David Clark v. N. Johnston , 413 F. App'x 804 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0056n.06
No. 09-3068
FILED
UNITED STATES COURT OF APPEALS Jan 25, 2011
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
DAVID E. CLARK, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
N. JOHNSTON, et al., ) DISTRICT OF OHIO
)
Defendants-Appellees. )
)
)
BEFORE: KENNEDY, COLE, and ROGERS, Circuit Judges.
ROGERS, Circuit Judge. Plaintiff David E. Clark challenges the district court’s grant of
summary judgment for defendants, Art James and L. Johnson, in Clark’s claim under 42 U.S.C. §
1983 for retaliation in violation of the First Amendment. Clark claims that the defendants were not
entitled to qualified immunity on this claim because he presented enough evidence to establish a
constitutional violation. However, because Clark failed to demonstrate the protected conduct
required to make out a retaliation claim, he failed to establish the necessary constitutional violation
and the district court’s grant of summary judgment must stand. Clark also challenges the district
court’s sua sponte dismissal of his other retaliation claim, his denial-of-access-to-courts claim, and
his equal-protection claim, and Clark argues that the district court abused its discretion in making
several discretionary rulings. Because of the liberal pleading requirements for pro se litigants,
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Clark v. Johnston
Clark’s other retaliation claim must be reinstated, but the dismissal of his remaining claims must be
affirmed. Moreover, Clark’s challenge to the district court’s discretionary rulings lacks merit.
I.
In March 2007, Clark, a prisoner in the Ohio State Penitentiary (OSP) acting pro se, filed a
civil rights complaint against various prison officials pursuant to § 1983. Clark named thirteen
defendants in his original complaint, including James and Johnson, and alleged due process
violations, cruel and unusual punishment, denial of access to courts, and violations of the First and
Sixth Amendments. Clark described the conduct of prison officials from March 2005 through June
2005, as constituting “a pattern of calculated harassment and retaliation in response to [Clark’s]
testifying in federal court in a civil rights lawsuit brought by the ACLU . . ., and for complaining
about actions of individual staff, and conditions in [the] prison.” Specifically, Clark asserted that
prison officials conducted a “pack-up” of his personal property “in violation of established institution
and department policy,” singled him out for a 2.4 policy inspection of his belongings,1 denied him
access to his legal property, and retaliated against him when he attempted to complain about his
treatment to an official from the Ohio Department of Rehabilitation and Corrections (ODRC) who
was visiting the prison.
On June 27, 2007, Clark filed an amended complaint with the district court. This complaint
included the same thirteen defendants and added four more named defendants and one John Doe.
1
This prison policy limits the amount of personal and legal property an inmate may possess,
without special authorization, to not more than 2.4 cubic feet.
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In his amended complaint, Clark alleged violations of his Fourteenth Amendment property rights,
equal protection rights, First Amendment rights, Sixth Amendment rights, and Eighth Amendment
rights. Clark claimed that prison staff “conspir[ed] to violate [his] constitutional rights both for [his]
participation and testimony in federal court in a class action against [the prison], and for [his]
complaints against some of them individually.” In particular, Clark asserted that he was deprived
of various items of personal property in violation of established prison policy, selectively chosen by
prison officials for enforcement action, retaliated against for filing complaints and grievances against
prison officials, threatened by a prison official, denied access to the courts through the deprivation
of his legal property, placed in segregation pursuant to false conduct reports, and entrapped into
making a forbidden three-way telephone call and subsequently punished for this call.
On July 12, 2007, the district court dismissed all of Clark’s claims sua sponte and pursuant
to 28 U.S.C. § 1915(e), except part of his retaliation claim against James and Johnson. The district
court explained that it was “required to dismiss an in forma pauperis action under 28 U.S.C. §
1915(e) if it fails to state a claim upon which relief can be granted, or if it lacks an arguable basis
in law or fact.” In its ruling, the district court noted that there were no allegations in the amended
complaint against many of the named defendants, and that “[a] plaintiff cannot establish the liability
of any defendant absent a clear showing that the defendant was personally involved in the activities
which form the basis of the alleged unconstitutional behavior.” Further, the district court explained
that: (1) as to Clark’s claim of violation of due process for deprivation of personal property, there
was no indication that Clark suffered an unconstitutional taking, and, even if there was, Clark failed
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to plead and prove that state remedies for redressing the wrong were inadequate; (2) as to Clark’s
claim of violation of due process for segregation, Clark failed to assert the existence of a
constitutionally cognizable liberty or property interest with which the state had interfered; (3) as to
Clark’s equal protection claim, there was no suggestion that other inmates were permitted to possess
property in excess of the 2.4 policy limitation, nor that the officers purposefully intended to
discriminate against Clark because of his membership in a suspect class; (4) as to Clark’s Eighth
Amendment claim, there were no facts alleged to suggest that an officer challenging Clark to a
physical altercation presented the type of extreme and serious deprivation required for this type of
claim; (5) as to Clark’s claim of denial of access to courts, Clark failed to demonstrate that he
suffered any actual injury; and (6) as to Clark’s retaliation claims regarding the deprivation of his
personal property, Clark failed to show that the adverse actions taken against him were motivated
by the grievances he filed. These claims were dismissed, leaving only Clark’s retaliation claim
against James and Johnson—in regard to placing him in segregation after speaking with an ODRC
official—for the district court to consider.
