1:23-cv-00459•Calhoun #379175 v. Washington et al
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1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION SAMUEL EUGENE CALHOUN, Case No. 1:23-cv-459 Plaintiff, Hon. Paul L. Maloney v. HEIDI WASHINGTON, et al., Defendants. / REPORT AND RECOMMENDATION Plaintiff Samuel Eugene Calhoun is a prisoner in the custody of the Michigan Department of Corrections (“MDOC”). Plaintiff filed this pro se civil rights lawsuit pursuant to 42 U.S.C. § 1983. 1 The alleged incidents occurred at Muskegon Correctional Facility (“MCF”). See Opinion (ECF No. 20, PageID.27). 2 The remaining defendants are Mailroom Clerks Gail Scanlon and Karen Brown. 3 Plaintiff’s complaint contains three sets of First Amendment claims related to mail sent to him at the prison. First, defendant Brown violated his right to receive two newspaper articles in the regular mail (Opinion at PageID.27, 29-30, 68). Second, defendants Brown and Scanlon interfered with his right to receive a “DNA report” in the regular mail (Opinion 1 The Court notes that Attorney Paul Matouka entered a “limited attorney appearance” for plaintiff on October 25, 2023. It appears that Matouka withdrew as plaintiff’s attorney on August 23, 2024. 2 The Court notes that the “PageID.” numbers in this case are not sequential. When the United States District Court for the Eastern District of Michigan (E.D. Mich.) transferred the case to this Court, the case included “PageID.” numbers 1 through 142. See Order (ECF No. 6); E.D. Mich. docket sheet (ECF No. 7, PageID.142). After transfer, this Court re-started the “PageID.” numbers. See E.D. Mich. docket sheet (ECF No. 7-1, PageID.1). As a result, ECF Nos. 1 through 7 are identified as PageID.1-142, while ECF Nos. 7-1 through 46 are also identified as PageID.1-142. 3 On initial screening, the Court also allowed claims against defendant Delo. See Opinion at PageID.68. However, the Court dismissed Delo on May 30, 2025. See Order (ECF No. 37). Case 1:23-cv-00459-PLM-RSK ECF No. 70, PageID.<pageID> Filed 06/09/26 Page 1 of 26
2 at PageID.30-31, 41, 68). Third, defendants Brown and Scanlon violated his right to be present when his legal mail was opened for inspection (Opinion at PageID.27, 33-34, 68). This matter is now before the Court on plaintiff’s motion for summary judgment (ECF No. 57), defendants’ motion for summary judgment (ECF No. 60), and defendants’ motion to compel (ECF No. 54). I. Motions for summary judgment “The court shall grant summary judgment if the movant shows 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). Rule 56 further provides that a party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1). In Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995), the court set forth the parties’ burden of proof in a motion for summary judgment: The moving party bears the initial burden of establishing an absence of evidence to support the nonmoving party’s case. Once the moving party has met its burden of production, the nonmoving party cannot rest on its pleadings, but must present significant probative evidence in support of the complaint to defeat the motion for summary judgment. The mere existence of a scintilla of evidence to support plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. Copeland, 57 F.3d at 478-79 (citations omitted). “In deciding a motion for summary judgment, the court views the factual evidence and draws all reasonable inferences in favor of the nonmoving Case 1:23-cv-00459-PLM-RSK ECF No. 70, PageID.<pageID> Filed 06/09/26 Page 2 of 26
3 party.” McLean v. 988011 Ontario Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Here, plaintiff included a “verification” at the end of his complaint (ECF No. 1, PageID.44). See Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993) (a plaintiff’s “verified” complaint has the same force and effect as an affidavit for purposes of responding to a motion for summary judgment). II. First Amendment claims Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, which “provides a civil cause of action for individuals who are deprived of any rights, privileges, or immunities secured by the Constitution or federal laws by those acting under color of state law.” Smith v. City of Salem, Ohio, 378 F.3d 566, 576 (6th Cir. 2004). To state a § 1983 claim, a plaintiff must allege two elements: (1) a deprivation of rights secured by the Constitution and laws of the United States, and (2) that the defendant deprived him of this federal right under color of law. Jones v. Duncan, 840 F.2d 359, 360-61 (6th Cir. 1988); 42 U.S.C. § 1983. The Court’s screening opinion set out the legal standard applicable to plaintiff’s First Amendment claims: “A prisoner’s right to receive mail is protected by the First Amendment.” Knop v. Johnson, 977 F.2d 996, 1012 (6th Cir. 1992) (citing Pell v. Procunier, 417 U.S. 817, 822 (1974)). “Mail is one medium of free speech, and the right to send and receive mail exists under the First Amendment.” Al-Amin v. Smith, 511 F.3d 1317, 1333 (11th Cir. 2008) (citing City of Cincinnati v. Discovery Network, Inc., 501 U.S. 410, 427 (1993) (“[T]he use of the mails is as much a part of free speech as the right to use our tongues.” (internal quotation marks omitted)). But a prisoner retains only those First Amendment freedoms which are “not inconsistent with his status as a prisoner or with legitimate penological objectives of the corrections system.” Martin v. Kelley, 803 F.2d 236, 240 n.7 (6th Cir. 1986) (quoting Pell, 417 U.S. at 822; see also Turner v. Safley, 482 U.S. 78 (1987). It is well established that “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v. Johnston, 334 U.S. 266, 285 (1948). The limitations on the exercise of constitutional rights arise both from the fact of incarceration and from valid penological objectives-including deterrence of crime, rehabilitation of prisoners, and institutional security. O’Lone v. Estate of Case 1:23-cv-00459-PLM-RSK ECF No. 70, PageID.<pageID> Filed 06/09/26 Page 3 of 26
4 Shabazz, 482 U.S. 342, 348 (1987) (citing Pell, 417 U.S. at 822-23; Procunier v. Martinez, 416 U.S. 396, 412 (1974)). Opinion at PageID.38-39. This lawsuit involves mail sent to the plaintiff prisoner. As this Court explained: Incoming mail has long been recognized to pose a greater threat to prison order and security than outgoing mail. Thornburgh v. Abbott, 490 U.S. 401 (1989); Turner, 482 U.S. at 78. And the possibility that incoming mail might introduce contraband into the prison is so obvious that courts have routinely upheld the right of prison officials to inspect incoming mail for contraband despite First Amendment free speech protection. