The opinion
NOT RECOMMENDED FOR PUBLICATION
File Name: 10a0443n.06
No. 08-4060 FILED
Jul 21, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
NORMAN WHITESIDE, )
)
Plaintiff-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
) COURT FOR THE SOUTHERN
v. ) DISTRICT OF OHIO
)
JONDREA PARRISH, et al., )
)
Defendants-Appellees )
BEFORE: MARTIN and GRIFFIN, Circuit Judges; and DUGGAN,* District Judge.
DUGGAN, DISTRICT JUDGE. Norman Whiteside, an Ohio prisoner, appeals the district
court’s dismissal of his civil rights action brought pursuant to 42 U.S.C. § 1983 against Jondrea
Parrish and Virginia Workman (collectively “defendants”). Defendants are state employees working
at the Madison Correctional Institution (“MaCI”) where Whiteside previously was housed.
For the reasons set forth below, we AFFIRM the district court’s dismissal of Whiteside’s
lawsuit against defendants.
I.
Whiteside was transferred to MaCI from another Ohio facility in 2001. When he arrived at
MaCI, Whiteside possessed several bags of legal materials. Ohio Department of Rehabilitation and
Correction (“ODRC”) Regulation 59-LEG-01, based on Ohio Administrative Code Section 5120-9-
*
The Honorable Patrick J. Duggan, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 08-4060 Whiteside v. Parrish, et al. Page 2
33, requires that personal property stored in an inmate’s cell fit within a 2.4 cubic foot container.
The regulation further provides, however, that an inmate may be granted permission to store personal
legal material exceeding the allotted storage space in a secure location designated by the Warden.
Whiteside received permission to store his excess legal files in a vault in his housing unit and was
provided two additional footlockers in which to keep those materials.
Prior to 2002, Whiteside filed three lawsuits in the Ohio Court of Claims. He alleges in the
present lawsuit that, in response to the state court cases, the MaCI staff launched a waive of
retaliatory attacks against him. He also alleges that defendants targeted him for discriminatory
treatment because of his membership in the NAACP.
On April 28, 2003, Whiteside received permission to keep certain excess legal materials in
his cell over the weekend. The following week, after Whiteside purportedly complained to prison
staff that there were certain “discrepancies and improprieties” in MaCI’s fiscal accounting
procedures, his cell was shaken down and left in disarray. Days later, prison officials searched
Whiteside’s cell and confiscated his excess legal materials. Whiteside was given the choice of
sending those materials or other personal items out of the prison or disposing of them; he selected
the former.
On March 24, 2005, Whiteside filed this lawsuit alleging that defendants discriminated
against him and retaliated against him by confiscating his legal materials. Whiteside complained
that, as a result of the confiscation of his legal materials, he could not present evidence at a trial
concerning his property, expected to lose a case against the Ohio Parole Board, lacked evidence and
No. 08-4060 Whiteside v. Parrish, et al. Page 3
papers for a deposition in litigation against MaCI which resulted in the dismissal of the lawsuit, and
lost another case dealing with medical malpractice.
Early in the proceedings, defendants filed a motion to dismiss in which they raised several
defenses to Whiteside’s claims, including that they were time-barred. In an opinion and order issued
June 8, 2006, the district court held that Whiteside’s claims were time-barred, except his claims
alleging retaliatory confiscation of his legal materials in April 2003, and denial of his access to the
courts due to the confiscation of those materials. The district court concluded that these later claims
survived defendants’ motion to dismiss.
Whiteside thereafter filed three motions for temporary restraining orders and/or preliminary
injunctions, asking the court to enjoin certain conduct by defendants and other MaCI staff. The
district court denied Whiteside’s requests for declaratory relief.
On June 18, 2007, defendants filed a motion for summary judgment focusing on Whiteside’s
ability to satisfy the elements of his retaliation claim. Although not specifically addressing a separate
denial of access to the courts claim, defendants’ arguments covered the merits of this claim in that
they argued Whiteside was not engaged in protected activity when he filed lawsuits in the Ohio
Court of Claims.1 Defendants alternatively argued that they were entitled to sovereign and qualified
immunity.
1
As set forth infra, the first element of a First Amendment retaliation claim is that the
plaintiff engaged in protected conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
Defendants argued below that Whiteside could not satisfy this element based on his filing of lawsuits
in the Ohio Court of Claims because “a prisoner’s [First Amendment] right to access the courts
extends to direct appeals, habeas corpus applications, and civil rights claims only.” Id. at 391.
No. 08-4060 Whiteside v. Parrish, et al. Page 4
In an opinion and order filed March 31, 2008, the district court granted summary judgment
to defendants, concluding: “the record is clear that lawful restrictions on inmate property were
generally enforced at MaCI during the relevant time period and that those restrictions were
applicable to [Whiteside] regardless of his activities.” On the same date, the district court entered
judgment in defendants’ favor. Whiteside filed a motion for reconsideration, which the district court
denied on June 30, 2008. This timely appeal followed.
II.
