Proctor v. Applegate (661 F. Supp. 2d 743, 2009)

United States District Court for the Eastern District of Michigan 2009-09-30

Citations

Full opinion text

OPINION AND ORDER (1) ADOPTING THE MAGISTRATE JUDGE’S AMENDED REPORT AND RECOMMENDATION (Dkt. 193) (2) DENYING PLAINTIFFS’ OBJECTIONS TO THE MAGISTRATE JUDGE’S AMENDED REPORT AND RECOMMENDATION (Dkt. 198); (3) GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO TO DISMISS (Dkt. 132, 147, 165); AND (4) ORDERING SEVERANCE OF CERTAIN CLAIMS AND PERMITTING CERTAIN PLAINTIFFS TO FILE AMENDED COMPLAINTS

PAUL D. BORMAN, District Judge.

Before the Court are Plaintiffs’ Objections to Magistrate Judge Michael Hluchaniuk’s Amended Report and Recommendation granting in part and denying in part Defendants’ motions to dismiss and severing claims based on misjoinder. (Dkt. 198.) Defendants filed responses on July 15, 2009. Defendants filed a response to Plaintiffs’ objections. (Dkt. 199.) This Court now reviews the Amended Report and Recommendation, the Objections, the Response and pertinent parts of the record de novo pursuant to 28 U.S.C. § 636(b).

I. BACKGROUND

This Court finds that the Magistrate Judge has accurately and succinctly set forth the complicated procedural history and facts of this action and therefore the Court shall adopt by reference those portions of the Amended Report and Recommendation. (Dkt. 193, 1-5.)

II. ANALYSIS

A. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a case where the complaint fails to state a claim upon which relief can be granted. When reviewing a motion to dismiss under Rule 12(b)(6), a court must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” DirecTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.2007). But the court “need not accept as true legal conclusions or unwarranted factual inferences.” Id. (quoting Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir.2000)). “[L]egal conclusions masquerading as factual allegations will not suffice.” Eidson v. State of Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 634 (6th Cir.2007).

To survive a motion to dismiss, the “[fjactual allegations contained in [the] complaint must ‘raise a right to relief above the speculative level.’ ” Bassett v. Nat’l Coll. Athletic Ass’n, 528 F.3d 426, 430 (6th Cir.2008) (quoting. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007)). This “does not ‘require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.’ ” Id. (quoting Twombly, 127 S.Ct. at 1974). A plaintiffs factual allegations, while “assumed to be true, must do more than create speculation or suspicion of a legally cognizable cause of action; they must show entitlement to relief.” LULAC v. Bredesen, 500 F.3d 523, 527 (6th Cir.2007) (citing Twombly, 127 S.Ct. at 1965). Thus, “[t]o state a valid claim, a complaint must contain either direct or inferential allegations respecting all the material elements to sustain recovery under some viable legal theory.” Bredesen, 500 F.3d at 527 (citing Twombly, 127 S.Ct. at 1969).

B. Plaintiffs’ Objections to the Magistrate Judge’s Amended Report and Recommendation

Plaintiffs do not object to those portions of the Magistrate’s Amended Report and Recommendation denying Defendants’ motions to dismiss claims based upon the statute of limitations and qualified immunity. This Court therefore adopts those portions of the Amended Report and Recommendation. (Dkt. 193, 7-11.) Refer to the attached “Box Score” for the specific paragraphs of Plaintiffs’ Complaint affected.

1. Injunctive and Declaratory Relief

Plaintiffs object to the Magistrate Judge’s conclusion that their claims for injunctive and declaratory relief should be dismissed. The Court finds that this objection is without merit. Because the plaintiffs are not incarcerated where their claims arose, and because injunctive relief is an inappropriate form of relief for Plaintiffs’ claims of past violations, Plaintiffs’ objection is denied. See Copenhaver v. James, 2008 WL 162547, No. 06-11111 at *3 (E.D.Mich. Jan. 17, 2008), citing, Washington v. James, 782 F.2d 1134, 1137 (2d Cir.1986) (noting that prisoner cannot maintain § 1983 action for injunctive relief when he is no longer incarcerated where alleged violations occurred); Kime v. Jones, 2007 WL 586793, No. 4:06-CV-28 at *3 (W.D.Mich. February 21, 2007) citing Mowatt v. Brown, 902 F.2d 34, 1990 WL 59896 (6th Cir.1990). Refer to the attached “Box Score” for the specific paragraphs of Plaintiffs’ Complaint affected.

2. Immunity for Hearing Officers

Plaintiffs object to the Magistrate Judge’s finding that the hearing officers were entitled to absolute immunity. The Court finds that this objection is without merit and agrees with the Magistrate Judge that the hearing officers were acting in their official roles and are protected by absolute immunity. See Shelly v. Johnson, 849 F.2d 228 (6th Cir.1988) (per curiam). Refer to the attached “Box Score” for the specific paragraphs of Plaintiffs’ Complaint affected.

3. Personal Involvement

Plaintiffs object to the Magistrate Judge’s finding of no personal involvement with respect to paragraphs 215, 321, 242 and 244 of the Complaint. This Court denies this objection and agrees with the Magistrate Judge that these paragraphs do not allege the requisite personal involvement. Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir.2006); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.1999). Refer to the attached “Box Score” for the specific paragraphs of Plaintiffs’ Complaint affected.

4. Letters/Grievances

Plaintiffs object to the Magistrate Judge’s finding that Plaintiffs’ claims that their grievances were improperly investigated failed to state a claim. This Court denies the objection and agrees with the Magistrate Judge that a prison official’s failure to respond to a prisoner’s letter or grievance does not state a constitutional claim. A prisoner does not have a constitutionally-protected liberty interest in an inmate grievance procedure. See e.g., Lee v. Mich. Parole Bd., 104 Fed.Appx. 490, 493 (6th Cir.2004) (“Section 1983 liability may not be imposed simply because a defendant denied an administrative grievance or failed to act based upon information contained in a grievance.”); Dunn v. Martin, 178 Fed.Appx. 876, 878 (11th Cir.2006); Adams v. Rice, 40 F.3d 72, 75 (4th Cir.1994) (stating that Constitution creates no entitlement to voluntarily established grievance procedure). This Court agrees with the Magistrate Judge that to the extent that Plaintiffs’ claims merely allege a failure on the part of prison officials to adequately respond to letters or complaints about how a grievance procedure was conducted, they fail to state a claim. Refer to the attached “Box Score” for the specific paragraphs of Plaintiffs’ Complaint affected.

