Bethel v. Warden

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROBERT BETHEL,

Plaintiff,

Case No. 2:20-cv-5275

v. JUDGE EDMUND A. SARGUS, JR.

Magistrate Judge Michael R. Merz

WARDEN CHILLICOTHE

CORRECTIONAL INSTITUTION, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court for consideration of a Report and Recommendation issued

on February 28, 2022. The Magistrate Judge recommends that the Court deny Plaintiff’s Motion

for Summary Judgment and grant Defendant Smith qualified immunity. (ECF No. 43.) For the

following reasons, the Court OVERRULES Plaintiff’s objections, ADOPTS the Report and

Recommendation, and DENIES Plaintiff’s Motion for Summary Judgment.

I. BACKGROUND

This case arises out of Defendants censoring Plaintiff Robert Bethel’s electronic mail at

the Chillicothe Correctional Institution (“CCI”), where he is an inmate. In July 2020, Plaintiff

attempted to send his aunt and attorney nine emails that called CCI staff members “racist assholes,”

supporters of the Ku Klux Klan, and “real gangsters.” (Ex. 4, ECF No. 22-1.) Plaintiff was notified

that his emails were being censored for, among other reasons, “[u]se of racial slur words and

wrongful allegations of CCI staff.” (Ex. 5, ECF No. 22-1.)

On July 19, 2020, Defendant Smith, the mailroom supervisor, issued Plaintiff a conduct

report for “[d]isrespect to an officer, staff member, visitor or other inmate; Any violation of any

published Institutional rules, regulations or procedures.” (Ex. 7, ECF No. 22-1.) Smith stated that:

“[Mr. Bethel] continues to make false allegations against CCI staff and appears to be ‘testing’ the

JPay rules and regulations on what will be censored or sent to security.” (Id.) JPay is the prison

email system. Plaintiff was eventually suspended from using JPay for thirty days. (Bethel Decl. ¶

17, ECF No. 22-1.) After that, Plaintiff resumed using JPay but ceased criticizing CCI staff in

messages. His nine emails were sent without redaction to his attorney on July 29, 2020. (Ex. 6,

ECF No. 22-1.)

Plaintiff filed this action on October 8, 2020, claiming that Smith and CCI Warden Timothy

Shoop violated his First Amendment right to free speech by improperly censoring his email and

retaliated against him for exercising his rights. Plaintiff filed a motion for summary judgment on

August 6, 2021. (ECF No. 22.) The Magistrate Judge issued a Report and Recommendation

recommending that the motion be denied and the matter proceed to trial. (ECF No. 27.) After the

Plaintiff raised new arguments in his Objection (ECF No. 34), the matter was recommitted to the

Magistrate Judge for further analysis (ECF No. 39). The Magistrate Judge issued a new Report

and Recommendation on February 28, 2022, (R.&R., ECF No. 43), and Plaintiff objected (Pl.’s

Obj., ECF No. 49).

II. STANDARD OF REVIEW

The district court reviews objections to a report and recommendation de novo. 28 U.S.C. §

636(b)(1). Objections to a report and recommendation “must be clear enough to enable to the

district court to discern those issues that are dispositive and contentious.” Miller v. Currie, 50 F.3d

373, 380 (6th Cir. 1995) (citing Howard v. Secretary of Health and Human Servs., 932 F.2d 505,

509 (6th Cir. 1991)).

Summary judgment is appropriate “if the movant shows that there is no genuine issue as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

The Court may therefore grant a motion for summary judgment if the nonmoving party who has

the burden of proof at trial fails to make a showing sufficient to establish the existence of an

element that is essential to that party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The “party seeking summary judgment always bears the initial responsibility of informing

the district court of the basis for its motion and identifying those portions” of the record which

demonstrate “the absence of a genuine issue of material fact.” Id. at 323. The burden then shifts to

the nonmoving party who “must set forth specific facts showing that there is a genuine issue for

trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P. 56(e)).

“The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in

his favor.” Id. at 255 (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158–59 (1970)). A genuine

issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Id. at 248; see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986) (“The requirement that a dispute be ‘genuine’ means that there

must be more than some metaphysical doubt as to the material facts.”).

III. ANALYSIS

Plaintiff asserts a § 1983 claim against Defendants for violating his First Amendment right

to free speech. He also asserts a retaliation claim. After reviewing Plaintiff’s objections de novo,

the Court agrees with the Magistrate Judge’s recommendation to grant Defendant Smith qualified

immunity and deny Plaintiff’s motion for summary judgment.

A. First Amendment Claims

In general, a prison official’s censorship of an inmate’s outgoing mail may violate the

inmate’s First Amendment right to free speech. Procunier v. Martinez, 416 U.S. 396, 414

(1974); Thornburgh v. Abbott, 490 U.S. 401 (1989). The First Amendment itself does not grant a

private right of action but a plaintiff may assert his claim under 42 U.S.C. § 1983. To establish a

§ 1983 claim, the plaintiff must allege that a person acting under the color of state law deprived

him of a constitutional right. West v. Atkins, 487 U.S. 42, 48 (1988).

