Petition for Writ of Certiorari — Willman v. Michigan Department of Corrections

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Supreme Court, U.S.

rt. & D

99 661 AUG 30 1999

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=———EEEE trite U THE CLERKS

Jn The

Supreme Court of the Anited States

MERVIN SCOTT WILLMAN

Petitioner,

MICHIGAN DEPARTMENT OF CORRECTIONS, ET AL.,

Respondents.

Petition For A Writ Of Certiorari

To The United States Court of

Appeals For The Sixth Circuit

PETITION FOR WRIT OF CERTIORARE— ~—-

with Appendix

*LAWRENCE S. KATZ

DANIEL C. WILLMAN

38850 VAN DYKE, SUITE 201

STERLING HEIGHTS, MI 48312

(810) 979-9090

Counsel for Petitioner

*Counsel of Record

LEGAL ADVANTAGE * 432 Walnut Street * Cincinnati, OH 45202

(800) 581-2252 at

QUESTION PRESENTED

The Court of Appeals below held that under This Court’s

holding in Lewis v. Casey, 518 US. 343 116 S.Ct 2174

135 L.Ed.2d 606, (1996) that access between an inmate and his

self-chosen counsel could be denied (access was denied because

inmate and attorney are brothers) that an inmate could not maintain

suit if the inmate did not suffer the missing of a filing deadline. The

Issue Presented is:

Whether the decision of the Court of Appeals should be

reversed because the violation of Petitioners textually committed 1st

and 14th Amendment Right to Access the Courts and Counsel are

Rights:

"so rooted in the traditions and conscience of

our people as to be ranked as fundamental"),

and "implicit in the concept of ordered

liberty," such that "neither liberty nor justice

would exist if they were sacrificed.” '

Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct 2258, 138 L. Ed. 2d 772

(1997) citing Palko v. Connecticut, 302 U.S. 319, 325, 326, 58 S.Ct. 149, 152, 82

L.Ed. 288 (1937). at 2268.

‘

PARTIES TO THE PROCEEDINGS

AND RULE 29.6 STATEMENT

The names of all the parties below before the United States

Sixth Circuit Court of Appeals are not contained with the case

caption.

Petitioner is Mervin Scott Willman pursuant to S.Ct. Rule

29.6, states there is no parent or subsidiary company to be listed. (

The Respondents before the Sixth Circuit and This Court |

are; The Michigan Department of Corrections (M.D.O.C.), Dennis

McGinnis Director M.D.O.C., Dennis Straub, Acting Warden

Cotton Correctional Facility Ralph Morgan, Assistant to Warden

of the Cotton Correctional Facility. Suit was brought against all

Respondents in their individual and official capacities, jointly and

severally.

TABLE OF CONTENTS

Page

SUMSTRMIPRRSEMTED 8.8... i

PARTIES TO THE PROCEEDIN GS AND

MAG296 STATEMENT... li

TABLE OF AUTHORITIES ............000000022 ill-xii

whee ohm taal ee ]

os scbna ang ne 2

CONSTITUTIONAL AND

STATUTORY PROVISIONS ....0.00. 2

STATEMENT OF THECASE............0.0000022 2-8

SUMMARY OF ARGUMENT... 9-12

REASONS FOR GRANTING THE Pc seal ce, 13-23

THE IST AND 14TH AMENDMENT RIGHTS ASSERTED BY

PETITIONER ARE "SO ROOTED IN THE TRADITIONS AND

CONSCIENCE OF OUR PEOPLE AS TO BE RANKED AS

FUNDAMENTAL", AND "IMPLICIT IN THE CONCEPT OF

ORDERED LIBERTY," SUCH THAT "NEITHER LIBERTY

NOR JUSTICE WOULD EXIST IF THEY WERE SACRIFICED.”

De RRR ERT ORRE KS TL 6 ine hs hh dad eed ae ode nc, 13-17

Il.

THE REGULATION IN QUESTION IS IN DIRECT VIOLATION

OF THE SUPREMACY CLAUSE.

TABLE OF CONTENTS

REASONS FOR GRANTING THE WRIT-Continued

‘Page

II.

RESPONDENTS’ APPLICATION OF LEWIS V. CASEY WAS

INTENTIONALLY MISLEADING, SANCTIONS WERE

WARRANTED.

IV.

UNDER THE FACTS AND CIRCUMSTANCES

RESPONDENTS ARE NOT ENTITLED TO ELEVENTH

AMENDMENT IMMUNITY IN THEIR OFFICIAL

CAPACITIES.

DECLARATORY RELIEF IS WARRANTED AND THE

MONETARY RELIEF SOUGHT IS "ANCILLARY" TO

INJUNCTIVE RELIEF AND IS NOT BARRED BY THE

ELEVENTH AMENDMENT.

VI.

THIS CASE IS CAPABLE OF REPETITION YET EVADING

JUDICIAL REVIEW.

VIL.

PETITIONER IS ENTITLED TO A RECOVERY OF

REASONABLE ATTORNEY FEES AND COST.

TABLE OF CONTENTS

REASONS FOR GRANTING THE WRIT-Continued

Page

VII.

PETITIONER PLED SUFFICIENT FACTS AND DID

DEMONSTRATE ACTUAL PREJUDICE.

MBE Beat ete?

TABLE OF CONTENTS-Continued

APPENDICES

APPENDIX A:

Final Opinion of

The Sixth Circuit Court of Appeals

PE oo sk aten ereer ews coun rer tee se ee

APPENDIX B:

Report and Recommendation and

Order Regarding Further Briefing

To Determine Plaintiff's Need For

Declaratory or Injunctive Relief

ok er ee were ne rere Te

APPENDIX C:

Supplemental Report and

Recommendation

WEE das bad ok 2ehncdsunckseeuenerraaeees

APPENDIX D:

Order Regarding Stay of the Proceedings

Filed 1/21/98 ....... Suesnupedeuenns ee ceaaa wed

APPENDIX E:

Judgement

er rer errr ry re

APPENDIX F:

Order Granting Temporary

Restraining Order

NNT a var done ¥ecniwesuawienieeeeie

Page

Be AS PARE NE AS ha Sia

NO AERA MT ERE EE %

vii

TABLE OF CONTENTS-Continued

APPENDICES

Page

APPENDIX G:

Michigan Department of Corrections (M.D.O.C.) policy

R. 791.6607 Visitation; visiting hours: quotas; religious;

legal, and official visits ............................ G1-G2

EE occ ikGes tae ee H1-H3

STN Te NB nooks es cee, H1

ARTWCLE VE qpetion 2... ccc cece cc cccn. Hl

Ist AMENDMENT I [1791]: ........................... Hl

11th AMENDMENT XI [1798]: ....................... H1

14th AMENDMENT XIV [1868] section]. ............... H2

AMERICANS WITH DISABILITIES |

WE ee Sn eee es eee H2-H3

Sec. 201. DEFINITION.

Ge OU i os oe io ee H2

Sec. 202. DISCRIMINATION.

Gene I 6 oo ick obkee cheat) H2

Sec. 505. ATTORNEY’S FEES.

De ergo he oe OE H3

Vill

TABLE OF AUTHORITIES

CASES Page

Bounds v. Smith, 430 U.S. 817, 97 8.Ct. 1491, 52 L_Ed 2d 72

SN ca au corte ci owe bye cei sein are au ae 9,11, 13, 19-20

Childs v. Pellegrin, 822 F.2d 1382

SE EE Sad seesaw eee Lekad acess haben cunne 12-13

Globe Newspaper Company v. Superior Court For the County Of

Norfolk, 457 U.S. 596,102 S.Ct 2613, 73 L.Ed.2d 248

SY ree RR AER Fe ES aes a RE ee aS 22

Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct 2727, 73 L.Ed.2d 396

a.) eres POET CE LIOR OE TCC TTT SUE EOE 4,12, 21

Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40

NE eal Oe Peete Se eee ae)

Home Telephone & Telegraph Company, v. City of Los Angeles et

al., 227 U.S. 278, 33 S.Ct 312, 57 L.Ed 510

1 RPP asa enparitinr rt pti errno SCT aed a grran Pn 21

Howard v. Grinage, 82 F.3d 1343, 1349

NE hk go oe kook Vere ene a ban concent 10, 15-16

Atchinson v. District of Columbia, 73 F.3d 418,315 U.S.App. D.C.

318, 33 Fed R Serv. 3d 1033

GR a een d vee ocean be Uboo 5 Cod dae eee ee See 22

Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 97 S.Ct.

2532, 53 L.Ed.2d 629

PRES Save Foi chew elroy eaweae ter Plat erin 10, 14

ry ee ee ae ee Cee ee

TABLE OF AUTHORITIES-Continued

CASES Page

Kentucky v. Graham ect al., 473 US. 159, 105 S.Ct 3099, 87 L.Ed.

2d 114

re Ee a eS ee RE ee i ce en 20-21

Leatherman v. Tarrant County Narcotics Intelligence and

Coordination unit et al., 507 U.S. 163, 113 S.Ct 1160, 112 L.Ed.

2d. 517

NE hae hia ke eS kok oe 22-23

Lewis v. Casey, 518 U.S. 343 116 S.Ct 2174 135 L.Ed.2d 606

SEE Wen Ss ent aneten hole k ss 1, 7-8 , 10-11, 14-15, 19-20, 24

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60

i I 18

Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d

531

(1977)

O'Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct 2400, 96

LA S0202 SE) ......... 0. ce... 10, 14

Palko v. Connecticut, 302 U.S. 319, 325, 326, 58 S.Ct. 149, 152, 82

L.Ed. 288

re 1, 13, 19

Pennsylvania Department of Corrections, et al., v. Yeskey,

524 U.S.206, 118 S.Ct 1952 , 141 L. Ed. 2d 215

ee 4

Riley v. Kurtz, 893 F. Supp., 709

RENE DECORA TRONS Sateen 17

>, 4

TABLE OF AUTHORITIES-Continued

CASES Page

Rmititanium v. Westinghouse, 78 F.3d 1125, 34 Fed. R. Serv. 3d

1288,

Ce PR ines el oa ae Sh ee eee 23

Twyman v. Crisp, 584 F.2d 352

PRE NUTR 5 5c-0h a cal ea oe chee aoe Pa Oban 23

United States v. Nixon, et al., 418 U.S. 683, 94 S.Ct. 3090, 41 L.

Ed. 2d 1039

ROWE ia bck kn £53 Oe laa eee. 22

Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct 2258, 138 L.

Ed. 2d 772

Pere erey er rer ce CTT Cer eT. ce 1, 9-10, 13, 15-18

Zilich v. Longo, 34 F.3d 359

a Per eee eee rere ee Peres reer err. 17,21

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. CONSTITUTION Page

mama ee ORS 2... 2,10, 18

ARTICLE VI. section 2 (The Supremacy clause). ...... 2, 10, 18

Ist AMENDMENT I [1791] ......... i, 2, 6, 9, 13-14, 16-18, 24

11th AMENDMENT XI [1798] ............. 2, 4-5, 12, 20-12

14th AMENDMENT XIV [1868] ........ i, 2, 9, 13-18, 21, 24

Federal Statute

a) ea ene 2

AMERICANS WITH DISABILITIES ACT OF 1990

I MOM 66 55k ob on ae kk odd wah ok, 5

oe a ee Derg ee knaaes on 6

I ES a of AF sek yak a We dod hkchbeces 22

U.S. Supreme Court Rules

S.Ct. Rule 13 (1) ....... ERS Pee TOP ete TEE TP ee Cee y

Federal Rules of Civil Procedure

Et og” UII UG pal bi AR ee 11,22

oi cand ick SP TE Ro APC iat Cane a I 20

xil

TABLE OF AUTHORITIES

CONSTITUTIONAL AND STATUTORY PROVISIONS -

continued

Page

Federal Rules of Civil Procedure-Continued

Paes Ses ook chore oak e¥e 86a b eke Ce aee ewes 23

I on on a aka Saeed ae PAM A oO a waa 23

STATE OF MICHIGAN REGULATIONS

State of Michigan Department of Corrections Policy

R. 791.6607 Visitation; visiting hours; quotas; religious; legal, and

GE EN ok 52h 00h ccussawass 2, 3, reprinted at Appendix G.

eee See ee a ¥

ee ee

PETITION FOR A WRIT OF CERTIORARI

Petitioner Mervin Scott Willman seeks a writ of certiorari

to review an opinion and order of the United States Court of

Appeals for the Sixth Circuit, which affirmed an opinion and order

by the United States District Court for the Eastern District, Southern

Division of Michigan which dismissed in its entirety all of

Petitioner’s claims (which included declaratory relief) against all

Respondents.