5. Prison Regulations

Plaintiffs object to the Magistrate Judge’s finding that the prison regulations which permitted the confiscation of certain types of mail and prohibited “copyrighting” of names did not violate Plaintiffs’ constitutional rights. This Court denies the objection and agrees with the Magistrate Judge that the challenged regulations serve a legitimate and neutral government purpose and survive Plaintiffs’ constitutional challenge. “Moreover, because the problems of prisons in America are complex and intractable, and because courts are particularly ill equipped to deal with these problems ... we generally have deferred to the judgments of prison officials in upholding these regulations against constitutional challenge.” See Shaw v. Murphy, 532 U.S. 223, 229, 121 S.Ct. 1475, 149 L.Ed.2d 420 (2001) (internal citation and quotation marks omitted). Refer to the attached “Box Score” for the specific paragraphs of Plaintiffs’ Complaint affected.

6. Access to the Courts

Plaintiffs object to the Magistrate Judge’s conclusion that their claims regarding access to the courts fail to state a constitutional deprivation. This Court denies the objection and agrees with the Magistrate Judge that Plaintiffs have failed to allege or show that they were adversely affected as a result of the claimed denial. See Johns v. Mich. Dep’t Correc., 2008 WL 4712360, No. 1:07-CV-95 at *5 (W.D.Mich. February 21, 2008), citing, Vandiver v. Niemi, 1994 WL 677685, No. 94-1642 at *1 (6th Cir. Dec. 2, 1994) (an inmate must make a specific claim that he was adversely affected or that the litigation was prejudiced). Refer to the attached “Box Score” for the specific paragraphs of Plaintiffs’ Complaint affected.

7. Retaliation

Plaintiffs object to the Magistrate Judge’s conclusion that paragraphs 272 and 275 of the Complaint are conclusory and fail to allege facts sufficient to establish causation. This Court denies the objection and agrees with the Magistrate Judge that these paragraphs fail to state a claim because they are conclusory. See Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir.1996); Mulazim v. Corrigan, 7 Fed.Appx. 427 (6th Cir.2001) (“ ‘[tjemporal nexus’ is a factor in determining a causal connection in a First Amendment retaliation claim.”). Refer to the attached “Box Score” for the specific paragraphs of Plaintiffs’ Complaint affected.

8. Remaining Aspects of Motion to Dismiss

Plaintiffs’ objection here is actually many objections combined into one and generally restates arguments made in Plaintiffs’ response to the Defendants’ motions to dismiss. This Court denies the objections as stated and agrees with the Magistrate Judge’s conclusions, set forth at pages 39-50 of the Amended Report and Recommendation. Refer to the attached “Box Score” for the specific paragraphs of Plaintiffs’ Complaint affected.

9. Improper Joinder of Claims and Parties

Plaintiffs object to the Magistrate Judge’s recommendation that the claims and the parties in this case be severed. This Court denies this objection and agrees with the Magistrate Judge that Plaintiffs’ claims against the numerous defendants, which involve several defendants and multiple prison facilities, necessarily require resolution of factual claims (including numerous individual exhaustion issues) that are not appropriately joined. This Court agrees with the Magistrate Judge’s conclusion that allowing the claims and parties to proceed together would result in prejudice to the Defendants.

III. CONCLUSION

For these reasons, the Court:

(1) ADOPTS the Magistrate Judge’s Amended Report and Recommendation granting in part and denying in part Defendants’ motions to dismiss and recommending severance of claims and parties;

(2) DENIES Plaintiffs’ Objections to the Magistrate Judge’s Amended Recommendation and Report;

(3) GRANTS IN PART AND DENIES IN PART DEFENDANTS’ MOTIONS TO DISMISS as set forth specifically in the attached “Box Score” and summarized as follows:

GRANTS Defendants’ motions to dismiss Plaintiffs’ claims that seek declaratory and/or injunctive relief;

GRANTS Defendants’ motions to dismiss Plaintiffs’ claims against prison hearing officers acting in their capacity as hearing officers;

GRANTS Defendants’ motions to dismiss Plaintiffs’ claims which fail to allege personal involvement on the part of the individual Defendants;

GRANTS Defendants’ motions to dismiss Plaintiffs’ claims that their letters or grievances were improperly handled or investigated;

GRANTS Defendants’ motions to dismiss Plaintiffs’ claims challenging prison regulations regarding confiscated mail and “copyright” practices;

GRANTS Defendants’ motions to dismiss Plaintiffs’ claims alleging denial of access to the courts;

GRANTS Defendants’ motions to dismiss Plaintiffs’ claims alleging retaliatory conduct which do not allege actionable adverse action, i.e. transfer to a higher security facility;

DENIES Defendants’ motions to dismiss to the extent that they assert that Plaintiffs’ claims are barred by the statute of limitations;

DENIES Defendants’ motions to dismiss to the extent that they assert the Defense of qualified immunity;

DENIES Defendants’ motions to dismiss Plaintiffs’ claims to the extent that they allege retaliatory transfer to a higher security facility for protected conduct;

(4) SEVERS the claims that are not dismissed, permitting the following Plaintiffs to file proposed amended complaints, each of which may only include defendants who work at the same correctional facility and some of which will be transferred to the Western District of Michigan after filing:

Plaintiff Proctor may submit four proposed amended complaints asserting only those claims that have not been dismissed against: (1) the ARF defendants (Eastern District); (2) the MBP defendants (Western District); (3) the IBC defendants (Western District); (4) the LRF defendants (Western District).

Plaintiff Hurd Plaintiff Hurd may submit three proposed amended complaints asserting only those claims that have not been otherwise dismissed against: (1) the ARF defendants (Eastern District); (2) the MBP defendants (Western District); and (3) the AMF defendants (Western District).

Plaintiff Jividen may submit one proposed amended complaint asserting only those claims that have not been otherwise dismissed against: the MBP defendants (Western District).

Plaintiff Petersen may submit two proposed amended complaints asserting only those claims that have not been otherwise dismissed against: (1) the ARF defendants (Eastern District); and (2) the AMF defendants (Western District).

Plaintiff Chandler may submit two proposed amended complaints asserting only those claims that have not been otherwise dismissed against: (1) the ARF defendants (Eastern District); and (2) the AMF defendants (Western District).

SO ORDERED.

AMENDED REPORT AND RECOMMENDATION DEFENDANTS’ MOTIONS TO DISMISS (Dkt. 132, 147, 165) AND SEVERANCE OF PARTIES AND CLAIMS

MICHAEL HLUCHANIUK, United States Magistrate Judge.