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 574-76 (1974). Id. at PageID.40 (footnote omitted). A. Regular mail 1. Newspaper articles rejected by defendant Brown Pursuant to MDOC Policy Directive (PD) 05.03.118 ¶ DD (eff. March 1, 2018), all incoming that does not require “special handling” (referred to in this report as “regular mail”) is opened by the MDOC and inspected for contraband: All incoming mail that does not receive special handling pursuant to Paragraphs EE through HH shall be opened in one location at each facility and inspected at that location to determine if it contains money, controlled substances, or other physical contraband. All physical contraband shall be confiscated prior to delivery of the mail to the prisoner. The mail’s written content also shall be skimmed, and if it appears from skimming the content that the mail may violate this policy, the item shall be read to determine if it is allowed. Compl. (ECF No. 1, PageID.75). Under this policy, the MDOC may reject a portion of a periodical such as a newspaper: If any written material, picture, or photograph contained within a publication is believed to be in violation of this policy, the entire publication shall be rejected. However, if the written material, picture or photograph is in a section of a newspaper that is not stapled or otherwise affixed to the rest of the newspaper, only that section of the newspaper shall be rejected. The rest of the newspaper shall be delivered to the prisoner. Case 1:23-cv-00459-PLM-RSK ECF No. 70, PageID.<pageID> Filed 06/09/26 Page 4 of 26
5 PD 05.03.118 ¶ RR (ECF No. 1, PageID.79). a. August 6, 2020 newspaper article First, Plaintiff alleges that, on August 20, 2020, Defendant Brown rejected four pages from his Lansing Star Journal because they included an article pertaining to an MDOC prisoner in the Upper Peninsula of Michigan. (Compl., ECF No. 1, PageID.22-23 ¶ 84.) Plaintiff includes a copy of the Notice of Package/Mail Rejection form, (Attach., ECF No. 1, PageID.59); nonetheless, he claims he did not receive notice of the rejection and that he was not afforded an opportunity to be heard. (Compl., ECF No. 1, PageID.23 ¶ 86.) Opinion at PageID.19-20. While the Court’s opinion states that a newspaper article was rejected on August 20, 2020 (ECF No. 20, PageID.29), the complaint and the attached rejection (ECF No. 1, PageID.22, 59) establish that the article was rejected on August 11, 2020. Accordingly, the Court will refer to this rejection as occurring on August 11, 2020. Defendant Brown explained the rejection of this newspaper article as follows: On August 11 and August 25, 2020, I issued prisoner Samuel Calhoun #397175 (“Plaintiff”) notices of rejection for newspaper articles. In context, this means Plaintiff was provided the newspapers at issue, less articles that were withheld pending resolution of his notice of rejection. The article underlying the August 11 rejection was an article from August 6, 2020, describing an August 3, 2020, escape attempt by three prisoners at another MDOC prison. The article specifically identified the three prisoners by first and last name, age, and stated the crime they were previously convicted of. The article identified the facility they attempted to escape from, described the manner of how they tried to escape, described how other prisoners attempted to help them, and described how staff apprehended them. Brown Decl. (ECF No. 61-3, PageID.335-336).4 Brown stated that she followed and relied on MDOC policy when issuing the rejection for this article. Id. at PageID.336. Brown further explained the mail rejection procedure: A “notice of rejection,” . . . is the first step in MDOC’s process for determining whether a prisoner will be denied incoming mail. Per policy, a prisoner who disputes the validity of a rejection can request an administrative hearing. Id. 4 The Court notes that Brown’s declaration is referred to as an “affidavit” and she is referred to as “affiant”. Case 1:23-cv-00459-PLM-RSK ECF No. 70, PageID.<pageID> Filed 06/09/26 Page 5 of 26
6 MDOC Policy prohibits prisoners from receiving mail such as the rejected article, which explained how the prisoners attempted to escape from an MDOC correctional facility: Prisoners are prohibited from receiving mail that may pose a threat to the security, good order, or discipline of the facility, facilitate or encourage criminal activity, or interfere with the rehabilitation of the prisoner. The following pose such risks under all circumstances and therefore shall be rejected: . . . 17. Mail depicting, encouraging, or describing methods of escape from a correctional facility. . . PD 05.03.118 ¶ NN (ECF No. 1, PageID.76-77) (emphasis added). Plaintiff did not have a First Amendment right to receive the prohibited newspaper article. The withholding of a newspaper article that describes an escape attempt at another prison does not violate the First Amendment because it is “patently reasonable” for MDOC employees to prevent plaintiff from researching how to escape from prison. See Murphy v. Karber, No. 1:14- cv-269, 2017 WL 4160949 at *13 (W.D. Mich. Sept. 20, 2017), affirmed No. 17-2271, 2018 WL 5296368 (6th Cir. May 8, 2018) (“It was patently reasonable for MDOC employees at ICF to try to keep from plaintiff the details of how an Arizona prison break had been accomplished . . . The same is true for the rejection of the story describing how the Ohio prisoner escaped from his hospital bed restraints. . .”). In summary, defendant Brown did not violate plaintiff’s First Amendment rights by issuing a Notice of Rejection as to the August 6, 2020 newspaper article. Accordingly, this claim should be denied. b. August 22, 2020 newspaper article Next, Plaintiff claims that, on August 25, 2020, Defendant Brown rejected two pages from another Lansing Star Journal article because it “discuss[ed] the current global coronavirus and an MDOC prisoner.” (Id., PageID.23 ¶ 85.) Plaintiff claims that he did not receive notice of the rejection and that he was not afforded an opportunity to be heard. (Id. ¶ 86.) Opinion at PageID.30, Brown set forth the basis for rejecting this newspaper article as follows: The article underlying the August 25 rejection was an article from August 22, 2020, that contained the names of current MDOC prisoners, along with information that Case 1:23-cv-00459-PLM-RSK ECF No. 70, PageID.<pageID> Filed 06/09/26 Page 6 of 26
7 a specific MDOC prison, mentioned by first and last name, and age, tested positive for COVID-19. Brown Aff. at PageID.336. The Notice of Rejection (Exh. E, ECF No. 61-6) was signed by Brown, dated August 25, 2020, and identified the rejected mail as follows, “ARTICLE IN 8/22/2020 LANSING JOURNAL DISCUSSES VIRUS AND CURRENT MDOC PRISONER, pages 7A, & 8A, removed.” PageID.356. The listed reason for rejection is PD 05.03.118 ¶ NN. Id. Defendants’ brief also refers to PD 03.04.100 ¶ J (eff. 04/01/2019), which states, Prisoners shall not perform direct patient care, except for authorized care performed by Prisoner Palliative Care Aids and prisoner opticians. Prisoners also shall not schedule medical appointments, determine access to care, handle critical tools or medications, operate diagnostic or therapeutic equipment except for authorized use by prisoner opticians, or have access to information contained in other prisoners’ health records. Prisoners may handle their own medications and injections, as appropriate. PD 03.04.100 ¶ J (ECF No. 61-5, PageID.343) (emphasis added); Defendants’ Brief (ECF No. 61, PageID.266). The Notice of Rejection includes a section “to be completed by the prisoner only” which allows the prisoner to “[i]ndicate what you want to have done with the item(s) identified by marking one of the following . . .” Notice (ECF No. 61-6, PageID.356) (emphasis in original). The Notice reflects that plaintiff chose the option “Destroy (mail & property only)” and signed the Notice on September 21, 2020. Id. As Brown explained: 4. The document [“Notice of Package / Mail Rejection], included as Exhibit E [ECF No. 61-6, PageID.356], memorializes that Plaintiff consented to destroy the article underlying the August 25 rejection notice. Once a prisoner consents to destroy an article in lieu of seeking an administrative hearing, the article is discarded. 