OPINIONS BELOW

The Opinion and Order of the Court of Appeals for the

Sixth Circuit dated June 2, 1999, is an unpublished Per Curiam

Opinion and is reprinted in the appendix hereto (‘App.”) at Al.

The Order of the United States District Court for the

Eastern District, Southern Division of Michigan dated March ae

1998, adopting Magistrates Judge’s two Reports and

Recommendations is reprinted at App. El.

The Magistrates First Report and Recommendation dated

January 21, 1998 is reprinted at App.Bl., the Magistrates

Supplemental Report and Recommendation dated February 24,

1998, is reprinted at App. C1.

There were two other additional orders in this matter.

First, Order Regarding Stay of the Proceedings is reprinted at App.

D1., and second Order Granting Temporary Restraining Order is

reprinted at App. F1, both documents are referred infra.

JURISDICTION

Pursuant to 28 U.S.C. § 1254(1) jurisdiction is vested with

this Court. The filing of this Petition is within 90 days from the

Sixth Circuit’s June 2, 1999 Order (S.Ct. Rule 13 (1)).

CONSTITUTIONAL AND STATUTORY PROVISIONS

Article III. section 2., Article VI. section 2., the Ist, 11th

and 14th Amendments to the United States Constitution, along with

pertinent Federal Statutes are reproduced in Appendix H1-3.

STATEMENT OF THE CASE

Petitioner (Mervin Scott Willman), is a prisoner housed by

the Michigan Department of Corrections. Petitioner’s brother

(Daniel C. Willman) is an attorney. When Petitioner exhausted all

of his available State remedies to overturn his conviction he turned

to his brother to pursue a Writ of Habeas Corpus. In late July 1997,

Petitioner’s counsel\brother in his capacity of legal counsel, was

denied the same access to Petitioner as would have been granted any

other attorney\client under like circumstances.

Counsel was told that due to the existence of the family

relationship Counsel could visit Petitioner during limited family

visiting hours only.

The authority cited to deny access to Petitioner was

Michigan Prison Rule 607, Mich. Admin. Code r. 791.6607, which

holds in part (reprinted at App.G1):

A visit described in sub rule (2) of this rule shall

not be counted toward a prisoner’s visiting quota.

(2) Except when the person is related by blood or

marriage, a prisoner shall be allowed to visit with

________any of the following persons; who shall not be

required to be on the prisoner’s approved visitor

list. ?

Petitioner filed a complaint and Motion for a preliminary

injunction which was granted (App. F 1) by The Honorable Bernard

A. Friedman sitting in substitution for The Honorable Gerald E.

Rosen [who was sitting on the bench for the Sixth Circuit by

designation]), which allowed Petitioner’s Counsel to have access to

Petitioner until the due date for Petitioner’s Habeas Relief Petition.

Following the grant of the preliminary injunction,

Respondents filed two motions to dismiss claiming their denial of

access to counsel was related to a legitimate penological concern of

the M.D.O.C.. The “concern” Respondents raised was that there

existed a greater possibility that contraband could be passed if

Petitioner and his Counsel were allowed to visit during non-family

hours and that the institutional integrity of the prison would be

compromised. Petitioner responded that visits during non-family

From its plain language, Section (2) reads as an exception [and not a

limitation for family members] for those not on a prisoner’s approved family

visiting list and appears to suggest that an attorney on a prisoner’s approved

family list who is also prisoner’s counsel can see the prisoner during non-family

visiting hours, but said visit will count against the prisoner’s visitation quota.

hours consist of counsel and client in the presence of at least one

corrections officer, there are normally only three individuals in the

area. Conversely many individuals are present during family

Visiting hours, creating an atmosphere of distraction where

contraband could more easily be passed (Respondents never

addressed\disputed the preceding fact, nor did the District Court).

Respondents raised other defenses, stating that Petitioner

had failed to plead sufficient facts as to any wrong-doing on the

parts of the individually named Respondents, yet Respondents

admitted that Petitioner’s access to counsel had been interfered

with, thus clearly putting said Respondents on notice of the nature

of Petitioner’s claims.

Respondents also raised the defenses of 1 1th Amendment

sovereign and good-faith (“Harlow”) immunity, claiming the

District Court lacked subject matter jurisdiction and that the Right

to Counsel in the matter at hand was not a clearly established right.

While awaiting the District Court response to

Respondents’s motions to dismiss, Petitioner suffered several

ongoing retaliatory violations of his Constitutional Rights. The first

such violation occurred when Petitioner’s legal mail was interfered

with. The next violation suffered by Petitioner concerned the

Americans with Disabilities Act.°-*

In Pennsylvania Department of Corrections, et al., v. Yeskey, 524

U.S.206, 118 S.Ct 1952, 141 L.Ed 215, (1998) this Court recognized that The

Americans with Disabilities Act of 1990, §§ 201(1), 202, 42 U.S.C. §§ 12131(1),

12132 was applicable to prisons. Prisons fit within the definition of institution

The violations above occurred as Petitioner awaited

response from the District Court. When no response was forth-

coming, and because of the continuing retaliatory Constitutional

violations, Petitioner brought a motion to Stay the Proceedings in

order to allow Petitioner to petition the United States Supreme

Court. Though the motion above was denied, it did find the District

Court’s attention (Reprinted at App. D1.), and the District Court

(Honorable Magistrate Judge Steven D. Pepe) issued a“Report and

Recommendation and Order Regarding Further Briefing to

Determine Petitioner’s need for Declaratory or Injunctive Relief,”

App. Bl.

The District Court Report and Recommendation held that

all Respondents were entitled to 11th Amendment immunity in

regard to any claims for monetary damages however the Court

recommended that Respondents’ motion to dismiss should be

denied in regard to Petitioner’s claims for declaratory and injunctive

relief.

On the issue of whether Petitioner had pled sufficient facts,

the District Court held in its Report and Recommendation that

(See Appendix H, at H2).

Continued from page #4:

4 Petitioner, an amputee (left leg below-knee) suffers chronic bone

infection and imbalance from right leg dysfunction secondary to surgical removal

of muscle and tendons. Respondents assigned Petitioner to a work-detail that he

could not preform without risk of serious injury, Petitioner refused the work-detail

and was moved to a area that could not adequately accommodate his disability.

Petitioner had not. The Court did note that Petitioner had alleged

facts (in a Reply Brief to Respondents’s motion to dismiss) that

showed personal involvement of all Respondents, the Court

concluded that even if such facts were included in an amended

complaint Respondents would be entitled to qualified immunity.

The Court next addressed Petitioner’s claims that his First

Amendment Right to access the Courts was violated. The Court

noted several cases that held prisons can impinge on an inmate’s

rights if the regulation in question is reasonably related to a

legitimate penological concern. The Court went on to conclude that

in order for Petitioner to prevail he would need to make a showing

that he suffered some form of actual prejudice, the Court concluded

its report by ordering Petitioner to demonstrate that he had suffered

actual prejudice.

In Petitioner’s response to the District Court’s Report and

Recommendation and Order to show actual prejudice. Petitioner

responded that he was (as alleged supra) subjected to retaliation, via

interference with attorney-client mails, and through violations of the

Americans with Disabilities Act’.

Respondents responded to the District Court’s Report and

Recommendation, by stating that they did not wish to burden the

Response included exhibits of statements by Petitioner, describing

events. Additionally Petitioner responded that he had in fact filed his Petition for

Habeas relief in a timely manner but Petitioner contended and still does that an

untimely filing is not the sole determinative factor for a showing of actual

prejudice.

Court and that they would stand by their prior motions.

Respondents did respond to Petitioner’s response to the

District Courts’ Report and Recommendation. In a series of briefs

Respondents always raised the Defense that under the holding of

Lewis v. Casey, infra, that Petitioner was not entitled to the

assistance of counsel in pursuing Habeas relief, while Petitioner

replied several times that Respondents’s contention was and is a

completely false statement, demonstrating a disregard for the truth-

so blatant as to warrant sanctions.

After Petitioner and Respondents were done responding, the

District Court then issued a Supplemental Report and

Recommendation . The Supplemental Report and Recommendation

made two findings, first the Court noted Petitioner’s claims of

retaliatory conduct on the part of Respondents. The District Court

held that even if the acts did occur such conduct did not amount to

actual prejudice in regard to the then present action (even if this

where to be the finding of this Court, Petitioner respectfully asserts

that he is entitled to declaratory relief).

The Second finding of the District Court was that

Petitioner’s claims were conclusory and unsupported. Petitioner

strongly disagreed, since the District Court had relied upon

pleadings outside of Petitioner’s Complaint, Respondents’s motion

to dismiss had turned into a motion for Summary Disposition and

dismissal was improper since material issues were in dispute.

Additionally Respondents had never once denied the allegations of

interference with the right to counsel, to access the courts, in fact the

only contentions made by Respondents were misleading statements

of law, for which Petitioner then and now (see discussion infra) asks

for sanctions.

Petitioner responded to the District Court’s Supplemental

Report and Recommendation, requesting that the Court issue a

further Report and Recommendation addressing Petitioner’s claims

of interference with mail and medical (A.D.A.) concerns, ect.... The

District Court Responded by dismissing Petitioner’s claims in their

entirety.

Petitioner appealed. In an unpublished opinion dated June

2, 1999 the Sixth Circuit Court of Appeals affirmed the District

Court dismissal of Petitioner’s case. The Court of Appeals asserted

that under the holding of Lewis v. Casey, 518 U.S. 343 116 S.Ct

2174 135 L.Ed.2d 606, (1996) Petitioner had failed to demonstrate

that he had suffered actual prejudice resulting from the visitation

restriction in order to make out a violation of his right to access the

courts.

Petitioner respectfully asserts that the Court of Appeals

application of Lewis, was of such error as to offend this Nation’s

sense of ordered liberty and directly conflicts with relevant

decisions of this Court.

SUMMARY OF ARGUMENT

Counsel for Petitioner was in the final stages of writing a

writ of habeas corpus for Petitioner. During this time counsel went

to visit Petitioner, counsel was denied access solely for the fact that

the two were related. Respondents will only allow visits during

family visiting hours, which may vary and which are not always

practical for an attorney.

Under the holding of Bounds v. Smith, 430 U.S. 8] 7, 97

S.Ct. 1491, 97 S.Ct 1491, 52 L.Ed 2d 72, (1977), Petitioner is

entitled to have meaningful access to the courts. This Right of

access can be traced directly to the 1st Amendment which holds in

pertinent part: “ petition the government for a redress of

grievances”, this fundamental right is:

("so rooted in the traditions and conscience of our

people as to be ranked as fundamental"), and

"implicit in the concept of ordered liberty," such

that "neither liberty nor justice would exist if they

were sacrificed.” Washington v. Glucksberg, 521

U.S. 702, 117 S.Ct 2258, 138 L. Ed. 2d 772

(1997) at 2268, citing Palko v. Connecticut, 302

U.S. 319, 325, 326, 58 S.Ct. 149, 152, 82 L.Ed.

288 (1937).

Petitioner also asserts that his right to choose his own

counsel is also protected via the 1st Amendment Right to Freedom

of Association, Moore v East Cleveland, 431 U.S. 494, 97 S.Ct.

1932, 52 L.Ed.2d 531. (1977). This denial also is an oppressive

violation of the Due Process clause of the 14th Amendment, both

substantive (oppressive) and procedural (decision itself is

constitutionally defective), Washington v. Glucksberg, 521 U.S.

702, 117 S.Ct 2258, 138 L. Ed. 2d 772 (1997), Howard v.

Grinage, 82 F.3d 1343, 1349, (6th Cir. 1996).

The matter in question implicates the Supremacy clause

(Article VI. section 2), Article III. section 2., a M.D.O.C., policy

cannot defeat a Fundamental Constitutional Right.

Respondents proffered in the Court below Petitioner did

not enjoy such a right, and under the holding of cases such as Jones

v. North Carolina Prisoners’ Union, 433 U.S. 119, 125-26, 97 S.Ct.

2532, 53 L.Ed.2d 629, 81 Lab.Cas. P 13,281 (1976), O'’Lone v.