I. PROCEDURAL HISTORY

The complaint in this matter was filed June 5, 2007 by five plaintiffs, four of whom are currently in the custody of the Michigan Department of Corrections. (Dkt. 1). The four prisoner-plaintiffs were granted in forma pauperis status and the fifth plaintiff was ordered to submit his full portion of the filing fee or file an affidavit of indigency. (Dkt. 11). Plaintiffs seek damages from dozens of MDOC employees based on allegations that they were denied certain rights under the United States Constitution. Plaintiffs’ claims include, inter alia, improper retaliation for filing grievances, confiscation of legal materials, interference with legal mail, interference with prisoners giving and receiving legal advice, denial of access to the courts, and denial of access to adequate medical care. Id. The facilities at which plaintiffs allege they were mistreated are located in the Eastern and Western Districts of Michigan and include: the Gus Harrison Correctional Facility (ARF) (Eastern District); the Marquette Branch Prison (MBP) (Western District); the Bellamy Creek Correctional Facility (IBC) (Western District); EC Brooks Correctional Facility (LRF) (Western District); and the Baraga Maximum Correctional Facility (AMF) (Western District). (Dkt. 1, ¶¶5, 7-9).

On July 24, 2007, District Judge Paul D. Borman entered an order referring this matter to Magistrate Judge R. Steven Whalen for all pretrial purposes. (Dkt. 15). On January 14, 2008, this matter was reassigned from Magistrate Judge Whalen to the undersigned. (Dkt. 31). Defendants filed two motions to dismiss, both on similar grounds, but each motion was filed by groups of defendants as they were served in this matter. (Dkt. 132, 147). Plaintiffs filed responses to both motions to dismiss. (Dkt. 157, 158). The undersigned issued a report and recommendation on these two motions to dismiss on March 10, 2009. (Dkt. 181). On March 30, 2009, Judge Borman remanded the matter back to the undersigned to prepare a “Box Score” in Section IV of the recommendation, summarizing specifically the recommendations of grant or denial as to each claim as to each defendant. (Dkt. 185). In the interests of efficiency, the undersigned will also address the third motion to dismiss filed by defendant Doering on January 7, 2009, to which plaintiffs responded on January 29, 2009. (Dkt. 165, 172).

For the reasons set forth below, the undersigned RECOMMENDS that defendants’ motions to dismiss be DENIED in part and granted in part and that all plaintiffs’ remaining claims be SEVERED based on misjoinder, as described below.

II. STATEMENT OF FACTS

Plaintiff Proctor brings claims against more than 40 defendants who work at four different correctional facilities and at the MDOC in Lansing, Michigan. (Dkt. 1). These defendants and the facilities at which they work are as follows: Sands (ARF); Hill (ARF); Jefferson (ARF); Letson (ARF); Bell (ARF); Andison (ARF); Applegate (ARF); Faulkenstein (MDOC Lansing); Stapleton (MDOC Lansing); Williams (ARF); Armstrong (MDOC Lansing); Pass (ARF); Klee (ARF); Smetka (ARF); Watson (ARF); Eaton (ARF); Payne (ARF); Caruso (MDOC Lansing); Hemry (ARF); Niedermeyer (ARF); Schooley (MDOC Lansing); Dulworth (ARF); LajewsM-Pearson (MBP); Hofbauer (MBP); Ellerby (MBP); York (MBP); Webb (ARF); Trethway (MBP); Pokely (MBP); Napel (MBP); Mohrman (MDOC Lansing), Niemi (MBP); Farley (LRF); Mullen (MBP); Tatlio (MBP); Alexander (MBP); Weisinger (MBP); Niemisto (MBP); Perry (IBC); Hosely (IBC); and McKee (IBC). (Dkt. 1)

Plaintiff Hurd brings claims against nine defendants who work at three different correctional facilities and the MDOC in Lansing, Michigan. These defendants and the facilities at which they work are as follows: Bell (ARF); Trevino (ARF); York (MBP); Luoma (AMF); Weisinger (MBP); Hofbauer (MBP); Caruso (MDOC Lansing); Applegate (ARF); and Sands (ARF). (Dkt. 1).

Plaintiff Jividen brings claims against four defendants who work at one correctional facility and the MDOC in Lansing, Michigan. These defendants and the facilities are as follows: Lajewski-Pearson (MBP); Mohrman (MDOC Lansing); Hofbauer (MBP); and Armstrong (MDOC Lansing). (Dkt. 1).

Plaintiff Petersen brings claims against over 30 defendants who work at two different correctional facilities and at the MDOC in Lansing, Michigan. (Dkt. 1). These defendants and the facilities at which they work are as follows: Krauss (ARF); Wilson (ARF); Berry (ARF); Andison (ARF); Watson (ARF); Armstrong (MDOC Lansing); Eaton (ARF); Gibbs (ARF); Pass (ARF); Monahan (ARF); Gray (ARF); Williams (ARF); Bolán (ARF); Doering (ARF); Ingram (ARF); Pfeiffer (ARF); Faulkenstein (MDOC Lansing); Soedlecki (ARF); Caldwell (ARF); Hemry (ARF); Burtovoy (ARF); Stapleton (MDOC Lansing); Smetka (ARF); Niedermeyer (ARF); Kiser (ARF); Applegate (ARF); Bell (ARF); Luetzow (ARF); Jondreau (AMF); Luoma (AMF); Pittsley (AMF); Sweeney (AMF); Perttu (AMF); Petaja (AMF); and Schooley (MDOC Lansing).

Plaintiff Chandler brings claims against more than 30 defendants who work at two different correctional facilities and at the MDOC in Lansing, Michigan. (Dkt. 1). These defendants and the facilities at which they work are as follows: Williams (ARF); Pass (ARF); Watson (ARF); Evers (ARF); Armstrong (MDOC Lansing); Gibbs (ARF); Monahan (ARF); Sands (ARF); Eaton (ARF); Olin (ARF); Apple-gate (ARF); Andison (ARF); Hemry (ARF); Faulkenstein (MDOC Lansing); LaLonde (AMF); Dostaler (AMF); Oidiway (AMF); Kotila (AMF); Hill (ARF); Nannberg (AMF); Vain (AMF); Pejata (AMF); Horton (AMF); Smith (AMF); Luoma (AMF); Edlund (MDOC Lansing); Weise (AMF); Luetzow (ARF); Ezrow (AMF); Butzin (AMF); LaPlante (AMF); and Richards (AMF).

III. DISCUSSION

A. Standard of Review

To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must first comply with Rule 8(a)(2), which requires “ ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007), quoting, Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A plaintiff is also obliged “to provide the grounds of his entitlement to relief,” which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir.2007), quoting, Twombly, 127 S.Ct. at 1964-65 (citations and quotation marks omitted).

And, while a complaint need not contain “detailed” factual allegations, its “[fjactual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true.” Id., quoting, Twombly, 127 S.Ct. at 1965 (internal citation and quotation marks omitted); see also, League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir.2007) (emphasis in original) (The factual allegations in a complaint need not be detailed but they “must do more than create speculation or suspicion of a legally cognizable cause of action; they must show entitlement to relief.”).

