Harbin-Bey v. Rutter

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 05a0354p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellant, -

KEITH HARBIN-BEY,

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No. 04-1458

v.

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LYLE RUTTER et al., -

Defendants-Appellees. -

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Appeal from the United States District Court

for the Western District of Michigan at Marquette.

No. 03-00015—Richard A. Enslen, District Judge.

Submitted: July 22, 2005

Decided and Filed: August 18, 2005

Before: KENNEDY, CLAY, and GILMAN, Circuit Judges.

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COUNSEL

ON BRIEF: Keith Harbin-Bey, Munising, Michigan, pro se.

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OPINION

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RONALD LEE GILMAN, Circuit Judge. Keith Harbin-Bey, a Michigan prisoner, filed this

pro se civil rights action pursuant to 42 U.S.C. § 1983 against several officials employed by the

Michigan Department of Corrections (MDOC). Specifically, the defendants are MDOC Inspector

and Alger Maximum Correctional Facility Security Threat Group Coodinator Lyle Rutter, MDOC

Officer Bill Martin, MDOC Central Office Security Threat Group Coordinator Robert Mulvaney,

MDOC Director William Overton, and MDOC Manager of Prison Affairs Michael Powell. Harbin-

Bey contended that his designation as a member of a Security Threat Group (STG) without a hearing

violated his constitutional rights.

The district court initially dismissed all of Harbin-Bey’s claims other than the claim that

Rutter had retaliated against him. It subsequently granted summary judgment for Rutter on the

retaliation claim as well. For the reasons set forth below, we AFFIRM the judgment of the district

court.

1

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I. BACKGROUND

Harbin-Bey, an inmate at the Alger Maximum Correctional Facility in Munising, Michigan,

is a Moorish-American Muslim affiliated with a gang known as the Vice Lords. In the fall of 2001,

he began writing to family members and to other inmates regarding the prison’s STG policy

directive. He stated in his letters that the STG policy infringed on prisoners’ constitutional rights

and on their ability to obtain parole, and he indicated that he was contemplating legal action against

Rutter, the prison’s STG Coordinator. In addition, the letters allegedly contained veiled references

to the Vice Lords. For example, they used the terms “golden sun” and “black moon,” which are

gang symbols, and the phrase “la via va va,” which is Vice Lord code for “all is well.”

Rutter intercepted one of Harbin-Bey’s letters in November of 2001 and issued a Notice of

Intent to Conduct an Administrative Hearing (referred to as an “NOI” in the realm of prison

administration). He also ordered Harbin-Bey to refrain from any further correspondence involving

STG matters. In numerous letters to Rutter, Harbin-Bey asserted that the allegedly offensive

references in his letters were religious and therefore should not be considered violations of STG

policy. He did not receive a reply from Rutter.

In March of 2002, Rutter and Mulvaney notified Harbin-Bey that he had been designated an

STG leader. Harbin-Bey subsequently wrote to Mulvaney and complained that his designation as

an STG leader without a hearing violated his rights to the due process of law.

In May of 2002, Harbin-Bey was notified that an issue of FHM (For Him Magazine) had

been rejected by the prison because one of the articles in the magazine contained depictions of gang

signs. Prison policy prohibits inmates from receiving such information. Harbin-Bey’s request that

he be given the magazine with the offending article removed was denied. Shortly thereafter, he

received a postcard from FHM informing him that his subscription could not be continued because

the prison had returned the issue in question as “unauthorized.”

Harbin-Bey received a second NOI from Rutter in July of 2002. This NOI notified Harbin-

Bey that he was being classified as an “STG II” because he had sent his grandfather a photograph

of himself in which he displayed an STG tattoo on his arm. Harbin-Bey wrote to Rutter and

requested that he not be so labeled without a hearing. He also wrote to Mulvaney, demanding that

he receive equal protection under the law. In August of 2002, Harbin-Bey filed three grievances

against Rutter, all of which were denied: one for violating his constitutional rights, a second for

retaliation, and a third for tampering with his mail. He appealed the denial of the three grievances

in accordance with prison procedure.

