Petition for Writ of Certiorari — Christopher Louis Sindone, Petitioner v. Michigan Department of Corrections, et al.

Supreme Court briefNov 30, 2023

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Aff&

NOT RECOMMENDED FOR PUBLICATION

No. 23-1209

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Sep 12, 2023

DEBORAH S. HUNT, Clerk

CHRISTOPHER LOUIS SINDONE,

Plaintiff-Appellant,

li

v.

MICHIGAN DEPARTMENT OF

CORRECTIONS, et al„

Defendants-Appellees.

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ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF

MICHIGAN

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ORDER

Before: MOORE, STRANCH, and BUSH, Circuit Judges.

Christopher Sindone, a Michigan prisoner proceeding pro se, appeals the district court’s

judgment dismissing his civil rights action filed under 42U.S.C. § 1983. This case has been

referred to a panel of the court that, upon examination, unanimously agrees that oral argument is

not needed. See Fed. R. App. P. 34(a). Because Sindone failed to state a claim on which relief

can be granted, we affirm.

In 2022, Sindone sued the Michigan Department of Corrections (MDOC) and employees

at the Richard A. Handlon Correctional Facility (MTU) for violations of his constitutional rights.

According to the complaint, Sindone had been trained as a prisoner observer aide (POA) at his

previous facility. When he was transferred to MTU in January 2021, he was placed on the POA

roster and received regular assignments. But in July, Sindone and about 20 other POAs were

removed from the active roster due to their Prison Rape Elimination Act (PREA) scores. Those

affected were notified that their PREA scores were “identified as other than an NS [no score].”

Because MDOC policy requires POAs to have compatible PREA scores with the prisoners being

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No. 23-1209

-2-

observed, MTU’s POA committee elected to use only POAs with an NS rating, so that any POA

could be assigned to any prisoner. One defendant, the former POA supervisor, informed Sindone

that he had previously changed the PREA scores of every POA to NS to make scheduling easier.

Sindone filed a grievance concerning his removal from the POA roster. In September 2021, a

week after he appealed his grievance to Step II, he was transferred to the Central Michigan

Correctional Facility (STF).

He was placed on the POA roster there but received fewer

assignments. He also lost his job at the facility food service.

Sindone asserted that he was transferred to STF in retaliation for filing a grievance about

his removal from the POA roster and a habeas corpus petition; that the defendants violated his

right to access the courts; that MTU’s reliance on his PREA score, which was calculated based on

his convictions from 1997 and 2007, violated the Double Jeopardy Clause; and that his removal

from the POA roster violated his due process and equal protection rights.

Upon initial screening pursuant to 28 U.S.C. § 1915Aand42 U.S.C. § 1997e(c), the district

court dismissed the complaint for failure to state a claim. First, the district court dismissed the

claims against MDOC as barred by the Eleventh Amendment.1 Then, the district court reasoned

that Sindone’s transfer to a lower-security facility was not an adverse action that would support a

retaliation claim and that he failed to allege an actual injury to support an access-to-the-courts

claim. The court further determined that his double-jeopardy claim failed because decisions about

his job assignment did not equate to criminal punishment. Finally, the district court determined

that the facts alleged concerning his prison employment did not support a due process or equal

protection claim.

We review de novo a district court’s sua sponte dismissal under 28 U.S.C. § 1915A and 42

U.S.C. § 1997e(c), which require a district court to screen and dismiss any portion of a complaint

that is frivolous or malicious or fails to state a claim upon which relief can be granted. See Hill v.

Lappin, 630 F.3d 468,470 (6th Cir. 2010) (discussing review of a court’s dismissal pursuant to 28

l By Sidone’s consent, the magistrate judge conducted proceedings in this case, acting as the

district court pursuant to 28 U.S.C. § 636(c).

i

No. 23-1209

-3 U.S.C. § 1915A); White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997) (discussing review of a

court’s dismissal pursuant to 42 U.S.C. § 1997e(c)). To avoid dismissal for failure to state a claim,

“a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that

is plausible on its face.” Hill, 630 F.3d at 471 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)).

First, Sindone does not challenge the district court’s dismissal of his claims against the

MDOC, and there would be no basis for him to do so. See Morgan v. Bd. of Pro. Resp. of the

Supreme Ct. of Tenn., 63 F.4th 510, 515 (6th Cir. 2023) (explaining that, except in limited

circumstances, sovereign immunity bars suits against state agencies).

Second, Sindone did not state a First Amendment retaliation claim. To state a retaliation

claim, “a plaintiff must show that (1) he engaged in protected conduct; (2) the defendant took an

adverse action against him ‘that would deter a person of ordinary firmness from continuing to

engage in that conduct’; and (3)... the adverse action was taken (at least in part) because of the

protected conduct.” Thomas v. Eby, 481 F.3d 434, 440 Qith Cir. 2007) (quoting Thaddeus-X v.

Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc)).

Sindone alleged that he was transferred in retaliation for filing grievances regarding his

POA termination and a habeas petition. He alleged that the transfer caused him to lose his food

service employment, which in turn prevented him from accessing the courts, and to receive fewer

!

POA assignments. Although filing a grievance and habeas petition is protected conduct, see Hill,

630 F.3d at 472; Thaddeus-X, 175 F.3d at 394, Sindone’s allegations are insufficient to show that

his transfer was an adverse action. “As a general matter, a prison official’s decision to transfer a

prisoner from the general population of one prison to the general population of another is not

considered adverse,” LaFountain v. Harry, 716 F.3d 944, 948 (6th Cir. 2013), and the changes to

Sindone’s employment opportunities were not so significant as to “deter a person of ordinary

firmness” from filing grievances or habeas petitions, Thomas, 481 F.3d at 440 (quoting ThaddeusX, 175 F.3d at 394); cf Siggers-El v. Barlow, 412 F.3d 693, 703 (6th Cir. 2005) (determining that

No. 23-1209

-4l

prison transfer was an adverse action where it resulted in the loss of a high-paying job necessary

to pay retained counsel).