5. I have been informed Plaintiff is claiming some unknown staff member improperly notated the disposition section of the rejection form to convey that Plaintiff consented to destroy article underlying the August 25 rejection notice. Even if that were true, I would not have known about that, as I was not personally involved in procuring Plaintiffs signature on the form or notating Plaintiffs preferred disposition. Case 1:23-cv-00459-PLM-RSK ECF No. 70, PageID.<pageID> Filed 06/09/26 Page 7 of 26
8 Brown Aff. at PageID.336-337. Even if there was an error in the Notice of Rejection, plaintiff’s claim fails. PD 05.03.118 ¶ NN applies to the rejection because the MDOC has an interest in prohibiting prisoners “from receiving mail that may pose a threat to the security, good order, or discipline of the facility, facilitate or encourage criminal activity, or interfere with the rehabilitation of the prisoner.” PageID.76. See Murphy v. Karber, No. 17-2271, 2018 WL 5296368, at *6 (Order) (6th Cir. May 8, 2018) (observing that “prisons have an interest in preventing personal information to be disseminated within a prison because it may facilitate criminal acts against individuals”) (internal quotation marks omitted). In this regard, a prisoner has a significant interest in his or her medical diagnoses. See, e.g., Moore v. Prevo, 379 Fed. Appx. 425, 427-28 (6th Cir. 2010) (stating that “[i]t is beyond question that information about one’s HIV-positive status is information of the most personal kind and that an individual has an interest in protecting against the dissemination of such information”, that “a prisoner’s right to privacy in this medical information is not fundamentally inconsistent with incarceration”, and that “we join the Second Circuit in recognizing that the constitutional right to privacy in one’s medical information exists in prison.”) (quoting Doe v. Delie, 257 F.3d 309, 317 (3d Cir. 2001)) (internal citations omitted). Accordingly, defendant Brown did not violate plaintiff’s First Amendment rights by issuing a Notice of Rejection as to the August 6, 2020 newspaper article. 2. The DNA Report a. Plaintiff’s claim Plaintiff contends that on December 29, 2021, defendants Brown and Scanlon: censored mail to Plaintiff from Intelligent Solutions Advisory “by removing several pages of a forensic DNA report that was created by the advisory group at Plaintiff’s request . . . .” (Id., PageID.25 ¶ 91.) Plaintiff alleges that Defendants Brown and Case 1:23-cv-00459-PLM-RSK ECF No. 70, PageID.<pageID> Filed 06/09/26 Page 8 of 26
9 Scanlon again failed to provide the requisite notice so that Plaintiff was never afforded a hearing regarding the censorship. Plaintiff reordered the report. Plaintiff contends that Brown and Scanlon entirely failed to provide the second report without providing notice or an opportunity to be heard. (Id. PageID.28 ¶ 99.) Opinion at PageID.30. Plaintiff alleged that the censored mail was from “Intelligent Solutions Advisory (ISA), located at 4-831 Kuhio Hwy. Suite 438-333, Kapaa, HI 96746”, that defendants “remov[ed] several pages of a forensic DNA report that was created by the advisory group at Plaintiff’s behest and mailed to him”, and that “[t]his forensic DNA analysis were [sic] to be presented as newly discovered exculpatory evidence to the court in Plaintiff’s post-conviction appeal with respect to his criminal conviction.” Compl. at ¶ 91, PageID.25. Exhibit F appears to be a label from the USPS dated December 17, 2021, from ISA to plaintiff. See Label (ECF No. 1, PageID.61). Plaintiff further alleged that in early January 2022, Plaintiff took this matter to the Unit’s Prisoner Counsel [sic] (PC) Jones and showed him the forensic DNA report that he had received from ISA and how there were sections missing from its chronological order, which sections were entitled as exhibits 1 through 8, with each exhibits’ page number listed in its own chronological order by page of which some pages were missing. Plaintiff asked PC Jones to contact mail room clerks Brown and Scanlon and inquire about the missing pages since he did not received a mail rejection notice of their rejection. Plaintiff was informed by PC Jones that he had spoken with Scanlon, who told him that Plaintiff “received what was sent to him.” Compl. at ¶ 93, PageID.25-26. Plaintiff alleged that he obtained a second copy of the DNA Report “via [a] third party” who “requested for ISA to send him another copy of the forensic DNA report immediately in order for him to file it in the court along with his motion for relief from judgment on post- conviction appeal, who mailed the second report out to him in mid-January 2022.” Id. at ¶ 96, PageID.27. Plaintiff continued, Case 1:23-cv-00459-PLM-RSK ECF No. 70, PageID.<pageID> Filed 06/09/26 Page 9 of 26
10 97. As to the issue above regarding the second DNA report mailed to Plaintiff in paragraph 96, after more than a month of checking in with ISA, who was tracking the package’s delivery via USPS Tracking System. [sic] Plaintiff was informed that his mail had arrived at MCF and was signed for by prison officials on February 9, 2022. See Photocopy of the Envelope In Which Plaintiff’s First Forensic DNA Report Arrived from ISA and MDOX DOM 2202-23 Regarding Prisoners’ Incoming Mail, (attached as Exhibit F, to this Complaint). 98. As to the issue above regarding the arrival of the second DNA report mailed to Plaintiff in paragraph 97, it now being February 28th, and Plaintiff at this juncture: had neither received a rejection notice with regard to his mail from ISA nor had he received the mail itself that was sent to him and signed for by prison officials. Id. at ¶¶ 97-98, PageID.27. At his deposition, plaintiff testified that he knew that ISA sent the second package because “the copy of the envelope that they sent it” was “attached to the verified complaint.” See Calhoun Dep. (ECF No. 61-2, PageID.299). However, defense counsel had to correct plaintiff by pointing out that the “envelope” (Exhibit F) was for the first package. Id. Plaintiff then testified that his daughter contacted Hawaii and they “confirmed to her that the package did arrive here.” Id. at PageID.300. Plaintiff speculated that his daughter might have the receipt for the second package. Id. at PageID.301. Finally, plaintiff had no evidence that either defendant Brown or Scanlon handled the second package. Rather, plaintiff stated, I just know what's been conveyed to me, that when she [his daughter] talked to Solutions, they said that they had received the receipt back, that it was signed for at the facility, so that it had arrived here. Id. at PageID.302. b. Plaintiff’s deposition testimony regarding the two copies of the DNA Report and defendants’ motion to compel production of the first copy of the DNA Report (ECF No. 54) To evaluate the parties’ motions for summary judgment related to the two copies of the DNA Report, the Court needs to address plaintiff’s deposition testimony regarding the DNA Report and defendants’ motion to compel production of the first copy of the DNA Report received Case 1:23-cv-00459-PLM-RSK ECF No. 70, PageID.<pageID> Filed 06/09/26 Page 10 of 26