The Sixth Circuit recently recognized that in Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007), “a case decided just two weeks after Twombly, the Supreme Court clarified Twombly by holding that a prisoner bringing a § 1983 claim against his captor is not required to state [sjpecific facts in their complaint; and Twombly itself suggests that its holding may be limited to cases likely to produce sprawling, costly, and hugely time-consuming litigation.” U.S. v. Ford Motor Co., 532 F.3d 496, 503 n. 6 (6th Cir.2008) (internal citations and quotation marks omitted). The Sixth Circuit applied a more stringent pleading standard in U.S. v. Ford because a fraud claim was involved, which requires the application of the heightened pleading standard set forth in Rule 9(b), rather than the more liberal pleading standard found in Rule 8(a)(2). Such is not the case here. Thus, when applying Twombly, the Court must still read plaintiffs pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), and accept plaintiffs allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992); Erickson v. Pardus, 127 S.Ct. at 2200 (The Court of Appeals improperly departed “from the liberal pleading standards set forth by Rule 8(a)(2)” and failed to “liberally construe” the pro se complaint at issue.).

B. Statute of Limitations

Defendants’ motions to dismiss are primarily based on the statute of limitations. A defendant raising the statute of limitations as an affirmative defense has the burden of proving that the action is time-barred. Campbell v. Grand Trunk W. R.R. Co., 238 F.3d 772, 775 (6th Cir.2001). To prevail on this affirmative defense, defendants must prove both that: (1) the statute of limitations has run; and (2) that no genuine issue of material fact exists as to when plaintiffs cause of action accrued. Id. If defendants meet this burden, the burden then shifts to plaintiff to establish an exception to the statute of limitations. Id. The nonmoving party may not rest on the mere allegations in the pleadings. Id. However, if defendants fail to meet their burden of proof, plaintiff has no obligation to proffer any additional evidence to rebut the statute of limitations defense. Fonseca v. Conrail, 246 F.3d 585, 590-91 (6th Cir.2001).

Because § 1983 does not contain its own statute of limitations, courts must look to state law to determine the relevant limitations period. Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir.2005). Michigan provides for a three-year limitations period for federal civil rights actions. Plaintiffs § 1983 claims are governed by the three-year Michigan personal injury statute of limitations. See Banks v. City of Whitehall, 344 F.3d 550, 553 (6th Cir.2003); Wolfe v. Perry, 412 F.3d 707 (6th Cir.2005). In determining when the limitations period began, courts must refer to federal law. Roberson, 399 F.3d at 794. The Sixth Circuit has held that, under federal law, the statute of limitations begins to run “ ‘when the plaintiff knows or has reason to know of the injury which is the basis of [her] action. A plaintiff has reason to know of [her] injury when [she] should have discovered it through the exercise of reasonable diligence.’ ” Id., quoting, Sevier v. Turner, 742 F.2d 262, 273 (6th Cir.1984). The Sixth Circuit has held that the statute of limitations applicable to a prisoner-initiated § 1983 suit is tolled while the plaintiff exhausts available state remedies. Waters v. Evans, 105 Fed.Appx. 827, 829 (6th Cir.2004); Brown v. Morgan, 209 F.3d 595, 596 (6th Cir.2000). The statute of limitations is tolled because a prisoner cannot bring suit in federal court until the administrative remedies at the facility (the standard MDOC grievance procedure) are exhausted and it would be unfair to penalize them for not bringing their claims during the limitations period, while administrative proceedings were still ongoing. See Brown, 209 F.3d at 596. Thus, the statute of limitations begins to run once the plaintiff becomes aware of the injury, but is tolled while the prisoner seeks redress through administrative proceedings at the prison. Here, defendants have brought a motion to dismiss and have not sought to prove when the limitations period for each claim began to run and whether or for how long any limitations period was tolled. Further, it is not plainly evident from the complaint. Stiles v. Porter Paint Co., 75 F.R.D. 617 (E.D.Tenn.1976) (In order to support dismissal for failure to comply with statute of limitations, bar of such statute must be clearly apparent from face of complaint, and motion to dismiss based upon statute of limitations will be denied if any issues of fact are involved.). Based on the foregoing, the undersigned suggests that defendants have not met their burden of proving that any of plaintiffs’ claims are barred by the statute of limitations and their motion to dismiss in this regard should be denied without prejudice.

C. Qualified Immunity

Defendants seek dismissal based on qualified immunity, which is an affirmative defense. While it will often be appropriate to conduct the qualified immunity analysis by first determining whether a constitutional violation occurred and then determining whether the constitutional right was clearly established, that ordering of the analytical steps is no longer mandatory. Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (U.S. 2009), overruling, in part, Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). When “the legal question of immunity is completely dependent upon which view of the facts is accepted by the jury,” the “jury becomes the final arbiter of [a] claim of immunity.” Brandenburg v. Cureton, 882 F.2d 211, 215-16 (6th Cir.1989); Bouggess v. Mattingly, 482 F.3d 886, 888 (6th Cir.2007). “Dismissals on the basis of qualified immunity are generally made pursuant Fed.R.Civ.P. 56 summary judgment motions, not 12(b)(6) sufficiency of pleadings motions.” Grose v. Caruso, 284 Fed.Appx. 279, 283 (6th Cir.2008). In this case, defendants have made only conclusory arguments regarding hundreds of claims made by plaintiffs via a motion to dismiss, not a motion for summary judgment. It is impossible, based solely on defendants’ allegations and plaintiffs’ complaint, for the Court to determine whether defendants have qualified immunity for any and all of plaintiffs’ claims.

Notably, as a general rule, a claimant cannot defeat qualified immunity merely by leveling “bare allegations of malice” against government officials. Center for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 831 n. 16 (6th Cir.2007). However, “an essential element of some constitutional claims is a charge that the defendant’s conduct was improperly motivated.” Id., quoting, Crawford-El v. Britton, 523 U.S. 574, 588, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998). For example, “[w]here improper motivation constitutes an element of the claim-as in the case of Plaintiffs’ First Amendment retaliation claims-and the claimant has shown all other elements, a question of fact remains as to the official’s intent, thereby precluding summary judgment on the basis of qualified immunity.” Id. Given that most of plaintiffs’ claims involve such intent, defendants’ motion to dismiss in this regard is improper and premature and should be denied without prejudice.

D. Injunctive and Declaratory Relief

Neither the absolute nor qualified immunities extend to suits for injunctive or declaratory relief under § 1983. See Section 1983 Litig. Claims & Defenses § 9.01, citing, County of Sacramento v. Lewis, 523 U.S. 833, 840 n. 4, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); Mumford v. Zieba, 4 F.3d 429 (6th Cir.1993). “Claims for injunctive and declaratory relief seek to bring about changes in governmental operations, and therefore, must be asserted in an official capacity action or, when permitted, in an action against a governmental entity.” Id.

