                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0135n.06

                                            No. 09-2289

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                       FILED
MONTEZ KENNEDY,                                    )                   Mar 03, 2011
                                                   )                LEONARD GREEN, Clerk
       Plaintiff–Appellant,                        )
                                                   )
v.                                                 ) ON APPEAL FROM THE UNITED
                                                   ) STATES DISTRICT COURT FOR THE
M. BONEVELLE, Hearings Investigator,               ) WESTERN DISTRICT OF MICHIGAN
in their individual and official capacities,       )
et al.,                                            )
                                                   )
       Defendants–Appellees.                       )



Before: MARTIN, GIBBONS, and KETHLEDGE, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Plaintiff–appellant Montez Kennedy appeals

the district court’s decision dismissing his 42 U.S.C. §1983 complaint for failure to state a claim

upon which relief can be granted and the district court’s subsequent order denying his motion for

reconsideration. On appeal Kennedy makes three arguments. First, Kennedy argues that he was not

required to plead all of the particulars of a denial of access to the courts claim. Second, Kennedy

states that he suffered adverse consequences in retaliation for asserting his rights and sufficiently

pled facts to show this retaliatory action caused more than a de minimis injury. Third, Kennedy

asserts that he was not required to plead that post-deprivation remedies were unavailable in order to

make a claim of denial of property without due process. For the reasons that follow, we reverse the

district court with respect to Kennedy’s access to the courts and retaliation claims and remand to the
No. 09-2289
Kennedy v. Bonevelle, et al.,

district court to direct service of process, but we affirm dismissal of the procedural due process

claim.

                                                  I.

         Montez Kennedy is a state prisoner in Michigan who filed this civil rights action pursuant

to 42 U.S.C. §1983 against defendants Hearings Investigator M. Bonevelle, Warden David Bergh,

Sergeant T. Lee, Hearings Officer L. Maki, and Hearings Assistant Matthew D. Young.

         Kennedy’s case stems from complaints that he filed regarding the conditions at the Alger

Maximum Correctional Facility (“Alger”).          Kennedy alleges that he “immediately noticed

departmental and constitutional violations” upon entering Alger, and when he verbally complained,

these complaints “enraged [the staff] . . . and they . . . treat[ed] [him] with hostility.” Eventually,

Kennedy formalized his complaints and began to offer “legitimate, appropriate written

complaint[s],” thus beginning a deluge of letters and administrative complaints, which drew a

reaction from prison officials.

         Kennedy alleges that while he was making these complaints he met with hostility from the

staff. Specifically, he alleges that the staff made a false report that his cell was not in compliance

with regulations so as to “set the ground work for the deprivation [of his legal property]” and that

the staff filed a negative evaluation of him in retaliation for all of his complaints. Kennedy admits

that the warden sent officers to investigate one complaint—that he was improperly denied winter

boots—but he insists that after this investigation the “staff became enraged even more and the

hostility toward plaintiff deepened.”



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Kennedy v. Bonevelle, et al.,

       Kennedy also accuses Alger officials of conspiring with Bonevelle, the Hearings Investigator,

to deprive him of his legal materials and thereby limit his complaints. According to Kennedy, he

was told to prepare for a “Legal Hearing,” which would determine whether he had possession of

excessive legal materials. Kennedy expected to be interviewed by Bonevelle prior to the hearing,

but that interview never took place; instead, Bonevelle came to the cell while Kennedy was away and

left a note to create false evidence that she had done her duty. When Kennedy eventually had his

excessive legal materials hearing, he was denied the chance to present evidence on his own behalf.

Then, his materials—four duffel bags’ worth—were taken from him for several days. Although

Kennedy requested that the duffel bags be sealed, his request was denied. When the bags were

eventually returned, numerous legal documents were missing, thus limiting his ability to bring

multiple lawsuits.

       Kennedy filed a §1983 action in the Western District of Michigan and raised three

constitutional claims1: (1) denial of access to the courts, (2) retaliatory actions against him based

upon his exercise of his constitutional rights, and (3) denial of due process because of the illegal

seizure of his legal materials. The district court dismissed Kennedy’s action for failure to state a

claim pursuant to 28 U.S.C. §§1915(e)(2), 1915A, and 42 U.S.C. § 1997e(c). Pursuant to 28 U.S.C.

§ 1915A, the district court issued its dismissal sua sponte, without any motion or response from the

government. Kennedy now appeals that dismissal to this court.