11 on December 29, 2021. By way of background, the mailing label (Exhibit F) is the only documentary evidence to support plaintiff’s claims regarding the existence of the first copy of the DNA Report. Plaintiff has presented no other documentary evidence to support his claims regarding either the first or second copy of the DNA Report. As discussed, plaintiff alleged that the DNA Report was “a forensic DNA report that was created by the advisory group at Plaintiff’s behest and mailed to him” and that the “forensic DNA analysis” was to be presented as newly discovered exculpatory evidence to the court in his post-conviction appeal of a criminal conviction. Compl. at ¶ 91, PageID.25. 5 In its screening opinion, the Court noted that plaintiff did not allege that the ISA was a laboratory which prepared a DNA report for him, stating “it does not appear that Intelligent Solutions Advisory is a laboratory; rather, it is — or perhaps was — a book vendor through the website www.toolsforfreedomstore.com. ” PageID.30, fn. 2. 6 5 The Court notes that plaintiff filed this lawsuit more than 20 years after his conviction. A jury found plaintiff guilty of first-degree criminal sexual conduct on July 27, 2001, and sentenced him to life imprisonment on September 17, 2001. See Calhoun v. Prelesnik, No. 1:09-cv-468, 2014 WL 4983500 at *11 (W.D. Mich. Sept. 25, 2014). Defendants explained the relevant DNA evidence as follows: Plaintiff was convicted of first-degree criminal sexual conduct for impregnating his fourteen-year-old stepdaughter. At trial, Plaintiff was identified as the perpetrator through: (1) the victim’s testimony that Plaintiff had, to varying degree, molested her since she was in second grade; and (b) a paternity test which, by way of DNA testing and analysis, confirmed Plaintiff to be the father of the victim’s infant by a statistical certainty of more than 3 trillion to 1. People v. Calhoun, No. 237287, 2003 Mich. App. LEXIS 2646, at *1-2 (Mich. Ct. App. Oct. 21, 2003). Defendants’ Motion to Compel (ECF No. 54, PageID.180, fn. 1). 6 Decisions from other courts indicate that ISA provides “reports” and DVDs. See generally, Caetano v. Board of State & Community Corrections., No. 122CV00687SKOPC, 2023 WL 3201072 at *5 (May 2, 2023), R&R adopted 2023 WL 3727308 (E.D. Cal. May 30, 2023) (in alleging fraud pursuant to California Penal Code section “1473(b)(2) ‘false physical evidence’ ”, plaintiff claims fraud “based upon a CIA front company out of Hawai‘i named ISA- Intelligent Solutions Advisory-47 page report 9409 on the inadmissibility of PCR DNA evidence because it is ‘synthetic remanufactured’ evidence clearly § 1473(b)(2) ‘false physical evidence.’ ”); Nicholson v. Boakye, No. 7:17CV00273, 2017 WL 3331775 at *1 (W.D. Va. Aug. 4, 2017) (in dismissing pro se inmate Nicholson’s complaint, the Court noted that “Nicholson submits a photocopy of a DVD he obtained from Intelligent Solutions Advisory titled ‘RFID Revealed: The Secret Microchip Plan to Tag Everyone.’”). Case 1:23-cv-00459-PLM-RSK ECF No. 70, PageID.<pageID> Filed 06/09/26 Page 11 of 26
12 Defendants’ counsel deposed plaintiff on August 28, 2025, about one month before discovery closed (September 30, 2025). See Calhoun Dep. (ECF No. 61-2); Case Management Order (CMO) (ECF No. 38, PageID.118). During the deposition, defendants’ counsel asked plaintiff about the alleged “forensic DNA analysis” contained in the “DNA Report”. When counsel pointed out that ISA does not perform DNA analysis (i.e., the company’s business description stated that it “primarily operates in the educational aids and electronic training materials businesses and industry within the miscellaneous retail sector”), plaintiff responded “I fail to see the relevance to this issue.” Calhoun Dep. at PageID.305. When counsel attempted to ascertain the nature of the DNA Report, plaintiff gave a rambling answer: Q And does that involve them running a new test on you, or simply commenting on the statistic involved with your conviction? A Neither. It’s the method -- the methodology that was used to conjure the test -- the test that --the test that the Michigan State Police lab took, that I’m -- that I have in my possession, that was never entered into evidence during trial. Id. at PageID.295. When counsel pointed out that plaintiff’s grievance claimed that the MDOC removed sections of the DNA report contained in the package, plaintiff testified that his statement “was in the context of there being censorship of incoming mail.” Id. at PageID.306. Based on this record, plaintiff did not establish the nature of the alleged forensic DNA analysis from ISA. However, the issue before the Court is not whether ISA prepared a forensic DNA analysis. Rather, the remaining claims in this lawsuit involves plaintiff’s allegation that defendants interfered with his First Amendment right to receive mail from ISA, whether that mail was an envelope containing a “forensic DNA analysis” or an envelope containing a “DNA Report”. That being said, plaintiff has failed to demonstrate that defendants censored his mail from ISA by removing parts of a “DNA Report”. Plaintiff could not identify the specific Case 1:23-cv-00459-PLM-RSK ECF No. 70, PageID.<pageID> Filed 06/09/26 Page 12 of 26