Estate of Shabazz, 482 U.S. 342, 107 S.Ct 2400, 96 L.Ed. 2d 282

(1987), the policy in question allowed the denial of access because

to allow such a visit would compromise institutional security

(allegedly counsel could slip contraband to Petitioner) or that it

could amount to a showing of favoritism .

Jones supra, dealt with the gathering of many individuals,

Shabazz supra, dealt with the issue of family contact visits, and

neither case is applicable. An attorney visit is closely monitored, the

ratio of guards to attorneys and inmates is significantly lower then

a visit during family visiting hours and hence the opportunity to

pass contraband is significantly lower.

Respondents also contended below that under the holdings

of Lewis v. Casey, 518 U.S. 343, 116 S.Ct 2174 135 L.Ed.2d 606,

(1996) and Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71

L.Ed. 2d 475 (1982), Petitioner did not enjoy the right to counsel

to pursue habeas relief .

Petitioner asserts that Respondents twisted the holding of

Lewis. Nowhere within the holding or concurring opinions of Lewis

is it suggested that inmates do not have the right to have self-

appointed counsel to pursue habeas relief, indeed the concurring

opinion of Justice Thomas ( Lewis at 2191) noted such is preferred

which is consistent with the majority opinion’s analysis in Lewis of

Bounds supra that “alternative” means of access to the courts should

be available, a prison library is not the end all of such right, indeed

the experiment is encouraged Lewis at 2180. Asa consequence of

such blatant falsity Petitioner asserts sanctions are warranted indeed.

The District Court held Petitioner had not suffered any

actual prejudice because he had not missed any filing deadlines or

suffered any other form of actual prejudice. Petitioners suffered

interferance with his incoming legal mail and asserts that such

retaliation does amount to actual prejudice. Petitioner (who is an

amputee [lost left leg below the knee, right leg is also severely

damaged]) also responded he was retaliated against for the filing of

this cause of action and was subsequently transferred to another part

of the same facility which could not accommodate his disability.

Respondents also alleged below that Petitioner had failed

to plead sufficient facts that Petitioner made nothing more then mere

conclusory allegations. Though not required because of the clear

legislative mandate of F.R.C.P. 8(a)(2). Petitioner did make a more

factual showing in other pleadings including the submission of

affidavits. Since the Court considered matters outside of the

pleadings Respondents’ motion to dismiss had turned into a motion

for summary judgment. Respondents had the burden of production,

to come forward with affidavits etc., yet failed, as a result Petitioner

asserts the granting of dismissal by the Court below was in error.

Because the violation in question arises under direct

M.D.O.C. policy, Respondents are not entitled to 1 1th Amendment

Immunity in their official capacities. Respondents are also not

entitled to qualified “Harlow” (infra) immunity because the right in

question is clearly established. (the proper focus of meaningful

access is denoted by an inmate’s right to access the courts, (Childs

v. Pellegrin, 822 F.2d 1382, 1385 (6th Cir.1987). Additionally

since the main thrust of this case has always been the seeking of

declaratory relief, the ancillary monetary relief sought by Petitioner

is not barred by the 11th Amendment, Edelman v. Jordan, 415 U.S.

651, 94 S.Ct. 1347, 1357-1358, 39 L.Ed.2d 662 (1974).

Due of the nature of this case it is capable of repetition yet

evading judicial review, if Petitioner were to prevail before This

Court counsel would be entitled to an award of reasonable attorney

fees and cost.

iain va

Sunpeasie.s eau aaa

REASONS FOR GRANTING THE WRIT

THE IST AND 14TH AMENDMENT RIGHTS ASSERTED

BY PETITIONER ARE "SO ROOTED IN THE

TRADITIONS AND CONSCIENCE OF OUR PEOPLE AS TO

BE RANKED AS FUNDAMENTAL", AND "IMPLICIT IN

THE CONCEPT OF ORDERED LIBERTY," SUCH THAT

"NEITHER LIBERTY NOR JUSTICE WOULD EXIST IF

THEY WERE SACRIFICED.”

Under the holding of Bounds v. Smith, 430 U.S. 8] 7, 97

S.Ct. 1491, 52 L.Ed 2d 72, (1977), Petitioner is entitled to

meaningful access to the courts. This Right of access can be traced

directly to the Ist Amendment which holds in pertinent part: “

petition the government for a redress of grievances”, as This Court

has noted :

("so rooted in the traditions and conscience of our

people as to be ranked as fundamental"), and

"implicit in the concept of ordered liberty," such

that "neither liberty nor justice would exist if they

were sacrificed,” Glucksberg supra at 2268, citing

Palko v. Connecticut, 302 U.S. 319, 325, 326, 58

S.Ct. 149, 152, 82 L.Ed. 288 (1937).

Meaningful access is not denoted by the time an inmate is

allowed in his prison library, the proper focus of meaningful access

is denoted by an inmate’s right to access the courts, Childs vy.

Pellegrin, 822 F.2d 1382, (1987) “the First Amendment right to

petition, as currently interpreted, is a birthplace for the right of court

access”, Bieregu v. Reno, 59 F.3d 1445, 1453 (1995). Clearly any

inmate would prefer to be represented by counsel then pro se.

Petitioner’s right to choose his own counsel is protected via

the Ist Amendment Right to Freedom of Association, Moore v.

East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531

(1977) Respondents proffered in the Court below (that Petitioner

did not enjoy such a right, and under the holding of cases such as

Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 125-26,

97 S.Ct. 2532, 53 L.Ed.2d 629, 81 Lab.Cas. P 13,281 (1976),

O'Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct 2400, 96

L.Ed. 2d 282 (1987), the policy in question allowed the denial of

access because to allow such a visit would compromise institutional

security (allegedly counsel could slip contraband to Petitioner) or

that it could amount to a showing of favoritism thus Respondents

contended that the policy in question was related to a legitimate

penological concern.

Jonessupra, dealt with the gathering of many individuals,

Shabazz supra, dealt with the issue of family contact visits, and

neither case is applicable. An attorney visit is closely monitored, the

ratio of guards to attorneys and inmates is significantly lower then

a visit during family visiting hours and hence the opportunity to

pass contraband is significantly lower.

The right of inmates to access the Courts also implicates

the Due Process Clause of the 14th Amendment as this Court noted

per Justice Thomas concurring opinion in Lewis v. Casey, 518 U.S.

343, 116 S.Ct 2174 135 L.Ed.2d 606, (1996):

In the end, I agree that the Constitution affords

prisoners what can be termed a right of access to

the courts. That right, rooted in the Due Process

ieee aninaeaininiiiia iia tae

Clause and the principle articulated in Ex parte

Hull, is a right not to be arbitrarily prevented from

lodging a claimed violation of a federal right in a

federal court. At 2195.

This denial suffered by Petitioner was an oppressive

violation of the Due Process clause of the 14th Amendment, both

substantive (oppressive) and procedural (decision itself jis

constitutionally defective).

The standard followed by the Sixth Circuit for examining

violations that implicate the 14th Amendment was set forth in

Howard v. Grinage, 82 F.3d 1343, 1349, (6th Cir. 1996). In

Howard the Court examined both the procedural and substantive

prongs of the 14th Amendment. In addressing the procedural

requirements of the 14th Amendment the Howard Court held:

... the constitutional inquiry no longer addresses

what process was due and whether it was

constitutionally sufficient, but whether the decision

to deprive was itself constitutionally defective. See

Loudermill, 470 U.S. at 541-42, 105 S.Ct. at

1492-93. It would be inconsistent with any

articulable rationale underlying due process to

focus on the failure to provide process when the

deprivation has already occurred without it. At

1350.

The fact that the focus is upon the decision and not the

process is in accordance with this Court’s holding in Washington

v. Glucksberg, 521 U.S. 702, 117 S.Ct 2258, 138 L. Ed. 2d 772

(1997) :

Due Process Clause "protects individual liberty

against ‘certain government actions regardless of

the fairness of the procedures used to implement

them’ ") (quoting Daniels v. Williams, 474 U.S.

327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662

(1986)). At 2267. °

Since the process (inquiry) upon which Respondents

arrived at their decision to deny access need not be addressed, the

focus shifts to the decision itself, which was itself “Constitutionally

defective”’.

held:

In regard to substantive due process the Howard Court

Substantive due process, serves the goal of

preventing "governmental power from being ‘used

for purposes of oppression,’ " regardless of the

fairness of the procedures used. See Daniels v.

Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665,

88 L.Ed.2d 662 (1986) (citation omitted).

Howard at 1349.

Applying the above holding to the case at hand, it does not

This Court’s holding in Glucksberg, also noted :

beginning with Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct.

625, 67 L.Ed. 1042 1923). . . . that the Fourteenth

Amendment protected "the right of the individual to contract

.... At 2280.

This holding is in line with Petitioner’s position that his right to access

his self-chosen counsel also falls within the purview of the 14th Amendment as

well as the Ist Amendment.

matter if Respondents believed that the M.D.O.C. policy and

procedures used to deny access to counsel was fair. What does

matter is that the denial was purely used for the purposes of

oppressing Petitioner’s right to meaningful access of the courts.

As cited supra Respondents retaliated against Petitioner for

exercise of his First Amendment Rights’ thus their actions

amounted to an oppressive violation of the 14th Amendment as

well.

Il.

THE REGULATION IN QUESTION IS IN DIRECT

VIOLATION OF THE SUPREMACY CLAUSE.

This cause of action revolves around the enforcement of

an M.D.O.C. policy and an inmate’s right to access the courts and

his self-chosen-counsel. The MDOC decision in question is based

_ on “a policy”, the rights that have been herein asserted have roots

that run deep and have been a part of this Nation’s landscape since

its founding, such implicit Fundamental rights were recently

revisited by this Court in Washington v. Glucksberg, 521 U.S. 702,

117 S.Ct 2258, 138 L. Ed. 2d 772 (1997) , where This Court held:

the Due Process Clause specially protects those

“The law is well settled in this Circuit that retaliation under

color of law for the exercise of First Amendment rights is

unconstitutional...."..... [UJnder binding Sixth Circuit

precedent, the law regarding retaliation was clearly

established... and defendant is not entitled to qualified

immunity. Riley v. Kurtz, 893 F. Supp., 709 (1995) at 723

citing Zilich v. Longo, 34 F.3d 359 at 365 (6th Cir. 1994).

fundamental rights and liberties which are,

objectively, “deeply rooted in this Nation's history

and tradition,” id., at 503, 97 S.Ct, at 1938

(plurality opinion); Snyder v. Massachusetts, 29)

U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674

(1934) ("so rooted in the traditions and conscience

of our people as to be ranked as fundamental"),

and “implicit in the concept of ordered liberty,"

such that “neither liberty nor justice would exist if

they were sacrificed," Palko v. Connecticut, 302

U.S. 319, 325, 326, 58 S.Ct. 149, 152, 82 L.Ed.

288 (1937). Gluskburg at 2267-68.

Respondents additionally contended in the Court below

that the Court lacked proper subject matter jurisdiction. Since the

rights asserted by Petitioner are based on Constitutional grounds

Petitioner asserts that the Court below did have proper subject

matter jurisdiction (Article Ill. section 2).

The question that must be asked is whether the right to

access the courts (the Ist and 14th Amendments) must take a back

seat to M.D.O.C. policy, Petitioner asserts (based on the argument

above and which follows) in no uncertain terms that if the

Supremacy Clause (Article VI. section 2) is to be accorded its due

then clearly the answer is NO.

Due to the repugnance of the policy in question and the

implications of the Supremacy clause (Marbury v. Madison ,5 U.S.

(1Cranch) 137, 2 L.Ed. 60 (1803)) dismissal was improper.

2 ESD AS TM WR

EEE

Ill.

RESPONDENTS’ APPLICATION OF LEWIS V. CASEY

WAS INTENTIONALLY MISLEADING, SANCTIONS

WERE WARRANTED.