       1
        The first two constitutional claims were addressed in the district court’s first order, entered
January 5, 2009. The third issue was addressed in the order on Kennedy’s motion to alter or amend
and was entered August 28, 2009.

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Kennedy v. Bonevelle, et al.,

                                                   II.

        We review de novo a district court’s decision to dismiss under 28 U.S.C. §§ 1915(e), 1915A,

and 42 U.S.C. § 1997e(c). Grinter v. Knight, 532 F.3d 567, 571–72 (6th Cir. 2008). In assessing

a complaint for failure to state a claim, we construe the complaint in the light most favorable to the

plaintiff, accept his factual allegations as true, and determine whether the complaint “contain[s]

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation and citation omitted); see also

Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying the Iqbal standard to claims under

28 U.S.C. §§ 1915(e) and 1915A). The pleadings of pro se petitioners, such as Kennedy, are

construed liberally and are held to a less stringent standard. Martin v. Overton, 391 F.3d 710, 712

(6th Cir. 2004) (citing Haines v. Kerner, 404 U.S. 519, 520–21 (1972)).

                                                  III.

        The district court erred in dismissing Kennedy’s access to the courts claim. Dismissal for

failure to state a claim is proper if the complaint does not contain sufficient factual matter, accepted

as true, to state a claim to relief that is plausible on its face. Iqbal, 129 S. Ct. at 1949. We construe

the complaint in the light most favorable to Kennedy and find that his access to the courts allegations

include facts that would entitle him to relief.

        Prisoners’ right of access to the courts includes being afforded the tools to “attack their

sentences, directly or collaterally, and . . . to challenge the conditions of their confinement.” Lewis

v. Casey, 518 U.S. 343, 355 (1996). Because Kennedy’s legal complaints against the Alger officials



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Kennedy v. Bonevelle, et al.,

challenge “hazardous practices” and the conditions of his confinement,2 he has a right of access to

the courts. Kennedy pleads that the seized legal materials would have been used to bring lawsuits

alleging excessive force, denial of substantive due process, denial of procedural due process, cruel

and unusual punishment, and denial of equal protection. We therefore find that Kennedy has pled

a denial of the legal tools he needs to raise matters worthy of constitutional protection.

        The district court, citing an unpublished decision of this court, held that Kennedy could not

show any actual injury to his pursuit of a legal claim because he did not explain why he is unable to

replicate the seized documents. Kennedy v. Bonevelle, No. 2:08-cv-197, 2009 WL 33467 at *3

(W.D. Mich. Jan. 5, 2009) (citing Vandiver v. Niemi, No. 94-1642, 1994 WL 677685 at *1 (6th Cir.

Dec. 2, 1994) (unpublished opinion)). We disagree. Specific facts are not required by a prisoner at

the pleading stage, and Vandiver, an unpublished opinion, is not binding on this court and cannot

be used to defeat Kennedy’s access-to-the-courts claim. We have held that for a prisoner to prevail

on an access to the courts claim the prisoner “must plead and prove prejudice stemming from the

asserted violation. . . . Plaintiffs [must] allege [a] litigation-related detriment.” Pilgrim v. Littlefield,

92 F.3d 413, 416 (6th Cir. 1996). Kennedy’s allegations, if proved, would establish a litigation-

related detriment that has prejudiced his ability to bring the cases he wishes to bring. Accordingly,

he has stated a claim upon which relief can be granted. We therefore remand to the district court to

direct service of process on Kennedy’s access-to-the-courts claim.



        2
         Among the complaints are challenges to his “pro forma and perfunctory segregation
placement,” a request to receive winter boots, complaints about the “hazardous practices of [Alger]
officers and nurses,” and an allegation that guards were reading his mail.

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Kennedy v. Bonevelle, et al.,

                                                  IV.

        The district court also erred in dismissing Kennedy’s retaliation claim. To set forth a First

Amendment retaliation claim, a plaintiff must show that: “(1) the plaintiff engaged in protected

conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary

firmness from continuing to engage in that conduct; and (3) . . . the adverse action was motivated

at least in part by the plaintiff’s protected conduct.” Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th

Cir. 1999) (en banc). Although the district court found that the adverseness inquiry, “an objective

one,” worked to defeat Kennedy’s claim because “[t]he seizure of some of his voluminous legal

material is not sufficiently adverse to deter a person of ordinary firmness from filing grievances,”

Kennedy, 2009 WL 33467 at *4, we disagree. Kennedy has pled sufficient facts to survive summary

dismissal.