Shortly thereafter, Clark moved to alter or amend this § 1915(e) judgment against him, and
the motion was referred to Magistrate Judge George J. Limbert for review. In the meantime, the
court issued an entry of default against the defendants pursuant to Federal Rule of Civil Procedure
55(a) because they had failed to file any pleadings in their defense, and Clark later moved for a
default judgment. However, the defendants sought to set aside this entry of default and opposed the
motion for default judgment because they alleged that they had both promptly submitted requests,
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per ODRC procedure, for Attorney General representation and were unaware that, due to an ODRC
oversight, this representation had not been provided. Because the defendants did not act willfully
or intentionally in delaying the proceedings, Clark was not prejudiced by the delay, and the
defendants had a number of potentially meritorious defenses, the district court granted the
defendants’ motion to set aside the entry of default and denied Clark’s motion for default judgment.
Defendants then moved for a protective order staying discovery until the issue of qualified immunity,
which the defendants had asserted, was resolved. The district court also granted this motion, and
ruled that “[o]nce the Court has issued its [order on the motion to alter or amend the § 1915(e)
order], this case will proceed in a bifurcated basis, with the issue of immunity addressed first.”
In January 2008, the magistrate judge submitted his Interim Report and Recommendation in
regard to Clark’s motion to alter or amend the § 1915(e) judgment. The magistrate judge
recommended that the court grant Clark’s motion insofar as it related to his claim of denial of access
to courts because of the alleged seizure of his legal materials, but deny all of the remaining grounds
for relief. In his recommendation regarding the denial-of-access-to-courts claim, the magistrate
judge explained:
Plaintiff claims that he was unable to plead the non-frivolous nature of his claims
because he is unable to remember the basis of his claims without access to the legal
materials that he alleges the prison officials seized. Plaintiff further claims that he
intends to file a Rule 26(B) Application for Reopening of Appeal and a federal
habeas corpus petition. Lastly, Plaintiff contends that he can show good cause as to
why he did not file a 26(B) motion within 90 days, as the Rule requires, and he
contends that he is able to make a strong showing of actual innocence that would
permit him to file a petition for habeas corpus that would otherwise be barred.
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(Citations omitted.) Though the magistrate judge “agree[d] with Judge Lioi’s application of the law
and [found] no clear error,” he urged the trial judge to use her discretion under Federal Rule of Civil
Procedure 59(e) to grant this motion to alter or amend. Judge Limbert encouraged the district court
to take this action “because Plaintiff’s assertion that he was impeded from sufficiently pleading the
non-frivolous nature of his potential suits is not the type of assertion that is typically expected under
the notice-pleading requirement,” and because “Plaintiff’s shortcoming does not prejudice
Defendants because, assuming his allegations are true, he was incapable of pleading the factual basis
of his claim due to the Defendants’ actions.” However, the district court rejected the magistrate
judge’s recommendation in regard to the denial-of-access-to-courts claim, stating, “The Court
adheres to its original conclusion that Plaintiff has failed to show actual injury as a result of the
conduct of any defendants.” The district court adopted the remainder of the magistrate judge’s
recommendation, and denied Clark’s motion to alter or amend the judgment.
Clark moved for summary judgment on the issue of qualified immunity in June 2008. In his
motion, Clark argued that he was engaged in constitutionally protected conduct when defendants
took adverse actions against him, that these adverse actions were motived by this constitutionally
protected conduct, and that defendants would not have taken these actions had the protected conduct
not occurred. Further, Clark claimed that “by failing to respond in the time [allotted] pursuant to
Fed. R. Civ. P. 36(a), to plaintiff’s requests for admissions, defendants admit [all of the allegations
in the motion].” In response, defendants moved for summary judgment on the issue of qualified
immunity. Defendants first argued that no constitutionally protected right had been violated because
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no inmate has a federally protected right to be free from false conduct reports, to file personal-
property-loss claims in state court, or to dictate how a state prison department will conduct its
business. Defendants also argued, in the alternative, that no clearly established constitutionally
protected right existed, as “[n]o reasonable prison official would have known by May 12, 2005, that
any alleged act or omission set forth in this action would impinge on a federally protected right.”
Defendants also filed a response to Clark’s motion for summary judgment, which incorporated the
arguments from their own motion. In addition, the defendants’ response alleged that Clark’s claim
that defendants failed to timely answer his request for admissions was incorrect because the court
stayed discovery unless related to the issue of qualified immunity. In response to defendants’
arguments, Clark clarified that he was not arguing that he had a federally protected right to be free
from false conduct reports or to file personal-property claims. Instead, Clark stated that he was
simply arguing that the filing of a false report in this case constituted retaliation, and that once
inmates are allowed to file state property claims and/or complaints and grievances, it is
unconstitutional to retaliate against them for doing so. In addition, Clark argued that he was not
trying to dictate how to conduct prison business when speaking with the ODRC official, but, instead,
that he was merely responding to the official’s inquiry regarding the conditions at the prison.
