Harris v. Sowers et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
:
Lionel Harris, :
: Case No. 2:16-cv-00888
Plaintiff, :
v. : Judge Graham
:
Aaron Sowers, et al., : Magistrate Judge Deavers
:
Defendants. :
OPINION & ORDER
This matter is before the Court upon cross motions for summary judgment. See
doc. 244; doc. 245. For the following reasons, Defendants’ motion is GRANTED.
Background
This is a prisoner civil rights case originally filed in 2016. Plaintiff Lionel
Harris (“Harris”), an inmate in the custody of Ohio Department of Rehabilitation and
Correction (“ODRC”), brought this 42 U.S.C. § 1983 suit against various employees
of Madison Correctional Institution (“MaCI”), alleging constitutional injuries based
on their handling of his mail and his access to the courts.
In the more recent and relevant history of this case, the Court granted
Defendants’ motion for judgment on the pleadings, thereby dismissing several claims
while leaving intact three (3) total claims against the two (2) remaining Defendants,
Aaron Sowers (“Sowers”) and Julia Chamberlin (“Chamberlin”). Doc. 210. Harris
sought an interlocutory appeal, which the Sixth Circuit dismissed. Doc. 219; doc. 227.
Thereafter, the Court granted summary judgment to the remaining Defendants on
the remaining claims. Doc. 229. Harris filed another notice of appeal. Doc. 231.
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On appeal, the Sixth Circuit affirmed most of the challenged portions of this
Court’s judgments. Doc. 236; See Harris v. Sowers, No. 22-4060, 2024 WL 3051285,
*6 (6th Cir. Feb. 6, 2024). However, the reviewing panel reinstated Harris’ retaliation
claims against Defendants Michelle Lovette (“Lovette,” a cashier) Cynthia Ricker
(“Ricker,” Lovette’s supervisor), and Melanie Fultz (“Fultz,” a secretary) and his
access to the courts claim against Fultz. Id. This Court had previously dismissed
these claims based on the Leaman doctrine, which provides that a plaintiff bringing
a suit in the Ohio Court of Claims waives his right to bring the same claims in federal
court. Doc. 210; see Leaman v. Ohio Dep't of Mental Retardation & Dev. Disabilities,
825 F.2d 946 (6th Cir. 1987). In disposing of these claims based on Leaman, this Court
did not reach Defendants’ alternative arguments for judgment in their favor. Doc.
210, # 2273. The Sixth Circuit reversed this Court as to the Leaman-based dismissal,
citing the requirement that a Leaman waiver be made “knowingly, intelligently, and
voluntarily,” and finding that “[t]he defendants offered no convincing evidence” in
support of such a finding. Sowers, 2024 WL 3051285 at *6. Thus, the Sixth Circuit
remanded this matter to allow this Court to consider Defendants’ alternative, merits-
based argument for judgment. Id.
On remand, this Court granted leave to Defendants Lovette, Ricker, and Fultz
to move for summary judgment. Doc. 242. Their motion for summary judgment has
been fully briefed and is now ripe before the Court. Doc. 244. Harris, in his response
opposing the Defendants’ motion, has also requested summary judgment in his favor.
Doc. 245.
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STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56, summary judgment is proper if the
evidentiary materials in the record show that there is “no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a); see Longaberger Co. v. Kolt, 586 F.3d 459, 465 (6th Cir. 2009). The moving
party bears the burden of proving the absence of genuine issues of material fact and
its entitlement to judgment as a matter of law, which may be accomplished by
demonstrating that the nonmoving party lacks evidence to support an essential
element of its case on which it would bear the burden of proof at trial. See Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Walton v. Ford Motor Co., 424 F.3d 481,
485 (6th Cir. 2005).
The “mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original); see also Longaberger,
586 F.3d at 465. “Only disputed material facts, those ‘that might affect the outcome
of the suit under the governing law,’ will preclude summary judgment.” Daugherty v.
Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir. 2008) (quoting Anderson, 477 U.S. at
248). Accordingly, the nonmoving party must present “significant probative evidence”
to demonstrate that “there is [more than] some metaphysical doubt as to the material
facts.” Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993). The standard
of review remains the same when reviewing cross-motions for summary judgment
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versus a motion filed by only one party. Hamilton Cnty. Educ. Ass'n v. Hamilton Cnty.
Bd. of Educ., 822 F.3d 831, 835 (6th Cir. 2016).