        In Bell v. Johnson, 308 F.3d 594 (6th Cir. 2002), a prior ruling of this court involving a

prisoner who had his legal papers confiscated, we established that whether a retaliatory action is

sufficiently severe to deter a person of ordinary firmness is a question of fact. Id. at 603. The Bell

panel held that “in most cases, the question of whether an alleged retaliatory action poses a sufficient

deterrent threat to be actionable will not be amenable to resolution as a matter of law” and that

“‘while 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’. . . .

Thus, unless the claimed retaliatory action is truly ‘inconsequential,’ the plaintiff’s claim should go

to the jury.” Id. (quoting Thaddeus-X, 175 F.3d at 398) (emphasis in original). Bell therefore stands

for the proposition that only de minimis violations should be dismissed as a matter of law; in general,

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Kennedy v. Bonevelle, et al.,

the adverseness question should survive the pleading stage. The Bell court also cited with approval

decisions from other circuits where seizure of legal documents, often along with other violations,

was found to justify a First Amendment retaliation claim. Id. at 604 (citing Penrod v. Zavaras, 94

F.3d 1399, 1404 (10th Cir. 1996); Green v. Johnson, 977 F.2d 1383, 1389–91 (10th Cir. 1992);

Wright v. Newsome, 795 F.2d 964, 968 (11th Cir. 1986); Hall v. Sutton, 755 F.2d 786, 787–88 (11th

Cir. 1985)).

         Because the plaintiff in Bell had legal documents seized and because Bell dealt with a

summary judgment standard, which is even less friendly to plaintiffs than the pleading standard at

issue here, Kennedy’s case should survive the adverseness inquiry. Kennedy alleges that prison

officials treated him with hostility, left false notes in his cell, and seized duffel bags’ worth of legal

materials, thereby preventing him from filing legitimate grievances. We do not decide whether these

actions would deter a person of ordinary firmness, but we do find that these violations are more than

de minimis violations and should be reviewed by a fact-finder, not dismissed as a matter of law.

Accordingly, we remand to the district court to direct service of process as to Kennedy’s retaliation

claim.

                                                   V.

         The district court did not err in dismissing Kennedy’s procedural due process claim. We

have held that “a procedural due process claim will not be stated unless the plaintiff pleads and

proves that his available state remedies are inadequate to redress the wrong.” Copeland v. Machulis,

57 F.3d 476, 479 (6th Cir. 1995). Citing Parratt v. Taylor, 451 U.S. 527 (1981), the Copeland court

emphasized that § 1983 procedural due process claims may be dismissed if there is an adequate post-

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Kennedy v. Bonevelle, et al.,

deprivation remedy and (1) the deprivation was unpredictable or random, (2) predeprivation process

was impossible or impracticable, and (3) the state actor was not authorized to take the action that

deprived the plaintiff of property or liberty. 57 F.3d at 479. Kennedy’s pleadings charge the Alger

officials with taking unauthorized action; therefore he has not pled that these actions were done “in

accordance with an established state procedure.” Id. The Parratt doctrine thus applies, and Kennedy

must plead inadequate post-deprivation remedies. The district court correctly found that Kennedy

has not pled inadequacy of post-deprivation remedies and that such remedies do exist and are

adequate.

        On appeal, Kennedy restates that he has pled a § 1983 claim and says that he “will be able

to evidence the total denial of post state remedies at the summ. judg. [sic] state of the case. But he’s

not required to prove or even plead it now.” [(Appellant’s Br. at 23.)] Kennedy does not challenge

the district court’s correct Parratt doctrine ruling; thus he fails to make an argument on appeal.

        Kennedy also argues that his appeal after his excessive legal materials hearing “was done

perfunctory and pro forma, thereby denying appellant a liberty interest created by state statute . . . .

This claim of appellants [sic] was never addressed by the [district court].” [(Appellant’s Br. at 24.)]

While the district court never explicitly addressed this second procedural due process claim, it fails

for the same reason as the first—Kennedy has other state avenues to appeal and file grievances, any

of which may lead to return of or compensation for the loss of his legal materials. Kennedy has not

pled a denial of due process in accordance with established state procedures; he therefore fails to

state a procedural due process claim.



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Kennedy v. Bonevelle, et al.,

                                                 VI.

       For the foregoing reasons, we reverse the district court with respect to Kennedy’s access to

the courts and retaliation claims and remand to the district court to direct service of process, but we

affirm dismissal of the procedural due process claim.




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