The magistrate judge, in his second Interim Report and Recommendation, suggested that the
district court deny Clark’s motion, grant defendants’ motion in part, and deny defendants’ motion
in part. In particular, the magistrate judge recommended that the district court grant defendants’
motion for summary judgment on qualified immunity “insofar as it relates to alleged acts taken in
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retaliation for Plaintiff’s pursuit of: an informal grievance that he voiced to [ODRC] chief legal
counsel during his tour of OSP; appeals from his criminal conviction; or other grievances upon
which Plaintiff was attempting to exhaust his administrative remedies,” and “insofar as it relates to
[Clark’s] participation in a federal class action suit against OSP . . . and Defendant Johnson’s alleged
participation in a false conduct report dated June 2, 2005.” However, the magistrate judge
recommended that the district court deny defendants’ motion “insofar as it relates to [Clark’s]
participation in a federal class action suit against OSP . . . and Defendant James’ alleged
participation in a false conduct report dated May 12, 2005; Defendant Johnson’s alleged participation
in a false conduct report dated May 5, 2005; and Defendant James[’] alleged participation in a false
conduct report dated June 2, 2005.” This recommendation hinged largely on defendants’ failure to
file a timely response to Clark’s requests for admissions, which led the magistrate judge to deem
those allegations admitted pursuant to Federal Rule of Civil Procedure 36. Accordingly, the
magistrate judge found that “the body of evidence available for ruling upon the instant motion for
summary judgment includes Plaintiff’s Declaration, his requests for admissions, . . . and the conduct
reports from May 5, 2005, May 12, 2005, and June 2, 2005, which Defendants explicitly admit are
authentic.”
After the magistrate judge issued his recommendation, the defendants moved for leave to
withdraw and amend their responses to the request for admissions pursuant to Federal Rule of Civil
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Procedure 36(b).2 Defendants first argued that Clark’s request for admissions exceeded the scope
of discovery, and, thus, no answers were needed and no requests should have been deemed admitted.
Alternatively, defendants claimed that the court should permit any untimely responses to be
withdrawn and amended as the disputed admissions negated the defense of qualified immunity on
factual grounds, precluding the case from being heard on the merits, and Clark would not be injured
in his ability to develop his case or dispute defendants’ legal arguments if these admissions were
withdrawn. In response to this motion, Clark noted that the magistrate judge found defendants’
argument that Clark’s request exceeded the scope of discovery to be without merit. In addition,
Clark argued that the district court has broad discretion in determining whether to grant leave to
withdraw and amend admissions under Rule 36(b), and that it should not exercise that discretion in
this case because defendants purposefully chose not to respond to this request in reliance on a
spurious legal theory. Finally, Clark contended that defendants failed to identify “which of [their]
admissions that they wish to withdraw or amend and how it would subserve the merits,” and that
Clark would be prejudiced by the granting of this motion as it would require the re-opening of
2
This provisions states,
A matter admitted under this rule is conclusively established unless the court, on
motion, permits the admission to be withdrawn or amended. Subject to Rule 16(e),
the court may permit withdrawal and amendment if it would promote the presentation
of the merits of the action and if the court is not persuaded that it would prejudice the
requesting party in maintaining or defending the action on the merits. An admission
under this rule is not an admission for any other purpose and cannot be used against
the party in any other proceeding.
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discovery on the issue of qualified immunity, amendment of the motions for summary judgment, and
sanctions against the defendants for delay.
In December 2008, the district court issued a Memorandum Opinion and Order granting
defendants’ motion for leave to withdraw their response to the request for admissions, and granting
defendants’ motion for summary judgment on the issue of qualified immunity. In regard to the
motion for leave to withdraw, the district court framed the defendants’ request as follows:
[Defendants] argue that the requests went beyond the permissible scope of discovery
on qualified immunity. They seek leave to withdraw the May 7th responses or, in the
alternative, for an order that, even if the deemed admissions are not withdrawn, they
are not relevant to the issue of qualified immunity and, therefore, have no bearing on
the analysis for the motions for summary judgment.
The district court explained that it had “considerable discretion” in deciding whether to grant this
motion, but that it saw “no connection to the issue of qualified immunity” when reviewing the
various requests for admissions. Accordingly, the court felt that “[t]hese requests go to the merits
of the underlying claims, matters which are not yet before the court,” and reasoned that “[a]lthough,
strictly speaking, defendants probably should have responded by making timely objections, the fact
is, these discovery requests should not have been made because discovery was stayed as to the
merits.” The district court also found that there would be no prejudice to Clark in granting this
motion, as Clark had not shown the kind of “special difficulties” required for a showing of prejudice.
Regarding defendants’ motion for summary judgment, the district court stressed its previous
§ 1915(e) ruling, which construed Clarks’ complaint as “alleging a two-pronged retaliation claim:
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pertaining to plaintiff’s personal property dispute and pertaining to his placement in segregation.”
The district court explained,
Although the complaint makes mention of the fact that plaintiff was a party to the
federal class action law suit, it never alleges that Johnson and James, the only
remaining defendants, had any knowledge of his participation in that litigation and,
more importantly, the complaint never alleges any nexus between the defendants’
adverse behavior (i.e., the alleged false conduct reports) and his participation in prior
litigation. Plainly put, the complaint does not allege that the three allegedly false
conduct reports were motivated by retaliation for plaintiff’s participation in the now-
closed federal class action lawsuit.
Instead, according to the district court, Clark alleged that the May 12, 2005 conduct report was
motivated by Clark’s complaints to the ODRC official, Clark implied that the May 5, 2005 conduct
report, if anything, was motivated by these same complaints, and Clark failed to assert that the June
5, 2005 conduct report was done in retaliation for participating in the class action suit. Finally, the
district court appeared to imply that summary judgment would be appropriate even if it had not
granted defendants’ motion to withdraw their responses to admissions, when noting that “even if
there were an outright admission that James entrapped Plaintiff into a disciplinary violation, there
is nothing to establish that it was done in retaliation for participating in a class action lawsuit.” Clark
now appeals these rulings.
