Beal #327749 v. Kowalski

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
LATAVIOUS BEAL #327749, 	Case No. 	2:25-cv-00147
Plaintiff, 	Hon. 	Robert J. Jonker
U.S. District Judge
v.
SUSAN C. KOWALSKI,
Defendant.
/
REPORT AND RECOMMENDATION
I. 	Introduction
This Report and Recommendation (R. & R.) addresses Defendant’s motion for
summary judgment. 	ECF No. 29. 	The R. & R. also addresses Defendant’s motion
to strike Plaintiff’s sur-reply. 	ECF No. 45.
Plaintiff – State Prisoner Latavious Beal – filed a verified complaint under 42
U.S.C. § 1983 alleging that his Fifth Amendment rights were violated. 	Beal says
that while he was confined at the Baraga Correctional Facility (AMF), he received a
Notice of Mail Rejection on April 29, 2024, from non-Defendant mail clerk Hill,
because his mail contained 22 pages of handwritten letters. 	ECF No. 1, PageID.3.
Plaintiff says that he never received a hearing and that Defendant Susan Kowalski
falsely claimed to hold a hearing in violation of his Fifth Amendment due process
rights.
Beal says that when he spoke to Kowalski, she told him that “she was not going
to read 22 pages of garbage that Plaintiff’s mother sent him.” 	Id. 	On June 1, 2024,
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after Beal informed non-Defendant Sergeant Borgan that Defendant Kowalski was
playing games about a hearing on his mail and that he was feeling suicidal, he was
immediately moved to a suicide watch room. 	Id.
Kowalski says that the mail was rejected as voluminous, because it exceeded
the allowed amount of twelve single-sided pages of mail. 	MDOC Policy Directive
05.03.118(PP)(22). 	Kowalski says that she spoke with Beal several times about the
issue and informed him why the mailroom rejected his mail. 	ECF No. 30-4,
PageID.141-142 (affidavit of Kowalski). 	She personally reviewed the mail and
confirmed that it was 22 pages, which exceeded the allowable amount under policy.
Id., PageID.142. 	On June 10, 2024, Kowalski spoke with Beal during legal rounds
and informed him that the mail could not be brought into the prison for review and
advised him that he could return the mail to the sender within fifteen days at his
expense, or it would be destroyed. 	Id. 	She then provided Beal with a copy of the
Administrative Hearing Report with her decision. 	Id.
Defendant 	Kowalski 	moves 	for 	summary 	judgment 	asserting 	that 	Beal
received the process due and that no genuine issue of material fact exists on his due
process claim. 	Beal argues that he never received a hearing on the mail rejection
and that his due process rights were violated by Defendant.
For the reasons set forth below, it is respectfully recommended that the Court
grant Defendant Kowalski’s motion for summary judgment because no genuine issue
of material fact exists and dismiss the complaint.
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II. 	Sur-reply
Plaintiff filed a sur-reply. 	ECF No. 44. 	This Court’s Local Civil Rules allow
for a response to a dispositive motion and then a reply to the response. 	W.D. Mich.
LCivR 7.2(c). 	“The court may permit or require further briefing.” 	Id. 	This Court
has noted that “[i]t is well-established that parties do not have a right to file a sur-
reply brief, whether under the Federal Rules of Civil Procedure or the Local Civil
Rules of our district, and both this court and other federal courts rarely grant leave
to file a surreply.” 	Aslani v. Sparrow Health Sys., No. 1:08-CV-298, 2009 WL
3711602, at *22 (W.D. Mich. Nov. 3, 2009) (footnote omitted). 	The Court may grant
leave to file a sur-reply to afford a party an opportunity to address new issues raised
for the first time in the reply. 	Eldridge v. Cardif Life Ins. Co., 266 F.R.D. 173, 175
(N.D. Ohio 2010). 	Plaintiff did not move for leave to file a sur-reply. 	Plaintiff’s sur-
reply does not address new issues and further briefing is not required by the Court.
Accordingly, it is recommended that the Court grant Defendant’s motion to strike the
sur-reply.
III. 	Summary Judgment Standard
Summary judgment is appropriate when the record reveals that there are no
genuine issues as to any material fact in dispute and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56; Kocak v. Comty. Health Partners of
Ohio, Inc., 400 F.3d 466, 468 (6th Cir. 2005). The standard for determining whether
summary judgment is appropriate is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one
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party must prevail as a matter of law.” 	State Farm Fire & Cas. Co. v. McGowan,
421 F.3d 433, 436 (6th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986)). The court must consider all pleadings, depositions, affidavits,
and admissions on file, and draw all justifiable inferences in favor of the party
opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986); Twin City Fire Ins. Co. v. Adkins, 400 F.3d 293, 296 (6th Cir.
2005).
IV. 	Due Process
Beal asserts Fifth Amendment due process claims against Defendant Kowalski
for allegedly denying him a mail rejection hearing. 	However, the Fifth Amendment
applies to the federal government and not to state actors like Defendant Kowalski.
Therefore, the Court will analyze Beal’s claim under the Fourteenth Amendment.