Harbin-Bey filed the present lawsuit in January of 2003, alleging that the defendants’

conduct in applying and enforcing the prison’s STG policies against him violated his constitutional

rights to (1) equal protection, (2) due process, (3) access to the courts, (4) freedom from censorship

of his mail and publications, (5) freedom of religion, and (6) freedom from retaliation. He sought

both equitable and monetary relief.

With the exception of Harbin-Bey’s retaliation claim against Rutter, the district court

dismissed Harbin-Bey’s complaint on the basis that it failed to state a claim upon which relief can

be granted. The court also denied Harbin-Bey’s motion to alter or amend the judgment. Rutter

subsequently filed a motion for summary judgment on the retaliation claim, which was granted by

the district court on the recommendation of the magistrate judge. This timely appeal followed.

On appeal, Harbin-Bey reasserts all of his original claims other than the one based on

freedom of religion. He also argues that the district court abused its discretion when it denied his

motion to supplement his complaint as to the retaliation claim. Finally, Harbin-Bey argues that the

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district court abused its discretion in ruling that he had failed to exhaust his administrative remedies

with respect to defendants Martin and Powell.

II. ANALYSIS

A. Standard of review

We review de novo the dismissal of a prisoner’s complaint on the basis that it failed to state

a claim upon which relief can be granted. McGore v. Wigglesworth, 114 F.3d 601, 604 (6th Cir.

1997). In determining whether a prisoner has failed to state a claim, we construe his complaint in

the light most favorable to him, accept his factual allegations as true, and determine whether he can

prove any set of facts that would entitle him to relief. Turker v. Ohio Dep’t of Rehab. & Corrs.,

157 F.3d 453, 456 (6th Cir. 1998).

We also review de novo a district court’s grant of summary judgment. Minadeo v. ICI

Paints, 398 F.3d 751, 756 (6th Cir. 2005). Summary judgment is proper where there exists no

genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.

R. Civ. P. 56(c). In considering a motion for summary judgment, the district court must construe

all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986). The central issue is “whether the evidence presents a

sufficient disagreement to 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 (1986).

B. The district court did not err in dismissing Harbin-Bey’s equal-protection, access-to-

the-courts, and First Amendment claims

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right

secured by the Constitution or laws of the United States and must show that the deprivation of that

right was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48

(1988). A complaint fails to state a claim upon which relief can be granted when no relief is

available under any set of facts that could be proved consistent with the allegations of the complaint.

Jones v. City of Carlisle, 3 F.3d 945, 947 (6th Cir. 1993).

1. Equal protection and due process

Harbin-Bey’s first claim is that his designation as an STG leader, which caused him “to be

permanently excluded from community placement, placed on visitor restrictions, and more,” violated

the Equal Protection Clause of the Fourteenth Amendment. He contends that the failure to provide

him with a hearing prior to his designation as an STG leader constituted the unequal application of

state law, because all other prisoners who are given a special designation, “such as homosexual

predator, escape risks, high and very high risk classification,” receive a hearing prior to being so

designated.

The Equal Protection Clause provides that a state may not “deny to any person within its

jurisdiction the equal protection of the laws.” U.S. Const., amend. XIV, § 1. Legislation is

generally presumed to be valid and will be sustained if the classification drawn by the statute is

rationally related to a legitimate state interest. Schweiker v. Wilson, 450 U.S. 221, 230 (1981). But

when a law adversely affects a “suspect class,” such as one defined by race, alienage, or national

origin, or invades a “fundamental right,” such as speech or religious freedom, the law will be

sustained only if it is “suitably tailored to serve a compelling state interest.” City of Cleburne v.

Cleburne Living Center, Inc., 473 U.S. 432, 440 (1985).