II.
As a preliminary matter, Clark alleges that the district court should have considered both his
original and amended complaints in making its rulings, but Clark did not clearly incorporate the
former with his filing of the latter. When a pleading is amended pursuant to Federal Rule of Civil
Procedure 15(a), the amended pleading supersedes the original pleading, i.e., “the original pleading
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no longer performs any function in the case and any subsequent motion made by an opposing party
should be directed at the amended pleading,” 6 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1476 (3d ed. 2010) (footnote omitted); see also Parks v. Fed. Express
Corp., 1 F. App’x 273, 277 (6th Cir. 2001). If, however, the party submitting the pleading clearly
intended the latter pleading to supplement, rather than supersede, the original pleading, some or all
of the original pleading can be incorporated in the amended pleading. See Wright & Miller, supra;
see also Anson v. Corr. Corp. of Am., No. 4:06-CV-1672, 2007 WL 1467058, at *1 n.2 (N.D. Ohio
May 16, 2007). Clark did not clearly indicate that he intended his amended pleading to supplement,
rather than supersede, his original pleading. Accordingly, it was appropriate for the district court to
rely solely on the amended pleading in making its rulings. However, even if the district court erred
in this regard, the error would not affect the outcome of this case as Clark’s original complaint does
not provide any additional information sufficient to cure the deficiencies in Clark’s claims.
III.
Because Clark failed to establish that the underlying claim he was allegedly retaliated for had
any merit—one of the elements required to prove a First Amendment retaliation claim—no
constitutional violation occurred. The district court was therefore warranted in finding defendants
immune from suit and, thus, in granting summary judgment on this issue in their favor. Clark alleges
that defendants are not entitled to qualified immunity because they violated his First Amendment
rights when they retaliated against him after he complained to an ODRC official visiting the prison
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about the general conditions of the prison.3 In order to demonstrate a First Amendment retaliation
claim, Clark needed to prove among other things that he engaged in protected conduct in the first
place. Siggers-El v. Barlow, 412 F.3d 693, 699 (6th Cir. 2005) (citing Thaddeus-X v. Blatter, 175
F.3d 378, 393 (6th Cir. 1999) (en banc)).
Clark failed to show that he was engaged in protected conduct when the defendants allegedly
retaliated against him. Although “[a]n inmate has an undisputed First Amendment right to file
grievances against prison officials on his own behalf, . . . [t]his right is protected . . . only if the
grievances are not frivolous.” Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000). In other
words, an inmate’s pursuit of grievances against prison officials can constitute protected conduct for
purposes of a retaliation claim, but “only to the extent that the underlying claims ha[ve] merit.” Id.Summary judgment was proper for Clark’s retaliation claim based on the complaints he made
about OSP officials to an ODRC official because there was no basis shown for the underlying
complaint. Though Clark continually asserts that he complained to the ODRC official in an attempt
to gain access to his legal property, and, by doing so, gain access to the courts, he fails to present any
evidence regarding the legitimacy of his complaints regarding his legal property or regarding his
denial of access to courts. In his amended complaint, Clark alleges only that he “was speaking to
3
The district court’s qualified immunity ruling was limited to this particular retaliation claim
only. Clark’s other retaliation claims—regarding Clark’s participation in a class action lawsuit and
his filing of complaints and grievances against OSP staff—were dismissed pursuant to § 1915(e)
and, thus, were not properly before the district court on motion for summary judgment. The district
court did, however, discuss Clark’s claim of retaliation for his involvement in a class action suit and
for filing other complaints and grievances in its Memorandum Opinion and Order in order to respond
to the magistrate judge’s incorporation of these claims in his Interim Report and Recommendation.
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the chief legal counsel for the [ODRC] about [his] confiscated legal property when the UMA (Unit
Management Administrator) interjected himself in the conversation, he didn’t like [Clark’s]
complaints about [the UMA’s] job performance, so [the UMA] had [Clark] put in the hole for no
reason.” Further, when moving for summary judgment, Clark merely stated,
Then when defendant James was telling [the ODRC official] that he and other staff
had been trying to help plaintiff with his property issue and plaintiff pointed out to
[the ODRC official] that defendant James hadn’t even answered the complaint on the
issue that he had instructed plaintiff to send, James ordered plaintiff to go to his cell
for no reason (even though plaintiff hadn’t eaten lunch yet).
Neither filing demonstrates that Clark’s complaints about the defendants’ job performance were
legitimate, nor that his complaints about the defendants failing to answer his previous grievances
were not frivolous. Thus, Clark failed to show that he was engaged in protected conduct when the
defendants acted adversely against him. Without such a showing, Clark cannot make out a
constitutional violation, and defendants are entitled to qualified immunity on this retaliation claim.