In all cases where a person stands to be deprived of his life, liberty or property,
he is entitled to due process of law. 	The due process clause does not guarantee that
the procedure will produce a correct decision. 	Martinez v. California, 444 U.S. 277,
284, n. 9 (1980). 	The elements of a procedural due process claim are (1) a life, liberty,
or property interest requiring protection under the Due Process Clause, and (2) a
deprivation of that interest, (3) without adequate process. 	Women's Med. Prof’l
Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2006). 	“Without a protected liberty or
property 	interest, 	there 	can 	be 	no 	federal 	procedural 	due 	process 	claim.”
Experimental Holdings, Inc. v. Farris, 503 F.3d 514, 519 (6th Cir. 2007) (citing Bd. of
Regents of State Colleges v. Roth, 408 U.S. 564, 579 (1972)).
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It is well established that Plaintiff has a liberty interest in receiving his mail.
Stanley v. Vining, 602 F.3d 767, 769 (6th Cir. 2010) (citing Procunier v. Martinez, 416
U.S. 396, 428 (1974), overruled on other grounds by Thornburgh, 490 U.S. 401). 	The
Sixth Circuit has held that an incoming mail censorship regulation must provide
“that notice of rejection be given to the inmate-recipient” and that the inmate-
recipient be given the opportunity to challenge the rejection. 	Martin v. Kelley, 803
F.2d 236, 243-244 (6th Cir. 1986).
First, Beal alleges in his complaint that he received notice of the mail rejection.
ECF No. 1, PageID.3; see also ECF No. 30-2, PageID.121 (Notice of Package/Mail
Rejection). 	Beal’s issue seems to be that he did not receive a more formal hearing
outside of his prison cell. 	Beal was, however, given an opportunity to challenge the
mail rejection decision. 	Beal, while on suicide watch in an observation cell, spoke
with Defendant Kowalski. 	Defendant Kowalski was not involved in the decision to
reject his mail. 	Defendant Kowalski reviewed the mail and determined that it did
violate the MDOC mail policy. 	Defendant Kowalski explained in an affidavit:
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ECF 	No. 	30-4, 	PageID.142; 	see 	also 	ECF 	No. 	30-2, 	PageID.122 	(MDOC
Administrative Hearing Report). 	The Hearing Report states in part:
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ECF No. 30-2, PageID.122. 	In the opinion of the undersigned, Beal received due
process because he was provided with notice and an opportunity to be heard.
Moreover, Beal’s due process claim is barred by the doctrine of Parratt v.
Taylor, 451 U.S. 527 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327
(1986). 	Under 	Parratt, 	a 	person 	deprived 	of 	property 	by 	a 	“random 	and
unauthorized act” of a state employee has no federal due process claim unless the
state fails to afford an adequate post-deprivation remedy. 	If an adequate post-
deprivation remedy exists, the deprivation, although real, is not “without due process
of law.” 	Parratt, 451 U.S. at 537. 	This rule applies to both negligent and
intentional deprivations of property, if the deprivation was not done pursuant to an
established state procedure. 	Hudson v. Palmer, 468 U.S. 517, 530–36 (1984).
Because Beal’s claim is premised upon allegedly unauthorized acts of a state
official, he must plead and prove the inadequacy of state post-deprivation remedies.
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Copeland v. Machulis, 57 F.3d 476, 479–80 (6th Cir. 1995); Gibbs v. Hopkins, 10 F.3d
373, 378 (6th Cir. 1993). 	Under settled Sixth Circuit authority, a prisoner’s failure
to sustain this burden requires dismissal of his § 1983 due-process action. 	Brooks v.
Dutton, 751 F.2d 197 (6th Cir. 1985).
Beal 	has 	not 	established 	that 	state 	post-deprivation 	remedies 	were
inadequate. 	Furthermore, Beal filed a grievance through each step of the prison
grievance process. 	The Sixth Circuit has held that the grievance process is an
adequate post-deprivation remedy. 	Calhoun v. Morris, 2023 WL 5009669, *3 (6th
Cir., July 31, 2023) (granting summary judgment on Plaintiff’s due process claim,
reasoning that Plaintiff “presented no evidence that he did not have an adequate post-
deprivation remedy in the form of the MDOC's grievance process”).
In addition, Michigan Court Rule 3.105 and Mich. Comp Laws § 600.2920
govern actions for damages for the unlawful taking of goods or other property.
Michigan law also authorizes actions in the Court of Claims asserting claims “against
the state and any of its departments or officers.” Mich. Comp. Laws § 600.6419(1)(a).
The Sixth Circuit has specifically held that Michigan provides adequate post-
deprivation remedies for deprivation of property. Copeland, 57 F.3d at 480.
Therefore, in the opinion of the undersigned, no genuine issue of material facts
exists, entitling Defendant Kowalski to summary judgment on Plaintiff’s due process
claim.
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V. 	Qualified Immunity
Defendant argues that she is entitled to dismissal of the complaint against her
based 	upon 	qualified 	immunity. 	“Under 	the 	doctrine 	of 	qualified 	immunity,
‘government officials performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.’”