Respondents contended below that Lewis v. Casey, 518

U.S. 343, 116 S.Ct 2174 135 L.Ed.2d 606, (1996) stood for the

premise that inmates do not have the right to counsel for habeas or

civil rights actions. Thought it has been held inmates are not

entitled to state paid assistance of counsel nowhere in the holding

of Lewis, is it Suggested that a prisoner is not entitled to the

assistance\access of self-chosen counsel in a Habeas action. In his

concurring opinion Justice Thomas noted such:

Like anyone else seeking to bring suit without the

assistance of the State, prisoners can seek the

advice of an attorney, whether pro bono or paid,

and can turn to family, friends, other inmates, or

public interest groups. Inmates can also take

advantage of the liberal pleading rules for pro se

litigants and the liberal’ rules governing

appointment of counsel. Federal fee-shifting

Statutes and the promise of a contingency fee

should also provide sufficient incentive for counsel

to take meritorious cases. Justice Thomas,

concurring, Lewis at 2191. °

Justice Thomas's Concurring Opinion is consistent with the hold of

Bounds, wherein the majority opinion per Justice Scalia noted in Lewis:

Although it affirmed a court order requiring North Carolina

to make law library facilities available to inmates, it stressed

that that was merely “one constitutionally acceptable method

to assure meaningful access to the courts," and that “our

Respondents twisted the holding of Lewis, beyond matters

this Court did not address. In light of Respondents

misrepresentations Petitioner request this Court award F.R.C.P. 11,

sanctions.

IV.

UNDER THE FACTS AND CIRCUMSTANCES

RESPONDENTS ARE NOT ENTITLED TO ELEVENTH

AMENDMENT IMMUNITY IN THEIR OFFICIAL

CAPACITIES.

Though it cannot be denied that the power of the Federal

Courts in some matters is shown to be coextensive with that of the

States, neither can it be denied that Respondents by virtue of the

position they hold over Petitioner, committed the acts complained

of (it was the official policy of the M.D.O.C. that caused the

violation in question. Kentucky v Graham ect al., 473 U.S. 159,

167, 105 S.Ct 3099, 87 L.Ed. 2d 114, (1985) and though

Respondents had nothing to do with the fact that Petitioner is

incarcerated and within the custody of the M.D.O.C., it is that

custody upon which Petitioners’ claims rest. As such Respondents

decision here ... does not foreclose alternative means to_

Continued from page 19.

achieve that goal." Bounds, 430 U.S., at 830, 97 S.Ct., at

1499. In other words, prison law libraries and legal

assistance programs are not ends in themselves, but only the

means for ensuring "a reasonably adequate opportunity to

present claimed violations of fundamental constitutional

rights to the courts." Id., at 825, 97 S.Ct., at 1496. Lewis at

2180 (citing Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491,

52 L.Ed.2d 72 (1977).

cannot seek to clothe themselves with 1 1th Amendment Immunity

(Home Telephone & Telegraph C ompany, v. City of Los Angeles et

al. 227 U.S. 278, 33 S.Ct 312, 57 L.Ed 510; (1913) [in their

official capacities]), when the acts they have committed are of such

repugnancy as to be of Constitutional Magnitude. Petitioners’ 14th

Amendment rights have been violated. Because of Respondents’

retaliatory conduct against Petitioner, Respondents are not entitled

to immunity Zilich v. Longo, 34 F.3d 359 at 365 (6th Cir.1994),°

Harlow vy. Fitzgerald, 457 U.S. 800, 102 S.Ct 2727, 73 L.Ed.2d 396

(1981).

DECLARATORY RELIEF IS WARRANTED AND THE

MONETARY RELIEF SOUGHT IS "ANCILLARY" TO

INJUNCTIVE RELIEF AND IS NOT BARRED BY THE

ELEVENTH AMENDMENT.

The main thrust of this cause of action has always been

declaratory relief. In his Complaint Petitioner also sought monetary

relief. Under the holding of Kentucky v Graham ect al., 473 US.

159, 105 S.Ct 3099, 87 L.Ed. 2d 114, (1985) the Court held:

... Monetary relief that is "ancillary" to injunctive

relief also is not barred by the Eleventh

Amendment. At 169.

Petitioner asserts that because the main thrust of this cause

of action was declaratory that monetary relief is not barred.

Id., at pg 17, footnote #7, Zilich v. Longo, 34 F.3d 359 at 365 (6th Cir. 1994).

VI.

THIS CASE IS CAPABLE OF REPETITION YET EVADING

JUDICIAL REVIEW.

In the case at hand Petitioner has a specific need to access

of counsel and that need is a justiciable question, and said question

is within this Court’s powers to hear. United States v. Nixon, et al.,

418 U.S. 683, 94 S.Ct. 3090, 41 L. Ed. 2d 1039,(1974), (Also see

Globe Newspaper Company v. Superior Court For the County Of

Norfolk, 457 U.S. 596,102 S.Ct 2613, 73 L.Ed.2d 248,(1982)).

Vil.

PETITIONER IS ENTITLED TO A RECOVERY OF

REASONABLE ATTORNEY FEES AND COST.

If this Court were to strike down the M.D.O.C. policy in

question Petitioner would hence prevail on a significant issue and

counsel would be entitled to a reasonable award of attorney fees.

Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76

L.Ed.2d 40 (1983). (also see 42 U.S.C § 12205, Attorney fees

under Americans with Disabilities Act, App. H, pg H3).

Vill.

PETITIONER PLED SUFFICIENT FACTS AND DID

DEMONSTRATE ACTUAL PREJUDICE.

Petitioners’ complaint meet the clear legislative mandated

pleading standard of F.R.C.P. 8(a)(2) In Atchinson v. District of

Columbia, 73 F.3d 418, 315 U.S.App.D.C. 318, 33 Fed R.Serv. 3d

1033 (1996) at 412-422 citing Leatherman v. Tarrant County

Narcotics Intelligence and Coordination unit et al., 507 U.S. 163,

sinatra sis Lay eek > ot ae

Et RS See: shal

i PAT eh heh deat hice Ree ter

113 S.Ct 1160, 112 L.Ed. 2d. 517(1993)

In a motion to dismiss the burden of persuasion is upon the

moving party, all allegations are taken as true and all inferences

favorable to plaintiff will be drawn, additionally if the court

considers matters outside the pleadings before it in a F.R.C.P.

12(b)(6) motion, the above procedure will automatically be

converted into a F.R.C.P., Rule 56 summary judgment procedure,

Rmititanium v. Westinghouse, 78 F.3d 1125, 34 Fed. R. Serv. 3d

1288, (6th Cir. 1996).

Respondents made assertions that Petitioner’s complaint

made nothing more then mere unsupported conclusory allegations

yet Respondents did not deny that a denial of Petitioner’s access to

counsel had occurred, thus the main material fact in question was

not in dispute.

Respondents failed to bring forth affidavits or any other

supporting materials to bolster their position. Conversely the burden

of proof was improperly shifted upon Petitioner, who did come

forth with supporting materials (affidavits) as cited supra, Petitioner

raised several instances of retaliatory conduct on the part of

Respondents that Petitioner believed demonstrated actual prejudice

(interferance with legal mail etc.).

Additionally The District Court in its Supplemental Report

and Recommendation held that under the holding of 7Twyman v.

Crisp, 584 F.2d 352, 357 (10th Cir. 1978), actual prejudice can only

be demonstrated by a showing that an inmate has missed an actual

filing deadline ect. Petitioner rejects such an assertion.

CONCLUSION

Petitioner’s right to access counsel is “implicit with this

Nation’s sense of Ordered Liberty”. It is a right textually committed

to the United States Constitution via the First Amendment Right to

Petition and is consistent with this Courts First Amendment

jurisprudence.

Additionally the Right asserted by Petitioner is consistent

Historically with this Court’s Fourteenth Amendment holdings

protecting Fundamental Rights.

Even if the individually named Respondents’ (Straub,

Morgan, McGinnis are dismissed) Petitioner requests that this Court

strike down the M.D.O.C. policy in question due to its’ repugnance

to the United States Constitution, and grant Petitioner permanent

declaratory relief, an award of reasonable attorney fees in addition

to costs and sanctions for Respondents’s misrepresentation of Lewis

v. Casey supra.

For all of the forgoing reasons, this Petition for a writ of

certiorari should be granted.

Respectfully itted b

Daniel C. Willman *

33875 Harlan Dr

Farmington Hills, MI 48331

(248) 476-0250

Counsel for Petitioner

* Counsel for Petitioner

6TH CIRCUIT FILINGS:

Final Opinion,

PN eee ih re a Ok Al1-A6

EASTERN DISTRICT OF MICHIGAN FILINGS:

Report and Recommendation and

Order Regarding Further Briefing

To Determine Plaintiff's Need

For Declaratory or Injunctive Relief,

WI Ss ee ee. ck B1-B16

Supplemental Report and

Recommendation,

WO a ee ec wa cane cen C1-C7

Order Regarding Stay of Proceedings,

MEE ce ee ee D1-D3

Judgment,

ek gk a os So ea ec x E1-E3

Order Granting Temporary

Restraining Order,

on eek ids eee F1-F2

TABLE OF APPENDIX CONTENTS, CONTINUED:

ADDITIONAL:

See. CE ke ee ee ae

Constitutional Provisions,

Sn, ER At gg try ee Pg a a ita The

NOT FOR PUBLICATION

N®. 98-1454

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MERVIN SCOTT WILLMAN )

) On Appeal From The

Plaintiff-Appellants ) United States District

) Court For The Eastern

¥ ) District of Michigan

) ;

MICHIGAN DEPARTMENT OF ) |] Sth Circuit

Court of Appeals

CORRECTIONS, ET AL., )]] Filed 6/2/99

Defendants-Appellees. ) |] Leonard Green,

Clerk

BEFORE: GUY, SUHRHEEIGUCH, and GILMAN,

Circuit Judges.

PER CURIAM. Plaintiff Mervin Scott Willman, a

prisoner, brought this 42 U.S.C. § 1983 suit claiming that his

constitutional rights were violated when prison officials allowed

his brother, who was serving as his attorney in a habeas corpus

action, to visit only during family visitation hours. Willman

appeals the dismissal of his suit pursuant to Fed. R. Civ. P.

12(b)(1) and 12(b\6). We AFFIRM.

I. BACKGROUND

Willman is a prisoner in the custody of the Michigan

Department of Corrections ("MDOC") and is housed at the

Apdx. A - 1

Robert Cotton Correctional Facility ("RCCF") located in Jackson,

Michigan. Willman retained the services of his brother to file

a habeas corpus petition. During the course of the representation,

prison officials, acting pursuant to Michigan Prison Rule 607,'

permitted Willman’s brother to visit only during family visitation

hours. According to Willman, attorneys are given greater access

to prisoners than are family members.

On August 4, 1997, Willman filed a complaint seeking

damages, attorney’s fees, and a declaration that the visitation

policy violated his constitutional rights. Willman named the

' Michigan Prison Rule 607 provides in relevant part:

(1) The department shall establish reasonable visiting

hours and uniform quotas at each institution for visits to prisoners

to promote order and security in the institutions and to prevent

interference with institutional routine or disruption of the

prisoner's programming. A visit described in subrule (2) of this

rule shall not be counted toward a prisoner’s visiting quota.

(2) Except when the person is related to the prisoner by

blood or marriage, a prisoner shall be allowed to visit with any

of the following persons, who shall not be required to be on the

prisoner's approved visitor list:

paraprofessional or law clerk who is acting as an aide to counsel

for the prisoner.

Mich. Admin. Code r. 791.6607 (1995).

Apdx. A - 2

MDOC as a defendant. Willman also named as defendants, both

in their official and individual capacities, Kenneth McGinnis,

Director of the MDOC; Dennis Straub, Acting Warden of the

RCCF; and Ralph Morgan, Assistant to the Warder of the RCCF.

That same day, Willman filed a motion for a temporary

restraining order and preliminary injunction. On August 7, 1997,

the temporary restraining order was granted, which prohibited

Defendants from restricting visitation to family visitation hours.

The temporary restraining order expired on October 28, 1997, the

deadline for filing Willman’s habeas corpus petition. Defendants

filed motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and

12(b\6). The district court referred the case to a magistrate

judge, who recommended that Defendants’ motions be granted.

The magistrate judge construed the various coustitutional

claims in Willman’s complaint as essentially alleging a violation

of his right of access to the courts. In his initial report dated

January 21, 1998, he recommended that the claim against Defen-

dant MDOC and the claim of damages against the individual

defendants in their official capacities be dismissed pursuant to

Fed. R. Civ. P. 12(b\(1) on Eleventh Amendment grounds. The

magistrate judge also recommended dismissal of the claim against

the individual defendants in their individual capacities pursuant

to Fed. R. Civ. P. 12(b)(6) because Willman did not allege that

they were personally involved in the decision to impose the

visitation restriction.’