13 portions of the DNA Report which he claims defendants removed. When defense counsel asked “how do you know the first envelope was incomplete”, plaintiff testified that, Because the papers was in a series. They were -- it was in a series of exhibits, 1 to 8, and there was a section missing. It was all in chronological order, and there was a section missing. Calhoun Dep. at PageID.297. When defendants’ counsel sought clarification about the missing section, plaintiff provided a rather garbled explanation, Q And so which section do you believe was missing? You said that was like a chronological order of documents or exhibits. Could you tell which, specifically, was supposed to be there but wasn’t? A Well, there’s -- it was eight exhibits, from 1 to 8, and then, the -- there was page numbers. Each exhibit was in chronological order. One from this page, page 1 of 22, page 2 of 22. That’s how it was done. And there was sections missing. If -- if that -- if I made myself clear there, you know -- know -- if that’s clear -- being -- if I’m being clear to you, which is how I knew that the sections were missing. Id. at PageID.298. Next, plaintiff has no evidence to support his claim that the mailroom staff censored the DNA Report. When defendants’ counsel asked, “But how do you know that they were missing because someone in the mailroom withheld them, in contrast to perhaps the Hawaii company just sent you what they sent you?”, plaintiff admitted “Well, I didn’t, which is why -- which is why I went to the counselor with my issue.” Id. (emphasis added). Finally, defendants’ counsel also asked plaintiff about the location of the DNA Report. At least three times during the deposition, plaintiff stated that he possessed the DNA Report which ISA sent to him in December 2021.7 7 First, when counsel asked “do you still have the documentation that this Hawaii company sent you?”, plaintiff responded “Yes.” Calhoun Dep. at PageID.295. Second, when defendants’ counsel asked “And then you mentioned that you do still have the pages that did arrive with the first package?”, plaintiff answered “That is correct.” PageID.304. Third, when asked “Where is the DNA report?”, plaintiff responded “I’m in possession of -- of the DNA report.” Id. at PageID.310. Case 1:23-cv-00459-PLM-RSK ECF No. 70, PageID.<pageID> Filed 06/09/26 Page 13 of 26
14 The next day, defendants served a discovery request for plaintiff to produce the documents received from ISA: Please produce a copy of any/all documents in your possession purporting to be documents sent to you from Intelligent Solutions Advisory” [sic] in December of 2021. First Request to Produce (ECF No. 54-3, PageID.201); Certificate of Service (ECF No. 47). Plaintiff did not produce the DNA Report which he claimed to possess. Rather, he responded with “objections” dated September 17, 2025: OBJECTIONS: Plaintiff brought his § 1983 action in early-May, 2023, while at Duane Waters Hospital in Jackson, MI recovering from shoulder replacement surgery and either nolonger [sic] possess [sic] or cannot locate the documents requested due to the searching and removal of his legal materials for having excessive legal property when his property was packed up and move to and fro [sic] facilities at both Duane Waters and Muskegon Correctional Facility. Moreover, the contents of the packet received by Plaintiff from “Intelligent Solutions Advisory” would be largely irrelevant to the case. Plaintiff’s Response (ECF No. 53, PageID.174-175). Plaintiff’s response and objections contradict his deposition testimony that he possessed the DNA Report. Given this contradiction, defendants filed a combined motion/brief to compel (ECF No. 54), in which they ask the Court to overrule plaintiff’s objection, order “disclosure of the documents compelled”, and to “grant their motion to compel.” PageID.183. See Defendants’ Motion at PageID.181-183. In his response to the motion to compel, plaintiff appears to state that he mistakenly testified that he possessed the DNA Report (in his words): [D]uring his deposition when he was giving his testimony regarding the documents that he had requested to be produced that, he believed that he was in fact in possession of them at the time until after a thorough search of his property reviled otherwise as required by Fed. R. Civ. P. 34(b)(2)(B). Case 1:23-cv-00459-PLM-RSK ECF No. 70, PageID.<pageID> Filed 06/09/26 Page 14 of 26
15 Plaintiff’s Response (ECF No . 59, PageID.240-241). Then, plaintiff appears to state that he never intended to use the DNA Report at trial (in his words): Therefore, since Plaintiff cannot located the requested documents and did not beforehand as it continues to be the case to ever use the documents at a hearing or at a trial thus, the Court should dismiss Defendant’s Motion to Compel. Id. at PageID.242. Based on this record, there is no relief that the Court can provide to defendants. The Court cannot compel plaintiff to produce the DNA Report which he no longer possesses. In this regard, plaintiff stated that he did not intend to use the alleged DNA Report at trial. The Court will hold plaintiff to his statements. Finally, defendants’ motion did not seek sanctions or any other relief from the Court. Accordingly, plaintiff’s objections should be sustained and defendants’ motion to compel (ECF No. 54) should be denied. c. Discussion Based on this record, plaintiff’s inconsistent deposition testimony and his failure to produce the alleged DNA Report undermine his First Amendment claim that defendants censored this report. The only documentary evidence that plaintiff produced to support his claim is a copy of an envelope from ISA, addressed to plaintiff and postmarked December 17, 2021. See Copy of Envelope (ECF No. 1, PageID.61). Plaintiff did not provide a coherent description of the document he received or any specific exhibits which were missing from the document. Furthermore, plaintiff admitted that he had no evidence that someone in the mailroom removed the alleged missing exhibits from the DNA Report. Finally, there is no evidence that anyone at the prison received a second copy of the DNA Report in 2022 or that either Scanlon or Brown withheld the second copy of the report from him. According to plaintiff, a third-party (his daughter) ordered it, someone at ISA was tracking Case 1:23-cv-00459-PLM-RSK ECF No. 70, PageID.<pageID> Filed 06/09/26 Page 15 of 26
16 it, an unidentified person informed plaintiff or his daughter that the second report had arrived at MCF, and an unidentified prison official signed for it on February 9, 2022. See Compl. at ¶¶ 96, 97 and 98, PageID.27. Plaintiff also speculated that his daughter might have a “receipt” without explaining the nature or relevance of the “receipt”. To the extent that plaintiff has any evidence that a second DNA Report was received at the prison, it is hearsay evidence from his daughter which cannot create a genuine issue of material fact to support a summary judgment motion. See Sperle v. Michigan Department of Corrections, 297 F.3d 483, 495 (6th Cir. 2002) (“A party opposing a motion for summary judgment cannot use hearsay or other inadmissible evidence to create a genuine issue of material fact.”). Based on this record, no reasonable juror could find that Brown or Scanlon removed exhibits from the first copy of the DNA Report or withheld a second copy of the DNA Report. 3. Conclusion For the reasons discussed, the Court should: deny defendants Brown and Scanlon’s motion to compel; grant defendants’ motion for summary judgment as to all of the regular mail claims; and, deny plaintiff’s motion for summary judgment on the regular mail claims. B. Legal mail Plaintiff also alleged that defendants interfered with his legal mail. “The determination of whether particular kinds of correspondence qualify for the constitutional protection accorded a prisoner’s ‘legal mail’ is a question of law properly decided by the court, not one of fact that can be submitted to a jury.” Sallier v. Brooks, 343 F.3d 868, 873 (6th Cir. 2003). The Sixth Circuit explained the significance of legal mail as follows: [W]hen the incoming mail is “legal mail,” we have heightened concern with allowing prison officials unfettered discretion to open and read an inmate’s mail because a prison’s security needs do not automatically trump a prisoner’s First Amendment right to receive mail, especially correspondence that impacts upon or Case 1:23-cv-00459-PLM-RSK ECF No. 70, PageID.<pageID> Filed 06/09/26 Page 16 of 26