DISCUSSION
Four (4) claims are at issue before the Court. Three (3) such claims allege First
Amendment retaliation against each remaining Defendant, brought pursuant to 42
U.S.C. § 1983. The fourth is an access-to-courts claim brought solely against Fultz,
likewise pursuant to § 1983 and the First Amendment. Specifically, Harris alleges
that Ricker and Lovette, in retaliation for Harris’ grievances about the cashier’s
office, deliberately frustrated his attempts to file legal materials. Doc. 245, # 2481.
As to both the retaliation and access-to-courts claims against Fultz, Harris alleges
that she confiscated or lost his § 1983 complaint in retaliation for his naming her
coworkers as defendants in the complaint. Id. at # 2485-86.
To prevail on a First Amendment retaliation claim, Harris must show (1) he
engaged in conduct which is protected under the First Amendment; (2) Defendants
took an adverse action against Harris “that would deter a person of ordinary firmness
from continuing to engage in that conduct”; and (3) a causal connection such that “the
adverse action was motivated at least in part by [Harris’] protected conduct.”
Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
I. Retaliation Claims as Alleged Against Ricker and Lovette
As alleged, Harris sent a “kite” (a common form of written communication
available to inmates for a variety of purposes) to Defendant Ricker, the supervisor of
the cashier’s office, on March 6, 2015, in which he complained about the Cashier’s
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office “refusing” to provide a certified cashier’s statement for Harris’ habeas corpus
petition. Doc. 194, # 2177. A little over a month later, on April 13, Ricker “deliberately
included a deficient certified cashier’s statement of [Harris’] inmate account in
connection with the filing of his habeas corpus petition.” Id. Due to this deficiency,
Harris’ family had to pay his filing fee in full. Id. Harris contends that this adverse
action was taken with retaliatory intent. Id.
Relatedly, Harris alleges that Defendant Lovette also retaliated against Harris
for the same protected conduct—complaining about the Cashier’s office, where
Lovette worked under the supervision of Ricker. Id. Specifically, Harris alleges that,
over four (4) months after the complaining kite, in early August of 2015, Lovette
“deliberately withheld [Harris’] Appeal of Right merit brief to the Supreme Court of
Ohio by refusing to process the ‘cash slip’ necessary to pay for the mailing postage.”
Id. Though Harris claims that cash slips are required to be processed within 48 hours
or less, he alleges that Lovette took seven (7) days to process his cash slip. Id. Because
of the delay, his brief was late, and the Supreme Court of Ohio dismissed his appeal
for failure to prosecute. Id. Due to Ricker’s position as Lovette’s supervisor, Harris
implicates both in this act of alleged retaliation.
A. Protected Conduct
Defendants argue that Harris’ First Amendment retaliation claims against
Ricker and Lovette fail on the first prong. Specifically, Defendants argue that,
because Harris’ suit at the Supreme Court of Ohio was frivolous, the suit was not
protected conduct for the purposes of a First Amendment retaliation claim. Doc. 244,
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# 2473 (citing Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000)). This
misapprehends Harris’ theory.1 Harris does not characterize his dismissed suit as the
protected conduct which led Ricker and Lovette to retaliate against him. Rather, he
argues that they retaliated against him due to a kite he sent complaining about their
office procedures. Doc. 194, # 2177. Defendants offer no alternative argument
regarding the protected-conduct prong, and they do not dispute Harris’ allegation
that he sent a kite with complaints about their office. Defendants do not allege that
the kite was frivolous, nor do they dispute Harris’ characterization, generally
supported by case law, that the kite constitutes protected conduct. See Herron v.
Harrison, 203 F.3d at 415 (“An inmate has an undisputed First Amendment right to
file grievances against prison officials on his own behalf.”). In sum, Harris’ retaliation
claims against Ricker and Lovette survive summary judgment on this prong.
B. Adverse Action - Ricker
Harris alleges that Ricker “deliberately included a deficient certified cashier’s
statement of [his] inmate account in connection with the filing of his habeas corpus
petition thereby forcing [his] family to pay the filing fee.” Doc. 194, # 2177. The Court
is not persuaded that the alleged conduct is an adverse action sufficient to maintain
a First Amendment retaliation claim—i.e., that which “would deter a person of
ordinary firmness from continuing to engage in that conduct.” Thaddeus-X, 175 F.3d
1 Not unreasonably, on this record. See doc. 162, # 1912 (describing the record as complicated
by “the parties’ arguments assuming or referring to the right of access to the courts as the
protected conduct rather than use of the grievance system as the protected conduct.”).