On appeal, Sindone argues that, despite STF’s lower security level, his placement there

|

was an adverse action because it is a loud and crowded facility, the law library was closed, he was

subject to invasive strip searches when he was transferred, and he rarely received POA

assignments. In the prison context, however, “prisoners ‘may be required to tolerate more than

average citizens[] before an action against them is considered adverse,’” LaFountain v. Harry, 716

F.3d 944, 948 (6th Cir. 2013) (quoting Thaddeus-X, 175 F.3d at 398), and these common prison

circumstances do not make his transfer to a lower-security facility adverse. See LaFountain, 716

F.3d at 948.

!

Third, Sindone failed to state an access-to-courts claim. Prisoners enjoy a constitutional

right to access to the courts under the First and Fourteenth Amendments. See Bounds v. Smith,

430 U.S. 817, 821 (1977). But this is not an “abstract, freestanding right to a law library or legal

assistance,” and the plaintiff must allege an “actual injury” to state a claim. Lewis v. Casey, 518

U.S. 343, 351 (1996).

In his complaint, Sindone asserted only that the loss of his prison

employment, and the attendant loss of wages, hindered his access to the courts. On appeal, he also

asserts that, because the law library at STF was closed, he was not able to perform legal research

and add new citations to his response in his habeas case. But neither allegation is sufficient to

show that he was denied “a reasonably adequate opportunity” to present his claims to the court, as

required to show an actual injury. Lewis, 518 U.S. at 356.

Fourth, Sindone has failed to state a double jeopardy claim based on the use of his prior

convictions to calculate his PREA score. The Double Jeopardy Clause provides that no “person

[shall] be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const,

amend. V. But “[t]he Clause protects only against the imposition of multiple criminal punishments

for the same offense.” Hudson v. United States, 522 U.S. 93, 99 (1997) (citing Helvering v.

Mitchell, 303 U.S. 391, 399 (1938)); see Bolton v. Dep’t of the Navy Bd. for Corr. ofNaval Rees.,

914 F.3d 401, 409-10 (6th Cir. 2019). The Clause does not prohibit every action that could

No. 23-1209

-5theoretically “be described as punishment,” Hudson, 522 U.S. at 98-99; rather, courts must look

at legislative intent to determine whether the action is criminal or civil. See, e.g., United States v.

Ward, 448 U.S. 242, 248 (1980) (“[T]he question whether a particular statutorily defined penalty

is civil or criminal is a matter of statutory construction.”); Bolton, 914 F.3d at 410 (determining

that a military base driving suspension imposed after a drunk driving offense was not a criminal

punishment because “administrative suspensions are intended to promote public safety”). Using

a prior conviction to determine a prisoner’s classification level or in connection with prison

discipline does not constitute a successive criminal punishment. See United States v. Simpson,

546 F.3d 394, 398 (6th Cir. 2008) (noting that “[t]he Double Jeopardy Clause was not intended to

inhibit prison discipline,” and “disciplinary changes in prison conditions” are not criminal

punishment); see also Amin v. Voigtsberger, 560 F. App’x 780, 784-85 (3d Cir. 2014) (explaining

that, “because prison administrative proceedings do not involve criminal prosecution,” a prisoner’s

sex-offender classification does not implicate the Double Jeopardy Clause).

Fifth, Sindone failed to state an equal protection claim. To state a Fourteenth Amendment

equal protection claim, a plaintiff “must plausibly allege ‘that the government treated the plaintiff

disparately as compared to similarly situated persons and that such disparate treatment either

burdens a fundamental right, targets a suspect class, or has no rational basis.’” Courser v. Allard,

969 F.3d 604, 617 (6th Cir. 2020) (quoting Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648

F.3d 365, 379 (6th Cir. 2011)). Sindone alleged that he was discriminated against when his POA

employment was terminated and that he was treated differently than the POAs who did not file

Step II grievances because he was transferred to STF and the other prisoners were rehired as POAs

after his transfer. On appeal, he argues that this claim should not have been dismissed without

requiring the defendants to explain why he was treated differently from other prisoners, suggesting

that it could have been because he is white or Italian or because he filed a habeas petition. But

Sindone did not plausibly allege membership in a suspect class or interference with a fundamental

right, so he did not state an equal protection claim on that basis. See id.

No. 23-1209

-6Nor could Sindone establish an equal protection violation under a “class-of-one” theory.

To state such a claim, a plaintiff must allege that he “has been intentionally treated differently from

others similarly situated and that there is no rational basis for the difference in treatment.” Umani

v. Mich. Dep’t of Corr., 432 F. App’x 453, 461 (6th Cir. 2011) (per curiam) (quoting Vill. of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). Sindone failed to allege facts from which it

could be inferred that similarly situated prisoners were treated more favorably.

Sindone’s

allegations do not demonstrate that he was treated differently than other prisoners who were also

let go as POAs and then rehired, because he too was ultimately reinstated as a POA. And transfer

from one prison to another does not, on its own, amount to an unlawful deprivation. See Olim v.

Wakinekona, 461 U.S. 238,248 (1983) (affirming dismissal of a prisoner’s complaint of interstate

facility transfer because it did not “deprive an inmate of any liberty interest protected by the Due

Process Clause in and of itself’).

Because Sindone’s complaint fails to detail why the transfer

itself constituted a retaliatory act, the court properly dismissed it.