Clark relies on Siggers-El v. Barlow to support his argument for reversal, but that case is
distinguishable. Siggers-El involved an inmate’s suit against a prison official for allegedly
transferring the inmate in retaliation for the inmate’s complaining to the official’s supervisors that
the official had not authorized disbursements from the prisoner’s account to pay his lawyer. 412
F.3d at 696. The defendant in Siggers-El moved for summary judgment on the basis of qualified
immunity and the district court denied this motion. Id. On appeal, this court upheld the district
court’s denial despite the defendant’s arguments that Siggers-El failed to demonstrate that he was
engaged in protected conduct or that he suffered an adverse action. Id. at 699-702. In particular, the
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defendant argued “that although a prisoner has a right to file non-frivolous lawsuits and grievances,
a prisoner may not, as the Plaintiff did, orally complain to an officer’s superior regarding the
officer’s conduct,” because that “is ‘inconsistent with [plaintiff’s] status as a prisoner or with the
legitimate penological objectives of the corrections system.’” Id. at 699 (alteration in original).
However, this court did not accept that the defendant accurately characterized Siggers-El’s conduct,
as the conduct was not merely going over defendant’s head, but rather was “part of [Siggers-El’s]
attempt to access the courts,” which prisoners have a constitutional right to do. Id. Moreover, we
explained that the record did not support the defendant’s contention that Siggers-El’s actions
conflicted with legitimate penological objectives, as the defendant admitted that Siggers-El did
nothing wrong and the defendant’s supervisors legitimated Siggers-El’s complaints by responding
to them. Id. at 700-01.
Siggers-El did not suffer from the same deficiency in his argument as Clark does in this case
because the prison supervisors, and even the defendant himself, legitimated Siggers-El’s informal
complaints. The problem with Clark’s case is not that his complaint was informally made, but that
it has not been shown to have had any merit. However, unlike the district court in Clark’s case, the
district court in Siggers-El’s case did not address the merits of his complaint, and the defendant did
not contest that on appeal. Because Clark did not establish any constitutional violation, the district
court correctly granted summary judgment in favor of defendants.4
4
In reaching this decision, we do not rely on the warden’s argument that “Clark’s conduct was
improper because it was not consistent with his status as an inmate and not consistent with legitimate
penological objectives.”
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IV.
Clark’s remaining claims were dismissed early in the proceedings for failure to state a claim.
Unlike the retaliation claim discussed above, these dismissals were pursuant to 28 U.S.C. § 1915(e)
and can only be upheld if the claim is not even plausible on its face. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Under that standard, Clark adequately pleaded a First
Amendment retaliation claim against the defendants based on his participation in a class action
lawsuit, but he did not adequately plead a denial-of-access-to-courts claim or an equal-protection
claim. This court reviews de novo the district court’s dismissal of a complaint pursuant to § 1915(e).
Thomas v. Eby, 481 F.3d 434, 437 (6th Cir. 2007). Moreover, in reviewing Clark’s pleadings, this
court must also keep in mind the relaxed standards when reviewing pleadings filed by pro se
litigants; specifically, this court “may not uphold the dismissal of such a pleading ‘simply because
[we] find[] the plaintiff’s allegations unlikely’” Id. (alteration in original) (quoting Denton v.
Hernandez, 504 U.S. 25, 33 (1992)).
A.
Clark adequately pleaded a First Amendment retaliation claim against the defendants based
on his participation in a class action lawsuit and the filing of other complaints and grievances, which
allegedly led to the confiscation of his personal and legal property.5 “To state a claim alleging
5
The district court differentiated between Clark’s retaliation claims based on the adverse
actions taken—confiscation of Clark’s personal and legal property, and Clark’s placement in
segregation. However, this opinion differentiates between Clark’s retaliation claims based on the
protected conduct alleged—Clark’s participation in a class action lawsuit and his filing of other
complaints and grievances, and Clark’s complaint to an ODRC official. For clarification, the
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retaliation for exercising a constitutional right, a plaintiff must show that (1) he engaged in protected
conduct; (2) that defendant took an adverse action against him . . .; and (3) that the adverse action
was taken (at least in part) because of the protected conduct.” Id. at 440 (citing Thaddeus-X, 175
F.3d at 394). Clark clearly pleaded the first element. We have already noted that the filing of
grievances against OSP officials constitutes protected conduct as long as the grievance is not
frivolous, and there is no duty to plead that a grievance is not frivolous in order to survive dismissal
at the pleading stage. See id.As for the second element, “[i]n order to determine whether actions of lesser severity [than
administrative segregation] merit being deemed ‘adverse’ for purposes of a retaliation claim,” this
court must ask whether the “adverse action is one that would ‘deter a person of ordinary firmness’
from the exercise of the right at stake.” Thaddeus-X, 175 F.3d at 396 (quoting Bart v. Telford, 677
F.2d 622, 625 (7th Cir. 1982)). “[W]hile certain threats or deprivations are so de minimis that they
do not rise to the level of being constitutional violations, this threshold is intended to weed out only
inconsequential actions, and is not a means whereby solely egregious retaliatory acts are allowed to
proceed past summary judgment.” Id. at 398. In Bell v. Johnson, 308 F.3d 594 (6th Cir. 2002), this
court found that evidence showing that defendants left plaintiff’s cell in disarray, confiscated his
legal papers without returning them, and stole his medical diet snacks was sufficient to meet
retaliation claim regarding Clark’s participation in a class action lawsuit and his filing of other
complaints and grievances also alleges that his personal and legal property were confiscated because
of these actions. Meanwhile, the retaliation claim regarding Clark’s complaint to an ODRC official
also alleges that he was placed in segregation because of his actions.