However, for his part, Harris has consistently identified the relevant protected conduct as
his March 6 kite since at least October 2021. See doc. 194.
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at 394. Harris was not ultimately prevented from filing his petition, and he did not
suffer any personal financial loss by the alleged conduct. As conceded by Harris, his
family paid the filing fee. He cites no support for the proposition that his family’s
expense constitutes an adverse action which would deter him from the protected
conduct alleged—to wit, sending an informal complaint about the cashier’s office.
Harris also alleges that Ricker “personally witnessed” the adverse action
attributed to Lovette (see sub.) and, as Lovette’s supervisor, “encouraged and
authorized this retaliation.” Doc. 194, # 2177-78. However, the law is well-settled that
“§ 1983 liability will not be imposed solely upon the basis of respondeat superior.”
Gilmore v. Corr. Corp. of Am., 92 F. App'x 188, 190 (6th Cir. 2004). Therefore, the
Court finds that Harris cannot prevail on his retaliation claims against Ricker as a
matter of law, and therefore summary judgment is warranted for Ricker on the same.
Even if Harris had satisfied the second prong by alleging a sufficient adverse action,
the claim would nevertheless fail on the third prong, as discussed below.
C. Adverse Action - Lovette
Harris alleges that Lovette “failed to process [his] cash slip” within the time
required by institutional policy, thereby delaying the transmission of his filing past
the strict deadline set by the Supreme Court of Ohio. Doc. 194, # 2177. Because his
brief was filed one day past the deadline, his suit was dismissed by the Supreme
Court of Ohio for failure to prosecute. Id.
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Defendants do not dispute that Harris submitted his cash slip on Wednesday,
August 5, and that his brief was not sent out in the mail until Monday, August 10
(the deadline date). However, Defendants argue the intervening weekend rendered
the processing time reasonable and within institutional policy, which sets a limit on
holding incoming and outgoing mail for 48 hours “excluding holidays and weekends.”
Doc. 244, # 2476 (quoting ODRC Policy 75-MAL-01). Therefore, Harris “cannot show
that actual any action taken by Defendants Ricker and Defendant Lovette acted with
in ODRC procedures and did not take adverse action.” Id. at # 2477 (sic). Defendants
appear to take the position that their (arguable) compliance with institutional policy
effectively rebuts Harris’ assertion of adverse action. The Court is not persuaded that
whether an action is adverse for the purposes of a First Amendment retaliation claim
in a prison context must turn on whether the action was within institutional policy,
and Defendants cite no law in support of such a proposition. Furthermore, Harris’
institutional grievance was “approved” insofar as it recognized that the processing
delay was in violation of institutional policy. See Doc. 245-1, # 2509.
Defendants do not argue that Harris suffered no adverse action on the theory
that his dismissed suit was frivolous. But see Lewis v. Casey, 518 U.S. 343, 353, n.3
(1996) (“Depriving someone of a frivolous claim, on the other hand, deprives him of
nothing at all.”); Maben v. Thelen, 887 F.3d 252, 266 (6th Cir. 2018) (“[S]ome adverse
actions are so de minimis that they do not rise to the level of a constitutionally
cognizable injury.”). However, the controlling law suggests that the loss of a frivolous
claim (i.e., “nothing at all” (Lewis, 518 U.S. at 353 n.3)) is the sort of “inconsequential”
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action that the Court may “weed out” as a matter of law. Thaddeus-X, 175 F.3d at
398.
Though not for the purpose of the adverse action prong, the Defendants do
argue that the dismissed suit was frivolous. See supra, § I.A. Indeed, this Court
already determined that Harris’ habeas claims were “not meritorious.” Doc. 169, #
2017. In adopting the Magistrate Judge’s Report and Recommendation (“R&R”) as to,
inter alia, cross motions for summary judgment regarding the same claims considered
in the instant Opinion, the Court discussed the relevant state court proceedings on
Harris’ habeas corpus claims. Id. at # 2016-17. After considering opinions from two
separate intermediate appellate courts as well as the Supreme Court of Ohio, the
Court concluded that those proceedings “firmly establish[ed] that, as a matter of Ohio
law, [Harris’] habeas claims were not meritorious.” Id. at # 2017. Given this
conclusion, which was not disturbed on appeal, the dismissal of Harris’ meritless
habeas petition was “inconsequential,” such that the Court can find no colorable
adverse action for his retaliation claim against both Ricker and Lovette. Thaddeus-
X, 175 F.3d at 398. Therefore, the Court concludes that Defendants are entitled to
judgment as a matter of law as the same. However, even if the Court found that
Harris suffered adverse action from the late mailing of his brief in August 2015, the
claim would nevertheless fail, because the Court concludes that Harris cannot show
that it was motivated by his March 6 kite.