Lastly, Sindone failed to state a due process claim because prisoners do not have a due

process right to prison employment. See Bethel v. Jenkins, 988 F.3d 931, 943 (6th Cir. 2021)

(“[A]n inmate does not have a protected interest in prison employment.”); Dellis v. Corr. Corp. of

Am., 257 F.3d 508, 511 (6th Cir. 2001) (concluding that the plaintiffs claim that he was “fired

from his prison job” was properly dismissed because there is no constitutionally protected interest

in prison employment).

For these reasons, we AFFIRM the district court’s judgment.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

I

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Sep 12, 2023

DEBORAH S. HUNT, Clerk

No. 23-1209

CHRISTOPHER LOUIS SINDONE,

Plaintiff-Appellant,

i

v.

MICHIGAN DEPARTMENT OF

CORRECTIONS, et al.,

Defendants-Appellees.

Before: MOORE, STRANCH, and BUSH, Circuit Judges.

JUDGMENT

On Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

THIS CAUSE was heard on the record from the district court and was submitted on the

briefs without oral argument.

IN CONSIDERATION THEREOF, it is ORDERED that the judgment of the district court

is AFFIRMED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

United States Court of Appeals for the Sixth Circuit

U.S. Mail Notice of Docket Activity

The following transaction was filed on 09/12/2023.

Case Name: Christopher Sindone v. MDOC, et al

Case Number: 23-1209

Docket Text:

ORDER filed: We AFFIRM the district court’s judgment. Decision not for publication, pursuant

to FRAP 34(a)(2)(C). Mandate to issue. Karen Nelson Moore, Circuit Judge; Jane Branstetter

Stranch, Circuit Judge and John K. Bush, Circuit Judge.

The following documents(s) are associated with this transaction:

Document Description: Order

Notice will be sent to:

Mr. Christopher Louis Sindone

Central Michigan Correctional Facility

320 N. Hubbard Street

St. Louis, MI 48880

i

A copy of this notice will be issued to:

Ms. Ann E. Filkins

Case l:22-cv-01189-PJG ECF No. 7, PagelD.48 Filed 01/24/23 Page 1 of 19

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CHRISTOPHER SINDONE,

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Plaintiff,

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Case No. l:22-cv-1189

Honorable Phillip J. Green

MICHIGAN DEPARTMENT OF

CORRECTIONS, et al„

Defendants.

OPINION

This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983.

Pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure,

Plaintiff consented to proceed in all matters in this action under the jurisdiction of a

United States magistrate judge. (ECF No. 1, PageID.8.)

This case is presently before the Court for preliminary review under the Prison

Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), pursuant

to 28 U.S.C. § 1915A(b), and 42 U.S.C. § 1997e(c). The Court is required to conduct

this initial review prior to the service of the complaint. See In re Prison Litig. Reform

Act, 105 F.3d 1131, 1131, 1134 (6th Cir. 1997); McGore v. Wrigglesworth, 114 F.3d

601, 604-05 (6th Cir. 1997). Service of the complaint on the named defendants is of

particular significance in defining a putative defendant’s relationship to the

proceedings.

Case l:22-cv-01189-PJG ECF No. 7, PagelD.49 Filed 01/24/23 Page 2 of 19

“An individual or entity named as a defendant is not obliged to engage in

litigation unless notified of the action, and brought under a court’s authority, by

■ formal process.” Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347

(1999). “Service of process, under longstanding tradition in our system of justice, is

fundamental to any procedural imposition on a named defendant.” Id. at 350. “[0]ne

becomes a party officially, and is required to take action in that capacity, only upon

service of a summons or other authority-asserting measure stating the time within

which the party served must appear and defend.” Id. (citations omitted). That is,

“[u]nless a named defendant agrees to waive service, the summons continues to

function as the sine qua non directing an individual or entity to participate in a civil

action or forgo procedural or substantive rights.” Id. at 351. Therefore, the PLRA,

by requiring courts to review and even resolve a plaintiffs claims before service,

creates a circumstance where there may only be one party to the proceeding—the

plaintiff—at the district court level and on appeal. See, e.g., Conway v. Fayette Cnty.

Gov’t, 212 F. App’x 418 (6th Cir. 2007) (“Pursuant to 28 U.S.C. § 1915A, the district

court screened the complaint and dismissed it without prejudice before service was

made upon any of the defendants .. . [such that] . . . only [the plaintiff] [wa]s a party

to this appeal.”).

Here, Plaintiff has consented to a United States magistrate judge conducting

all proceedings in this case under 28 U.S.C. § 636(c). That statute provides that

“[u]pon the consent of the parties, a full-time United States magistrate judge ... may

conduct any or all proceedings . . . and order the entry of judgment in the case . . . .”

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Case l:22-cv-01189-PJG ECF No. 7, PagelD.50 Filed 01/24/23 Page 3 of 19

28 U.S.C. § 636(c). Because the named Defendants have not yet been served, the

undersigned concludes that they are not presently parties whose consent is required

to permit the undersigned to conduct a preliminary review under the PLEA, in the

same way they are not parties who will be served with or given notice of this opinion.

See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (“The record does not contain

a consent from the defendants!; h]owever, because they had not been served, they

were not parties to th[e] action at the time the magistrate entered judgment.”).1

Under the PLRA, the Court is required to dismiss any prisoner action brought

under federal law if the complaint is frivolous, malicious, fails to state a claim upon

which relief can be granted, or seeks monetary relief from a defendant immune from

such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must

read Plaintiffs pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520

(1972), and accept Plaintiffs allegations as true, unless they are clearly irrational or

wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these

standards, the Court will dismiss Plaintiffs complaint for failure to state a claim.