* The magistrate judge noted that Willman had alleged

personal involvement by each of the individual defendants in his

response to Defendants’ motions to dismiss. Nevertheless, he

Apdx. A - 3

Regarding the claims of declaratory and injunctive’ relief

against the individual defendants in their official capacities, the

magistrate judge concluded that Willman was required to allege

actual prejudice resulting from the visitation restriction in order

to make out a violation of his right of access to the courts. In an

exercise of caution, the magistrate judge gave Willman until

February 10, 1998, to file a supplemental response demonstrating

any prejudice. Willman’s response claimed that he suffered

prejudice as a result of financial costs associated with obtaining

the temporary restraining order and filing the present action.

Willman also claimed that he was prejudiced because Defendants

transferred him to a different cell in retaliation for bringing the

present suit, denied him proper medical treatment, and interfered

with his legal mail.

In his second report dated February 24, 1998, the

magistrate judge recommended that the claim for declaratory and

injunctive relief be dismissed pursuant to Fed. R. Civ. P. 12(b)(6)

because Willman’s allegations of prejudice did not show that he

had suffered any actual injury resulting from the visitation

restriction. The district court adopted the recommendations in

both reports.

concluded that even if those allegations were considered as part

of the complaint, or if the complaint was amended to include

them, Willman could not recover damages against the individual

defendants because they are entitled to qualified immunity.

* The magistrate judge interpreted Willman’s application for

a temporary restraining order as a request for injunctive relief.

Apdx. A - 4

Willman appeals the dismissal of his complaint.

II. DISCUSSION

Prison officials violate an inmate’s right of access to the

courts when they prevent "a reasonable opportunity to seek and

receive the assistance of attorneys." See Procunier v. Martinez,

416 U.S. 3 96, 419 (1974), overruled on other grounds by

Aornburgh v. Abbott, 490 U.S. 401 (1989); see generally Bounds

v. Smith, 430 U.S. 817 (1977) (recognizing a prisoner’s

constitutional right of access to the courts). In Lewis v. Casey,

518 U. S. 343 (1996), the Supreme Court explained that a

prisoner asserting a violation of his right of access to the courts

must demonstrate actual injury, i.e., that he was hindered in his

efforts to pursue a legal claim. See id. at 3 5 1. Unlike previous

cases from this circuit requiring actual injury as merely an

element of the constitutional tort, see, e.g., Walker v. Mintzes,

771 F.2d 920 (6th Cir. 1985), Lewis made clear that the

requirement is derived from the doctrine of standing. See Lewis,

518 U.S. at 349; see also Hadix v. Johnson, --- F.3d ---, 1999

WL 176155, at *5 (6th Cir. April 1, 1999) (noting that Lewis

requires a showing of actual injury to establish standing).

Willman has failed to demonstrate any actual injury

resulting from the visitation restriction. Willman’s complaint does

not allege that he was impeded in his efforts to obtain a writ of

habeas corpus. In fact, the temporary restraining order prohibited

Defendants from restricting visitation to family visitation hours

prior to the filing deadline of Willman’s habeas corpus petition.

Furthermore, Willman’s asserted claims of prejudice in response

to the magistrate judge’s order of January 21, 1998, do not

demonstrate that he suffered any actual injury caused by the

Apdx. A - 5

visitation restriction imposed by Defendants. Therefore, under

Lewis, Willman lacks standing.

Willman’s remaining claims, are without merit and we

need not address them any further.

Ill. CONCLUSION

For the foregoing reasons, we AFFIRM the district

court’s dismissal of Willman’s complaint.

Apdx. A - 6

oh Se cl aS a a citato

LIE ha

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MERVIN SCOTT WILLMAN,

PLAINTIFF, CASE No. 97-CV-73866-DT

VS.

MICHIGAN DEPARTMENT OF HONORABLE GERALD E. ROSEN

CORRECTIONS, KENNETH HONORABLE STEVEN D. PEPE

MCGINNIS, DENNIS STRAUB,

RALPH MORGAN, SUED IN

THEIR OFFICIAL AND

INDIVIDUAL CAPACITIES,

DEFENDANTS.

Report and Recommendation and Order Regarding

Further Briefing to Determine

Plaintiff's Need For Declaratory

or Injunctive Relief

I. BACKGROUND

Plaintiff Melvin Scott Willman is a prisoner in the

custody of the Michigan Department of Corrections (MDOC) and

is housed at the Robert Cotton Correctional Facility located in

Jackson, Michigan. Plaintiff, represented by counsel, filed his

complaint on August 4, 1997. On the same date, plaintiff also

filed a motion for temporary restraining order and preliminary

injunc-tion. On August 7, 1997, Judge Friedman, in Judge

Rosen’s absence, granted the temporary restraining order,

ordering the individual defendants to permit plaintiff's attorney

Apdx. B - |]

to visit plaintiff during non-family visitation hours. The

temporary restraining order was to expire on October 28, 1997.

Defendant Kenneth McGinnis is the Director of the MDOC,

defendant Dennis Straub is the Acting & Warden, and defendant

Ralph Morgan is the Warden’s Assistant.

In his complaint, plaintiff alleges that defendants have

violated his constitutional rights by restricting his attorney-

brother’s visits to family visitation hours only. Plaintiffs brother,

an attorney, is representing him in a habeas corpus action which

was to be filed by October 28, 1997.’ Plaintiff claims that he

was denied visitation with his attorney during non-family

visitation hours because his attorney is a family member. The

restriction was imposed pursuant to Michigan Prison Rule 607,

Mich. Admin. Code r. 791.6607, which prohibits visitation with

a prisoner by his attorney during non-family visitation hours if

the attorney is related to the prisoner.’ Plaintiff states that "it

is not practical for Plaintiff's counsel to see Plaintiff only during

family visiting hours." (Plaintiff's Complaint, p. 3). Plaintiff

further contends in order for his attorney to handle his habeas

' Daniel C. Willman, Plaintiff's brother, is also representing

plaintiff in the present action.

? Rule 607 provides in part that:

(2) Except when the person is related to the prisoner by

blood or marriage, a prisoner shall be allowed to visit

with any of the following persons, who shall not be

required to be on the prisoner’s approved visitor list:

** *

paraprofessional or law clerk who is acting as an aide to

counsel for the prisoner.

(Michigan Prison Rule 607, Mich. Admin. Code r. 791.6607)

Apdx. B - 2

action effectively, he needs visitation with his attomey. Because —

defendants denied visitation between plaintiff and his attorney,

plaintiff claims defendants violated his First Amendment of

access to the courts to petition for redress of his grievance.’

Plaintiff seeks a declaration that the MDOC visitation policy is

unconstitutional, injunctive relief,‘ damages and attorney’s fees.

Defendant McGinnis filed a motion to dismiss plaintiff's

complaint pursuant to Fed. R. Civ. P. 12(b1) and 12(b\6) on

August 21, 1997. Defendants Straub and Morgan also filed a

* Plaintiff asserts defendants violated his equal protection

and due process rights. In addition, plaintiff claims his First

Amendment right of freedom of association has been violated. In

Gins v. Mauser Plumbing Supply Co., 148 F.2d 974, 976 (2d

Cir. 1945), Judge Charles Clark noted:

A simple statement in sequence of the events which have

transpired, coupled with a direct claim by way of

demand for judgment of what the plaintiff expects and

hopes to recover, is a measure of clarity and safety; and

even the demand for judgment loses its restrictive nature

when the parties are at issue, for particular legal theories

of counsel yield to the court’s duty to grant the relief to

which the prevailing party is entitled whether demanded

or not.

148 F.2d at 976 (citing, Stephen, Pleading, 458-465, (Williston’s

Ed. 1895); Shipman, Common- Law Pleading, 203-206 (3d Ed.

Ballantine 1923)). Therefore, the court addresses _ plaintiff's

allegations as a First Amendment right of access to the courts to

petition for redress of grievances.

* Plaintiff filed a motion for preliminary injunction on the

same day he his complaint This motion should be read as a

supplement to the complaint adding a claim for injunctive relief

against defendants in their official Capacities.

Apdx. B - 3

motion to dismiss plaintiffs complaint pursuant to Fed. R. Civ. P.

12(b\(1) and 12(b)(6) on September 11, 1997.° Defendants assert

plaintiffs complaint should be dismissed because plaintiff has

failed to allege facts demonstrating that defendants were

personally involved in the alleged constitutional violation and

they are entitled sovereign immunity and qualified immunity.

Il. STANDARD OF REVIEW

A. Sovereign immunity

1. Eleventh amendment immunity; Fed. R. Civ.

P. 12(bX 1) 7

Defendants argue that plaintiff's complaint should be

dismissed because they are entitled to immunity under the

Eleventh Amendment. When subject matter jurisdiction is

challenged, the party invoking federal jurisdiction bears the

burden of proof on the issue. If the challenge to the court’s

subject matter jurisdiction is facial rather than factual, plaintiff s

allegations must be taken as true, and all inferences are to be

drawn in his favor. If the challenge is factual, the court must

weigh the evidence concerning jurisdiction and is empowered to

resolve any factual disputes. See RMI Titanium Co. v.

Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996);

Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th

Cir. 1990). A dismissal under Rule 12(bX1) is without

preclusive effect except as to the jurisdictional issues. /d. In this

case, there appears to be no dispute concerning the jurisdictional

facts, and plaintiffs factual allegations are presumed, for purposes

> Defendant McGinnis and defendants Straub and Morgan

make essentially the same arguments in their separate motions.

Therefore, I will treat the motions together in this Report and

Recommendation.

Apdx. B - 4

of this jurisdictional analysis, to be true.

A state official being sued in his or her official Capacity

is immune from liability for civil damages, and in order to pursue

such claims "plaintiffs seeking damages under § 1983 [must] set

forth clearly in their pleadings that they are suing the state

defendants in their individual capacity for damages, not simply

in their officiai capacity." Wells y. Brown, 891 F.2d 591, 592

(6th Cir. 1989). Plaintiff has sued defendants in their official

and individual capacities. Plaintiff's claims against the state and

its Department of Corrections and plaintiffs damages claims,

against the defendants in their Official capacities are barred by the

Eleventh Amendment. Because the Court lacks subject matter

jurisdiction over the damages claim, plaintiff's claim for damages

against defendants in their official Capacities should be dismissed.

Plaintiff, however, has also asserted claims for

declaratory and injunctive relief for alleged violations of his First

Amendment rights. State officials can be sued in their official

capacities for injunctive relief. Will y. Michigan Dept. of State

Police, 491 U.S. 58, 71 n. 10, 109 S. Ct. 2304, 105 L.E.2d 45

(1989). In Will, the Supreme Court stated "a state Official in his

or her official Capacity, when sued for injunctive relief, would be

a person under 1983 because ‘official-capacity actions for

prospective relief are not treated as actions against the State.’"

Id. (quoting Kentucky v. Graham, 473 US. 159, 167 n. 14).

Therefore, defendants’ motion to dismiss plaintiff's claim against

defendants in their official capacities for declaratory and

injunctive relief should be denied.

B. Dismissal Pursuant to Fed, R. Civ, P. 12(b)(6)

In deciding a motion to dismiss pursuant to Fed. R. Civ.

P. 12(b)(6), a court must accept all weil-pleaded allegations as

true and construe them in the light most favorable to plaintiff.

Zinennon v. Burch, 494 U.S. } 13, 117 (1990); SA CHARLES A.

Apdx. B - 5

WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE

AND PROCEDURE § 1357, at 304 (2d ed. 1990). See also

Jenkins v. McKeithen, 395 U.S. 411, 421-22 (1969); Westlake

v. Lucas, 537 F.2d 857 (6th Cir. 1976). A complaint will not be

dismissed for failure to state a claim unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief. Conley v. Gibson, 355

U.S. 41, 45-46 (1957). It is also well established, however, that

conclusory, unsupported allegations of constitutional deprivation

do not state a claim. °

° See, e.g., Ana Leon T. v. Federal Reserve Bank, 823 F.2d

928, 930 (6th Cir.) ("[T]he allegations must be more than mere

conclusions, or they will not be sufficient to state a civil rights

claim."), cert. denied, 484 U.S. 945 (1987); Chapman v. City

of Detroit, 808 F.2d 459, 465 (6th Cir. 1986)-("It is not enough

for a complaint ... to contain mere conclusory allegations of

unconstitutional conduct by persons acting under color of state

law. Some factual basis for such claims must be set forth in the

pleadings."); Smith v. Rose, 760 F.2d 102, 106 (6th Cir. 1985)

(conclusory, unsupported allegations insufficient to state a claim);

Keniston v. Roberts, 717 F.2d 1295, 1300 (9th Cir. 1983)

(dismissal of complaint appropriate if allegations of constitutional

deprivation are "mere conclusions"); Ross v. Meagan, 638 F.2d

646, 650 (3rd Cir. 1981) ("[T]his court has consistently

demanded that a civil rights complaint contain a modicum of

factual specificity, identifying the particular conduct of

defendants that is alleged to have harmed the plaintiffs."); Place

v. Shepherd, 446 F.2d 1239, 1244 (6th Cir. 1971) ("A pleading

will not be sufficient to state a cause of action under the Civil

Rights Act if its allegations are but conclusions."); Borenstein v.