Here, the “rational-basis” test applies. Inmates are not a suspect class. Hampton v. Hobbs,

106 F.3d 1281, 1286 (6th Cir. 1997). Nor does Harbin-Bey’s claim involve the denial of a

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fundamental right, because a prisoner does not have a constitutional right to be placed in a specific

security classification. See Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976). Although Harbin-Bey

claims that his STG designation was based on his religious beliefs, the record clearly shows that he

was designated as an STG member because of his gang affiliation, not because of his religion.

The MDOC’s policy directive regarding the classification of inmates as STG members is

rationally related to the legitimate state interest of maintaining order in the prison. See Jones v. N.C.

Prisoners’ Labor Union, 433 U.S. 119, 136 (1977) (“There is nothing in the Constitution which

requires prison officials to treat all inmate groups alike where differentiation is necessary to avoid

an imminent threat of institutional disruption or violence.”). Identifying, reclassifying, and

separating prisoners who are members of groups that engage in planning or committing unlawful

acts or acts of misconduct “targets a core threat to the safety of both prison inmates and officials.”

In re Long Term Admin. Segregation of Inmates Designated as Five Percenters, 174 F.3d 464, 469

(4th Cir. 1999).

The MDOC policy directive in question includes the following factors to consider in

designating a group as an STG: (1) history and purpose of the group, (2) organizational structure of

the group, (3) propensity for violence or specific violent acts or intended acts that can be reasonably

attributed to the group, (4) illegal or prohibited acts that can be attributed to the group,

(5) demographics of the group, (6) existence of any written materials related to the group, (7)

specific illegal acts that can be associated with the group, and (8) any other relevant information.

None of these factors are discriminatory.

The so-called “homosexual predators” and “escape risks” may, as Harbin-Bey asserts,

receive a hearing before being so designated. But this does not mean that prisoners who are

classified as STG members are necessarily entitled to the same procedural protections, because the

STG policy directive is not aimed at a suspect class, nor does it invade a fundamental right. See City

of Cleburne, 473 U.S. at 440. “[W]here individuals in the group affected by a law have

distinguishing characteristics relevant to interests the State has the authority to implement, the courts

have been very reluctant . . . to closely scrutinize legislative choices as to whether, how, and to what

extent those interests should be pursued.” Id. at 441-42.

Harbin-Bey has not presented any authority to establish that prisoners are constitutionally

entitled to a hearing prior to receiving a special designation. Because the state is not obligated to

provide such a hearing, the fact that it offers one for some prison classifications but not for others

is of no federal constitutional consequence so long as the choice is not an arbitrary one. See Hadix

v. Johnson, 230 F.3d 840, 843 (6th Cir. 2000) (“[R]ational basis review is not a rubber stamp of all

legislative action, as discrimination that can only be viewed as arbitrary and irrational will violate

the Equal Protection Clause.”) (emphasis in original). Threats to prison security presumably demand

more immediate attention than the threats presented by the other categories mentioned by Harbin-

Bey. The MDOC’s differing treatment for the STG classification is therefore not arbitrary. See

Jones, 433 U.S. at 136.

Harbin-Bey also cites Sandin v. Conner, 515 U.S. 472 (1995), a case involving the

procedural due process rights of Hawaii prisoners, for the proposition that “the denial of a hearing,

appeal and judicial review . . . as provided to prisoners similarly situated has denied plaintiff the

equal application of law.” In Sandin, the Supreme Court held that, in some cases, a restraint might

be so extreme as to implicate rights arising directly from the Due Process Clause itself. The Court

recognized that states may create liberty interests protected by the Due Process Clause where the

freedom from restraint imposed “atypical and significant hardships on the inmate in relation to the

ordinary incidents of prison life.” Sandin, 515 U.S. at 484.