Phillips v. Roane Cty., 534 F.3d 531, 538 (6th Cir. 2008) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). 	Once a defendant raises the qualified
immunity 	defense, 	the 	burden 	shifts 	to 	the 	plaintiff 	to 	demonstrate 	that 	the
defendant officer violated a right so clearly established “that every ‘reasonable official
would have understood that what he [was] doing violate[d] that right.’” 	Ashcroft v.
Al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). 	The analysis entails a two-step inquiry. 	Martin v. City of Broadview
Heights, 712 F.3d 951, 957 (6th Cir. 2013). 	First, the court must “determine if the
facts alleged make out a violation of a constitutional right.” 	Id. 	(citing Pearson v.
Callahan, 555 U.S. 223, 232 (1982)). 	Second, the court asks if the right at issue was
“‘clearly established’ when the event occurred such that a reasonable officer would
have known that his conduct violated it.” 	Id. (citing Pearson, 555 U.S. at 232). 	A
court may address these steps in any order. 	Id. (citing Pearson, 555 U.S. at 236).
A government official is entitled to qualified immunity if either step of the analysis
is not satisfied. 	See Citizens in Charge, Inc. v. Husted, 810 F.3d 437, 440 (6th Cir.
2016).
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In applying the first step of the qualified immunity analysis, a court must
identify “the specific constitutional right allegedly infringed” and determine whether
a violation occurred. 	Graham v. Connor, 490 U.S. 386, 394 (1989). 	The court
considers the state of the law at the second step. 	As the Supreme Court has
observed, “this Court’s case law does not require a case directly on point for a right to
be clearly established, [but] existing precedent must have placed the statutory or
constitutional question beyond debate.” 	White v. Pauly, 580 U.S. 73, 79 (2017)
(internal quotation marks and original brackets omitted) (quoting Mullenix v. Luna,
577 U.S. 7, 11 (2015)). 	As explained by the Supreme Court:
To 	be 	clearly 	established, 	a 	legal 	principle 	must 	have 	a
sufficiently clear foundation in then-existing precedent. The rule must
be “settled law,” Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116
L.Ed.2d 	589 	(1991) 	(per 	curiam), 	which 	means 	it 	is 	dictated 	by
“controlling authority” or “a robust ‘consensus of cases of persuasive
authority,’ ” al–Kidd, supra, at 741–742, 131 S.Ct. 2074 (quoting Wilson
v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). It
is not enough that the rule is suggested by then-existing precedent. The
precedent must be clear enough that every reasonable official would
interpret it to establish the particular rule the plaintiff seeks to apply.
See Reichle, 566 U.S., at 666, 132 S.Ct. 2088. Otherwise, the rule is not
one that “every reasonable official” would know. Id., at 664, 132 S.Ct.
2088 (internal quotation marks omitted).
The “clearly established” standard also requires that the legal principle
clearly prohibit the officer’s conduct in the particular circumstances
before him. The rule’s contours must be so well defined that it is “clear
to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150
L.Ed.2d 272 (2001). This requires a high “degree of specificity.” Mullenix
v. Luna, 577 U.S. ––––, ––––, 136 S.Ct. 305, 309, 193 L.Ed.2d 255 (2015)
(per curiam). We have repeatedly stressed that courts must not “define
clearly established law at a high level of generality, since doing so avoids
the 	crucial 	question 	whether 	the 	official 	acted 	reasonably 	in 	the
particular circumstances that he or she faced.” Plumhoff, supra, at 2023
(internal quotation marks and citation omitted). A rule is too general if
the unlawfulness of the officer’s conduct “does not follow immediately
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from the conclusion that [the rule] was firmly established.” Anderson,
supra, at 641, 107 S.Ct. 3034. In the context of a warrantless arrest, the
rule must obviously resolve “whether ‘the circumstances with which [the
particular officer] was confronted ... constitute[d] probable cause.’”
Mullenix, supra, at 309 (quoting Anderson, supra, at 640–641, 107 S.Ct.
3034; some alterations in original).
D.C. v. Wesby, 583 U.S. 48, 63-64 (2018).
In the opinion of the undersigned, for the reasons set forth above, Defendant
is entitled to dismissal of Plaintiff’s claims based upon qualified immunity from
liability.
VI. 	Recommendation
It is respectfully recommended that the Court grant Defendant’s motion for
summary judgment and dismiss this case. 	It is further recommended that the Court
strike Plaintiff’s sur-reply, ECF No. 44.
NOTICE TO PARTIES: 	Objections to this Report and Recommendation must
be served on opposing parties and filed with the Clerk of the Court within fourteen
(14) days of receipt of this Report and Recommendation. 	28 U.S.C. § 636(b)(1)(C);
Fed. R. Civ. P. 72(b); W.D. Mich. LCivR 72.3(b). 	Failure to file timely objections
constitutes a waiver of any further right to appeal. 	United States v. Walters, 638
F.2d 947 (6th Cir. 1981). 	See also Thomas v. Arn, 474 U.S. 140 (1985).
Dated: 	May 7, 2026 	/s/ `ttÜàxÇ ixÜÅttà
MAARTEN VERMAAT
U.S. MAGISTRATE JUDGE
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