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D. Causation
Assuming, for the purposes of summary judgment, that Harris’ kite in March
2015 constituted protected conduct, and that Ricker’s and Lovette’s dilatory
operations in the cashier’s office in April and August of 2015 constituted adverse
actions, Harris has not alleged facts sufficient for the Court to reasonably infer a
causative relationship between them.
For the causation prong, Harris bears the initial burden of establishing that
his protected conduct—the March 2015 kite—was a “‘substantial’ or ‘motivating’
factor” toward the adverse action inflicted upon him. Matulin v. Vill. of Lodi, 862 F.2d
609, 613 (6th Cir. 1988) (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 287 (1977)). Though the causation element usually poses a question for
the jury, a court may nevertheless grant summary judgment “where it is warranted.”
Hartsel v. Keys, 87 F.3d 795, 803 (6th Cir. 1996) (citing Langford v. Lane, 921 F.2d
677, 683-84 (6th Cir.1991)). If Harris can meet his burden, Defendants must then
show that they “would have taken the same action in the absence of the protected
activity.” Maben v. Thelen, 887 F.3d 252, 267 (6th Cir. 2018).
The Supreme Court has made clear, in the employment context, that a
retaliation claimant must show more than a mere possibility of causation, lest
protected conduct be transformed into a preemptive shield against any adverse
action. See Doyle, 429 U.S. at 286 (“A borderline or marginal candidate… ought not
be able, by engaging in [protected] conduct, to prevent his employer from assessing
his performance record and reaching a decision not to rehire on the basis of that
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record.”); see also Hartsel v. Keys, 87 F.3d 795, 804 (6th Cir. 1996) (“[A] civil servant
is not allowed to immunize herself from being fired or denied a promotion by
supporting an unpopular cause or losing candidate.”). The Sixth Circuit has
articulated a related principle in the prison context, stating, “[an] inmate cannot
immunize himself from adverse administrative action by prison officials merely by
filing a grievance or a lawsuit and then claiming that everything that happens to him
is retaliatory.” Maben v. Thelen, 887 F.3d 252, 264 (6th Cir. 2018) (quoting Spies v.
Voinovich, 48 F. App'x 520, 525 (6th Cir. 2002). Similarly, an inmate does not create
a genuine dispute of material fact as to causation by merely identifying protected
conduct and adverse action in the proper sequential order.
In this case, Harris’ has not met his burden. While his kite may have been
protected conduct, the notion that it inspired retaliation from Ricker and/or Lovette
in the manner alleged is not a reasonable inference upon these facts. As an initial
matter, the kite itself—appended to Harris’ responsive brief, copied in full below—is
hardly a casus belli; rather than inflammatory, the kite reads as merely inquisitive:
Cashier's Office Supervisor [i.e., Ricker],,
I am trying to file a "Petition for Writ of Habeas
Corpus" in the court of appeals. The petition requires a
certified cashier's statement, (long form) I requested that a
certified statement of my account be sent to my
Washington (WA) unit secretary, Mrs. Eastwood so that.
she could notarize it and include it in my outgoing legal
mail. I've checked with my unit staff twice a week. for the
past two weeks and they have informed me that they have
not received anything for me from the cashier's offfice. I
sent the cashier’s office another kite requesting the
certified statement. They returned my kite to me with a
"price list" for certified statements. (see enclosed copy) My
unit staff informed me that the certified account
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statements are supposed to be free? Please provide me with
the name of the individual responsible for providing
inmates with certified account statements.
Doc. 245-1, # 2501 [sic]. Harris cites case law for the proposition that temporal
proximity between the protected conduct and the alleged adverse action may be
sufficient circumstantial evidence of retaliation to survive summary judgment. Doc.