Here, plaintiffs have sued defendants in their individual and official capacities, however, the undersigned suggests that their claims for injunctive and declaratory relief are moot. When a plaintiff is no longer incarcerated in the institution where the alleged violations occurred, injunctive relief is no longer needed and therefore must be denied as moot. Copenhaver v. James, 2008 WL 162547, *3 (E.D.Mich.2008), citing, Washington v. James, 782 F.2d 1134, 1137 (2d Cir.1986) (noting that prisoner cannot maintain § 1983 action for injunctive relief when he is no longer incarcerated where alleged violations occurred). When a prisoner sues for equitable relief and, by virtue of a transfer to another prison, is no longer under the control or custody of the defendants, his claims for injunctive and declaratory relief are moot. Kime v. Jones, 2007 WL 586793, *3 (W.D.Mich.2007), citing, Mowatt v. Brown, 902 F.2d 34, 1990 WL 59896 (6th Cir.1990); Tate v. Brown, 902 F.2d 35, 1990 WL 58403 (6th Cir.1990); Howard v. Heffron, 884 F.2d 1392, 1989 WL 107732 (6th Cir.1989); Williams v. Ellington, 936 F.2d 881 (6th Cir.1991). “Underlying the rule is the premise that injunctive relief is appropriate only where plaintiff can show a reasonable expectation or demonstrated probability that he is in immediate danger of sustaining direct future injury as the result of the challenged official conduct.” Kime, at *3, citing, Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); see also Brieger v. Telectronics, Inc., 816 F.2d 678, 1987 WL 37131 (6th Cir.1987) (injunctive relief generally inappropriate where remedy at law, i.e., money damages, is available). Indeed, prior “exposure to an isolated incident of illegal conduct does not, by itself, sufficiently prove that the plaintiff will be subjected to the illegal conduct again.” Rime, at *3 (collecting cases). Finally, a court should assume that, “absent an official policy or practice urging unconstitutional behavior, individual government officials will act constitutionally.” Id.

Plaintiff Hurd is no longer incarcerated. (Dkt. 1, ¶ 6). Plaintiff Proctor is housed at the Southern Michigan Correctional Facility (JMF). (Dkt. 1, ¶ 5). Plaintiff Jividen is housed at the E.C. Brooks Correctional Facility (LRF). (Dkt. 1, ¶7). Plaintiff Peterson is housed at the Richard Handlon Correctional Facility (MTU). (Dkt. 1, ¶ 8). None of the actions of which plaintiffs complain, save one, occurred at any of the facilities at which the incarcerated plaintiffs are currently housed. Further, none of the defendants, save one, are employed by the correctional facilities at which incarcerated plaintiffs are currently housed. Based on the legal principles set forth above, plaintiffs are not entitled to any injunctive or declaratory relief because their transfers to other facilities have rendered those claims moot. Thus, the undersigned suggests that plaintiffs’ claims for injunctive and declaratory relief be dismissed.

E. Misconduct Proceedings and Tickets

The Supreme Court has held that a claim for declaratory relief and monetary damages that necessarily implies the invalidity of the punishment imposed, is not cognizable under § 1983 until the conviction has been overturned. Edwards v. Balisok, 520 U.S. 641, 648, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997) (addressing allegations of deceit and bias on the part of the decisionmaker in a misconduct hearing). The Court relied on Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), which held that “in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been [overturned].” Edwards, 520 U.S. at 646, 117 S.Ct. 1584 (emphasis in original). As the Supreme Court recently has stated, “[t]hese cases, taken together, indicate that a state prisoner’s § 1983 action is barred (absent pri- or invalidation) — no matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings) — if success in that action would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005). Thus, where a prisoner’s claim of unfair procedures in a disciplinary hearing necessarily implies the invalidity of the deprivation of good-time credits, his claim is not cognizable under § 1983. Id.; See also Thomas v. Karr, 2007 WL 2728741 (W.D.Mich.2007).

Defendants contend that plaintiffs cannot bring § 1983 claims regarding any misconduct proceedings or tickets they received because doing so would question the validity of those proceedings. However, the undersigned suggests that plaintiffs claims in this regard should not be dismissed at the pleading stage. See e.g., Thomas v. Eby, 481 F.3d 434, 441-442 (6th Cir.2007). Multiple cases stand for the proposition that a proven infraction of prison rules will generally satisfy the defendant’s burden. Id., citing, Henderson v. Baird, 29 F.3d 464 (8th Cir.1994), cert. denied, 515 U.S. 1145, 115 S.Ct. 2584, 132 L.Ed.2d 833 (1995), Hynes v. Squillace, 143 F.3d 653 (2d Cir.), cert. denied, 525 U.S. 907, 119 S.Ct. 246, 142 L.Ed.2d 202 (1998). However, the Sixth Circuit noted that such cases were decided on summary judgment, not a motion to dismiss. Thomas, 481 F.3d at 442. Thus, the undersigned suggests that summary dismissal of plaintiffs retaliatory misconduct claims, based on defendants’ claim that the infractions were proven, is not appropriate.

F. Immunity for Hearing Officers

Claims against hearing officers are directed to actions (or failures to act) taken in their capacities as an official hearing officer for the state of Michigan. As such, they enjoy absolute judicial immunity from a § 1983 civil rights suit seeking monetary damages. See Shelly v. Johnson, 849 F.2d 228 (6th Cir.1988) (per curiam). The claims asserted against the defendants listed below, as found in the following paragraphs, should be dismissed because they are barred by absolute judicial immunity:

Defendant Complaint Paragraph(s)

Etelamaki 302

Faulkenstein 250, 255, and 297

Monahan 243

Mohrman 165,167,168,190, 227, 229, and 232

Niedermeyer 256

Perttu 265 and 266

Sweeney 270

G. Personal Involvement

1. Legal principles

Liability in a § 1983 action cannot be based on a theory of respondeat superior. See Monell v. Department of Social Services of City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). “[T]he mere right to control without any control or direction having been exercised and without any failure to supervise is not enough to support § 1983 liability.” Id. at 694 n. 58, 98 S.Ct. 2018, citing, Rizzo v. Goode, 423 U.S. 362, 370-371, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). As the Sixth Circuit has stated:

Section 1983 liability will not be imposed solely upon the basis of respondeat superior. There must be a showing that the supervisor encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum, a § 1983 plaintiff must show that a supervisory official at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate.

Taylor v. Michigan Dep’t of Corrections, 69 F.3d 76, 81 (6th Cir.1995), quoting, Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.1984).

Several cases from the Sixth Circuit provide guidance on a supervisory liability claim. For example, the court has stated that “[p]laintiff must prove that [the supervisor defendants] did more than play a passive role in the alleged violations or show mere tacit approval of the goings on. Plaintiff must show that the supervisors somehow encouraged or condoned the actions of their inferiors.” Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir.2006) (internal and external citations omitted). Furthermore, the Sixth Circuit has stated:

Supervisor liability [under § 1983] occurs either when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional deprivation. The causal connection can be established when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he [she] fails to do so. The deprivations that constitute widespread abuse sufficient to notify the supervising official must be obvious, flagrant, rampant, and of continued duration, rather than isolated occurrences.