17 has import for the prisoner’s legal rights, the attorney-client privilege, or the right of access to the courts. See Kensu v. Haigh, 87 F.3d 172, 174 (6th Cir. 1996) (“The right of a prisoner to receive materials of a legal nature, which have impact upon or import with respect to that prisoner’s legal rights and/or matters, is a basic right recognized and afforded protection by the courts . . . .”); see also Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (“In balancing the competing interests implicated in restrictions on prison mail, courts have consistently afforded greater protection to legal mail than to non-legal mail . . . .”). In an attempt to accommodate both the prison’s needs and the prisoner’s rights, courts have approved prison policies that allow prison officials to open “legal mail” and inspect it for contraband in the presence of the prisoner. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 577, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (upholding such a policy against a Sixth Amendment attorney-client privilege claim and a Fourteenth Amendment due process claim based on access to the courts). In Knop [v. Johnson, 977 F.2d 996 (6th Cir. 1992)], we addressed an opt-in system in which prison officials could open any mail sent to a prisoner unless the prisoner affirmatively requested that “privileged mail,” defined by the policy as mail sent by a court or by counsel, be opened in his presence. 977 F.2d at 1012. We found that the opt-in system was constitutionally sound as long as prisoners received written notice of the policy, did not have to renew the request upon transfer to another facility, and were not required to designate particular attorneys as their counsel. Id. Not all mail that a prisoner receives from a legal source will implicate constitutionally protected legal mail rights. Indeed, even mail from a legal source may have little or nothing to do with protecting a prisoner’s access to the courts and other governmental entities to redress grievances or with protecting an inmate’s relationship with an attorney. When it does, however, we must balance the interest of prison security against the possibility of tampering that could unjustifiably chill the prisoner’s right of access to the courts or impair the right to be represented by counsel. We also note in response to prison officials’ security concerns that even constitutionally protected mail can be opened (although not read) and inspected for contraband. The only requirement is that such activity must take place in the presence of the recipient, if such a request has been made by the prisoner. Sallier, 343 F.3d at 874. Under MDOC Policy, incoming “legal mail” receives “special handling”: A prisoner may have his/her incoming legal mail receive special handling by submitting a completed Mail Requiring Special Handling form (CSJ-246) to the institution’s mailroom supervisor or designee. Only mail received directly from an attorney or a law firm, a legitimate legal service organization, the Department of Attorney General, a prosecuting attorney’s office, a court, a clerk of the court, a Friend of the Court office, or the Office of the Legislative Corrections Ombudsman Case 1:23-cv-00459-PLM-RSK ECF No. 70, PageID.<pageID> Filed 06/09/26 Page 17 of 26
18 is considered legal mail, and only if the mail is clearly identified on the face of the envelope as being from one of the above. It is not sufficient for the envelope to be simply marked “legal mail.” PD 05.03.118 ¶ FF (ECF No. 1, PageID.75). Here, plaintiff signed the MDOC’s form for “Special Handling of Incoming Legal Mail” checking the box which stated, “I want my legal mail opened in my presence.” Legal Mail Form (ECF No. 1, PageID.47). The MDOC’s procedure for “Processing Mail Requiring Special Handling” is as follows: II. If it appears upon receipt that mail requiring special handling may have been mailed from someone other than the identified sender, mailroom staff shall confirm the mailing with the identified sender at a verified telephone number (e.g., Michigan Bar Journal). If confirmed, the mail shall then be processed with special handling. If the identified sender did not send the mail, an e-mail shall be sent to the identified sender confirming this information. A copy of the e-mail shall be retained with the log identified in Paragraph KK. In such cases, the mail will be processed in accordance with this policy but will not receive special handling. JJ. Incoming mail receiving special handling shall be opened and inspected for money, controlled substances, and other physical contraband in the prisoner’s presence. The content of the mail shall not be read or skimmed. All physical contraband shall be confiscated prior to delivery to the prisoner. Mail opened in the prisoner’s presence that clearly does not qualify for special handling or contains contraband shall be returned to the mailroom for processing in accordance with this policy. KK. A log shall be maintained to document the delivery of mail receiving special handling. The log shall include the date the mail was received in the mailroom, the sender’s name, the prisoner’s name and number, the date the mail was given to the prisoner, and the prisoner’s signature acknowledging receipt of the mail. If the prisoner chooses not to sign or accept the mail, that shall be documented and the mail delivered to the prisoner. PD 05.03.118 ¶ II, JJ and KK (ECF No. 1, PageID.76). 1. Defendant Scanlon a. April 28, 2020 (legal mail allegedly treated as regular mail) Plaintiff reports that, on April 28, 2020, Defendants Scanlon and Brown processed an incoming piece of mail that was legal mail as regular mail. (Compl., Case 1:23-cv-00459-PLM-RSK ECF No. 70, PageID.<pageID> Filed 06/09/26 Page 18 of 26