On appeal, Whiteside challenges the district court’s decisions denying his request for
injunctive relief and granting defendants’ summary judgment motion. As to the latter motion,
Whiteside argues that his factual allegations regarding retaliation, discrimination, and denial of
access to the courts raised genuine issues of material fact that should have precluded summary
judgment in defendants’ favor.
Whether Whiteside demonstrated disputed material issues of fact with respect to his
discrimination claim is not before this court because the district court dismissed this claim based on
the applicable statute of limitations in response to defendants’ motion to dismiss. Whiteside’s
challenge to the district court’s denial of his request for injunctive relief against defendants also is
not before this court because his request is moot. Whiteside is no longer confined at the correctional
institution where defendants are employed. See Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996).
We must address, however, Whiteside’s assertion (even though this is his appeal) that the
district court’s decision granting summary judgment to defendants did not constitute a final
No. 08-4060 Whiteside v. Parrish, et al. Page 5
appealable order because the court did not address Whiteside’s denial of access to the court claim.2
See Bonner v. Perry, 564 F.3d 424, 426 (6th Cir. 2009) (addressing the finality of the district court’s
decision sua sponte because the court of appeals is under an independent obligation to police its own
jurisdiction). Construing his pro se complaint liberally, see Franklin v. Rose, 765 F.2d 82, 85 (6th
Cir. 1986), Whiteside alleged two separate First Amendment claims that were timely filed according
to the district court’s decision on defendants’ motion to dismiss: (1) retaliation and (2) denial of his
access to the courts. When ruling on defendants’ motion for summary judgment, however, the
district court only addressed Whiteside’s retaliation claim. Nevertheless, the court then directed the
clerk to enter a final judgment in the action.
“The courts of appeals . . . have jurisdiction of appeals from all final decisions of the district
courts of the United States . . . except where a direct review may be had in the Supreme Court.” 28
U.S.C. § 1291. A decision is final for purposes of § 1291 if the district court’s decision “‘ends the
litigation on the merits and leaves nothing for the court to do but execute the judgment.’” Van
Cauwenberghe v. Biard, 486 U.S. 517, 521, 108 S. Ct. 1945, 1949 (1988) (quoting Catlin v. United
States, 324 U.S. 229, 233, 65 S. Ct. 631, 633 (1945)). In contrast, a district court’s “dismissal of a
single claim from a lawsuit comprising several claims is not final for purposes of appeal. Full
opportunity for review of the dismissal would be available [only] following the disposition of the
remaining claims” In re Romulus Cmty. Sch., 729 F.2d 431, 440 (6th Cir. 1984). This panel finds
that while the district court in the instant case did not address all of Whiteside’s timely-filed claims,
2
Whiteside also asserts that the district court failed to address his discrimination claim. As
set forth earlier, however, the court ruled in response to defendants’ motion to dismiss that
Whiteside’s discrimination claim was time-barred.
No. 08-4060 Whiteside v. Parrish, et al. Page 6
the court’s summary judgment decision nevertheless “effectively ended the litigation and thus
constituted a final order for the purposes of appellate review.” BKCAP, LLC v. Captec Franchise
Trust 2000-1, 572 F.3d 353, 358 (7th Cir. 2009) (quotation marks and citation omitted).
The district court’s decision granting summary judgment to defendants and ordering the court
clerk to enter a final judgment reflects an intent to end the litigation, with nothing “le[ft] for the court
to do but execute the judgment.” Van Cauwenberghe, 486 U.S. at 521, 108 S. Ct. at 521. “The
intention of the judge is crucial in determining finality.” Vaughn v. Mobil Oil Exploration &
Producing SE, Inc., 891 F.2d 1195, 1197 (5th Cir. 1990); see also Peabody Coal Co. v. Local
Unions Nos. 1734, 1508, 1548 United Mine Workers of Am., 484 F.2d 78, 84 (6th Cir. 1973).
“Moreover, the Supreme Court has consistently emphasized that, consonant with legislative intent,
a ‘practical rather than a technical construction’ best serves the policies underlying the purposes of
the finality requirement.” Vaughn, 891 F.2d at 1197 (quoting Forgay v. Conrad, 47 U.S. (6 How.)
201, 12 L.Ed. 404 (1848); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S. Ct. 2140 (1974)); see
also Peabody Coal, 484 F.2d at 84.
III.
This court reviews a district court’s summary judgment determination de novo. Med. Mut.
of Ohio v. K. Amalia Enter. Inc., 548 F.3d 383, 389 (6th Cir. 2008). Summary judgment is
appropriate if, taking the evidence in the light most favorable to the nonmoving party, “the pleadings,
the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(c)(2). The central inquiry is “whether the evidence presents a sufficient disagreement to
No. 08-4060 Whiteside v. Parrish, et al. Page 7
require submission to a jury or whether it is so one-sided that one party must prevail as a matter of
law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512 (1986).
IV.
The elements of a First Amendment retaliation claim are:
(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against
the plaintiff that would deter a person of ordinary firmness from continuing to engage
in that conduct; and (3) there is a causal connection between elements one and two–
that is, the adverse action was motivated at least in part by the plaintiff’s protected
conduct.
Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). Even if the plaintiff establishes all three
elements, the defendant may avoid liability by showing “that he would have taken the same action
in the absence of the protected activity.” Id. at 399. Although defendants argued before the district
court that Whiteside could not establish any of the elements set forth above, the district court focused
on the last factor (i.e. whether they would have take the same action in the absence of the alleged
protected activity) in granting summary judgment to defendants.3
3
In their summary judgment motion, defendants argued that Whiteside could not establish
that he was engaged in protected activity based on his filing of lawsuits in the Ohio Court of Claims.
The district court found it unnecessary to resolve whether those lawsuits constituted protected
activity because Whiteside also alleged that defendants retaliated against him due to his membership
in the NAACP and complaints about the prison’s fiscal accounting procedures. Defendants also
argued that their alleged conduct did not constitute adverse action because the conduct did not deter
Whiteside from continuing to engage in litigation activities. The district court rejected this argument,
quoting Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th Cir. 1999), and concluding that it is not the
plaintiff’s subjective response that is determinative but whether “a person of ordinary firmness”
would be deterred by the defendant’s actions.
No. 08-4060 Whiteside v. Parrish, et al. Page 8
In April 2003, defendants forced Whiteside to make a decision regarding the excess legal
materials found in his cell. Defendants declare that Whiteside was forced to make that decision, not
in retaliation for his First Amendment activities, but because he was repeatedly in violation of prison
regulations that require inmate property to fit within the defined space of 2.4 cubic feet. Apparently,
in April 2003, Whiteside had material that could not even fit within the excess storage space he had
been allotted.
Whiteside does not dispute that prison regulations require all inmates to store their property
in a 2.4 cubic foot space unless they specifically have been granted permission to keep excess
material and that “everybody” at MaCI was required to comply with the regulations unless such
permission had been granted. Whiteside claims, however, that he was granted permission to possess
excess legal materials and defendants failed to comply with the procedures set forth in Ohio
Administrative Code Section 5120-9-55 when they confiscated those materials.
First, Whiteside fails to indicate how defendants violated the procedures set forth in Section
5120-9-55. Second, even if Whiteside initially had been granted permission to keep excess legal
materials in his cell and outside his locker, defendants had the authority to revoke that permission
and enforce ODRC-59-LEG-01. As indicated earlier, Whiteside acknowledged that all prisoners
were required to comply with the regulation.
For the above reasons, the undisputed evidence presented below demonstrated that
defendants would have confiscated Whiteside’s legal materials even in the absence of his protected
conduct. This panel therefore concludes that the district court properly granted summary judgment
to defendants with respect to Whiteside’s retaliation claim. While the district court did not address
No. 08-4060 Whiteside v. Parrish, et al. Page 9
Whiteside’s denial of access to the courts claim, resolution of that claim still results in the dismissal
of Whiteside’s lawsuit.4
A prisoner asserting a First Amendment denial of access to the courts claim must “show an
actual injury to a non-frivolous legal proceeding arising from the defendants’ alleged conduct.”
Davis v. Powell, 91 Fed. App’x 495, 496 (6th Cir. 2004) (unpublished opinion) (citing Lewis v.
Casey, 518 U.S. 343, 351, 116 S. Ct. 2174, 2180 (1996)). While prisoners enjoy a constitutional
right of access to the courts, see Bounds v. Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 1494 (1977),
that right is not without limit. See Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174 (1996). As the
Supreme Court reasoned in Lewis:
. . . Bounds does not guarantee inmates the wherewithal to transform themselves into
litigating engines capable of filing everything from shareholder derivative actions to
slip-and-fall claims. The tools it requires to be provided are those that the inmates
need in order to attack their sentences, directly or collaterally, and in order to
challenge the conditions of their confinement. Impairment of any other litigating
capacity is simply one of the incidental (and perfectly constitutional) consequences
of conviction and incarceration.
518 U.S. at 355, 116 S. Ct. at 2182 (emphasis in original). In short, “a prisoner’s right to access the
courts extends to direct appeals, habeas corpus applications, and civil rights claims only.” Thaddeus-
4
The panel will consider Whiteside’s denial of access to the courts claim in the first instance
because the parties addressed the merits of the claim in their pleadings below, resolving the claim
only requires the panel to address a question of law, and “the proper resolution is beyond any doubt.”
Meador v. Cabinet for Human Res., 902 F.2d 474, 477 (6th Cir. 1990); City Mgmt. Corp. v. U.S.
Chem. Co., 43 F.3d 244, 255 (6th Cir. 1994).
No. 08-4060 Whiteside v. Parrish, et al. Page 10
X, 175 F.3d at 391. None of the lawsuits Whiteside identified below as having been interfered with
by the confiscation of his legal materials fall within these categories.4
V.
For the above reasons, we AFFIRM the judgment of the district court.
4
In the district court proceedings, Whiteside testified during his deposition that defendants’
confiscation of his legal materials in April 2003 interfered with his prosecution of five lawsuits in
the Ohio Court of Claims. Whiteside did not raise a direct or collateral attack on his sentence in any
of these cases and, from what the record showed, he did not allege a violation of his constitutional
rights in four of the five cases. As to the remaining lawsuit, Whiteside voluntarily dismissed the case
in 2001– before defendants confiscated his legal materials.