The Court will also deny Plaintiffs motion to appoint counsel (ECF No. 4).

1 But see Coleman u. Lab. & Indus. Rev. Comm’n of Wis., 860 F.3d 461, 471 (7th Cir.

2017) (concluding that, when determining which parties are required to consent to

proceed before a United States magistrate judge under 28 U.S.C. § 636(c), “context

matters” and the context the United States Supreme Court considered in Murphy

Bros, was nothing like the context of a screening dismissal pursuant to 28 U.S.C.

§§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c)); Williams v. King, 875 F.3d 500,

503-04 (9th Cir. 2017) (relying on Black’s Law Dictionary for the definition of

“parties” and not addressing Murphy Bros.); Burton v. Schamp, 25 F.4th 198, 207

n.26 (3d Cir. 2022) (premising its discussion of “the term ‘parties’ solely in relation to

its meaning in Section 636(c)(1), and . . . not tak[ing] an opinion on the meaning of

‘parties’ in other contexts”).

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Case l:22-cv-01189-PJG ECF No. 7, PagelD.51 Filed 01/24/23 Page 4 of 19

Discussion

I.

Factual Allegations

Plaintiff is presently incarcerated with the Michigan Department of

Corrections (MDOC) at the Central Michigan Correctional Facility (STF) in St. Louis,

Gratiot County, Michigan. The events about which he complains, however, occurred

at the Richard A. Handlon Correctional Facility (MTU) in Ionia, Ionia County,

Michigan. Plaintiff sues the MDOC, as well as the following personnel at MTU:

Warden Melinda Braman, Unit Chief Michael Moran, Residential Unit Manager

Unknown VanVeek, and Corrections Officers Unknown Somers and Unknown

Bowen.

Plaintiff alleges that in 2018, while incarcerated at the St. Louis Correctional

Facility, he received training to be a prisoner observer aide (POA). (ECF No. 1,

PageID.3.) According to Plaintiffs exhibits, prisoners designated as POAs “may be

used to observe other prisoners in a mental health setting who are ordered by a

psychiatrist to remain under one-on-one direct observation.” (ECF No. 1-3,

PageID.16.)

Plaintiff was transferred to MTU in January of 2021 and notified psychiatric

services that he was trained as a POA. (ECF No. 1, PageID.3.) Plaintiff “was placed

on the roster” and was “assigned for duty almost dailyj,] sometimes multiple times in

a single day.” (Id.) On July 29, 2021, Plaintiff and about 20 other POAs were removed

from the duty roster. (Id.) Plaintiff contends that he was removed from the duty

roster because of his Prison Rape Elimination Act (PREA) score. (Id.) On August 1,

2021, Defendant Bowen told those POAs affected that they had been temporarily

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Case l:22-cv-01189-PJG ECF No. 7, PagelD.52 Filed 01/24/23 Page 5 of 19

removed “because their PREA scores were PA or PV and informed everyone to kite

[Defendant] VanVeek.” (Id.) Plaintiff spoke to Defendant Somers, who told Plaintiff

that he “had previously changed the PREA scores of every POA to NS (No Score) so

it was easier for him to do the schedule.” (Id.)

On August 5, 2021, Defendant Moran circulated a memorandum to all affected

iPOAs, notifying them that MTU policy provided that only those inmates with “NS

PREA ratings” were permitted to be POAs. (Id.) Plaintiff claims, however, that

MDOC pohcy “states [that] POAs must have compatible PREA scores with inmates

being observed.” (Id.) According to Defendant Moran’s memorandum, which Plaintiff

has attached to his complaint, the POA Committee at MTU “made an NS as a

requirement which allows [them] to assign the POA without having to match scores

with the prisoner being observed.” (ECF No. 1-2, PageID.13.) This was done because

of the “volume of POA assignments” at MTU. (Id.)

Plaintiff filed a grievance concerning his removal from the POA roster on

August 7, 2021. (ECF No. 1, PageID.3.) He was transferred to STF onvSeptember

23, 2021, and was placed on the POA roster there. (Id.) Plaintiff contends that in

July of 2022, he learned that another POA who had been removedfrona MTU’s roster

had also been transferred to STF. (Id.) That inmate told Plaintiff that after Plaintiffs

transfer, “all the other POAs [at MTU] were rehired.” (Id., PageID.4.)

!

Plaintiff contends that the MDOC’s method of assessing PREA ratings “based

on crimes committed by the Plaintiff nearly 30 years ago and nearly 20 years ago”

violates double jeopardy. (Id., PageID.5.) Plaintiff avers that he has “never been a

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Case l:22-cv-01189-PJG ECF No. 7, PagelD.53 Filed 01/24/23 Page 6 of 19

suspect in any sexual type of crime, nor has he been convicted of any crime of a sexual

nature, yet because of MDOC’s flawed way of assessing PREA ratings, they have the

Plaintiff classified as a potentially aggressive prison rapist (PA).” (Id.) Plaintiff

contends his rating is based upon a 1997 conviction for aggravated assault and a 2007

conviction for resisting arrest and domestic violence. (Id.) Plaintiff alleges that

because of his PREA rating, the MDOC has “basically . . . classified him as a sex

offender in the prison system.” (Id., PageID.6.)

Plaintiff also alleges that Defendants retaliated against him for filing a

grievance by transferring him to another facility. (Id., PageID.6-7.) Plaintiff claims

further his transfer was to retaliate against a habeas corpus action he filed. (Id.,

PageID.7.) Plaintiffs transfer “caused him to also lose his other employment at

facility food service.” (Id.) Plaintiff suggests further that Defendants discriminated

against him when they terminated his employment and transferred him, yet rehired

all the other POAs who had been removed from the roster “because they did not file

grievances beyond Step I.” (Id.)

