1

 Later served defendant Glenn Caron filed a separate motion for summary

judgment on essentially the same grounds as those identified in the initial motion. 

(Dkt. 62). 

Report and Recommendation

Motions for Summary Judgment

1 Johnson v. Caruso; Case No. 09-10910

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CORIELLE JOHNSON, Case No. 09-10910

 

Plaintiff, Arthur J. Tarnow

vs. United States District Judge

PATRICIA CARUSO, et al., Michael Hluchaniuk

United States Magistrate Judge

Defendants.

 /

REPORT AND RECOMMENDATION

MOTIONS FOR SUMMARY JUDGMENT (Dkt. 53, 62)

I. PROCEDURAL HISTORY

Plaintiff filed this prisoner civil rights action on March 11, 2009. (Dkt. 1). 

This case was referred to the undersigned on June 20, 2010 for all pretrial

proceedings. (Dkt. 13). Defendants filed a motion for summary judgment on May

5, 2011. (Dkt. 53).1

 Plaintiff filed responses on July 25, 2011 and July 29, 2011. 

(Dkt. 63, 65). No replies have been filed. This matter is now ready for report and

recommendation. 

For the reasons set forth below, the undersigned RECOMMENDS that

defendants’ motions for summary judgment be GRANTED. 

2:09-cv-10910-AJT-MJH Doc # 67 Filed 01/23/12 Pg 1 of 13 Pg ID 462
Report and Recommendation

Motions for Summary Judgment

2 Johnson v. Caruso; Case No. 09-10910

II. FACTUAL BACKGROUND

It appears from plaintiff’s complaint that he alleges violations of procedural

due process, and First Amendment violations involving interference with his

access to mail and access to the courts. As to his access to courts claim, while

plaintiff’s complaint vaguely refers to “pending habeas corpus proceedings and

child support matters” (Dkt. 1, Pg ID 5), he goes on say that he “sought to properly

file a ‘financing statement’ to secure his interest in any of his debtors/debtor’s

property from the Saginaw County court clerk.” (Dkt. 1, Pg ID 6). He also

indicates that the confiscation of one of the mail packages denied him the ability to

have his § 1983 claims adjudicated. (Dkt. 1, Pg ID 6-8). This was done, plaintiff

asserts, by defendant Potila. Id. Plaintiff acknowledges, however, that the

mailings at issue were related to the UCC and asserts they were improperly

confiscated in violation of a federal injunction. (Dkt. 1, Pg ID 9) (See also Pg ID

15) (Defendants “conspired in taking property involving uniform commercial code

material...”). 

The events stated in plaintiff’s complaint begin in May of 2007. On May

11, 2007, plaintiff claims he received by mail, “copies of his commercial

agreements” that were rejected by defendant Berry. Close to the same time,

plaintiff claims that he received a book entitled “Redemption Manual 4th Edition,”

which was also rejected. According to plaintiff, on May 21, 2007, a hearing was

2:09-cv-10910-AJT-MJH Doc # 67 Filed 01/23/12 Pg 2 of 13 Pg ID 463
Report and Recommendation

Motions for Summary Judgment

3 Johnson v. Caruso; Case No. 09-10910

conducted on the mail rejections. He also claims that, at that time, an injunction

was in place prohibiting the “taking of ‘UCC’ Uniform Commercial Code

materials issues by this court’s Judge Denise Page Hood.” The Complaint

indicates that defendant Krajnik denied plaintiff access to the material after

consulting defendant Killough.

On May 1, 2008, plaintiff claims he received the book “Administrative

Claim for damages” that was rejected. On June 4, 2008, plaintiff claims that he

again sent for his “commercial agreements” from the Secretary of State, which

were also rejected. On November 7, 2008, plaintiff claims that he attempted to

mail a letter requesting information to the Saginaw County Clerk, which was

opened by Inspector Christopher Accord and rejected. According to plaintiff,

defendant Potila informed plaintiff that defendant Warden Birkett directed Potila to

read all of plaintiff's legal mail to the Courts. As a result, plaintiff claims that

defendant Potila refused to send a complaint because it had UCC contents written

on it. He claims that the same complaint was confiscated by Inspector Accord on

November 15, 2008 after a subsequent attempt to mail it.