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But, as the district court below noted, “an increase in security classification, such as being

classified as a[n] STG member, does not constitute an “atypical and significant’ hardship in relation

to the ordinary incidents of prison life because a prisoner has no constitutional right to remain

incarcerated in a particular prison or to be held in a specific security classification.” See Moody, 429

U.S. at 88 n.9 (rejecting a prisoner’s argument that a pending warrant and detainer adversely

affected his prison classification and qualification for institutional programs because not “every state

action carrying adverse consequences for prison inmates automatically activates a due process

right”); Meachum v. Fano, 427 U.S. 215, 225 (1976) (holding that “[n]either, in our view, does the

Due Process Clause in and of itself protect a duly convicted prisoner against transfer from one

institution to another within the state prison system,” and noting that the fact “[t]hat life in one

prison is much more disagreeable than in another does not in itself signify that a Fourteenth

Amendment liberty interest is implicated when a prisoner is transferred to the institution with the

more severe rules”); but see Wilkinson v. Austin, 125 S. Ct. 2384, 2389, 2394 (2005) (holding that

transfer to a “supermax” prison “imposes an atypical and significant hardship under any plausible

baseline” because “[conditions] at [the prison] are more restrictive than any other form of

incarceration in Ohio”).

We conclude that Harbin-Bey’s designation as an STG member fits well within the Jones

and Sandin decisions. His Equal Protection Clause and Due Process Clause claims are therefore

without merit.

2. Access to the courts

Harbin-Bey further argues that the district court erred in dismissing his access-to-the-courts

claim for failure to state a claim upon which relief can be granted. He contends that his designation

as an STG leader without a hearing violates his right to access to the courts because he is unable to

seek judicial review of his designation.

Harbin-Bey’s contention is incorrect. A prisoner may file a grievance contesting an STG

designation pursuant to MDOC Policy Directive 04.04.113, ¶ AA. Once the prisoner has exhausted

the internal grievance process, he may present his claim in federal court. See Brown v. Toombs,

139 F.3d 1102, 1104 (6th Cir. 1998) (“[T]his court will henceforth require that prisoners filing

§ 1983 cases involving prison conditions must allege and show that they have exhausted all

available state administrative remedies.”).

In order to state a claim for interference with access to the courts, however, a plaintiff must

show actual injury. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc) (noting that

“the requirement that an inmate show ‘actual injury’ derives from the constitutional principle of

standing”). Examples of actual prejudice to pending or contemplated litigation include having a case

dismissed, being unable to file a complaint, and missing a court-imposed deadline. Jackson v. Gill,

No. 03-5045, 2004 WL 232148, at *2 (6th Cir. Feb. 3, 2004) (unpublished). Harbin-Bey has not

demonstrated any cognizable injury as a result of his designation as an STG leader. We therefore

conclude that the district court properly dismissed his access-to-the-courts claim.

3. First Amendment

Harbin-Bey next argues that the district court erred in dismissing his First Amendment claim

regarding the prison’s alleged censorship of his periodicals. He contends that rejecting his FHM

magazine was not rationally related to the MDOC’s proffered goal of maintaining prison security.

Specifically, he claims that the policy mandating rejection of the magazine was “an exaggerated

response” to the prison’s security concerns. He further argues that requiring the prison to allow

inmates access to such magazines with any offending articles or pictures removed would not be

unduly burdensome.

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A prisoner’s right to receive mail is subject to prison policies and regulations that are

“reasonably related to legitimate penological interests,” Turner v. Safely, 482 U.S. 78, 89 (1987),

such as “security, good order, or discipline of the institution.” Thornburgh v. Abbott, 490 U.S. 401,

404 (1989). Courts generally afford great deference to prison policies, regulations, and practices

relating to the preservation of these interests. Id. at 407-08. In Turner, the Supreme Court set forth

the following four factors to determine whether a prison’s restriction on incoming publications was

reasonably related to legitimate penological interests:

(1) whether there is a valid, rational connection between the prison policy and the

legitimate governmental interest asserted to justify it; (2) the existence of alternative

means for inmates to exercise their constitutional rights; (3) the impact that

accommodation of these constitutional rights may have on other guards and inmates,

and on the allocation of prison resources; and (4) the absence of ready alternatives

as evidence of the reasonableness of the regulation.