Based on the foregoing, the Court construes Plaintiffs complaint to assert the

following claims: (1) First Amendment retaliation and access to the courts claims; (2)

Fifth Amendment due process and double jeopardy claims; and (3) Fourteenth

Amendment due process and equal protection claims. Plaintiff seeks injunctive relief,

as well as compensatory and punitive damages. (Id., PageID.8.)

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* J

Case l:22-cv-01189-PJG ECF No. 7, PagelD.54 Filed 01/24/23 Page 7 of 19

II.

Motion to Appoint Counsel

As noted supra, Plaintiff has filed a motion to appoint counsel. (ECF No. 4.)

Plaintiff states that the issues involved are complex, and that he has “limited access

to the law library and limited knowledge of the law.” (Id., PageID.43.) He suggests

that he has “made repeated efforts to obtain a lawyer, [but] has received no response.”

(Id., PageID.44.) Indigent parties in civil cases have no constitutional right to a courtappointed attorney. Abdur-Rahman v. Mich. Dep’t ofCorr., 65 F.3d 489, 492 (6th Cir.

1995); Lavado v. Keohane, 992 F.2d 601, 604-05 (6th Cir. 1993). The Court may,

however, request an attorney to serve as counsel, in the Court’s discretion. AbdurRahman, 65 F.3d at 492; Lavado, 992 F.2d at 604^05; see Mallard v. U.S. Dist. Ct.,

490 U.S. 296 (1989).

Appointment of counsel is a privilege that is justified only in exceptional

circumstances. In determining whether to exercise its discretion, the Court should

consider the complexity of the issues, the procedural posture of the case, and

Plaintiffs apparent ability to prosecute the action without the help of counsel. See

Lavado, 992 F.2d at 606. The Court has carefully considered these factors and

determines .that, at this stage of the case, the assistance of counsel doesjhot appear

necessary to the proper presentation of Plaintiffs position. Accordingly, Plaintiffs

motion to appoint counsel (ECF No. 4) will be denied.

III.

Failure to State a Claim

A complaint may be dismissed for failure to state a claim if it fails “to give the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355

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Case l':22-cv-01189-PJG ECF No. 7, PagelD.55 Filed 01/24/23 Page 8 of 19

U.S. 41, 47 (1957)). While a complaint need not contain detailed factual allegations,

a plaintiffs allegations must include more than labels and conclusions. Id,.; Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”). The court must

determine whether the complaint contains “enough facts to state a claim to relief that

is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

679.

Although the plausibility standard is not equivalent to a ‘“probability

requirement,’... it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Id. at 678 (quoting Twombly, 550 U.S. at 556). “[Wjhere the wellpleaded facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged—but it has not ‘show[n]’—that the pleader is

entitled to relief.” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)); see also Hill v. Lappin,

630 F.3d 468, 470—71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility

standard applies to dismissals of prisoner cases on initial review under 28 U.S.C.

§§ 1915A(b)(l) and 1915(e)(2)(B)(ii)).

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

a right secured by the federal Constitution or laws and must show that the

deprivation was committed by a person acting under color of state law. West u. Atkins,

487 U.S. 42, 48 (1988); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996).

Because § 1983 is a method for vindicating federal rights, not a source of substantive

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Case l:22-cv-01189-PJG ECF No. 7, PagelD.56 Filed 01/24/23 Page 9 of 19

rights itself, the first step in an action under § 1983 is to identify the specific

constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).

A.

Claims Against the MDOC

As noted supra, Plaintiff has named the MDOC as a Defendant. Regardless of

the form of relief requested, the states and their departments are immune under the

Eleventh Amendment from suit in the federal courts, unless the state has waived

immunity or Congress has expressly abrogated Eleventh Amendment immunity by

statute. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98—101 .(1984);

Alabama v. Pugh, 438 U.S. 781, 782 (1978); O’Hara v. Wigginton, 24 F.3d 823, 826

(6th Cir. 1994).

Congress has not expressly abrogated Eleventh Amendment

immunity by statute, Quern v. Jordan, 440 U.S. 332, 341 (1979), and the State of

Michigan has not consented to civil rights suits in federal court. Abick v. Michigan,

803 F.2d 874, 877 (6th Cir. 1986). In numerous opinions, the Sixth Circuit has

specifically held that the MDOC is absolutely immune from a § 1983 suit under the

Eleventh Amendment. See, e.g., Harrison v. Michigan, 722 F.3d 768, 771 (6th Cir.

2013); Diaz_v. Mich. Dep’t of Corr., 703 F.3d 956, 962 (6th Cir. 2013);. McCoy v.

i

Michigan, 369 F. App’x 646, 653-54 (6th Cir. 2010). Therefore, Plaintiffs claims

against the MDOC are properly dismissed on grounds of immunity. In addition, the

State of Michigan (acting through the MDOC) is not a “person” who may be sued

under § 1983 for money damages. See Lapides v. Bd. of Regents, 535 U.S. 613, 617

(2002) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989)); Harrison,

722 F.3d at 771. Therefore, Plaintiffs claims against the MDOC are also properly

dismissed for failure to state a claim.

9

Case l:22-cv-01189-PJG ECF No. 7, PagelD.57 Filed 01/24/23 Page 10 of 19

B.

First Amendment Claims

1.

Retaliation

Plaintiff suggests that Defendants retaliated against him in violation of his

First Amendment rights by transferring him to another facility after Plaintiff filed a

grievance about being removed from the POA roster and after Plaintiff filed a habeas

corpus action. (ECF No. 1, PageID.6-7.)