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plaintiff’s burden under the adverse action prong of the retaliation claim. Id. at 605. Further, this
court acknowledged that “a number of cases from other circuits have held that confiscating an
inmate’s legal papers and other property constitutes sufficient injury to support a First Amendment
retaliation claim,”6 id. at 604, and that “we have previously suggested in dicta that a retaliatory cell
search and seizure of an inmate’s legal documents satisfies the adverse action prong of the
Thaddeus-X test,” id. (citing Walker v. Bain, 257 F.3d 660, 664 (6th Cir. 2001)). Though Bell
involved the district court’s grant of judgment as a matter of law against a prisoner-plaintiff claiming
he was retaliated against, its analysis is instructive in demonstrating what can constitute an adverse
action. Because deprivation of personal and legal property can be considered an adverse action,
Clark adequately pleaded facts and allegations sufficient to establish the second element of this
retaliation claim.
6
In making this reference to other circuits, Bell cited the following cases:
Penrod v. Zavaras, 94 F.3d 1399, 1404 (10th Cir. 1996) (reversing grant of summary
judgment to defendants on inmate’s claim that guards conducted harassing cell
searches, seized legal materials, refused to provide inmate with hygiene items, and
transferred inmate to segregation in retaliation for suit against prison officials); Green
v. Johnson, 977 F.2d 1383, 1389-91 (10th Cir. 1992) (holding that inmate’s
allegation that guards destroyed his legal materials in retaliation for his filing of suits
and grievances stated a cognizable First Amendment claim); Wright v. Newsome, 795
F.2d 964, 968 (11th Cir. 1986) (same); Hall v. Sutton, 755 F.2d 786, 787-88 (11th
Cir. 1985) (holding that inmate alleged sufficient facts to state a claim of First
Amendment retaliation based upon the alleged confiscation of his tennis shoes in
retaliation for a prior lawsuit against prison officials).
Bell, 308 F.3d at 604.
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As for the third element,“[b]ecause the question is whether the adverse action was taken (at
least in part) because of the protected conduct, the causation inquiry centers on the defendant’s
motive.” Thomas, 481 F.3d at 441. It cannot be said that Clark has failed to state any claim for
retaliation upon which relief may be granted, especially when considering the less stringent pleading
requirements for pro se litigants. In his complaint, Clark alleges that his constitutional rights were
violated “both for [his] participation and testimony in federal court in a class action against OSP, and
for [his] complaints against some of them individually.” Clark further claims that the “2.4 cubic feet
and pack-up procedures” were inadequate, and that application of them to him violated his First
Amendment rights “because these adverse actions were taken against [him] for exercising [his] rights
to access the courts and filing complaints and grievances.” According to these allegations, Clark
might be able to put forth evidence connecting these officers’ actions to Clark’s involvement in a
class action lawsuit, entitling Clark to relief for retaliation. Even if it is unlikely that Clark will
prove these facts, that does not make dismissal appropriate. See id. at 437. Thus, Clark adequately
pleaded retaliation, through the confiscation of his property, for his involvement in a class action
lawsuit and his filing of other complaints and grievances.7
B.
Because Clark did not adequately plead a denial-of-access-to-courts claim, the district court
was correct in dismissing this claim pursuant to § 1915(e). Though prisoners do have a
7
This does not mean that Clark would survive a motion for summary judgment by defendants
on this claim, but the district court did not rule upon this particular retaliation claim at the summary
judgment stage.
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constitutional right to meaningful access to the courts, which is grounded in many sources, in order
to adequately state a claim for a denial of access to courts, a prisoner must set forth actual prejudice
to pending litigation that challenges his conviction or conditions of confinement. Lewis v. Casey,
518 U.S. 343, 351-55 (1996). In addition, Lewis requires that the prisoner demonstrate that the
underlying claim allegedly prejudiced is not frivolous. Hadix v. Johnson, 182 F.3d 400, 405-06 (6th
Cir. 1999); see also Christopher v. Harbury, 536 U.S. 403, 415 (2002) (noting that “the underlying
cause of action, whether anticipated or lost, is an element that must be described in the complaint,
just as much as allegations must describe the official acts frustrating the litigation”). “Examples of
actual prejudice to pending or contemplated litigation include having a case dismissed, being unable
to file a complaint, and missing a court-imposed deadline.” Harbin-Bey v. Rutter, 420 F.3d 571, 578
(6th Cir. 2005) (citing Jackson v. Gill, 92 F. App’x 171, 173 (6th Cir. 2004)).
Clark failed to adequately plead any specific prejudice to a non-frivolous claim that he
suffered because of the defendants’ alleged denial of access to courts. In his amended complaint,
Clark asserted only that “the confiscation of [his] legal work ha[d] prevented [him] from filing suit
for previous acts . . . and ha[d] prevented [him] from [fighting] [his] criminal case for the past two
years.” Clark did not note any specific claims that he intended to file or any specific appeals to his
criminal case that he intended to allege. Accordingly, he also failed to describe his underlying claims
or to assert their non-frivolity. Moreover, Clark did not even allege any actual injury because of this
denial of access to the courts in his original complaint—that is, reading the two complaints together
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has no impact on this dismissal.8 Clark relies upon clarifications he made within his motion to alter
or amend the district court’s § 1915(e) ruling to support his contention that he really did plead actual
injury.9 This information was not submitted, however, until after the district court entered its
judgment dismissing Clark’s complaint. Moreover, even these additional facts introduced by Clark
in his motion to alter or amend fail to demonstrate the non-frivolity of the underlying claims he
8
In his original complaint, Clark merely states, “The taking of my legal property has caused
me to not be able to fight my criminal conviction for the past two years, prevented me from being
able to [pursue] other civil rights violations, and prevented [me] from fully participating in my
current action (Austin v. Williams).”