City of Philadelphia, 595 F. Supp. 853, 856 (E.D. Pa. 1984)

("{C]ivil rights complaints must be pleaded with specificity and

may not merely make conclusory allegations of constitutional

deprivations or the existence of municipal policies."); Egan v.

Apdx. B - 6

l. Plaintiff fails to state a claim because he

—has to state a claim because he

does not allege personal involvement by

defendants in the alleged constitutional

violation.

An essential element of § 1983 claim is personal

involvement by the defendants. To impose individual liability on

a defendant, a plaintiff must allege facts clearly demonstrating

personal involvement by the defendant for the constitutional

violation. See Rizzo v. Goode 423 US. 362 (1976) injunctive

relief); Bellamy vy. Bradley 729 F.2d 416, 421 (6th Cir.), cert.

denied 469 U.S. 845 (1984). Section 1983 liability cannot be

imposed on supervisory personnel simply on the basis of the right

to control employees. Bellamy, 729 F.2d 421 (citation omitted).

Rather, liability may be imposed for failing to supervise or

control subordinates only when a prison official, although not

directly involved in the allegedly unconstitutional conduct, either ©

encouraged the specific misconduct or implicitly authorized

approved or knowingly acquiesced in the unconstitutional

conduct. Hicks y. Frey, 992 F.2d 1450, 1455 (6th Cir.

1993)(citation omitted).

Defendants argue that they cannot be held liable because

plaintiff has failed to allege facts demonstrating that they were

personally involved in the alleged conduct. In his complaint,

plaintiff fails to plead specific instances where any of the

defendants personally denied him visitation with his attorney.

Nor has plaintiff alleged that any defendant encouraged,

implicitly authorized, approved or knowingly acquiesced in the

alleged conduct. The Court looks to the allegations made in

Concini 585 F. Supp. 801,803 (M.D. Pa. 1984) (Factual

specificity required in order to enable court to evaluate substance

of claim).

Apdx. B - 7

plaintiff's complaint under a Fed. R. Civ. P. 12(b)(b) motion.

Because plaintiff has failed to allege facts stating a claim under

Fed. R. Civ. P. 12(b)(6) against defendants McGinnis, Straub,

and Morgan, defendants’ motion to dismiss should be granted,

and plaintiffs damages claims against defendants in their

individual capacities should be dismissed. In his briefs responding

to defendants’ motions, plaintiff's counsel has added facts

asserting personal involvement of each defendant in denying

plaintiff access to his attorney (Plaintiffs Reply Brief in

Response to Defendant McGinnis’ Rule 12 Motion, pp. 1-2;

Plaintiff's Brief in Response to Defendants’ Straub and Morgan

Rule 12 Motion to Dismiss, p. 3). Yet, even if these facts were

considered to be part of the complaint, or plaintiff's complaint

was amended to include them, plaintiff could not recover on his

damages claims because, as defendants have argued, they are

entitled to qualified immunity.

a Qualified Immunity

a. Elements of the qualified immunity defense

Government officials who perform discretionary functions

are generally entitled to qualified immunity from individual

liability for civil damages so long as their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known. AHarlow v.

Fitzgerald, 457 U.S. 800, 818 (1982); see also Christophel v.

Kukulinsky, 61 F.3d 479, 484 (6th Cir. 1995); Thomas v.

Whalen, 51 F.3d 1285, 1289 (6th Cir.), cert. denied, 116 S. Ct.

518 (1995); Pray v. Sandusky, 49 F.3d 1154, 1157-58 (6th Cir

1995). The question whether an official is protected by qualified

immunity does not turn on the subjective good faith of the

defendants, but rather turns on the "objective legal reason-

ableness" of the action, assessed in light of the legal rules that

Apdx. B - 8

ES i ha ee 8 Se Bd es

Ce ASS hah tee ‘ <7

oT =

were clearly established at the time it was taken. Harlow, 457

U.S. at 818-19; Mackey y. Dyke, 29 F.3d 1086, 1094 (6th Cir.

1994).

A plaintiff bears the initial burden, in overcoming a

qualified immunity defense, of alleging a constitutional violation.

Siegert v. Gilley, 500 U.S. 226, 231-34, 111 S. Ct. 1789 1793-94

(1991) (defendants are protected by qualified immunity unless

plaintiff has alleged facts showing the violation of a Clearly

established constitutional right; if no alleged right of con-

stitutional magnitude has been violated, the court does not reach

the second question of whether it was clearly established). As

discussed in more detail below, plaintiff has alleged that defen-

dants have violated his First Amendment right of access to the

courts. Plaintiff must allege facts in support of his claim that

show a constitutional violation. If he meets this initial burden,

it must then be determined -- for purposes of Harlow analysis --

whether defendants knew or should have known that their actions

would violate plaintiff s clearly established rights under the First

Amendment.

b. Plaintiff's allegation of the violation of

his, First Amendment right

i. Standard for determining

constitutionality of a restriction on

prisoner rights

In Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254

(1987), the Supreme Court held that when a prison regulation

impinges on inmates’ constitutional rights, the regulation is valid

if it is reasonably related to legitimate penological interests.

Several factors are relevant in determining the reasonableness of

the regulation at issue. First, there must be a "valid, rational

connection" between the prison regulation and the legitimate

governmental objective offered to justify it; the governmental

Apdx. B - 9

objective must be a legitimate and neutral one.’ Second, the

court should determine whether there are alternative means of

exercising the right that remain open to prison inmates. Third, the

court should evaluate the impact accommodation of the asserted

constitutional right will have on guards and other inmates, and on

the allocation of prison resources gene nally, the absence

of ready alternatives is evidence of the reasonableness of a prison

regulation; conversely, the existence of obvious, easy alternatives

may be evidence that the regulation is not reasonable, but is an

‘exaggerated response’ to prison concerns. Turner, 482 U.S. at

89-91, 107 S. Ct. at 2261-62.

In reviewing prison regulations, the Supreme Court has

repeatedly urged judicial deference to decisions of prison admini-

strators. See Thornburgh v. Abbott, 490 U.S. 401, 410 (1989)

("[a]Jcknowledging the expertise of these officials and that the

judiciary is ‘ill equipped’ to deal with the difficult and delicate

problems of prison management, this Court has afforded con-

siderable deference to the determinations of prison administrators

who, in the interest of security, regulate the relations between

prisoners and the outside world"); Turner, 482 U.S. at 90, 92

(where the right in question "can be exercised only at the cost of

significantly less liberty and safety for everyone else, guards and

other prisoners alike," the courts should defer to the "informed

discretion of corrections officials"); Martinez, 416 U.S. at 414

("[s]ome latitude in anticipating the probable consequences of

allowing certain speech in a prison environment is essential to the

” Procunier v. Martinez, 22 416 U.S. 396, 412 (1974),

identified as legitimate government interests "the preservation of

internal order and discipline, the maintenance of institutional

security against escape or unauthorized entry, and the

rehabilitation of the prisoners."

Apdx. B - 10

proper discharge of an administrator’s duty").

ii. Application to the prison regulation at issue

Prisoners have a First Amendment right of access to the

courts Bounds v. Smith, 430 U.S. 817, 828, 97 S. Ct. 149]

(1977) The First Amendment right of access to the courts

includes the right to reasonable access to their counsel.

The constitutional guarantee of due process of law has as

a corollary the requirement that prisoners be afforded

access to the courts in order to challenge unlawful

convictions and to seek redress for violation so of their

constitutional rights. This means that inmates must have

a reasonable opportunity to seek and receive the

assistance of attorneys. Regulations and practices that

unjustifiably obstruct the availability of professional

representation or other aspects of the right of access to

the courts are invalid.

Procunier v. Martinez, 416 U.S. 396, 419, 94 S. Ct. 1800 (1974)

(citation omitted).

Michigan Prison Rule 607 restricts attomey visitation

with a prisoner to family visitation hours when that attorney is

related to the prisoner by blood or marriage. Plaintiff has alleged

that defendants, in compliance with this regulation, denied him

visitation with his attorney, which has obstructed the ability of

his attorney to pursue his habeas petition. Defendants have

proffered prison security justifications for the special limitation

placed on family attorneys seeing inmates. Defendants argue

"[slecurity is a concern since an attorney with a mere business

relationship to a prisoner, rather than a familial relationship, is

much less Rely to accede to a prisoner’s requests to smuggle

contraband." (Defendants Straub and Morgan Brief in Support

of their Rule 12 Motion to Dismiss, p. 6)

Apdx. B - 11

In addition to the alleged justification proffered by

defendants, the court must complete the four step analysis under

Turner and Rormburgh. Included in this analysis is the inquiry

into the extent to which plaintiffs First Amendment rights are

abridged by this restriction and its impact on his effectively

petitioning the federal court in a habeas case for a redress of

grievances. While Procunier prohibits the unjustified obstruction

to the assistance of counsel, a critical question is whether the

challenged regulation interferes with such representation in the

present case.* When an attorney is representing a client in

preparation for trial, face to face interviews are essential to

developing the relationship needed to obtain complete and

reliable facts, and to adequately prepare a witness for trial,

particularly where the attorney must make a pretrial assessment

of the client’s demeanor. In a habeas case, however, where the

record is fixed by the trial proceedings (and in federal cases by

what issues were exhausted and presented to the state appellate

courts), there is far less of a clear necessity for frequent, if any,

face to face in person interviews with the client. The temporary

restraining order was entered on August 7, 1997, which ordered

defendants to permit plaintiffs attorney visitation in order to file

his habeas petition by October 27, 1997. While plaintiff has

alleged generally that the restrictive regulation impedes his

* The Sixth Circuit, citing Twyman v. Crisp, 584 F.2d 352,

357 (10th Cir. 1978), has suggested that a claim of denial of

access to the court must be supported by evidence of actual

prejudice, such as missing court deadlines for submission of

motions or responsive pleadings. Walker v. Mintzes, 771 F.2d

920, 932 (6th Cir. 1985). The inmate must have suffered an

actual interference with his case. Weaver v. Toombs, 756

F.Supp. 335, 340 (W.D. Mich. 1989).

Apdx. B - 12

attomney’s effective handling of his habeas claims, plaintiff does

not allege that he suffered any actual prejudice as a result of

being denied multiple visits with his attorney. Nor is it apparent

____ what the future impact of the regulation would have on effective

representation after a habeas petition has been filed. Before this

Court can fairly determine if the regulation as applied in this case

is unconstitutional, additional facts would be needed.

iii, Any First Amendment right to visitation with

family attorney was not clearly established at the

time of defendants’ challenged action

The Sixth Circuit has held that if a defendant raises a

qualified immunity defense, the plaintiff bears the burden of

showing that the constitutional right alleged to have been violated

was Clearly established at the time of the alleged violation. Ohio

Civil Service Employees Ass'n v. Seiter, 858 F.2d 1171, 1174

(6th Cir. 1988); Dominique v. Telb, 831 F.2d 673, 676 (6th Cir.

1987). "[I]n the ordinary instance, to find a clearly established

constitutional right, a district court must find binding precedent

by the Supreme Court, its court of appeals, or itself." Seiter,

858 F.2d at 1177. Even if we assume that plaintiff has a First

Amendment right to less restricted access to his attorney, plaintiff

has failed to point to any case stating that a restriction as the one

at issue violates an inmate’s First Amendment right of access to

the courts. In fact, plaintiffs counsel acknowledges in the

complaint "[t]his appears to be a case first impression."

(Plaintiff's Complaint, p.1). Thus, even if the regulation is found

to be unconstitutional, and even if this Court assumed personal

involvement of each defendant, plaintiff's damages claims need

be dismissed under Harlow’s qualified immunity.