Retaliation based upon a prisoner’s exercise of his or her constitutional rights

violates the Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.

1999) (en banc). In order to set forth a First Amendment retaliation claim, a plaintiff

must establish three elements: (1) he was engaged in protected conduct; (2) an

adverse action was taken against him that would deter a person of ordinary firmness

from engaging in that conduct; and (3) the adverse action was motivated, at least in

part, by the protected conduct. Id. Moreover, a plaintiff must be able to prove that

the exercise of the protected right was a substantial or motivating factor in the

defendant’s alleged retaliatory conduct. See Smith v. Campbell, 250 F.3d 1032, 1037

(6th Cir. 2001) (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.

274, 287 (1977)).

Plaintiff engaged in protected conduct by fifing a grievance regarding his

removal from the POA roster and by fifing a habeas corpus petition. See Bell v.

Johnson, 308 F.3d 594, 607 (6th Cir. 2002) (noting that “protected conduct, for the

purposes of a First Amendment retaliation claim, encompasses a prisoner’s efforts to

access the courts in . . . habeas corpus actions”); Smith v. Campbell, 250 F.3d 1032,

10

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Case l:22-cv-01189-PJG ECF No. 7, PagelD.58 Filed 01/24/23 Page 11 of 19

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1037 (6th Cir. 2001); Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000). Plaintiff,

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therefore, has adequately pled facts regarding the first prong of a retaliation claim.

To establish the second element of a retaliation claim, a prisoner-plaintiff must

show adverse action by a prison official sufficient to deter a person of ordinary

firmness from exercising his constitutional rights. Thaddeus-X, 175 F.3d at 396. The

adverseness inquiry is an objective one and does not depend on how a particular

plaintiff reacted.

!

The relevant question is whether the defendants’ conduct is

“capable of deterring a person of ordinary firmness”; the plaintiff need not show

actual deterrence. Bell v. Johnson, 308 F.3d 594, 606 (6th Cir. 2002) (emphasis in

original).

Generally, transfers to the general population of another prison are not

typically adverse actions. See Smith v. Yarrow, 78 F. App’x 529, 543 (6th Cir. 2003)

(collecting cases). A transfer, however, may rise to the level of adverse action if it

resulted in some other negative consequence, such as an increase in security level.

See King v. Zamiara, 150 F. App’x 485, 494 (6th Cir. 2005). Plaintiffs complaint is

wholly devoid of facts from which the Court could infer that Plaintiffs transfer

resulted in negative consequences. Indeed, Plaintiff was transferred from MTU, a

Level II facility, to STF, a Level I facility. Moreover, Plaintiff indicates that he was

rehired to serve as a POA after he was transferred to STF. Plaintiff, therefore, has

failed to sufficiently allege adverse action for purposes of his retaliation claims.

Accordingly, such claims will be dismissed.

1

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Case l:22-cv-01189-PJG ECF No. 7, PagelD.59 Filed 01/24/23 Page 12 of 19

sg

2.

Access to the Courts

Plaintiff vaguely contends that Defendants violated his First Amendment

rights to access the courts by transferring him after he filed a habeas corpus action.

(ECF No. 1, PageID.7.)

It is well established that prisoners have a constitutional right of access to the

courts. Bounds v. Smith, 430 U.S. 817, 821 (1977). The principal issue in Bounds

was whether the states must protect the right of access to the courts by providing law

libraries or alternative sources of legal information for prisoners. Id. at 817. The

Court further noted that in addition to law libraries or alternative sources of legal

knowledge, the states must provide indigent inmates with “paper and pen to draft

legal documents, notarial services to authenticate them, and with stamps to mail

them.” Id. at 824—25. The right of access to the courts also prohibits prison officials

from erecting barriers that may impede the inmate’s access to the courts. See Knop

v. Johnson, 977 F.2d 996, 1009 (6th Cir. 1992).

An indigent prisoner’s constitutional right to legal resources and materials is

not, however, without limit. In order to state a viable claim for interference with his

access to the courts, a plaintiff must show “actual injury.” Lewis'-v. Casey, 518 U.S.

343, 349 (1996); see also Talley-Bey v. Knebl, 168 F.3d 884, 886 (6th Cir. 1999); Knop,

977 F.2d at 1000. In other words, a plaintiff must plead and demonstrate that the

shortcomings in the prison legal assistance program or lack of legal materials have

hindered, or are presently hindering, his efforts to pursue a nonfrivolous legal claim.

Lewis, 518 U.S. at 351-53; see also Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir.

12

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Case l:22-cv-01189-PJG ECF No. 7, PagelD.60 Filed 01/24/23 Page 13 of 19

1996). The Supreme Court has strictly limited the types of cases for which there may

be an actual injury:

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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.

Lewis, 518 U.S. at 355. “Thus, 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) (enbanc). Moreover, the underlying action

must have asserted a non-frivolous claim. Lewis, 518 U.S. at 353; accord Hadix v.

Johnson, 182 F.3d 400, 405 (6th Cir. 1999) (Lewis changed actual injury to include

requirement that action be non-frivolous).

In addition, the Supreme Court squarely has held that “the underlying cause

of action ... is an element that must be described in the complaint, just as much as

allegations must describe the official acts frustrating the litigation.” Christopher v.

Harbury, 536 U.S. 403, 415 (2002) (citing Lewis, 518 U.S. at 353 & n.3). “Like any

other element of an access claim, the underlying cause of action and its lost remedy

must be addressed by allegations in the complaint sufficient to give fair notice to a

defendant.” Id. at 415.