The Court first determines whether there was a deprivation of a constitutional right. Cnty.

Of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998) (“in any action under §1983, the first step

is to identify the exact contours of the underlying right said to have been violated”). As the

Magistrate Judge concludes, there is no constitutional right at issue in this case because sending

uncensored electronic mail from prison that contains vulgar language about prison staff is not

protected by the First Amendment. See Bristow v. Amber, No. 2:12-cv-412, 2012 WL 1963577, at

*2 (S.D. Ohio May 31, 2012) (dismissing a plaintiff’s first amendment claim because the prison

did not violate his constitutional rights by refusing to send his emails); Benning v. Dozier, No.

5:18-cv-87, 2021 WL 1713333, at *5 (M.D. Georgia April 30, 2021) (finding that sending

uncensored emails from prison is not a constitutional right because plaintiffs have a right to access

to communication, not a right to uncensored access to a specific form of communication such as

email”); Leonard v. Nix, 55 F.3d 370, 376 (8th Cir. 1995) (“defamatory comments that are directed

at the warden and prison staff through the guise of [legitimate outgoing] communication properly

subject the prisoner to discipline to preserve the prison’s penological interest in order, and that

[prisoner’s] discipline does not violate the First Amendment.”).

Plaintiff argues that since the prison provided access to electronic mail, it became protected

conduct under the First Amendment. (Pl.’s Obj. at 7.) His authority in support of this contention,

however, does not relate to electronic mail. Instead, Plaintiff cites cases where prisons completely

blocked an inmate’s communication or censored an inmate’s written mail. Inmates do not have a

constitutional right to access email. See, e.g., Bristow, 2012 WL 1963577, at *2 (dismissing an

inmate’s first amendment claim because he did not have a constitutional right to send emails via

JPay); Edington v. Warden of FCI Elkton, No. 4:14-cv-2387, 2015 WL 1843240, at *3 (N.D. Ohio

April 22, 2015); Miles v. Scanlon, No. 1:21-cv-74, 2021 WL 1809834, at *5 (W.D. Mich. May 6,

2021); see Freeman v. Benson, 2017 WL 5731295, at *10–11 (D. Kansas Nov. 28, 2017). In the

case at hand, Defendants did not preclude Plaintiff from communicating at all or even from

communicating by email. Defendants simply censored and delayed nine emails. Plaintiff does not

assert an actionable First Amendment claim because there is not constitutional right to sending

uncensored emails containing vulgar language about prison staff. Therefore, Plaintiff is not entitled

to summary judgment on his free speech claim.

Plaintiff is also not entitled to summary judgment on his retaliation claim because he has

not established that Defendants violated his constitutional rights. “If there is no exercise of First

Amendment rights, there can be no retaliation based on the exercise of First Amendment rights.”

Bristow, 2012 WL 1963577, at *3 (citing Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.

1999)).

B. Qualified Immunity

A government official is “entitled to qualified immunity on summary judgment unless the

facts. . . .would permit a reasonable juror to find that: (1) the defendant violated a constitutional

right; and (2) the right was clearly established.” Bishop v. Hackel, 636 F.3d 757, 765 (6th Cir.

2011). A right is clearly established if “[t]he contours of the right [are] sufficiently clear that a

reasonable official would understand what he is doing violates that right.” Anderson v. Creighton,

483 U.S. 635, 640 (1987). The fundamental inquiry is whether public officials are “on notice their

conduct is unlawful.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quotation omitted). In other

words, “the unlawfulness must be apparent.” Id. A district court has discretion to decide whether

there was a constitutional violation and a violation of clearly established law. Id.

As the Magistrate Judge concluded and this Court affirmed above, Plaintiff does not have

a constitutional right to non-interference with electronic mail containing vulgar language about

prison staff. Even if there is a constitutional right, it is not clearly established. See Freeman v.

Benson, 2017 WL 5731295, at *10–11 (granting qualified immunity to prison staff for censoring

a prisoner’s emails containing vulgar and derogatory language about prison staff because there is

not a clearly established right to non-interference with outgoing emails). Thus, Defendant Smith

is entitled to qualified immunity.

IV. CONCLUSION

For the foregoing reasons, the Court OVERRULES Defendant’s Objections, DISMISSES

the first Report and Recommendation as moot (ECF No. 27), ADOPTS the Second Report and

Recommendation (ECF No. 43), and DENIES Plaintiff’s Motion for Summary Judgment (ECF

No. 22). Defendant Smith is dismissed with prejudice from the case. This case remains open.

IT IS SO ORDERED.

3/22/2022 s/Edmund A. Sargus, Jr.

DATE EDMUND A. SARGUS, JR.

UNITED STATES DISTRICT JUDGE