3. Plaintiff's claims for declaratory and injunctive relief

Apdx. B - 13

Defendants challenge plaintiff's pleadings for insufficient

allegations of actual prejudice suffered by plaintiff in the pending

habeas litigation under Fed. R. Civ. P. 12(b)(6). (Defendants

Straub and Morgan Rule 12 Motion to Dismiss, p. 8). For the

reasons stated in Section H. B. 2. a. ii. above, it is not apparent

that plaintiff suffered any actual prejudice. A plaintiff must

support his claim of denial of access to courts with evidence of

actual prejudice. Twyman, 584 F.2d at 357. However, given the

important nature of claims being asserted and the fact that

defendants responded only to the pleading aspect of the case,

plaintiff's counsel should be put on notice that defendants’

motion will be treated as a challenge to plaintiff's rights to

declaratory relief and any further injunctive relief. Ordinarily

these important considerations are determined after a period of

discovery and a more fully developed factual record. Plaintiff has

had ample time for discovery and should be given an opportunity

to respond specifically to the challenge to his claim for

declaratory and injunctive relief.

Plaintiff is hereby given until February 10, 1998 to file

a supplemental response, demonstrating any actual prejudice,

supported by suitable affidavits, declarations, or supplemental

evidence to enable the court to consider the need for any further

injunctive relief or a declaratory judgment. Defendants will be

given ten (10) days to file a reply brief and any affidavits,

declarations, or other supplemental evidence Defendants’ reply

brief is not required, but rather it is optional on the part of

defendants. Then, the undersigned will prepare a Report and

Recommendation determining whether plaintiff is entitled to any

further relief.

Il. Recommendation

For the reasons stated above, it is recommended that

Apdx. B - 14

defendants’ motion to dismiss be granted as to plaintiff's

damages claims against defendants. It is further recommended

that the Department of Corrections be dismissed as a defendant.

Any objections to this Report and Recommendation must

be filed within ten (10) days of its service. 28 U.S.C.

§363(b)(1); E.D. Mich. LR 72.1(d)(2). Failure to file objections

within the specified time constitutes waiver of any further right

of appeal. Thomas v. Arn, 474 U.S. 140(1985); Ivey v. Wilson,

832 F.2d 950, 957-58 (6th Cir. 1987); United States v. Walters,

638 F.2d 947 (6th Cir. 1981). Pursuant to E.D. Mich. LR

72.1(d\(2), a copy of any objections is to be served upon this

Magistrate Judge.

Within ten (10) days of service of any objecting party’s

timely filed objections, the opposing party may file a response.

The response shall be not more than five (5) pages in length

unless by motion and order such page limit is extended by the

Court. The response shall address specifically, and in the same

order raised, each issue contained within the objections.

Regarding plaintiff's claim for any declaratory or further

injunctive relief against defendants in their official capacities, It

is Ordered that plaintiff file a supplemental response

demonstrating any actual prejudice by February 10, 1998.

Defendant may file a reply brief within ten (10) days.

s/s_ Steven D. Pepe

Steven D. Pepe

United States Magistrate Judge

Dated: Jan 21 1998

Ann Arbor, Michigan

Pursuant to Rule 77(d), FRCivP copies

have been mailed to the following:

Linda Olvieri

Apdx. B - 15

Daniel Willman

on 1/21/99

/s/

Deputy Clerk

Apdx. B - 16

2 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MERVIN SCOTT WILLMAN,

PLAINTIFF, CASE NO. 97-CV-73866-DT

VS.

MICHIGAN DEPARTMENT OF HONORABLE GERALD E. ROSEN

CORRECTIONS, KENNETH HONORABLE STEVEN D. PEPE

MCGINNIS, DENNIS STRAUB,

RALPH MORGAN, SUED IN

THEIR OFFICIAL AND

INDIVIDUAL CAPACITIES,

DEFENDANTS.

SUPPLEMENTAL REPORT AND RECOMMENDATION

Plaintiff, an inmate in the custody of the Michigan

Department of Corrections, filed this suit under 42 U.S.C. 1983

alleging that defendants violated his constitutional rights.

Defendants filed a motion to dismiss pursuant to Fed. R. Civ. P.

12(b\(1) and 12(bX6). On January 21, 1998, I entered a report

recommending that defendants’ motion to dismiss be granted as

plaintiff s damages claims and that the Department of Corrections

be dismissed as a defendant. As to plaintiff's claim of denial of

access to the courts for declaratory or injunctive relief, I ordered

plaintiff to file a supplemental response demonstrating any actual

prejudice suffered by plaintiff. On February 9, 1998, plaintiff

filed a response to my January 21, 1998, Order. This report and

recommendation addresses plaintiff's claim of a violation of his

constitutional right of access to the courts for declaratory and

injunctive relief.

Apdx. C -1

3. BACKGROUND’

Plaintiff Melvin Scott Willman is a prisoner, housed at the

Robert Cotton Correctional Facility located in Jackson, Michigan.

Plaintiff's brother, an attorney, is representing him in a habeas

corpus action which was to be filed by October 28, 1997.

Plaintiff's brother is also representing him in the present action.

A temporary restraining order was issued by Judge Friedman, in

Judge Rosen’s absence, ordering the individual defendants to

permit plaintiff's attorney to visit plaintiff during non-family

visitation hours. The temporary restraining order expired on

October 28, 1997.

Plaintiff alleges that defendants have violated his First

Amendment right of access to the courts to petition for redress of

his grievance by restricting his attorney-brother’s visits to family

visitation hours only. According to plaintiff, he was denied

Visitation with his attorney during non-family visitation hours

because his attorney is a family member, pursuant to Michigan

Prison Rule 607, Mich. Admin. Code r. 791.6607, which

prohibits visitation with a prisoner by his attorney during

non-family visitation hours if the attorney is related to the

prisoner.’ Plaintiff's remaining claims against defendants are

' The facts surrounding plaintiff's complaint are more fully

described in my earlier Report and Recommendation dated

January 21, 1998.

* Rule 607 provides in part that:

(2) Except when the person is related to the prisoner by

blood or marriage, a prisoner shall be allowed to visit

with any of the following persons, who shall not be

required to be on the prisoner’s approved visitor list:

** + .

Apdx. C -2

‘ii iste RMR eth SN die Mio cta ions wikis ond Lau tiers casas alana

renin ERIE ENRON chee Sean Ca eR

for declaratory and injunctive relief.

In their Motion to Dismiss, defendants proffered prison

security justifications for the specific restriction placed on family

member attorneys. Defendants also challenged plaintiff's First

Amendment claim, arguing that plaintiff failed to plead any facts

showing actual prejudice suffered by plaintiff in the pending

habeas action due to the restriction.

In plaintiff's response to the January 21, 1998, Order,

plaintiff claims that he has suffered monetary damages in having

to seek a temporary restraining order and to file the present

action in order that he have access to his counsel for his habeas

action.*

II. STANDARD OF REVIEW

A. Dismissal pursuant to Fed, R. Civ, P. 12(b)(6)

In deciding a motion to dismiss pursuant to Fed. R. Civ.

P. 12(b\(6), a court must accept all well-pleaded allegations as

professional or law clerk who is acting as an aide to

counsel for the prisoner.

(Michigan Prison Rule 607, Mich. Admin. Code r. 791.6607)

* Plaintiff also claims that he suffered prejudice when he was

transferred to a different cell allegedly because of retaliatory

motives, when he was allegedly denied proper medical treatment

for his tooth and his shoulder, and when defendants allegedly

interfered with his legal mail. These claims do not deal with any

prejudice suffered by plaintiff for purposes of the present action

relating to the restriction on access to his attorney. Therefore,

those new claims are not addressed in this report and

recommendation.

Apdx. C -3

P. 12(b)(6), a court must accept all well-pleaded allegations as

true and construe them in the light most favorable to plaintiff.

Zinermon v. Burch, 494 U.S. 113, 117 (1990); SA CHARLES A.

WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE

AND PROCEDURE 1357, at 304 (2d ed. 1990). See also

Jenkins v. McKeithen, 395 U.S. 411, 421-22 (1969); Westlake v.

Lucas, 537 F.2d 857 (6th Cir. 1976). A complaint will not be

dismissed for failure to state a claim unless it appears beyond

doubt that the plaintutt can prove iv set of facts in support of his

claim which would entitle him to relief. Conley v. Gibson, 355

U.S. 41, 45-46 (1957). It is also well established, however, that

conclusory, unsupported allegations of constitutional deprivation

do not state a claim.*

* See, e.g., Ana Leon T. v. Federal Reserve Bank, 823 F.2d

928, 930 (6th Cir.) ("The allegations must be more than mere

conclusions, or they will not be sufficient to state a civil rights

claim."), cert. denied, 484 U.S. 945 (1987); Chapman v. City of

Detroit, 808 F. 2d 459, 465 (6th Cir. 1986) ("it is not enough for

a complaint ... to contain mere conclusory allegations of

unconstitutional conduct by persons acting under color of state

law. Some factual basis for such claims must be set forth in the

pleadings."); Smith v. Rose, 760 F.2d 102, 106 (6th Cir. 1985)

(conclusory, unsupported allegations insufficient to state a claim);

Keniston v. Roberts, 717 F.2d 1295, 1300 (9th Cir. 1983)

(dismissal of complaint appropriate if allegations of constitutional

deprivation are "mere conclusions"); Ross v. Meagan, 638 F.2d

646, 650 (3rd Cir. 1981) ("[T]his court has consistently

demanded that a civil rights complaint contain a modicum of

factual specificity, identifying the particular conduct of

defendants that is alleged to have harmed the plaintiffs."); Place

Apdx. C -4

oe ee PRE Ae ee ee ee re ee ie

RECA Ry epee

B. Plaintiff has failed to allege any actual prejudice

in_ support of his claim of the violation of his

First Amendment right

Plaintiff has alleged that the restrictive regulation, as

stated above, impedes his attorney’s effective handling of his

habeas claims. Plaintiff alleges that as a result of being denied

multiple visits with his attorney, he suffered monetary damages

incurred in the filing the present action. Although Michigan

Prison Rule 607 restricts plaintiffs visitation with his attorney,

plaintiff has not shown that he has suffered any actual prejudice

relating to the habeas action.

Prisoners have a First Amendment right of access to the

courts. Bounds v. Smith, 430 U.S. 817, 828, 97 S. Ct. 1491

(1977). The First Amendment right of access to the courts

includes the right to reasonable access to their counsel.

The constitutional guarantee of due process of law has as

a corollary the requirement that prisoners be afforded

access to the courts in order to challenge unlawful

convictions and to seek redress for violation so of their

constitutional rights. This means that inmates must have

a reasonable opportunity to. seek and receive the

will not. be sufficient to state a cause of action under the Civil

Rights Act if its allegations are but conclusions."); Borenstein v.

City of Philadelphia, 595 F. Supp. 853, 856 (E.D. Pa. 1984)

("[C]ivil rights complaints must be pleaded with specificity and

may not merely make conclusory allegations of constitutional

deprivations or the existence of municipal policies."); Egan v.

Concini 585 F. Supp. 801,803 (M.D. Pa. 1984) (Factual

specificity required in order to enable court to evaluate substance

of claim).

Apdx. C -5

a reasonable opportunity to seek and receive the

assistance of attorneys. Regulations and practices that

unjustifiably obstruct the availability of professional

representation or other aspects of the right of access to

the courts are invalid.

Procunier v. Martinez, 416 U.S. 396, 419, 94 S. Ct. 1800

(1974\(citation omitted).

The Sixth Circuit, citing Twyman v. Crisp, 584 F.2d 352,

357 (10th Cir. 1978), has suggested that a claim of denial of

access to the court must be supported by evidence of actual

prejudice, such as missing court deadlines for submission of

motions or responsive pleadings. Walker v. Mintzes, 771 F.2d

920, 932 (6th Cir. 1985. The inmate must have suffered an actual

interference with his case. Weaver v. Toombs, 756 F. Supp. 335,

340 (W.D. Mich. 1989).

Plaintiff has failed to demonstrate any actual prejudice

suffered with respect to his habeas action as a result of being

denied access to his attorney during non-family visitation hours.

Thus, plaintiff's claim for declaratory and injunctive relief should

be denied.

I. RECOMMENDATION

For the reasons stated above, it is recommended that

defendants’ motion to dismiss be granted as to plaintiff's claims

against defendants for declaratory and injunctive relief.

Any objections to this Report and Recommendation must

be filed within ten (10) days of its service. 28 U.S.C. 636(b)(1);

E.D. Mich. LR 72.1(d)(2). Failure to file objections within the

specified time constitutes waiver of any further right of appeal.

