.

Plaintiff also states that he informed defendant that he would be sued for censoring plaintiff's legal mail. Riley alleges that Kurtz "threatened to cause plaintiff undue hardship because of plaintiff's persistent efforts (i.e., by letters and by verbal complaints) to have disciplinary sanctions imposed on defendant...." Complaint at ¶ 21. Inmate Jerry Weber has provided an affidavit stating that Kurtz on September 30 attempted to punch a prisoner who "was non-aggressive at the time." It was about this incident involving excessive use of force by Kurtz and an Officer Moore that Riley had earlier written Warden Overton. Weber's affidavit, as well as one by inmate Joseph Norris, confirm that Kurtz had made threats of retaliation toward Riley because of Riley's reporting Kurtz to the Warden.

Riley alleges that in the November 10 misconduct, Kurtz falsely accused Riley of incitement to riot or strike and failure to disperse. Riley notes that these are non-bondable charges and resulted in plaintiff being placed in temporary segregation pending disposition of the charges. He also alleges that Kurtz falsely accused Riley of threatening to tear the unit up unless officer Kurtz was transferred. Plaintiff denies making any threats to defendant or encouraging other inmates to chant for Kurtz's ouster. Riley accuses Kurtz of being "an unmitigated LIAR" (Complaint at ¶ 24) and "cunning," "devious," and "reprehensible" (Complaint at ¶ 37). Riley notes that prior to the incidents on November 10, 1992, he personally reported Kurtz's suspected wrongdoings to the deputy warden (Complaint at ¶ 11). An October 2, 1992, letter from Riley to Warden William Overton suggested that defendant Kurtz precipitated an incident leading to an assault on an inmate (Def.Ex. A-2), and a November 4, 1992, letter to Warden Overton accused defendant Kurtz of "harassment" and "intimidation" to retaliate for Riley writing the administrative complaint of October 2, 1992, against Kurtz (Def.Ex. A-2).

Plaintiff states that defendant's alleged actions deprived him of rights secured by the First and Fourteenth Amendments.1 He also invokes the Court's supplemental jurisdiction over State law claims for intentional infliction of emotional and mental distress. He seeks declaratory, injunctive, and monetary relief.

A. Standard of Review
1. Dismissal

In deciding a motion to dismiss, "the complaint is construed in the light most favorable to plaintiff and its allegations are taken as true." 5A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357, at 304 (2d Ed.1990). See also Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 (1969); Westlake v. Lucas, 537 F.2d 857 (6th Cir.1976). A complaint will not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

2. Summary Judgment

Under Fed.R.Civ.P. 56, summary judgment is to be entered if the moving party demonstrates there is no genuine issue as to any material fact. The Supreme Court has...

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  • Scott v. Gardner, 02 Civ.8963(RWS).
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    ...inmate seeks a redress of grievances by filing a court action, an official grievance, or even an informal complaint. Riley v. Kurtz, 893 F.Supp. 709, 723 (E.D.Mich.1995). Unlike the alleged retaliation for his litigation, Scott has alleged a sequence of events which could establish a causal......
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    ...that the "shocks the conscience" test would not apply to § 1983 claims based expressly on the First Amendment. See Riley v. Kurtz, 893 F.Supp. 709, 718 (E.D.Mich.1995) ("In light of the more recent Supreme Court decision in Graham v. Connor, ... I am confident that the Sixth Circuit in anot......
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