9
In regard to his access-to-courts claim, Clark’s motion to alter or amend stated as follows:
I do not believe though I am required to present and prove all of the grounds I would
have raised in [my proposed actions] in my complaint. I couldn’t do that anyway
without the court granting my preliminary injunction request to access my legal
materials, because that’s the point, I can’t even remember some of my grounds
without my confiscated property. But I can relate some of them and the actions in
which I [planned] to raise them. There were civil rights actions for the Warden and
a Unit Manager manipulating my security and level reviews in retaliation for
comments I made about the Warden on the stand and for testifying in general in
Austin v. Wilkinson. There was another civil rights action for Sgt. Johnston ordering
other officers to write conduct reports on me when it’s really just her wanting to be
the hearing officer on her own conduct reports in retaliation for me filing complaints
and grievances against her.
As for my criminal case I [planned] to file a 26(b) Application for reopening
my appeal due to ineffective assistance of appellate counsel. And I could show good
cause why it wasn’t filed in 90 days. Keep in mind that, among other things, I was
only 15 when I was tried as an adult, and I was uneducated and indigent. I was also
working on my federal Habeas Corpus for which I can make a strong showing of
actual innocence which allows a district court to hear grounds which would otherwise
be barred.
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explains or to describe how the confiscation of his legal property affected his ability to pursue these
actions.
The district court’s dismissal of Clark’s denial-of-access-to-courts claim was appropriate,
even when reviewing it in the context of the relaxed pleading requirements afforded to pro se
litigants. In Marshall v. Knight, the Seventh Circuit explained that “[t]he requirement that prisoners
making access-to-courts claims allege specific prejudice should not be understood as an onerous
fact-pleading burden,” 445 F.3d 965, 968 (7th Cir. 2006), but the district court did not require such
“onerous fact-pleading” in this case. Moreover, Marshall also acknowledges that “notice pleading
requires plaintiffs to ‘make specific allegations as to the prejudice suffered because of the
defendants’ alleged conduct.’” Id. (quoting Ortloff v. United States, 335 F.3d 652, 656 (7th Cir.
2003)). Though the pleading standard for pro se litigants is liberal, it is not without its limits, and
does not “abrogate basic pleading essentials in pro se suits.” Wells v. Brown, 891 F.2d 591, 594 (6th
Cir. 1989) (citing, among other cases, Merritt v. Faulkner, 697 F.2d 761 (7th Cir. 1983), for the
proposition that the “duty to be less stringent with pro se complaint does not require court to conjure
up [unpleaded] allegations”). Examining the facts and allegations as presented by Clark, the district
court had a basis for determining that it was unable to even infer a denial-of-access-to-courts claim.
Thus, the district court did not err in dismissing this claim.
Clark also challenges the district court’s failure to address his additional access-to-courts
claim, which is based on his contention that the 2.4 pack-up policy itself has a chilling effect on
prisoner litigation, but Clark also failed to adequately plead this claim. Regarding this claim, Clark’s
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amended complaint stated only that “the defendant’s legal policy also violates access and Equal
protection as it restricts those inmates who engage in litigation to only being allowed to [possess]
half the [amount] of personal [property] of those who [don’t] and appears to have been specifically
designed to have a chilling effect on inmate litigation.”10 Clark failed to plead any actual injury in
relation to this additional denial-of-access-to-courts claim.11 Accordingly, Clark failed to establish
any constitutional violation in regard to the pack-up policy itself.
C.
Clark did not adequately plead an equal-protection violation under a “class of one” theory.12
Clark’s amended complaint fails to claim that he was intentionally treated differently than other
similarly situated prisoners. In order to bring a successful claim under a “class of one” theory, one
10
Clark’s original complaint did not even mention this additional access-to-courts claim.
11
Clark cites Turner v. Safley, 482 U.S. 78 (1987), to support this additional access-to-courts
claim. Clark does so in reliance on the Turner factors, which assist in determining whether a prison
regulation is reasonably related to legitimate penological interests. This court need not even reach
that inquiry, however, as it is only relevant once we have determined that a prison regulation actually
impinges on inmates’ constitutional rights, see id. at 89, and Clark failed to plead any actual injury
from the enforcement of this policy.
12
In addition to arguing that Clark failed to state a valid “class of one” equal-protection claim,
the defendants challenge the application of the “class of one” theory in the prison litigation setting,
because “[t]he enforcement of prison procedural rules by their very nature involves discretionary
decision-making based on a vast array of subjective, individualized assessments,” and because
“recognition of a ‘class of one’ theory in the prison context would subject nearly all prison officials’
decisions to constitutional review in federal court.” The defendants rely on Engquist v. Oregon
Department of Agriculture, 553 U.S. 591 (2008) (refusing to apply the “class of one” theory in the
public employment context), in making this argument, but this court need not address this larger
issue because Clark does not even fulfill the requirements of pleading a “class of one” claim.
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Clark v. Johnston
must allege that “she has been intentionally treated differently from others similarly situated and that
there is no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S.