Thomas v. Arn, 474 U.S. 140(1985); Jvey v. Wilson, 832 F.2d

950, 957-58 (6th Cir. 1987); United States v. Walters, 638 F.2d

947 (6th Cir. 1981). Pursuant to E.D. Mich. LR 72.1(d)(2), a

copy of any objections is to be served upon this Magistrate

Apdx. C -6

Judge.

Within ten (10) days of service of any objecting party’s

timely filed objections, the opposing party may file a response.

The response shall be not more than five (5) pages in length

unless by motion and order such page limit is extended by the

Court. The response shall address specifically, and in the same

order raised, each issue contained within the objections.

s/s_Steven D. Pepe

Steven D. Pepe

United States Magistrate Judge

Dated: Feb 24 1998

Ann Arbor, Michigan

Pursuant to Rule 77(d), FRCivP copies

have been mailed to the following:

Linda Olvieri

Daniel Willman

on 1/21/99

/s/

Deputy Clerk

Apdx. C -7

—s _—

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MERVIN SCOTT WILLMAN,

PLAINTIFF, CASE NO. 97-CV-73866-DT

Vs.

MICHIGAN DEPARTMENT OF HONORABLE GERALD E. ROSEN

CORRECTIONS, KENNETH HONORABLE STEVEN D. PEPE

MCGINNIS, DENNIS STRAUB,

RALPH MORGAN, SUED IN Eastern Dist.

THEIR OFFICIAL AND of Michigan

INDIVIDUAL CAPACITIES, Filed 1/21/98 jj

DEFENDANTS.

ORDER REGARDING STAY OF PROCEEDINGS

On January 12, 1998, plaintiff filed a Motion for Stay of

the Proceedings in Order to Petition the United States Supreme

Court for an Extraordinary Writ. For reasons stated below,

plaintiff's motion for stay of the proceedings is DENIED.

In his complaint, plaintiff alleges that defendants have

violated his constitutional rights by restricting his attorney-

brother’s visits to family visitation hours only. Plaintiff's

brother, an attorney, is representing him in a habeas corpus

action which was to be filed by October 28, 1997.' Plaintiff

claims that he was denied visitation with his attorney during non-

' Daniel C. Willman, plaintiff's brother, is also representing

plaintiff in the present action.

Apdx. D - |

family visitation hours because his attorney is a family member.

The restriction was imposed pursuant to Michigan Prison Rule

607, Mich. Admin. Code r. 791.6607, which prohibits visitation

with a prisoner by his attorney during non-family visitation hours

if the attorney is related to the prisoner. The defendants have

filed motions to dismiss plaintiff's claim under Fed. R. Civ. P.

12(b)(6). In a Report and Recommendation issued this same

date, | have recommended that plaintiff's claims for monetary

damages for violation of his First Amendment rights be

dismissed. Plaintiff also sought declaratory relief and a

permanent injunction.

In his complaint, plaintiff has made only general

allegations that the restriction on access to his attorney-brother in

a federal habeas petition has impeded the effectiveness of that

habeas representation in denying plaintiff effective access to the

courts. In order to allow the plaintiff an additional opportunity

to demonstrate the nature and extent of any actual prejudice

caused by the application of Michigan Prison Rule 607 to limit

plaintiff's access to his attorney, I have granted plaintiff until

February 10, 1998, to supplement the record. Once these

submissions are obtained, the undersigned will reach a

determination as to any declaratory and/or injuctive relief to

which plaintiff may be entitled. Until this is accomplished, and

the District Judge has had an opportunity to consider both of the

Reports and Recommendations, there is no judgment nor any

meaningful order that would appear to fall within the scope of

the United States Supreme Court Rule 23 on stays. A stay of the

proceedings would unnecessarily delay resolution of this case. It

also appears that plaintiff's petition for an extraordinary writ is

without merit.

Accordingly, IT IS ORDERED that plaintiff's motion for

a stay of the proceedings is DENIED.

Apdx. D - 2

s/s_ Steven D. Pepe

tt Steven D. Pepe

United States Magistrate Judge

| Dated: Jan 21 1998

li Ann Arbor, Michigan

Pursuant to Rule 77(d), FRCivP copies

have been mailed to the following:

i Linda Olvieri

Daniel Willman

on 1/21/99

wih i eb tncihe Ba oy

/s/

Deputy Clerk

Apdx. D - 3

= —~—S

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MERVIN SCOTT WILLMAN,

PLAINTIFF, CASE NO. 97-CV-73866-DT

VS.

MICHIGAN DEPARTMENT HONORABLE GERALD E. ROSEN

OF CORRECTIONS; ET AL.

DEFENDANTS.

JUDGMENT

At a session of said Court, held in the

U.S. Courthouse, Detroit, Michigan

On Mar 25 1998

Present: Honorable Gerald E. Rosen

United States District Judge

The Court having this date entered an Order adopting the

Magistrate Judge’s two Reports and Recommendations of J anuary

21 and February 24, 1998 and granting Defendants’ Motion to

Dismiss,

NOW, THEREFORE, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that Plaintiff's Complaint, be, and

hereby is, DISMISSED in its entirety with prejudice.

4 an

; /s/_ Gerald E. Rosen

Eastern Dist. hae ag

of Michigan Gerald E. Rosen

Filed 3/25/98 United States District Judge

Apdx. E - |

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MERVIN SCOTT WILLMAN,

PLAINTIFF, CASE NO. 97-CV-73866-DT

VS.

MICHIGAN DEPARTMENT HONORABLE GERALD E. ROSEN

OF CORRECTIONS; ET AL.

DEFENDANTS.

_—

ORDER ADOPTING MAGISTRATE JUDGE’S TWO

REPORTS AND RECOMMENDATIONS AND

DISMISSING PLAINTIFF’S COMPLAINT

At a session of said Court, held in the

U.S. Courthouse, Detroit, Michigan

On Mar 25 1998

Present: Honorable Gerald E. Rosen

United States District Judge

This matter having come before the Court on Magistrate

Judge Steven D. Pepe’s January 21, 1998 Report and Recommen-

dation of his February 24, 1998 Supplemental Report and

Recommendation recommending that the Court grant Defendants’

Motion to Dismiss, and dismiss Plaintiff's Complaint in its

entirety; and Plaintiff having timely filed objections to the

Magistrate Judge’s Reports and Recommendations; and the Court

having reviewed both of the R&Rs, Plaintiff's Objections, and

the Court’s entire file of this action and having concluded that,

for the reasons stated by the Magistrate Judge, this case should

Apdx. E - 2

be dismissed in its entirety; and the Court being otherwise fully

advised in the premises,

NOW, THEREFORE, IT IS HEREBY ORDERED that

the Magistrate Judge’s Report and Recommendation of January

21, 1998 and Supplemental Report and Recommendation of

February 24, 1998 be, and hereby are, adopted by this court.

IT IS FURTHER ORDERED that, for the reasons set

forth in the Magistrate Judge’s Reports and Recommendations,

Defendants’ Motion to Dismiss be, and hereby is, GRANTED.

Plaintiff's Complaint, therefore, is DISMISSED in its entirety

with prejudice.

s/s_ Steven D. Pepe

Steven D. Pepe

United States Magistrate Judge

Le Ba NATO a ce, Biss

Apdx. E - 3

BM ANS. Cl ARE Kye IRS is ae

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MERVIN SCOTT WILLMAN,

PLAINTIFF, CASE NO. 97-CV-73866-DT

VS.

MICHIGAN DEPARTMENT HONORABLE GERALD E. ROSEN

OF CORRECTIONS, DENNIS

MCGINNIS, DIRECTOR OF

MICHIGAN DEPARTMENT OF

CORRECTIONS, DENNIS STRAUB,

ACTING WARDEN OF THE

ROBERT COTTON CORRECTIONAL

FACILITY LOCATED IN JACKSON,

MICHIGAN, AND RALPH MORGAN,

ASSISTANT TO THE WARDEN OF

THE JOHN COTTON CORRECTIONAL

FACILITY LOCATED IN JACKSON, fi

MICHIGAN, INDIVIDUALLY AND ao |

° ichigan

IN THEIR OFFICIAL CAPACITY, Filed 8/7/97

JOINTLY AND SEVERALLY,

DEFENDANTS.

ORDER GRANTING TEMPORARY

RESTRAINING ORDER

This matter having come before the court on a Motion

for Temporary Restraining Order and Preliminary Injunction, and

the court having heard the matter as presiding judge in the

absence of Judge Gerald E. Rosen, accordingly,

IT IS HEREBY ORDERED that the above-named

individual defendants shall permit attorney Daniel C. Willman

attomey visitation with his client, Mervin Scott Willman, as they

Apdx. F - |

would with any other non-related attorney action on official

attorney-client business.

IT IS FURTHER ORDERED that this order shall expire

on October 28, 1997, the deadline for filing inmate Willman’s

Petition for Writ of Habeas Corpus.

/s/_ Bernard A. Friedman

Bernard A. Friedman

United States District Judge

Dated: August 7, 1997

Detroit, Michigan

Apdx. F - 2

R. 791.6607 Visitation; visiting hours; quotas; religious;

legal, and official visits.

Rule 607. (1) The department shall establish reasonable

visiting hours and uniform quotas at each institution for visits to

prisoners to promote order and security in the institutions and to

prevent interference with institutional routine or disruption of the

prisoner’s visiting quota. A visit described i in sub rule(2) of this

rule shall not be counted toward a prisoner’s visiting quota.

(2) Except when the person is related by blood or marriage,

a prisoner shall be allowed to visit with any of the following

persons; who shall not be required to be on the prisoner’s

approved visitor list;

eA gry aS Sees de Sc i an ep Ra ett

(a) Qualified members of the clergy of the prisoner’s

designated religion or clergy that the prisoner specifically request

to see.

ORAS MA nied cata css wi

e (b) Volunteers in an outreach program that is sponsored by

an external religious organization if the volunteers meet the

requirements issued by the director for approved volunteers.

or law clerk who is acting as an aide to counsel for the prisoner.

(d) An official representative of the legislative, judicial, or

executive branch of government.

(Eff. Nov. 30, 1977; amended Eff. Oct. 29, 1993;

amended Eff. Aug. 25, 1995.)

‘ Apdx. G - 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

ARTICLE Ill. section 2. Holds in part:

The judicial power shall extend to all Cases, in

Law and Equity, arising under this Constitution,

the Laws of the United States, and Treaties.

* hin 2 Reale:

ARTICLE VI. section 2 (The Supremacy clause):

} This Constitution, and the Laws of the United

i States which shall be made in Pursuance thereof;

a and all Treaties made, or which shall be made,

under the Authority of the United States, shall be

the supreme Law of the Land; and the Judges in

every State shall be bound thereby, any Thing in

the Constitution or Laws of any State to the

Contrary notwithstanding.

1st AMENDMENT I [1791]:

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the

government for a redress of grievances.

ee: ME hE LC AL SAAB 1

11th AMENDMENT XI [1798]:

The Judicial power of the United States shall not

be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the

United States by Citizens of another State, or by

Citizens or Subjects of any Foreign State.

Apdx. H-1

CONSTITUTIONAL AND STATUTORY PROVISIONS -

continued

14th AMENDMENT XIV [1868]

Section. 1. All Persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the

State wherein they reside. No State shall make or

enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

“AMERICANS WITH DISABILITIES ACT OF 1990"

Sec. 201. DEFINITION. 42 U.S.C. § 12115:

As used in this title:

(1) Public entity. The term “public entity”means-

(A) any State or local government;

(B) any department, agency, special purpose

district, or other instrumentality of a State or States

or local government."

Sec. 202. DISCRIMINATION. 42 U.S.C. § 12132:

Subject to the provisions of this subchapter, no

qualified individual with a disability shall, by

reason of such disability, be excluded from

participation in or be denied the benefits of the

services, programs, or activities of a public entity,

or be subjected to discrimination by any such

entity.

Apdx. H-2

CONSTITUTIONAL AND STATUTORY PROVISIONS

“AMERICANS WITH DISABILITIES ACT

OF 1990" - Continued

SEC. 505. ATTORNEY’S FEES. 42 U.S.C. § 12205;

In any action or administrative proceeding

commenced pursuant to this Act, the court or

agency, in its discretion, may allow the prevailing

party, other than the United States, a reasonable

attorney’s fee, including litigation expenses, and

costs, and the United States shall be liable fore the

foregoing the same as a private individual.

Apdx. H-3

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.