                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0584n.06

                                           No. 10-5282
                                                                                          FILED
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                 Jun 06, 2012
                                                                               LEONARD GREEN, Clerk

RAYMOND MILLER,                                          )
                                                         )
       Plaintiff-Appellant,                              )
                                                         )
v.                                                       )    ON APPEAL FROM THE UNITED
                                                         )    STATES DISTRICT COURT FOR
HALLIE JONES, et al.,                                    )    THE WESTERN DISTRICT OF
                                                         )    KENTUCKY
       Defendants-Appellees.                             )
                                                         )
                                                         )



       Before: SILER and KETHLEDGE, Circuit Judges; GRAHAM, District Judge.*

       KETHLEDGE, Circuit Judge. Raymond Miller is a Kentucky prisoner. He challenges a

prison rule that requires indigent inmates to leave their legal mail unsealed for inspection. The

district court granted summary judgment to the defendants because, it concluded, there is no

evidence that prison staff had in fact inspected Miller’s mail. We reverse.

                                                 I.

       On December 16, 2008, Miller filed his first pro se complaint in this case. He challenged an

alleged prison policy under which prison staff would read “all legal mail going out” after September

22, 2008. The district court reviewed the allegation under the liberal pleading standard applicable

to pro se litigants and held that Miller had stated a claim under the First Amendment.

       *
        The Honorable James L. Graham, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 10-5282
Miller v Jones, et al.

        After the discovery period ended, Miller filed his first motion to amend the complaint. He

clarified his allegations concerning the prison’s mail policy: According to Miller, the prison staff

would read the outgoing legal mail of indigent prisoners who had obtained a postage subsidy from

the prison. The prison did so to verify that the mail was legal and thus eligible for the subsidy.

        The defendants filed a motion for summary judgment. They argued that Miller had “failed

to specify a[n] [] instance where any of his outgoing mail was actually inspected.” The defendants

therefore insisted that Miller lacked standing to sue.

        A month later, Miller filed a second proposed amended complaint. There, Miller alleged that

“interference with [his] legal mail” under the inspection policy had violated his First Amendment

rights. In addition to his original claim for damages, Miller proposed a new claim for injunctive

relief ordering the prison to revise its inspection policy. (Miller also filed a third proposed amended

complaint, which added little.)

        The district court granted the defendants’ motion for summary judgment. Miller had failed,

the court said, to assert that the defendants had read his mail under the policy. Thus, the court

concluded that Miller had suffered no injury in fact and lacked standing to sue. It also denied

Miller’s motions to amend his complaint. Finally, the court said that Miller’s amendments

concerning the inspection policy would be futile, since Miller lacked standing.

        Miller has since obtained counsel and now appeals.

                                                  II.

        Miller argues that the inspection policy violates his First Amendment right to confidential

legal mail and that he is therefore entitled to damages. See Miller Br. at 18; Washington v. Davis,

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No. 10-5282
Miller v Jones, et al.

416 F. App’x 563, 564 (6th Cir. 2011). To have standing to pursue that claim, Miller must show that

the prison has enforced the purportedly unconstitutional policy against him. See generally City of

Los Angeles v. Lyons, 461 U.S. 95, 109 (1983). He contends that the district court overlooked

evidence that the prison has done so.

        Miller failed to cite the overlooked evidence in his response to the motion for summary

judgment. But courts should consider the allegations in a pro se prisoner’s verified complaints

(which are effectively affidavits) before entering judgment against him, even if the prisoner fails to

cite that evidence in response to a motion for summary judgment. See Williams v. Browman, 981

F.2d 901, 902-04, 905 (6th Cir. 1992); see generally El Bey v. Roop, 530 F.3d 407, 414 (6th Cir.

2008). Miller’s complaint and second proposed amended complaint were both verified. We thus

consider whether the statements in those complaints, and similarly accessible evidence, would permit

a reasonable jury to conclude that prison staff inspected Miller’s mail.

        First, Miller submitted evidence that he has been indigent since the effective date of the

policy. In a November 2008 grievance, Miller said that he is unable to work for “medical reasons”

and that he only receives money from friends or relatives “about 2 to 4 times a year.” Miller also

filed, with his motion to proceed in forma pauperis, an affidavit in which a prison official certified

that Miller’s average prison-account balance in June 2008 was eight cents and that Miller received

no deposits between June and November 2008. Under prison regulations, Miller therefore qualified

as indigent for the full sixth months preceding his complaint in this case (which included the policy’s

effective date). Since the inspection policy applied to the mail of indigent inmates, a reasonable jury

could conclude that Miller has been subject to the inspection rule since its beginning.

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No. 10-5282
Miller v Jones, et al.

         Second, there is evidence that Miller has sent legal mail since the prison implemented the

policy. Attached to Miller’s first amended complaint is the docket sheet from an earlier case. Those

records say that Miller filed a “pro se response” to a motion for summary judgment on September

17, 2008 and “pro se objections” to the magistrate judge’s report and recommendations on

September 22. Presumably Miller submitted those filings himself from the prison. And in this case,

too, some of the docket entries for Miller’s filings include envelopes marked “Legal Mail” that list

the prison as Miller’s return address. Thus, Miller has sent legal mail from the prison since

September 5, 2008—the date on which the policy actually took effect—and since September 22,

2008—the date on which (according to Miller) the prison began to inspect all indigent legal mail.

         Third, there is evidence that the defendants have, since September 22, 2008, been committed

to enforcing the inspection policy categorically. According to Miller’s first verified complaint,

several defendants “stated that they will read all legal mail going out” after September 22. R. 1 at

7-8. Similarly, one of the defendants answered “yes” to an interrogatory question whether “indigent

legal mail should be left open for the mail room clerks to censor and read before mailing the legal

mail.” R. 25, Attach. 2 at 2, 6. Viewing this evidence in the light most favorable to Miller, a

reasonable jury could thus conclude by a preponderance of the evidence that the prison has inspected

Miller’s mail since September of 2008. See Kathrein v. City of Evanston, Illinois, 636 F.3d 906, 914

(7th Cir. 2011) (a plaintiff must demonstrate an injury-in-fact by a preponderance of the evidence).

A genuine dispute of fact therefore remains as to whether Miller has standing to pursue his damages

claim.



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No. 10-5282
Miller v Jones, et al.

          Miller also sought to amend his complaint to add a claim for injunctive relief that would

require the prison to rewrite its inspection policy. To demonstrate an injury-in-fact sufficient to

pursue that forward-looking claim, Miller must show more than that the prison has enforced the

policy against him in the past or that the policy “subjective[ly] ‘chill[s]’” his mailing practices.

Fieger v. Michigan Supreme Court, 553 F.3d 955, 962-966 (6th Cir. 2009); see also Lyons, 461 U.S.

at 105-106, 108. He must show that the prison is currently inspecting his mail or that there is an

“imminent” threat that the prison will do so. Fieger, 553 F.3d at 962, 967. The district court has

yet to decide this question in the first instance (or even whether Miller may add the claim to his

complaint). We therefore decline, at this stage, to address Miller’s standing to pursue injunctive

relief.

          We reverse the district court’s judgment, vacate its order denying Miller leave to amend his

complaint, and remand the case for further proceedings consistent with this opinion.




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