562, 564 (2000) (per curiam). The equal-protection claim in Clark’s amended complaint states only
that his “Equal Protection rights were violated because these policies were enforced against [him]
selectively.” Moreover, Clark’s original complaint does not even allege any equal protection claims
in its listing of “Causes of Action,” nor does it state any facts that could be used to infer an allegation
that similarly situated prisoners were treated more favorably than Clark in regard to pack-up
procedures. Without at least a suggestion that other inmates at OSP were permitted to possess
property in excess of the policy’s limit or that OSP officials enforced the property limitations with
the purposeful intent of discriminating against Clark, Clark cannot make out a “class of one” equal-
protection claim.
V.
The district court’s discretionary rulings against Clark throughout this case did not constitute
an abuse of discretion. Because “[m]atters of docket control and conduct of discovery are committed
to the sound discretion of the district court,” this court “will not interfere with a trial court’s control
of its docket except upon the clearest showing that the procedures have resulted in actual and
substantial prejudice to the complaining litigant.” In re Air Crash Disaster, 86 F.3d 498, 516 (6th
Cir. 1996) (quoting In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982)).
Clark first alleges that “the district court erred in allowing Defendants to withdraw their
responses and in failing to consider the admitted facts on summary judgment,” but the district court
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did not abuse its discretion in permitting this withdrawal. Federal Rule of Civil Procedure 36(b)
permits “withdrawal or amendment if it would promote the presentation of the merits of the action
and if the court is not persuaded that it would prejudice the requesting party in maintaining or
defending the action on the merits.” Fed. R. Civ. P. 36(b). “The first prong of the test articulated
in Rule 36(b) is satisfied ‘when upholding the admission would practically eliminate any
presentation on the merits of the case.’” Riley v. Kurtz, 194 F.3d 1313, 1999 WL 801560, at *3 (6th
Cir. 1999) (quoting Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir. 1995)). The defendants’
admissions certainly could have affected the merits of the underlying claims, as without withdrawal,
defendants would have had a difficult time establishing their defense to Clark’s claims for retaliation.
As far as the second prong of the test, “‘the prejudice contemplated . . . is not simply that the party
who initially obtained the admission will now have to convince the factfinder of its truth,’ . . . [but]
rather, ‘relates to special difficulties a party may face caused by a sudden need to obtain evidence
upon withdrawal or amendment of an admission.’” Kerry Steel, Inc. v. Paragon Indus., 106 F.3d
147, 154 (6th Cir. 1997) (citations omitted). Clark was not prejudiced by the withdrawal of the
defendants’ responses. He had plenty of time during the discovery process to introduce other
evidence that would be proper for the court to consider in regard to the issue of qualified immunity,
but he failed to do so. Further, if his claim had survived summary judgment, he would have had
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additional time for discovery on the underlying merits of his claim. Therefore, the district court did
not abuse its discretion in granting defendants’ motion for withdrawal.13
Finally, the district court did not abuse its discretion in ruling on additional pre-trial
discretionary matters. Clark asserts that the district court abused its discretion in setting aside
defendants’ default, granting defendants’ requests for extensions of time and denying similar
motions by Clark, and denying Clark’s motion to file an amended complaint after defendants filed
a second answer alleging, for the first time, a statute of limitations defense. In regard to the setting
aside of defendants’ default, the federal courts have a strong preference for trials on the merits,
Shepard Claims Serv. v. William Darrah & Assocs., 796 F.2d 190, 193 (6th Cir. 1986), and a district
court properly considers three factors in determining whether to set aside an entry of default: 1)
“[w]hether the plaintiff will be prejudiced;” 2) “[w]hether the defendant has a meritorious defense;”
and 3) “[w]hether culpable conduct of the defendant led to the default.” Id. at 192. Though Clark
challenges the district court’s findings as to the third element, “[w]here the party in default satisfies
the first two requirements for relief and moves promptly to set aside the default before a judgment
is entered, the district court should grant the motion if the party offers a credible explanation for the
delay that does not exhibit disregard for the judicial proceedings.” Id. at 195. Thus, the district court
13
Clark argues that the admissions pertained to qualified immunity and thus were not outside
the district court’s limitation on discovery. However, because the district court did not abuse its
discretion in allowing defendants to withdraw their response to Clark’s request for admissions, we
need not determine whether Clark’s requests fell within the scope of discovery. Still, we recognize
that it is often difficult to distinguish the issues relevant for purposes of a qualified-immunity
analysis from those relevant to the underlying merits of the case.
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did not abuse its discretion in accepting the defendants’ entirely credible explanation for their delay
in responding to Clark’s complaint. As for the denial of Clark’s requests for extension of time and
his motion to file an amended complaint, Clark has not shown that the district court acted outside
of its “broad discretion in matters of pretrial management, scheduling and docket control.” Kimble
v. Hoso, 439 F.3d 331, 336 (6th Cir. 2006). Accordingly, the district court did not abuse its
discretion in making these rulings.
VI.
For these reasons, we AFFIRM the district court’s grant of summary judgment in favor of
defendants in regard to Clark’s claim of retaliation based on his complaints to an ODRC official
visiting the prison (and allegedly causing him to be placed in segregation), and we AFFIRM the
district court’s dismissal of Clark’s denial-of-access-to-courts and equal-protection claims.
However, we REVERSE the district court’s dismissal of Clark’s other claim of retaliation based on
his participation in a class action lawsuit and filing of other complaints and grievances (and allegedly
leading to the confiscation of his personal and legal property) and REMAND for further proceedings
consistent with this opinion.
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