Doe v. City of Roseville, 296 F.3d 431, 440 (6th Cir.2002), quoting, Braddy v. Fla. Dep’t of Labor & Employment Sec., 133 F.3d 797, 802 (11th Cir.1998). Also, the Court has held that where defendants’ “only roles ... involve the denial of administrative grievances or the failure to act ... they cannot be liable under § 1983.” Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.1999). “[Liability under § 1983 must be based on active unconstitutional behavior and cannot be based upon ‘a mere failure to act.’ ” Id. at 300, citing, Salehpour v. University of Tennessee, 159 F.3d 199, 206 (6th Cir.1998). Claims that are based simply on the denial of a grievance do not state a claim of constitutional dimension. See Martin v. Harvey, 14 Fed.Appx. 307, 309-10 (6th Cir.2001) (“The denial of the grievance is not the same as the denial of a request to receive medical care.”); Shehee, 199 F.3d at 300 (as against defendants whose only involvement was the denial of administrative remedies and the “failure to remedy the alleged retaliatory behavior[,]” “[t]here is no allegation that any of these defendants directly participated ... in the claimed ... acts[ ].”); Weaver v. Toombs, 756 F.Supp. 335, 337 (W.D.Mich.1989) (“The mere fact that these defendants found plaintiffs ... grievance concerning the seizure to be without merit is insufficient to state a claim against them.”). Furthermore, an allegation that a supervisor was aware of an actionable wrong committed by a subordinate and failed to take corrective action “is insufficient to impose liability on supervisory personnel under § 1983.” Poe v. Haydon, 853 F.2d 418, 429 (6th Cir.1988). “[A] failure of a supervisory official to supervise, control, or train the offending individual officers is not actionable absent a showing that the official either encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum a plaintiff must show that the official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers.” Hays v. Jefferson County, Ky., 668 F.2d 869, 874 (6th Cir.1982).

2. Analysis of defendants’ motion and plaintiffs’ complaint

Paragraph 215 alleges that one plaintiff sent a letter to defendant Bell asking for the return of legal materials that were confiscated by another officer. The undersigned suggests that these allegations do not state a claim against Bell because there was no personal involvement in the alleged constitutional violation.

Paragraph 321 alleges that a plaintiff sent a letter to defendant Ezrow asking him why his mail was being tampered with; Ezrow responded that he had nothing to do with it and that the plaintiff should contact the Postmaster General. This paragraph does not state a claim against Ezrow because it fails to allege that defendant tampered with plaintiffs mail or otherwise acted and should be dismissed.

In paragraph 242, plaintiff alleges that defendants Gray and Krauss retaliated against him because he received misconducts from other prison officials after he grieved Gray and Krauss. However, defendants argue that this paragraph fails to state a claim as to Gray and Krauss because the plaintiff does not allege that Gray or Krauss ever wrote or encouraged the writing of a retaliatory misconduct against the plaintiff. The undersigned suggests that paragraph 242 fails to state a claim against defendants Gray and Krauss, given that there is a complete absence of allegations that Gray or Krauss personally acted after being grieved.

In paragraph 244, the plaintiff claims that an officer confiscated some of his material and that he tried to resolve the issue with defendant Monahan, the officer’s supervisor. Defendant Monahan argues that this paragraph does not state a claim because there is no allegation that he directly participated in any alleged wrongful conduct. The undersigned agrees that this paragraph fails to state a claim.

H. Letters/Grievances

1. Legal principles

A prisoner does not have a constitutionally-protected liberty interest in an inmate grievance procedure. See e.g., Dunn v. Martin, 178 Fed.Appx. 876, 878 (11th Cir.2006); Adams v. Rice, 40 F.3d 72, 75 (4th Cir.1994) (stating that Constitution creates no entitlement to voluntarily established grievance procedure); Bermudez v. Dueñas, 936 F.2d 1064 (9th Cir.1991) (Prison officials’ alleged failure to respond to a prisoner’s letters does not rise to the level of a constitutional violation); Walker v. Michigan Dep’t of Corrections, 128 Fed.Appx. 441, 445 (6th Cir.2005) (same).

Moreover, to the extent that an inmate is dissatisfied with the responses to his grievances, he has failed to state a claim on which relief may be granted. Hess v. Tulsa Co. Sheriff’s Office, 2008 WL 4682202, *5 (N.D.Okla.2008), citing, Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.1993) (official’s failure to process inmates’ grievances, without more, is not actionable under section 1983); Greer v. DeRobertis, 568 F.Supp. 1370, 1375 (N.D.Ill.1983) (prison officials’ failure to respond to grievance letter violates no constitutional or federal statutory right). Indeed, as explained by the Eighth Circuit, “[a prison] grievance procedure is a procedural right only, it does not confer any substantive right upon the inmates. Hence, it does not give rise to a protected liberty interest requiring the procedural protections envisioned by the fourteenth amendment.” Buckley, 997 F.2d at 495, quoting, Azeez v. DeRobertis, 568 F.Supp. 8 (N.D.Ill.1982); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.1988) (an inmate has no legitimate claim of entitlement to a grievance procedure); see also Keenan v. Marker, 23 Fed.Appx. 405, 407 (6th Cir.2001) (There is no inherent constitutional right to an effective prison grievance procedure); McGee v. Grant, 1988 WL 131414, *1 (6th Cir.1988) (“[I]nmate grievance procedures are not constitutionally required in state prison systems, therefore, any failure on the part of defendants to follow grievance procedures does not give rise to a § 1983 claim.”); Lee v. Mich. Parole Bd., 104 Fed.Appx. 490, 493 (6th Cir.2004) (“Section 1983 liability may not be imposed simply because a defendant denied an administrative grievance or failed to act based upon information contained in a grievance.”); Butterworth v. Jones, 2007 WL 3256584, *2 (M.D.Tenn.2007) (“Although prisoners have a First Amendment right to file grievances, ... [they] cannot premise a § 1983 claim against [a prison official] based on allegations that the grievance procedure produced an inadequate and/unresponsive result because there is no inherent constitutional right to a grievance procedure in the first place.”).