245, # 2489 (citing Paige v. Coyner, 614 F. 3d 273, 283 (6th Cir. 2010)). But the cases
cited by Harris are distinguishable from the instant facts.
For example, in Paige v. Coyner, the temporal proximity of one week between
the protected conduct and the adverse action was considered circumstantially
probative of retaliatory intent. 614 F.3d at 281. But, in determining that the plaintiff
had made a sufficient showing to stave off a motion to dismiss, the Sixth Circuit cited
at least three (3) additional pieces of evidence supporting the allegation of retaliatory
intent. Id.2 Still, even for the lesser showing required of the nonmovant against a
motion to dismiss (as compared to that required of Harris upon the motion for
summary judgment presently before this Court), the appellate court described the
causation element as “the closest issue in the case.” Id.
2 The plaintiff in Paige alleged First Amendment retaliation for her protected conduct of
voicing her opinion at a public hearing. A week later, a county director who participated in
the hearing contacted the plaintiff’s employer and mischaracterized her comments, leading
to her firing. In addition to the temporal proximity, other evidence of causation included (1)
the employer’s reference to the director’s (false) characterization of the plaintiff’s comments
as reason for termination, (2) the plaintiff’s five years of employment without incident, and
(3) her employer’s prior knowledge of her civic activities, which had never caused concerns.
Paige, 614 F.3d at 281.
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In Maben v. Thelen, the prisoner-plaintiff alleged that the defendant, a
corrections officer, issued a misconduct citation in unlawful retaliation for the
plaintiff complaining about his food portion in the cafeteria. 887 F.3d at 267-68. The
court noted the “suspicious temporal proximity,” pointing out that the defendant
“issued the misconduct ticket immediately after [plaintiff] raised the issue of
inadequate food portions.” Id. at 268. But the immediate adverse reaction did not
carry the day alone, as the court also referred to the plaintiff’s affidavit, as well as
“[t]hree separate witnesses” who corroborated the plaintiff’s account. Id.
In the instant case, Harris can point to no evidence of causation beyond
temporal proximity. His theory is that his kite sent on March 6, 2015, in which he
asked for “the name of the individual responsible for providing inmates with certified
account statements,” (doc. 245-1, # 2501) so inflamed the ire of Ricker that, over a
month later, she “deliberately included a deficient certified cashier’s statement” with
Harris’ habeas corpus petition. Doc. 245, # 2483. Harris also believes that same kite
motivated Lovette (with Ricker’s approval) to retaliate against him five (5) months
later. Considering the benign content of the kite, and Ricker’s sworn statement that
she “did not… have any reason to retaliate” against Harris (doc. 152-2, # 1681), the
Court finds that Harris has failed to create a genuine dispute of material fact as to
the alleged retaliatory motive.
Even if Harris had met his burden, the burden would then shift to Ricker and
Lovette to show “that [they] would have taken the same action in the absence of the
protected conduct.” Maben, 887 F.3d at 267-68. Defendants offer no specific argument
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on this point, though they maintain that any adverse action inflicted on Harris was
inadvertent. And in that regard, an alternative explanation for the adverse action is
readily available: Harris’ March 6 kite, the alleged impetus for retaliatory
mishandling of his mail, complained about the mishandling of his mail. In other
words, the mishandling of the mail motivated the complaint, and now, by mere
function of the passage of time, Harris contends that the complaint motivated the
mishandling of the mail. This is indistinguishable from the tactic warned of by the
Sixth Circuit when it held that “[an] inmate cannot immunize himself from adverse
administrative action by prison officials merely by filing a grievance or a lawsuit and
then claiming that everything that happens to him is retaliatory.” Maben, 887 F.3d
at 264 (quoting Spies, 48 F. App'x at 525). To the extent that Ricker and Lovette take
the position that any adverse action was inadvertent,3 Harris’s kite supports that
position by stating that he suffered similar adverse actions before the protected
conduct.