Cornwall v. Dahlberg, 963 F.2d 912, 917 (6th Cir. 1992) (citing Turner, 482 U.S. at 89).

The regulation in question here prohibits prisoners from receiving mail depicting gang

symbols or signs. Policy Directive 05.03.118, ¶ HH(21). It requires that the magazine be accepted

or rejected as a whole; it does not allow the removal of a prohibited article prior to giving the

magazine to an inmate. Harbin-Bey argues that the regulation is an exaggerated response to security

concerns in the prison because there are alternatives means of regulating incoming publications short

of wholesale rejection; namely, the removal of any offending material from within the publication

prior to forwarding it to the inmate.

He does not, however, provide any support for his contention that requiring “prison officials

to go through each magazine received by a prisoner and remove all prohibited material so that it may

be received by the prisoner” would not, as the district court determined, be unduly burdensome.

Moreover, Harbin-Bey’s FHM subscription was ultimately terminated by the magazine’s publisher,

not by the prison, the latter rejecting only a single issue. Because the policy directive was

reasonably related to the prison’s goal of maintaining security and order, the district court properly

dismissed Harbin-Bey’s claim that rejection of the offending issue violated his First Amendment

rights.

C. The district court did not err in granting summary judgment for Rutter on Harbin-

Bey’s retaliation claim, or in refusing to allow Harbin-Bey to supplement his complaint

with respect to a new claim of retaliation

1. Summary judgment

Harbin-Bey contends that Rutter retaliated against him when Harbin-Bey threatened to take

legal action against Rutter and filed grievances against a number of MDOC officials, including

Rutter. He claims that Rutter retaliated by interfering with and confiscating Harbin-Bey’s outgoing

mail.

Retaliation based on a prisoner’s exercise of his First Amendment rights violates the

Constitution. Thaddeus-X, 175 F.3d at 394. In order to establish a First Amendment retaliation

claim, a plaintiff must prove that:

(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.

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Id. at 394. The relevant question regarding the second prong of the Thaddeus-X test is whether the

defendant’s adverse conduct was “capable of deterring a person of ordinary firmness.” Bell v.

Johnson, 308 F.3d 594, 606 (6th Cir. 2002) (emphasis added) (quotation marks omitted). Actual

deterrence need not be shown. Id.

Harbin-Bey failed to establish that he suffered any adverse action that would satisfy the

standard set forth in Thaddeus-X. He presented no evidence to establish that Rutter had interfered

with his mail, or even that his mail was intercepted at all, after he filed his grievances against Rutter.

Moreover, even if Rutter had confiscated Harbin-Bey’s mail, Harbin-Bey has not offered any

evidence to suggest that Rutter’s conduct in issuing the NOIs was motivated by the content of

Harbin-Bey’s letters or by the fact that he filed the grievances. Finally, Harbin-Bey did not lose any

privileges as a result of the NOIs; rather, he was simply not permitted to send mail containing

prohibited STG materials. See Bell, 308 F.3d at 603 (“Whether a retaliatory action is sufficiently

severe to deter a person of ordinary firmness from exercising his or her rights is a question of fact

[to be determined by the trier of fact].”). As the district court concluded in adopting the Report and

Recommendation of the magistrate judge, an inmate of ordinary firmness would not be deterred from

filing grievances or writing to family members about the possibility of taking legal action based on

the issuance of these NOIs by Rutter.

Harbin-Bey claims that “direct proof or evidence [of retaliation] is impossible to come by

in this type of case,” but that he has “presented circumstantial evidence, which constitutes more than

bare allegations.” Admittedly, retaliation “rarely can be supported with direct evidence of intent.”

Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987). But conclusory allegations of retaliatory motive

“unsupported by material facts will not be sufficient to state . . . a claim under § 1983.” Gutierrez

v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir.1987); see also Williams v. Bates, No. 93-2045, 1994 WL

677670, at *3 (6th Cir. Dec. 2, 1994) (unpublished) (holding that the plaintiff’s claim of retaliatory

transfer was “wholly conclusory and so [was] insufficient to state a cause of action under § 1983”).

We therefore conclude that the district court did not err in granting Rutter’s motion for summary

judgment.

2. Supplementation of Harbin-Bey’s complaint

Nor did the district court abuse its discretion when it denied Harbin-Bey’s motion to

supplement his complaint as to his retaliation claim. Harbin-Bey sought to add allegations showing

that Rutter had retaliated against him for filing the present action. The district court denied his

motion because Harbin-Bey failed to exhaust his administrative remedies through the prison’s

grievance procedures with regard to Rutter’s most recent alleged misconduct.

Although Harbin-Bey filed a new administrative grievance against Rutter, he did so only

after commencing this lawsuit. This court has held that a prisoner “may not exhaust administrative

remedies during the pendency of the federal suit.” Freeman v. Francis, 196 F.3d 641, 645 (6th Cir.

1999) (dismissing an Ohio prisoner’s suit because he filed his federal complaint before completing

the administrative process). We therefore conclude that the district court did not abuse its discretion

in refusing to allow Harbin-Bey to supplement his complaint.

D. The district court did not err in determining that Harbin-Bey had not exhausted his

administrative remedies with regard to Martin and Powell

Finally, Harbin-Bey argues that the district court erred in ruling that he had failed to exhaust

his administrative remedies with respect to Martin and Powell. Pursuant to 42 U.S.C. § 1997e(a),

a prisoner must exhaust all available administrative remedies prior to bringing a § 1983 action with

respect to prison conditions, even if the state administrative process does not allow the specific type

of relief sought by the prisoner. Porter v. Nussle, 534 U.S. 516, 524 (2002) (holding that the

exhaustion requirement of the Prison Litigation Reform Act (PLRA) applied to an inmate’s claims

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that he was beaten by corrections officers without justification). This exhaustion requirement is

mandatory and must be enforced by the district court sua sponte. Brown v. Toombs, 139 F.3d 1102,

1104 (6th Cir. 1998) (enforcing the exhaustion requirement sua sponte and dismissing without

prejudice a prisoner’s complaint on the basis that he had failed to exhaust his administrative

remedies). The district court does not have the discretion to order a continuance in the absence of

exhaustion. Wright v. Morris, 111 F.3d 414, 417 (6th Cir. 1997) (noting that, prior to the enactment

of the PLRA, district courts had such discretion).

Prisoners may grieve the application of a policy directive if it affects them personally and

involves a concern over which the MDOC has control, but they may not grieve the content of the

policy itself. Policy Directive 03.02.130, ¶ E, F-2. In a grievance, the prisoner must specifically

mention the allegedly offending parties so that the prison has an opportunity to address the claims

before they reach federal court. Curry v. Scott, 249 F.3d 493, 505 (6th Cir. 2001). Harbin-Bey has

submitted documentation to establish that he has filed several grievances against Rutter. But he has

not demonstrated that he has filed grievances with regard to his claims against Martin and Powell.

As a result, he has not exhausted these claims.

A court, however, need not require exhaustion of available administrative remedies where

the claim is subject to dismissal because it is “frivolous, malicious, fails to state a claim upon which

relief can be granted, or seeks monetary relief from a defendant who is immune from such relief.”

Brown, 139 F.3d at 1103. Here, the district court dismissed Harbin-Bey’s claims against Martin

and Powell in the absence of exhaustion because it properly determined that Harbin-Bey had failed

to state a claim against them upon which relief can be granted. We therefore conclude that the

district court did not err in dismissing Harbin-Bey’s claims against Martin and Powell.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.