2. Analysis of defendants’ motion and plaintiffs’ complaint

To the extent that any of plaintiffs’ claims merely allege that prison officials failed to respond to letters, inadequately responded to letters, or involve complaints about how the grievance procedure was conducted, they fail to state a claim under § 1983. The undersigned suggests that the following paragraphs of the complaint, as they pertain to the defendants named below, fail to state claims on which relief can be granted and should be dismissed:

Defendant Complaint Paragraph(s)

Etelamaki (listed as Dostaler)_300, 307, 235. and 328_

Andison_238 and 257_

Armstrong 153,155,157, 203, 210, 235,166, 238,170, 239, 171, 244, 174, 176, 193, 247,249, 254, 257, 260, 262, 274, 276, 277, 285, 286, 287, 297, 298, 299, 264, 278, 289, 300, 265, 279, 291, 301, 266, 280, 292, 302, 268, 281, 293, 303, 269, 270, 282, 284, 294, 295, 306, 307, 308, 309, 319, 324, 328, 329, _and 331_

Bell 172 and 280_

Caruso 223 and 305_

Eaton 244. 249. 254, 280. 294, 295. 297. 298. and 299

Evers 262 and 293_

Farley 175_

Hill 301, 303. 304, and 331_

Hofbauer 155,166,170,192,193,197, 171, 203,174, 217, 176. 218. 181. 220. 182, 185. 222, 228. and 234

Ingram 247_

Jondreau 264, 265, 266, 268, 269, 270, 274, 276, 277, 279, and 300_

Kotila 301 and 303_

Lalonde 302 and 315_

LaPlante 319. 324, and 329_

Luoma 219, 221, 264, 276, 277, 278, 287, 302, 307, 265, 279, 319, 266, 281, 324, 268, 282, 328, 269, 270, 274, 284.285, 286. 329. and 330_

Mullen_ 170.181.185. and 235_

Monahan 292_

Nanai_ 206_

Niedermever 257_

Niemisto 176.193,184. and 222_

Pass 187, 204, 244, 249, 254, 260, 291, 294, 295, 297, and 298_

Smith 281.282.285. 286.287, and 300_

Schoolev 163_

Sweeney 269, 279, 285. and 286_

Travino 215_

Webb 172 and 173_

Weisinger 176_

Williams 247, 262_

York 158.174,182,188. 235_

Horton 301. 303. and 331_

173, 238, 244, 247, 249, 254, 257, 260, 262, 291, 292. 293, 294. 295, 297, 298, and 299_ Watson

Paragraph 321 alleges that a plaintiff sent a letter to Pittsley asking him why his mail was being tampered with; Pittsley responded that he had nothing to do with it and that the plaintiff should contact the Postmaster General. Defendant Pittsley argues that this paragraph does not state a claim. The undersigned agrees given that defendant had no obligation to even respond to plaintiffs letter.

Defendant Smith argues that paragraph 307 merely alleges that Smith failed to send a step-two grievance form to a plaintiff, but, there is no factual allegation tending to show that Smith intentionally failed to mail the form. Defendant argues that even if he intentionally failed to send the appeal form, no constitutional right would be violated because the plaintiff could still file his claim in the Courts and be excused from the exhaustion requirement by showing that he was prevented from exhausting. The undersigned suggests that no constitutional right is implicated in paragraph 307 because plaintiff has no constitutional right to the grievance process. Shehee, supra.

Defendant Smith also argues that paragraph 323 merely alleges that Smith never received an appeal form given to defendant Butzin to be delivered to him and that this paragraph does not state a claim against Smith. The undersigned is unable to discern any potential constitutional claim in paragraph 323 and it should be dismissed for the same reasons as paragraph 307.

I. Prison regulations

1. Legal principles

In Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), the Supreme Court instituted a four-part test to determine the constitutionality of prison regulation that impinges on an inmate’s constitutional rights: (1) “there must be a ‘valid, rational connection’ between the prison regulation and the legitimate [and neutral] governmental interest put forward to justify it”; (2) the existence of “alternative means of exercising the right” available to inmates; (3) “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally”; and (4) “the absence of ready alternatives” available to the prison for achieving the governmental objectives. Id. at 90, 107 S.Ct. 2254. If the connection between the regulation and the asserted goal is “arbitrary or irrational,” then the regulation fails, irrespective of whether the other factors tilt in its favor. “Moreover, because the problems of prisons in America are complex and intractable, and because courts are particularly ill equipped to deal with these problems ... we generally have deferred to the judgments of prison officials in upholding these regulations against constitutional challenge.” Shaw v. Murphy, 532 U.S. 223, 229, 121 S.Ct. 1475, 149 L.Ed.2d 420 (2001) (internal citation and quotation marks omitted).

As noted by the Shaw court, there are two potential constitutional claims arising from a prison policy. The first arises when the policy is arbitrary or irrational, and in such circumstances it will be struck down. The second arises when a prison regulation, “as applied to” a particular prisoner is not “reasonably related to legitimate penological interests.” Shaw, 532 U.S. at 232, 121 S.Ct. 1475. A prisoner bears a “heavy burden” if he is to succeed on either claim. Id. He must “overcome the presumption that the prison officials acted "within their ‘broad discretion.’ ” Id.; see also Thompson v. Campbell, 81 Fed.Appx. 563, 569 (6th Cir.2003).

Several of plaintiffs’ claims involve the possession and use of materials relating to the Uniform Commercial Code (UCC). “[A]busive practice of prisoners filing baseless liens and/or UCC financing statements for the purpose of harassment and credit impairment of the alleged debt- or (almost always a state or federal official involved with securing the prisoner’s incarceration) is well documented.” Marr v. Caruso, 2008 WL 4426840, *4 (W.D.Mich.2008) (citing cases); see also Hudson v. Caruso, 2007 WL 2363308 (W.D.Mich.2007). It is well-established that prisoners use the UCC and UCC-related materials to perpetrate fraud and harassment against government and prison officials and that the MDOC’s “legitimate penological purpose in preventing such behavior cannot seriously be questioned.” Marr, at *5. Such policies have been held to “represent a rational means by which to achieve the legitimate goal of preventing prisoners from engaging in such fraudulent and illegal behavior.” Id. With respect to one particular policy used by the MDOC to confiscate such materials, District Judge Denise Page Hood entered an order enjoining the enforcement of subparagraph (HH)(23) of MDOC Policy Directive 05.03.118 (effective January 1, 2006). Jones v. Michigan Dep’t of Corrections, 2006 WL 2805643 (E.D.Mich.2006). Judge Hood enjoined enforcement of this particular provision on the ground that it was impermissibly vague. Id. Judge Hood subsequently made clear, however, that the injunction applied only to subparagraph (HH)(23) and that prison officials retain the authority to prohibit mail for any other legitimate purpose. Jones v. Michigan Dep’t of Corrections, 2007 WL 2875179 at *3-4 (E.D.Mich.2007).