Plaintiff was transferred to MBP in November of 2008. At that point, he

claims that he began questioning staff about the Complaint and other UCC material

confiscated at SMF. According to plaintiff, “on 2-18-2009 plaintiff filed grievance

which was rejected exhausting remedy.” Plaintiff claims that on January 31, 2009,

2:09-cv-10910-AJT-MJH Doc # 67 Filed 01/23/12 Pg 3 of 13 Pg ID 464
Report and Recommendation

Motions for Summary Judgment

4 Johnson v. Caruso; Case No. 09-10910

defendant Kevern restricted plaintiff's correspondence with the Saginaw County

Courthouse. He acknowledges being informed that a Saginaw County judge

requested that all communication from plaintiff be halted. Plaintiff again claims

that he filed a grievance on the issue and “on 2-17-2009 grievance was rejected

exhausting remedy.”

With regard to all of the “UCC property” plaintiff claims was confiscated, he

asserts that he “sought the knowledge in said books & UCC blank forms” and was

seeking to “properly file a ‘financing statement’ to secure his interest in any of his

debtors property from the Saginaw’s (sic) County Court Clerk.” He claims that

denial of the materials has violated his First Amendment rights. In addition to the

UCC claim, Johnson also claims that preventing his communication with the

Saginaw County Court has denied his access to the courts and MDOC’s denial of a

hearing regarding his property violates his due process rights. 

III. ANALYSIS AND CONCLUSIONS

A. Standard of Review

Summary judgment is appropriate when the record reveals that there are no

genuine issues as to any material fact in dispute and the moving party is entitled to

judgment as a matter of law. Fed.R.Civ.P. 56(c); Kocak v. Community Health

Partners of Ohio, Inc., 400 F.3d 466, 468 (6th Cir. 2005); Thomas v. City of

Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005). The standard for determining

2:09-cv-10910-AJT-MJH Doc # 67 Filed 01/23/12 Pg 4 of 13 Pg ID 465
2

 Formerly, “Rule 56(e) require[d] that sworn or certified copies of all

papers referred to in an affidavit must be attached to or served with that affidavit ...

To be admissible, documents must be authenticated by and attached to an affidavit

that meets the requirements of Rule 56(e) and the affiant must be a person through

whom the exhibits could be admitted into evidence.” Johnson v. Memphis City

Report and Recommendation

Motions for Summary Judgment

5 Johnson v. Caruso; Case No. 09-10910

whether summary judgment is appropriate is “whether the evidence presents a

sufficient disagreement to require submission to a jury or whether it is so one-sided

that one party must prevail as a matter of law.” State Farm Fire & Cas. Co. v.

McGowan, 421 F.3d 433, 436 (6th Cir. 2005), quoting, Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251-52 (1986); see also Tucker v. Union of Needletrades Indus.

& Textile Employees, 407 F.3d 784, 787 (6th Cir. 2005). The court must consider

all pleadings, depositions, affidavits, and admissions on file, and draw all

justifiable inferences in favor of the party opposing the motion. See Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Twin City

Fire Ins. Co. v. Adkins, 400 F.3d 293, 296 (6th Cir. 2005).

Under Federal Rule of Civil Procedure 56, a party asserting a fact that

cannot be or is not genuinely disputed must support that assertion by citing to

particular parts of materials in the record, including depositions, documents,

electronically stored information, affidavits or declaration, stipulations, admission,

interrogatory answers, or other materials; or a showing that the materials cited do

not establish the absence or presence of a genuine dispute or that an adverse party

cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1).2

2:09-cv-10910-AJT-MJH Doc # 67 Filed 01/23/12 Pg 5 of 13 Pg ID 466
Schools, 2010 WL 1957267, *2 (W.D. Tenn. 2010), quoting 10A Charles A.

Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice & Procedure, §

2722, at 379-80 & 382-84 (1988). According to the Advisory Comments to the

recent amendments, this specific requirement was omitted because as unnecessary

given the requirement in subdivision (c)(1)(A) that a statement or dispute of fact be

supported by materials in the record. Comments, 2010 Amendments to

Fed.R.Civ.P. 56, subdivision (c). Notably, the language changes have not changed

the standard itself. Id. (“The standard for granting summary judgment remains

unchanged.”). 

Report and Recommendation

Motions for Summary Judgment

6 Johnson v. Caruso; Case No. 09-10910

B. First Amendment - Access to Courts

In Bounds v. Smith, 430 U.S. 817 (1977), the Supreme Court recognized a

prisoner’s fundamental right of access to the courts. While the right of access to the

courts does not allow a State to prevent an inmate from bringing a grievance to

court, it also does not require the State to enable a prisoner to discover grievances

or litigate effectively. Lewis v. Casey, 518 U.S. 343 (1996). Significantly, “a

prisoner’s right to access the courts extends to direct appeals, habeas corpus

applications, and civil rights claims only.” Thaddeus-X v. Blatter, 175 F.3d 378,

391 (6th Cir. 1999) (en banc). To state a claim for unconstitutional denial of

access to courts, an inmate must show that any shortcomings in the library,

litigation tools, or legal assistance caused actual injury in his pursuit of a legal

claim. Lewis, 518 U.S. at 351; Talley-Bey, 168 F.3d at 886; Kensu v. Haigh, 87

F.3d 172, 175 (6th Cir. 1996); Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir.