3 Harris appeared to recognize this possibility when he alleged (in a motion for partial
summary judgment) that “Lovette’s retaliatory actions, were deliberate or at least gross
negligence.” Doc. 142, # 1499 [sic]. Over the long history of this case, Harris’ allegations have
changed shape in numerous respects. For example, Harris previously focused on “Lovette’s
retaliation,” and characterized Ricker’s involvement as “acquiescence.” Id. at # 1505. In the
briefing currently before the Court, Harris has reconfigured his theory to cast Ricker as the
primary retaliator, alleging that she “encouraged and authorized” Lovette’s failure to process
his cash slip, and alleging that Lovette’s actions were taken while “acting as an agent of
Defendant Ricker.” Doc. 245, # 2484. Some shifts in theories of liability are normal, the
routine byproduct of the discovery process. And Harris’ current theory certainly appears more
plausible upon the instant record, which makes clear that Ricker was a supervisor and
Lovette only a temporary employee, and that Ricker is the only one of the two defendants
who can be shown to have been personally aware of Harris’ March 6 kite. But while changing
theories is not necessarily problematic, and may well be normal, it does little to support the
causation prong here, teetering as it is on little more than Harris’ “subjective beliefs and
intuition.” Hartsel v. Keys, 87 F.3d 795, 803 (6th Cir. 1996).
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Similarly, Harris states in his Amended Complaint that “Prison officials
[granted] Plaintiff’s grievance in which he accused [Ricker and Lovette] of acting
intentionally” when his filing for the Supreme Court of Ohio was delayed in August
2015. Doc. 57, # 504. But the grievance decision says nothing about Ricker and
Lovette acting intentionally; to the contrary, the grievance decision appears to regard
the mailing delays as a systemic issue unrelated to any animus toward Harris. It
states, in pertinent part:
Harris, this is in response to your grievance dated
10/05/2015. In your complaint you state that you were
denied access to the courts due to interference with the
legal mail…
An investigation was completed and interviewed all
pertinent individuals involved. The policy clearly states
that mail shall not be held no more than 48 hours. [sic] You
submitted your Legal Mail and signed Cash Slip to the
Mail Room on 08/05/2015; the Cashier's Office did not
process your Cash Slip until 08/07/2015. The Mail Room
then did not process/stamp your Legal Mail until
08/10/2015. This exceeds the 48 hour process in processing
outgoing mail. Also be advised that all postage that needs
processed must be approved through the Cashier's Office
to deduct from the offenders account before it can be
processed and post marked.
I have discussed this process with Supervisors in both
areas. This is a concern with this office and that the
process needs to be changed and corrected.
Your Grievance is approved, the problem is being
corrected.
Doc. 245-1, # 2509.
Harris has not made a showing sufficient to warrant presentation of this
question to a jury. He experienced operational issues from the mailroom and/or
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cashier’s office. He sent a gently worded kite referencing these issues. Later, the
institution confirmed his experience and identified the issues as a “concern.” But in
the meantime, Harris still experienced some of the same issues. This does not raise a
reasonable inference of retaliatory motive.
E. Conclusion as to retaliation claims against Ricker and Lovette
Ricker and Lovette are entitled to summary judgment on Harris’ claims of
retaliation. As to Ricker, Harris cannot show that he suffered adverse action from her
alleged mishandling of the certified cashier’s statement, requiring his family to pay
the full filing fee. Furthermore, Ricker cannot be held liable for Lovette’s actions
under a theory of respondeat superior as to this claim. As for Lovette, and as
additional grounds for judgment in Ricker’s favor, this Court’s previous finding that
Harris’ underlying habeas claims were “firmly establish[ed]” as “not meritorious,”
forecloses a finding of adverse action based on the temporary impediments of the
same. Doc. 167 at # 2017. Finally, even if Harris could establish legally cognizable
adverse action attributable to Ricker and/or Lovette, his claim would still fail, as he
cannot show that the adverse action was substantially motivated by his protected
conduct.
II. Claims Against Fultz
The Court finds that Fultz is entitled to summary judgment on Harris’ claims
for retaliation and access-to-courts.
The factual basis is the same for both claims. Harris alleges that, on February
8, 2016, he sought to file a § 1983 suit against six (6) MaCI employees. Harris took
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the complaint setting out the § 1983 suit to Fultz, the unit secretary, for notarization.
After Fultz notarized the complaint—which required that she examine the
document—she took possession of the complaint and placed it in a locked mailbox in
the administration building, after which it “was never found, not filed and presumed
destroyed.” Doc. 194, # 2181. Additionally, Fultz “confiscate[d]” (doc. 245, # 2487)
Harris’ 6-month cashier statement, claiming that inmates were not allowed to possess
the same, though the Court has since found that Harris disputed this claim by
citation to institutional rules. See doc. 162, # 1945.