2. Analysis of defendants’ motion and plaintiffs’ complaint

Paragraph 268 alleges that defendant Perttu rejected a plaintiffs store order for metered postage on his envelopes because the plaintiff put copyright symbols next to his name. Defendant argues that this does not state a claim because plaintiff was free to properly fill out the envelope. Notably, paragraph 268 also alleges that the Step II grievance response indicated that use of the copyright symbol by itself was not prohibited, unless the prisoner also includes language which is threatening or coercive in nature, and that staff had been notified of this policy. (Dkt. 1, pp. 99-100). The undersigned suggests that plaintiff has failed to state a claim implicating the violation of any constitutional right and even if he did, the regulation, as applied to plaintiffs claim was reasonably related to a legitimate penological interest and was reasonable as applied to plaintiff in this instance.

J. Access to Courts

1. Legal principles

In Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), the Supreme Court recognized a prisoner’s fundamental right of access to the courts. While the right of access to the courts does not allow a State to prevent an inmate from bringing a grievance to court, it also does not require the State to enable a prisoner to discover grievances or litigate effectively. Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). Significantly, “a prisoner’s right to access the courts extends to direct appeals, habeas corpus applications, and civil rights claims only.” Thaddeus-X v. Blatter, 175 F.3d 378, 391 (6th Cir.1999) (en banc). To state a claim for unconstitutional denial of access to courts, an inmate must show that any shortcomings in the library, litigation tools, or legal assistance caused actual injury in his pursuit of a direct appeal, a habeas corpus action, or a civil rights claim. Lewis, 518 U.S. at 351, 116 S.Ct. 2174; Talley-Bey v. Knebl, 168 F.3d 884, 886 (6th Cir.1999); Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir.1996); Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir.1996); Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir.1985). Further, an inmate must make a specific claim that he was adversely affected or that the litigation was prejudiced. Johns v. MDOC, 2008 WL 4712360, *5 (W.D.Mich.2008), citing, Vandiver v. Niemi, 1994 WL 677685, at *1 (6th Cir.1994). Courts in this circuit have held that an inmate cannot show injury when he fails to state that he cannot replicate the confiscated documents. Johns, at *5, citing, Vandiver, at *1.

Many of the plaintiffs’ claims involve communications among prisoners regarding various legal materials and incoming and outgoing mail pertaining to various legal materials. “It is clear in this circuit that an inmate does not have an independent right to help other prisoners with their legal claims. Rather, a jailhouse lawyer’s right to assist another prisoner is wholly derivative of that prisoner’s right of access to the courts; prison officials may prohibit or limit jailhouse lawyering unless doing so interferes with an inmate’s ability to present his grievances to a court.” Smith v. Campbell, 250 F.3d 1032, 1037 n. 1 (6th Cir.2001), quoting, Thaddeus-X, 175 F.3d at 395 (internal citations and quotation marks omitted); see also Shaw, supra (holding that prisoners do not possess a special First Amendment right to provide legal assistance to fellow inmates).

This Court has previously rejected the claim that legal assistance must relate to a “pending lawsuit.” District Judge David M. Lawson found that contention to be “unavailing.” Nelson v. Gowdy, 2006 WL 2604679, *2 (E.D.Mich.2006), citing, Thaddeus-X, 175 F.3d at 383; Gibbs v. Hopkins, 10 F.3d 373, 375 (6th Cir.1993). Judge Lawson concluded that while Thaddeus-X and Gibbs “both involved instances of assistance for preparing lawsuits,” “nothing in those cases suggests that legal assistance is limited only to legal actions then pending in a court.” Id.

2. Analysis of defendants’ motion and plaintiffs’ complaint

In paragraph 254 of the complaint, plaintiff Peterson alleges that defendant Andison improperly confiscated his personal legal property. In paragraph 295, Peterson alleges that Andison improperly confiscated his legal materials. Plaintiff fails to allege that the materials related to litigation involving a direct criminal appeal, a civil rights action, or a habeas corpus petition, and fails to explain how he was adversely affected. Thus, these paragraphs fail to state a claim against Andison and should be dismissed.

Defendant Ezrow argues that paragraph 319 fails to state a claim because the plaintiff Proctor was prohibited from sending legal materials to other prisoners due to a November 26, 2003 administrative order, so defendant Ezrow’s interception of the mail did not violate any constitutional rights. Paragraph 319 alleges that the plaintiffs were corresponding regarding preparation of materials for this lawsuit. Thus, the claim falls with the scope of Nelson v. Gowdy. However, nothing in paragraph 319 suggests that plaintiff suffered any prejudice or harm and for this reason, his claim must fail.

Plaintiff Peterson alleges that defendant Jondreau retaliated against him for participating in this lawsuit, his study of the UCC, and his political beliefs by placing him in segregation. Defendant argues that paragraphs 272 and 275 fail to state a claim for retaliation because they are conclusory and the instant lawsuit cannot be the cause of the alleged retaliation because this lawsuit was not filed until after the alleged retaliation. Further, defendant argues that plaintiffs assertions of retaliation for “his study of the UCC and his political beliefs” fail to show that the plaintiff was engaged in protected conduct and are insufficient to show the element of causation because no facts are included from which a causal relationship could be inferred. Nothing in these paragraphs suggests that plaintiff suffered specific harm or prejudice in this lawsuit, or any other civil rights action, from the alleged retaliation and thus, plaintiff fails to state a claim.

Paragraphs 196 and 198 allege that defendant Mullen provided a plaintiff with an “interpretation” of a prison policy and defendant Mullen argues that these allegations fail to state a claim and fail to show personal involvement. In paragraph 196, plaintiff Proctor alleges that he inquired with the MBP litigation coordinator regarding whether paragraph T of PD 05.03.115 permitted him to communicate with co-plaintiffs regarding the preparation of a lawsuit. According to paragraph 196, defendant Mullen responded to this inquiry and wrote that plaintiff Proctor was prohibited from communicating with “co-plaintiffs” until a lawsuit had been filed and accepted by the courts. According to paragraph 198, defendant Mullen and plaintiff Proctor had a similar conversation. The undersigned suggests that while these allegations relate to defendant’s alleged interference with plaintiffs access to the courts and preparation of a complaint, plaintiff has failed to allege that he suffered specific harm or prejudice in this lawsuit, or any other civil rights action, from the alleged retaliation and thus, plaintiff fails to state a claim.

Paragraph 269 alleges that defendant Pittsley refused to mail plaintiffs package with a sample writ of habeas corpus and brief in support and that it should have been sent out as legal, expedited mail. Paragraph 269 also states that the package was sent out via regular mail. According to paragraph 269, it was determined in the grievance process that the materials were UCC materials that should be destroyed. (Dkt. 1, pp. 99, 101). The undersigned suggests that paragraph does not state a claim against Pittsley because, while plaintiff alleges that the mail related to a habeas corpus action of another inmate, he fails to allege that any specific harm or prejudice occurred.

Paragraph 220 alleges that defendant Weisinger intercepted a piece of mail sent from a non-prisoner plaintiff to the prisoner-plaintiff and accused them of operating an “