19 ECF No. 1, PageID.8 ¶ 25.) Plaintiff received the mail opened, removed from its original envelope, and placed into a new envelope. Plaintiff reports that the mail was sent from this Court. Accepting that allegation as true, under the MDOC policy, it was legal mail. As noted above, mail from a court is considered legal mail. Opinion at PageID.33. A parcel mailed from a third party, even if it contains correspondence that includes a court document, is not processed as “legal mail.” See PD 05.03.118, ¶ FF. In such a situation, mailroom staff has no way of knowing that an envelope from a third-party contains court correspondence until that envelope is opened. In investigating this matter, the respondent to plaintiff’s related grievance (B. Dixon-Ingalls) stated in relevant part, I was unable to determine how the amil [sic] entered the facility, but do know the mail was processed as regular mail. Policy and procedures were reviewed and a new procedure was put in place to copy any envelope that contains legal mail in which the mail was not sent in from a legal entity identified in the Michigan Bar Association. Grievance Response (ECF No. 61-7, PageID.358). The grievance response did not identify either Scanlon or Brown as the person who opened plaintiff’s “legal mail” as plaintiff claims in his complaint. Brown Decl. (ECF No. 61-3, PageID.338). Plaintiff lacks competent evidence that this correspondence was mailed directly from the federal court, as opposed to a third party who mailed the court document to plaintiff. Although plaintiff did not see the envelope in which the correspondence arrived, he contends that that it was “legal mail” processed as “regular mail.” Calhoun Dep. at PageID.315-316. Plaintiff testified that: the mail came from the United States District Court and was removed from its original envelope and put into a stationery, which was then -- which was then -- which then, my name was placed on it name and prison number was placed on it, and the unit that I lock in. And then it was sent to me, regular mail. Case 1:23-cv-00459-PLM-RSK ECF No. 70, PageID.<pageID> Filed 06/09/26 Page 19 of 26
20 PageID.314. Plaintiff received the correspondence in an envelope which he attributes to defendant Scanlon. Calhoun Dep. at PageID.315. Here, because the envelope contained correspondence from this Court, plaintiff suspects that the correspondence was sent directly from this Court, opened, and then placed in another envelope by mailroom staff. Plaintiff has no evidence to support this claim. Plaintiff cannot create a genuine issue of material fact based upon conjecture and conclusory accusations. Walden v. General Electric International, Inc, 119 F.4th 1049, 1056 (6th Cir. 2024). See generally, Feagin v. Mansfield Police Department, 155 F.4th 595, 609 (6th Cir. 2025) (observing that “the absence of evidence . . . cannot create genuine disputes of material fact”) (italics in original). Accordingly, this claim should be denied. b. May 28, 2020 (United States District Court envelope) On May 28, 2020, Plaintiff was called to the unit control center to pick up and sign for another piece of legal mail from this Court. Plaintiff noticed that the adhesive on the left side flap of the envelope had been “activated and sealed” but was “at some point . . . torn open and taped close[d].” (Id., PageID.10 ¶ 32.) Based on that fact, Plaintiff contends that the envelope was opened outside of his presence. Plaintiff posits that Scanlon or Brown opened Plaintiff’s legal mail outside of his presence. (Id. ¶ 34.) Opinion at PageID.34. Plaintiff did not allege any facts to support a claim against either defendant Scanlon or defendant Brown. Rather, plaintiff alleged that he “filed a grievance against Defendants Scanlon, Brown and Dixion-Ingalls [sic] for opening his incoming legal mail outside of his presence that was addressed to him from the United States District Court without justification contrary to PD 05.03.118, pgh. JJ.” PageID.10-11, ¶ 34. In her declaration, Scanlon stated, I processed a May 28, 2020, correspondence from the United States District Court addressed to Samuel Calhoun #75 (“Plaintiff”). I did not open or disturb the Case 1:23-cv-00459-PLM-RSK ECF No. 70, PageID.<pageID> Filed 06/09/26 Page 20 of 26
21 envelope. It arrived at the facility in the same damaged condition as it was provided to Plaintiff. Scanlon Decl. (ECF No. 61-4, PageID.340).8 Defendants admit that “Sixth Circuit precedent dictates this correspondence, sent by the United States District Court, is legal mail entitled to heightened protection.” Defendants’ Brief (ECF No. 61, PageID.276). While plaintiff alleged that the envelope flap was sealed, torn open, and taped closed before he received it, plaintiff has no evidence that this envelope was opened outside of his presence at MCF by either Scanlon or Brown. See Calhoun Dep. at PageID.320-327. At most, plaintiff’s suggestion that Scanlon, Brown, or both of them, opened this envelope and re-taped it is speculative. Plaintiff cannot create a genuine issue of material fact based upon conjecture and conclusory accusations. See Walden, 119 F.4th at 1056. Accordingly, this claim should be denied. c. August 12, 2020 (Michigan Court of Appeals envelope) On August 12, 2020, Plaintiff again received mail from a court—this time the Michigan Court of Appeals—that had been processed as regular mail. (Id., PageID.11-12 ¶¶ 39, 40.) The Michigan Court of Appeals was returning documents that Plaintiff had submitted for filing. Plaintiff attaches the envelope, which includes a note from the mailroom: “called Court of Appeals[;] Ms. Stockwell in clerk’s office stated that they did not send any mail to this prisoner – not considered legal mail.” (Attach., ECF No. 1, PageID.51; Compl., ECF No. 1, PageID.12 ¶ 41.) Plaintiff contends that Defendants Brown and Scanlon again violated Plaintiff’s rights by opening his legal mail outside of his presence. Opinion at PageID.34. The following return address was printed on the attached envelope: State of Michigan Court of Appeals 925 West Ottawa Street P.O. Box 30022 Lansing, MI 48909-7522 8 The Court notes that Scanlon’s declaration is referred to as an “affidavit” and she is referred to as the “affiant”. Case 1:23-cv-00459-PLM-RSK ECF No. 70, PageID.<pageID> Filed 06/09/26 Page 21 of 26
22 (ECF No. 1, PageID.50). On its face, this appears to be legal mail sent from “a court”. See PD 05.03.118 ¶ FF. In her declaration, defendant Scanlon stated: I processed an August 12, 2020, correspondence related to the Michigan Court of Appeals. I processed the correspondence as regular mail because, in advance of opening the envelope, I contacted the Michigan Court of Appeals clerks’ office to determine whether they sent the mail. During that phone call, I was informed by the Clerk’s office that they did not send this mail to Plaintiff. Contemporaneous with my phone call to the clerk’s office, I noted the envelope to memorialize the same and that the mail was therefore not considered legal mail. Scanlon Decl. at PageID.340. Defendant Scanlon’s declaration appears to be an incomplete discussion of the relevant facts. Specifically, it does not explain why Scanlon decided to call the Michigan Court of Appeals rather than simply treating this as legal mail. Based on this record, genuine issues of material fact exist as to why Scanlon contacted the Michigan Court of Appeals when the envelope appeared to have been sent to plaintiff from that court and appeared to meet the definition of legal mail under PD 05.03.118 ¶ FF. Accordingly, this claim should survive summary judgment. 2. Defendant Brown a. April 28, May 28 and August 12, 2020 legal mail There is no evidence that defendant Brown was involved in processing plaintiff’s legal mail from May 28, 2020 or August 12, 2020. As discussed, defendant Scanlon stated that she processed the legal mail received on May 28th and August 12th. In addition, plaintiff attributed the April 28, 2020 legal mail to defendant Scanlon because it included Scanlon’s handwriting. See Calhoun Dep. at PageID.318-319. However, plaintiff also named defendant Brown as responsible for the April 28, 2020 mail “because there’s only two people there [i.e., in the mail room].” Id. at PageID.319. Plaintiff has presented no evidence linking Brown to the processing of this legal mail Case 1:23-cv-00459-PLM-RSK ECF No. 70, PageID.<pageID> Filed 06/09/26 Page 22 of 26