A. Retaliation
As for retaliation, the parties do not dispute that Harris’ § 1983 complaint was
protected conduct. Additionally, the parties agree that the complaint was never filed
nor even found after Fultz placed it in the administration building mailbox. But Fultz
contends that “mailroom employees are the only individuals that can unlock this
mailbox,” which “is emptied every business day,” and that after she placed the § 1983
complaint in the mailbox, she “[does] not know what happened to it.” Doc. 139-9, #
1486-87. Harris does not allege that Fultz destroyed the complaint herself; rather, he
alleges that (since-dismissed) Defendant Sowers destroyed the complaint, which was
“enabled” by the actions of Fultz. Doc. 57, # 509. But this does not describe adverse
action taken by Fultz. The undisputed facts as to Fultz’s actions describe routine job
functions: notarizing legal mail; placing it in an outgoing mailbox.
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[18]
Harris essentially articulates three (3) points in an attempt to raise an
inference of adverse action by Fultz.4 First, Harris alleges that placing the mail in
the administration building mailbox was a deviation from normal procedures, taken
for the purpose of impeding or destroying Harris’ lawsuit. See doc. 57, # 508 (“Fultz
took possession of the lawsuit and thereafter was required to take it to the institution
mailroom to mail to the courts – per procedure”); doc. 245, # 2486 (“Fultz took an
adverse action by… taking his § 1983 complaint to the administration building
instead of the mailroom); but see doc. 142-10, # 1586 (describing mailing procedures
including daily pickup of all outgoing mail from the administration building). But
Harris does not identify any factual basis for concluding that Fultz’s actions deviated
from normal procedure, or how her actions—placing the § 1983 complaint in the
outgoing mail—were at all calculated toward the eventual destruction of his
complaint. Though Harris cites to his “granted” institutional grievance regarding the
loss of his § 1983 complaint, the decision approving his grievance does not describe
Fultz’s actions as a deviation from normal procedure (rather, the verb tense implies
that her actions were consistent with normal procedure: “She claims that she only
notarizes the necessary papers needed and seals the envelope and then takes it with
a signed Cash Slip to the Administrative Building in the Mailroom’s locked box for
4 In this instance, the adverse action prong and causation prong present nearly identical
questions. Though the loss of his legal materials is an adverse outcome, the inference that
Fultz took deliberate actions toward that outcome is essentially reliant on a predicate
inference that she was motivated by Harris’ protected conduct to do so—i.e., the causation
prong.
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[19]
outgoing mail for postage”) nor does it opine on the propriety of Fultz taking
possession of the cashier’s statement. Doc. 57-1, # 574.
Second, Harris alleges that Fultz sought to impede or destroy his lawsuit
because she “recognized her long-time friends and coworkers” listed as defendants.
Doc. 245, # 2492. But the Court agrees with Fultz that there is no support in the
record for the conclusory statement that Fultz had any relationship with the
defendants named in the § 1983 complaint. Doc. 247, # 2533-34.
Third, Harris alleges that Fultz’s statement that “inmates are not allowed to
possess their Six Month Cashier Statement” is contrary to institutional policy, and
thus was a false pretense for her deviation from normal procedure. Doc. 139-9, # 1486.
Indeed, here, Harris has identified the institutional policy provision which appears
to refute Fultz’s justification for taking possession of the cashier statement. See doc.
142-3, # 1534 (requests for six-month statements “shall be granted at no cost to the
inmate, up to twice a year.”). Harris has not explained how this “false pretense”
enabled Fultz to take the alleged adverse actions.5 Even if Harris is correct that the
confiscation of his account statement was Fultz’s reason for deviating from normal
procedure, she still put the § 1983 complaint in the outgoing mail. Harris has not
identified facts to raise the reasonable inference that the subsequent loss of the
§ 1983 complaint can be attributed to Fultz in any way.
5 Fultz’s affidavit suggests that the confiscation of the cashier statement was indeed a reason
for her subsequent course of action: “I placed the documents in the locked mailbox in the
Administration Building at [MaCI] because inmates are not permitted to possess their Six
Month Cashier Statement.” Doc. 139-9, # 1486 (emphasis supplied). But the apparent falsity
of her stated reason does not lead to the reasonable inference that her real reason was a
coordinated retaliation scheme with Defendant Sowers.
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[20]
Harris relies on inferences-upon-inferences, while the undisputed facts in the
record show that Fultz notarized his documents, took them, and placed them in the
mail. After that, they were never accounted for. In sum, the Court finds that Fultz is
entitled to summary judgment on Harris’ retaliation claim as a matter of law.