Plaintiff references his habeas corpus action as Sindone v. Braman, No. 2:21cv-11570 (E.D. Mich.). Plaintiff, therefore, has sufficiently set forth an underlying

cause of action for which there can be an actual injury. Plaintiffs complaint, however,

13

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Case l:22-cv-01189-PJG ECF No. 7, PagelD.61 Filed 01/24/23 Page 14 of 19

is wholly devoid of facts regarding how Defendants have impeded his right to access

the courts. To the extent he asserts that his transfer interfered with his habeas

proceedings, public records indicate that the habeas corpus petition noted above is

still pending before the United States District Court for the Eastern District of

Michigan. Under these circumstances, Plaintiff has failed to show any lost remedy

and, therefore, has failed to state a claim for denial of access to the courts. Such

claims will be dismissed.

C. 1

Fifth Amendment Claims

1.

Due Process

The Court has liberally construed Plaintiffs complaint to assert Fifth

Amendment due process claims against Defendants. The Fifth Amendment’s Due

Process Clause, however, applies only to claims against federal employees. Here,

Plaintiff has sued the MDOC and employees of the MDOC. Plaintiff, therefore,

cannot maintain Fifth Amendment due process claims, and such claims will be

dismissed. See, e.g,, Scott v. Clay Cnty., Term., 205 F.3d 867, 873 n.8 (6th Cir. 2000)

(noting that “[t]he Fourteenth Amendment’s Due Process Clause restricts the

activities of the states and their instrumentalities; whereas the Fifth Amendment’s

Due Process Clause circumscribes only the actions of the federal government”).

2.

Double Jeopardy

Plaintiff contends that Defendants violated his Fifth Amendment rights to be

free from double jeopardy by essentially jmnishing him for offenses he was already

convicted of and sentenced for by using those same offenses to assess his PREA score

and remove him from the POA roster. (ECF No. 1, PageID.5.)

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Case l:22-cv-01189-PJG ECF No. 7, PagelD.62 Filed 01/24/23 Page 15 of 19

The Double Jeopardy Clause provides that no person shall ‘Tie subject for the

same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. This

clause protects against multiple punishments for the same offense. See United States

v. Dixon, 509 U.S. 688, 696 (1993). The protection against multiple punishments for

the same criminal act “is designed to ensure that the sentencing discretion of courts

is confined to the limits established by the legislature.” Ohio v. Johnson, 467 U.S.

493, 499 (1984). However, “[a] prison official’s decision about inmate job assignments

does not equate with a sentencing court’s imposition of criminal penalties.”

See

Sanders v. Bassett, No. 7:04-cv-00533, 2004 WL 3397937, at *2 (W.D. Va. Sept. 14,

2004). Plaintiff, therefore, cannot maintain Fifth Amendment double jeopardy claims

against Defendants, and such claims will be dismissed.

D.

Fourteenth Amendment Claims

1.

Due Process

The Court has construed Plaintiffs complaint to assert that his dismissal from

the POA position, and the subsequent termination of his employment with food

Service, violated his Fourteenth Amendment due process rights.

The Fourteenth Amendment protects an individual from deprivation of life,

liberty[,] or property, without due process of law.” Bazzetta v. McGinnis, 430 F.3d

795, 801 (6th Cir. 2005). To establish a Fourteenth Amendment procedural due

process violation, a plaintiff must show that one of these interests is at stake.

Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Analysis of a procedural due process

claim involves two steps: “[T]he first asks whether there exists a liberty or property

interest which has been interfered with by the State; the second examines whether

15

Case l:22-cv-01189-PJG ECF No. 7, PagelD.63 Filed 01/24/23 Page 16 of 19

the procedures attendant upon that deprivation were constitutionally sufficient.” Ky.

Dep’t ofCorr. v. Thompson, 490 U.S. 454, 460 (1989) (citations omitted).

Plaintiffs claim fails at the first step, however, because “no prisoner has a

constitutional right to a particular job or to any job.” See Ivey, 832 F.2d at 955; see

also Argue v. Hofmeyer, 80 F. App’x 427, 429 (6th Cir. 2003) (discussing that prisoners

have no constitutional right to rehabilitation, education or jobs); Newsom v. Norris,

888 F.2d 371, 374 (6th Cir. 1989) (holding that there is no constitutional right to

prison employment); Moreover, “as the Constitution and federal law do not create a

property right for inmates in a job, they likewise do not create a property right to

wages for work performed by inmates.” See Carter v. Tucker, 69 F. App’x 678, 80 (6th

Cir. 2003) (citing Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991); James v.

Quinlan, 866 F.2d 627, 629—30 (3d Cir. 1989)). Consequently, Plaintiffs loss of his

job assignments at MTU did not trigger a right to due process, and his Fourteenth

Amendment due process claims will be dismissed.

2.

Equal Protection

Plaintiff also suggests that Defendants discriminated against him by

terminating his employment as a POA and then transferring him to another facility.

(ECF No. 1, PageID.7.) He suggests that all the other POAs who had been terminated

at MTU were rehired “because they did not file grievances beyond Step I.” (Id.) The

Court has construed Plaintiffs allegations to suggest violations of the Fourteenth

Amendment’s Equal Protection Clause.

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Case l:22-cv-01189-PJG ECF No. 7, PagelD.64 Filed 01/24/23 Page 17 of 19

The Equal Protection Clause of the Fourteenth Amendment provides that a

state may not “deny to any person within its jurisdiction the equal protection of the

laws[,]” which is essentially a direction that all persons similarly situated should be

treated alike. U.S. Const, amend. XIV; City of Cleburne v. Cleburne Living Ctr., Inc.,

473 U.S. 432, 439 (1985). When a law adversely impacts 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 rigorous “strict. scrutiny” standard governs,

whereby such laws “will be sustained only if they are suitably tailored to serve a

compelling state interest.” City of Cleburne, 473 U.S. at 440. Where legislation

singularly and negatively affects a “quasi-suspect” class such as one defined by

gender, the level of scrutiny is “intermediate,” and the law is valid if it is

“substantially related to a sufficiently important government interest.” Id. at 440—

41. However, a state practice generally will not require strict scrutiny unless it

interferes with a fundamental right or discriminates against a suspect class of

individuals. Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976).