23 which he claims violated the First Amendment. “Personal involvement is necessary to establish section 1983 liability.” Murphy v. Grenier, 406 Fed. Appx. 972, 974 (6th Cir. 2011). See Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999) (“It is axiomatic that the liability of persons sued in their individual capacities under section 1983 must be gauged in terms of their own actions.”). Accordingly, these three claims against defendant Brown should be denied. b. January 29, 2021 legal mail from Jay Trucks & Associates Finally, the record reflects that defendant Brown did open one piece of legal mail outside of plaintiff’s presence. On January 29, 2021, Plaintiff was again called to the unit control center to pick up and sign for his legal mail. (Id., PageID.15 ¶ 55.) The mail was addressed to Plaintiff; it was from attorneys Jay Trucks & Associates. (Id.) A note on the envelope indicated that it had been opened by Defendant Brown; the note stated: “Opened in error. Contents not searched. K.B. 1/29/21” (Id.) Opinion at PageID.34. In her declaration, Brown admitted that she opened the envelope: On January 29, 2021, I opened mail from “Jay Trucks,” not realizing it was from a law firm as I did so. I did not read the correspondence inside. To memorialize that I had opened the envelope by mistake, I contemporaneously notated the same on the envelope. Brown Aff. (ECF No. 61-3, PageID.337). The envelope includes the following handwritten statement, “Opened in error. Contents not searched. KB 1/29/21”. Envelope (ECF No. 1, PageID.57. “Numerous courts have recognized that a prison official’s negligent interference with a prisoner's First Amendment rights does not violate the constitution.” Atkinson v. Kent County Correctional Facility, No. 1:25-cv-1179, 2026 WL 1145568 at *5 (W.D. Mich. April 28, 2026) (citing cases including Colvin v. Caruso, 605 F.3d 282, 293-94 (6th Cir. 2010) (holding that isolated incidents of negligence by prison officials in implementing kosher food requirements is not actionable under the First Amendment). Here, there is no evidence to suggest that defendant Brown intentionally opened the legal mail outside of plaintiff’s presence. Case 1:23-cv-00459-PLM-RSK ECF No. 70, PageID.<pageID> Filed 06/09/26 Page 23 of 26
24 Furthermore, Brown’s opening of the envelope was an isolated incident which did not rise to the level of a federal constitutional violation. To establish a constitutional violation, plaintiff must demonstrate that Brown regularly and unjustifiably interfered with the prisoner’s mail. “[A] random and isolated incident [of mail interference] is insufficient to establish a constitutional violation.” Okoro v. Scibana, 63 Fed. Appx. 182, 184 (6th Cir. 2003). “[T]he inmate must show that prison officials ‘regularly and unjustifiably interfered with the incoming legal mail.’ ” Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003). See also, Johnson v. Wilkinson, 229 F.3d 1152, 2000 WL 1175519 at *2 (6th Cir. Aug. 11, 2000) (unpublished table decision) (stating that a prisoner’s allegations about “random and isolated interference with [his] mail” did not rise the level of a First Amendment violation). Here, plaintiff has not demonstrated that defendant Brown regularly and unjustifiably interfered with his mail. Accordingly, this claim should be denied. C. Qualified Immunity Defendants contend that plaintiff's claims are barred by qualified immunity. Under this defense, “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.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (internal quotation marks omitted). The doctrine of qualified immunity “gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law.” Carroll v. Carman, 574 U.S. 13, 17 (2014). Case 1:23-cv-00459-PLM-RSK ECF No. 70, PageID.<pageID> Filed 06/09/26 Page 24 of 26
25 The qualified-immunity inquiry involves two questions: whether the defendant violated a constitutional right and whether that right was clearly established. See Pearson v. Callahan, 555 U.S. 223, 232 (2009). “These questions may be answered in any order; if either one is answered in the negative, then qualified immunity protects the official from civil damages.” Brown v. Chapman, 814 F.3d 447, 457 (6th Cir. 2016). “On summary judgment, the court must analyze these questions after construing the facts in the light most favorable to the party asserting the injury and drawing all reasonable inferences in that party's favor.” Id. “When, as here, a defendant raises qualified immunity as a defense, the plaintiff bears the burden of demonstrating that the defendant is not entitled to qualified immunity.” Everson v. Leis, 556 F.3d 484, 494 (6th Cir. 2009). Here, with the exception of defendant Scanlon’s treatment of the Michigan Court of Appeals envelope, plaintiff has failed to establish that defendants violated his First Amendment rights with respect to any of his mail. Accordingly, defendants are entitled to qualified immunity with respect to these claims. However, the legal mail claim against defendant Scanlon involves genuine a issue of material fact. For that reason, this Court cannot grant Scanlon qualified immunity. See Lyttle v. Riley, 524 Fed. Appx. 226, 228 (6th Cir. 2013) (“We cannot grant qualified immunity to [the defendant] because disputed issues of material fact preclude a determination of whether a constitutional violation occurred.”). III. Recommendation For the reasons set forth above, I respectfully recommend that defendants’ motion to compel (ECF No. 54) be DENIED. Case 1:23-cv-00459-PLM-RSK ECF No. 70, PageID.<pageID> Filed 06/09/26 Page 25 of 26
26 I further recommend that plaintiff’s motion for summary judgment (ECF No. 57) be DENIED as to all claims, and that defendants’ motion for summary judgment (ECF No. 60) be GRANTED as to all claims except for the claim that defendant Scanlon interfered with legal mail from the Michigan Court of Appeals. I further recommend that defendant Brown be DISMISSED from this action. Dated: June 9, 2026 /s/ Ray Kent RAY KENT United States Magistrate Judge ANY OBJECTIONS to this Report and Recommendation must be served and filed with the Clerk of the Court within fourteen (14) days after service of the report. All objections and responses to objections are governed by W.D. Mich. LCivR 72.3(b). Failure to serve and file written objections within the specified time waives the right to appeal the District Court’s order. Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Case 1:23-cv-00459-PLM-RSK ECF No. 70, PageID.<pageID> Filed 06/09/26 Page 26 of 26
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