B. Access to Courts
Though the above reasons would also serve to dismantle Harris’ access to
courts claim, the Court finds that summary judgment is warranted for Fultz on this
claim on independent grounds, because Harris cannot establish the necessary
elements.
“Denial of access to the courts claims may be ‘forward-looking’ or ‘backward-
looking.’” Flagg v. City of Detroit, 715 F.3d 165, 173 (6th Cir. 2013). The Sixth
Circuit’s discussion of the two types of claims is revealing:
In forward-looking claims, the plaintiff accuses the
government of creating or maintaining some “frustrating
condition,” that stands between the plaintiff and “the
courthouse door.” […] The object of the suit is to eliminate
the condition, thereby allowing the plaintiff, usually an
inmate, […] to sue on some underlying legal claim[…] In
backward-looking claims, such as those at issue in the
instant case, the government is accused of barring the
courthouse door by concealing or destroying evidence so
that the plaintiff is unable to ever obtain an adequate
remedy on the underlying claim.
Id. (citations omitted) (emphasis supplied). This taxonomy of access claims provides
no recognition of claims like Harris’, in which the underlying suit was (eventually)
fully litigated. The Flagg opinion goes on to articulate the elements of a denial of
access claim, further confirming that Harris’ claim cannot be maintained:
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[21]
(1) a non-frivolous underlying claim, […]; (2) obstructive
actions by state actors[…]; (3) “substantial[ ] prejudice” to
the underlying claim that cannot be remedied by the state
court,[…] and (4) a request for relief which the plaintiff
would have sought on the underlying claim and is
now otherwise unattainable.
Id. at 174 (emphasis supplied).
Fultz argues that Harris “cannot demonstrate he was actually impeded,” and
“cannot show that [he] was never able to file it.” Doc. 244, # 2478. For his part, Harris
retorts that “the definition of impeded does not mean forever barred.” Doc. 245,
# 2492. But, for the purposes of an access to courts claim in this circuit, Harris must
indeed show that, due to Fultz’s actions, he was “unable to ever obtain an adequate
remedy on the underlying claim.” Flagg, 715 F.3d at 173.
Harris cannot do so. As he states in his briefing, Fultz’s actions “impeded [his]
attempt to file this action until he was transferred to [North Central
Correctional Complex].” Doc. 245, # 2492. In other words, Harris was able to file
the § 1983 complaint at issue. The fourth element of the formulation above requires
that the relief sought be “otherwise unattainable.” Id. at 174. Plainly, a claim made
“unattainable” by (ultimately unsuccessful) litigation on the merits cannot fulfill this
element of a claim for denial of access to courts. At bottom, a fundamental element of
an access to courts claim is the loss of a non-frivolous claim, and Harris has not
alleged any such loss. Therefore, Fultz is entitled to summary judgment on this claim
as well.
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[22]
III. Harris’ Motion for Preliminary Injunction
Following the remand of this matter from the Sixth Circuit, Harris filed a
motion for preliminary injunction, seeking to enjoin “[North Central Correctional
Complex] individuals from continuing to deny [him] meaningful access to this [C]ourt
among others.” Doc. 246, # 2523. But, as noted in the response filed on behalf of the
Defendants, and as conceded by Harris, the individuals he seeks to enjoin are not
parties to this case. Harris did not file a reply. The Court cannot order the relief
requested, and thus his motion is denied.
CONCLUSION
For the reasons stated above, the Court determines that Plaintiff Lionel Harris
cannot prevail on his claims as a matter of law. The facts identified in the record are
insufficient to support a reasonable jury’s finding of retaliatory intent. Plaintiff
Harris’ denial of access to courts claim cannot be maintained as a matter of law,
because he can identify no loss of a nonfrivolous claim. And the Court cannot enjoin
the nonparties identified in Plaintiff’s motion for preliminary injunction, which, in
any event, is now moot. Therefore, Defendants’ motion for summary judgment (doc.
244) is GRANTED. Plaintiff’s motion for summary judgment (doc. 245) is DENIED.
Plaintiff’s motion for preliminary injunction (doc. 246) is DENIED.
IT IS SO ORDERED.
s/ James L. Graham
JAMES L. GRAHAM
United States District Judge
DATE: January 12, 2026
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