Plaintiffs claim does not implicate a fundamental right, as he does-not have a

i

“constitutional right to a particular job or any job.” Ivey v. Wilson, 832 F.2d 950, 955

(6th Cir. 1987); see also Carter v. Tucker, 69 F. App’x 678, 680 (6th Cir. 2003).

Plaintiff also does not allege that he is a member of a suspect class or that Defendants

discriminated against him because he was a member of a suspect or quasi-suspect

class. “[Prisoners are not a suspect class,” Hadix v. Johnson, 230 F.3d 840, 843 (6th

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Case l:22-cv-01189-PJG ECF No. 7, PagelD.65 Filed 01/24/23 Page 18 of 19

Cir. 2000), “nor are classifications of prisoners,” Mader v. Sanders, 67 F. App’x 869,

871 (6th Cir. 2003).

Plaintiffs claim, therefore, is the prototypical “class of one” equal protection

claim “where the plaintiff alleges that Qhe has been intentionally treated differently

from others similarly situated and that there is no rational basis for the difference in

treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). The Supreme

Court has refused to recognize “class of one” claims in the public employment context.

that Engquist

prohibits “class of one” claims in the public employment context—even in that prison

employment case—but concluding that Davis raised a traditional class-based

discrimination claim, not a “class of one” claim); Carter v. Mich. Dep’t of Corr., No.

l:13-cv-37, 2013 WL 3270909, at *13 (W.D. Mich. Jun. 27, 2013) (“Deciding whether

a prisoner should be permitted to work in a particular prison job is precisely the sort

of discretionary decision contemplated by the Court in Engquist.”); Johnson v.

Grayson Cnty. Det. Ctr., No. 4:21-cv-Pl3-JHM, 2021 WL 3025452, at *3 (W.D. Ky.

Jul. 16, 2021) (collecting cases and noting that “[sjeveral courts have extended the

reasoning in Engquist to the prison context”); Brown v. Partin, No. l:20-CV-235TRM-CHS, 2020 WL 5077037, at *2 (E.D. Tenn. Aug. 27, 2020) (“[A] ‘class of one

theory ... is not available in the context of prison employment.”). Plaintiff, therefore,

cannot maintain Fourteenth Amendment equal protection claims

Defendants, and such claims will be dismissed.

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Case l:22-cv-01189-PJG ECF No. 7, PagelD.66 Filed 01/24/23 Page 19 of 19

Conclusion

l

Having conducted the review required by the Prison Litigation Reform Act, the

Court determines that Plaintiffs complaint will be^smissed~fdrrfailure"to ¥fat:a'aj

^cla-inr/uKdef^S U.S.C. § 1915A(b) aM^^fLSsQTfT^g^^^rhe Court will also deny

Plaintiffs motion to appoint counsel (ECF No. 4).

The Court must next decide whether an appeal of this action would be in good

faith within the meaning of 28 U.S.C. § 1915(a)(3). See McGorev. Wrigglesworth, 114

F.3d 601, 611 (6th Cir. 1997). Although the Court concludes that Plaintiffs claims

are properly dismissed, the Court does not conclude that any issue Plaintiff might

raise on appeal would be frivolous. Coppedge v. United States, 369 U.S. 438, 445

(1962). Accordingly, the Court does not certify that an appeal would not be taken in

good faith. Should Plaintiff appeal this decision, the Court will assess the $505.00

appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610—11, unless

Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule

of § 1915(g). If he is barred, he will be required to pay the $505.00 appellate filing

fee in one lump sum.

This is a dismissal as described by 28 U.S.C. § 1915(g).

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An order and judgment consistent with this opinion will be entered.

Is/ Phillip J. Green

PHILLIP J. GREEN

United States Magistrate Judge

Dated: January 24, 2023

19

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UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Deborah S. Hunt

Clerk

100 EAST FIFTH STREET, ROOM 540

POTTER STEWART U.S. COURTHOUSE

CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000

www.ca6.uscourts.gov

Filed: October 04, 2023

Ms. Ann E. Filkins

U.S. District Court

for the Western District of Michigan at Grand Rapids

110 Michigan Street, N.W.

Suite 399 Federal Building

Grand Rapids, MI 49503-0000

Re: Case No. 23-1209, Christopher Sindone v. MDOC, et al

Originating Case No. : 1:22-cv-01189

Dear Ms. Filkins,

Enclosed is a copy of the mandate filed in this case.

Sincerely yours,

s/Mackenzie A. Collett

For Ryan Orme

cc: Mr. Christopher Louis Sindone

Enclosure

V

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UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No: 23-1209

Filed: October 04, 2023

CHRISTOPHER LOUIS SINDONE

Plaintiff - Appellant

v.

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MICHIGAN DEPARTMENT OF CORRECTIONS; MICHAEL MORAN, Unit Chief;

MELINDA K. BRAMAN, Warden; CORRECTIONS OFFICER SOMERS; CORRECTIONS

OFFICER BOWEN; RESIDENTUAL UNIT MANAGER VANVEEK

Defendants - Appellees

MANDATE

Pursuant to the court's disposition that was filed 09/12/2023 the mandate for this case hereby

issues today.

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COSTS: None

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->

Additional material

from this filing is

available in the

Clerk's Office.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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