1996); Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir. 1985). Further, an inmate

must make a specific claim that he was adversely affected or that the litigation was

2:09-cv-10910-AJT-MJH Doc # 67 Filed 01/23/12 Pg 6 of 13 Pg ID 467
3

 While this case was decided before the Sixth Circuit determined that

¶ 23(HH) Policy Directive 05.03.118 was unconstitutional in Jones, its reasoning

has been adopted by other courts in applying other provisions of PD 05.03.118,

which the Sixth Circuit approved in Jones. 

Report and Recommendation

Motions for Summary Judgment

7 Johnson v. Caruso; Case No. 09-10910

prejudiced. Johns v. MDOC, 2008 WL 4712360, *5 (W.D. Mich. 2008), citing

Vandiver v. Niemi, 1994 WL 677685, at *1 (6th Cir. 1994). Courts in this circuit

have held that an inmate cannot show injury when he fails to state that he cannot

replicate the confiscated documents. Johns, at *5, citing Vandiver, at *1.

 Plaintiff’s claims are similar to those asserted, and rejected, in Hudson v.

Caruso, 2007 WL 2363308 (W.D. Mich. 2007)3

 (internal citations omitted):

Plaintiff claims only that he was attempting to order

“some legal material pertaining to the UCC.” Plaintiff

describes the document seized on November 14, 2004, as

“a letter to the clerk of the court, 3rd Judicial Circuit

Court in which plaintiff requested specific delegations of

congressional authority pertaining to U.S. incorporation

and commercial claims with federal statutes over an ENS

Legis etc in order to begin the litigation aspect of the

procedure.” And, on November 22, 2004, Plaintiff claims

that the following property was seized: “security

agreements, hold harmless indemnity agreements, private

agreements, default letter to the director P. Caruso, and at

least 50 pages of information ....” .

District Judge Gordon Quist concluded, in Hudson, that the plaintiff “does not

allege, nor can this Court discern, how the seizure of those documents resulted in

actual injury to a non-frivolous criminal appeal, habeas corpus application, or civil

rights claim.” Id. 

2:09-cv-10910-AJT-MJH Doc # 67 Filed 01/23/12 Pg 7 of 13 Pg ID 468
Report and Recommendation

Motions for Summary Judgment

8 Johnson v. Caruso; Case No. 09-10910

While plaintiff makes some vague references to a habeas corpus petition and

some other litigation pending in the federal district court, he does not identify in

his complaint or in either response to the summary judgment motions, any criminal

appeal, habeas corpus petition, or civil rights claim with which defendants

allegedly interfered. Thus, his claim for denial of access to the courts must fail. 

Gulley v. Caruso, 2012 WL 32118, *4-5 (W.D. Mich 2012) (To state a viable

claim for interference with access to the courts, a plaintiff must show actual injury

to a pending or contemplated litigation, which includes only a direct criminal

appeal, a habeas corpus action, or a civil rights action.). And, to the extent that

plaintiff claims the confiscated UCC materials relate to any such action, such a

claim has repeatedly been held frivolous by the courts. See Hudson, supra; see

also Clark v. Caruso, 2010 WL 746417, *6 (E.D. Mich. 2010) (Courts have

repeatedly held that the UCC has no bearing on a prisoner’s conviction or

subsequent incarceration and such claims are frivolous) (citing cases).

C. First Amendment - Interference with Mail

Plaintiff contends that the confiscation of his UCC materials violated his

right to free speech and communication under the First Amendment. The Supreme

Court has recognized that prison inmates retain those First Amendment rights not

incompatible with their status as prisoners. Pell v. Procunier, 417 U.S. 817, 832

(1974); see also Jones v. Caruso, 569 F.3d 258, 267 (6th Cir. 2009) (construing

2:09-cv-10910-AJT-MJH Doc # 67 Filed 01/23/12 Pg 8 of 13 Pg ID 469
Report and Recommendation

Motions for Summary Judgment

9 Johnson v. Caruso; Case No. 09-10910

prior, broader version of MICH. DEP’T OF CORR., Policy Directive 05.03.118

¶ HH(23) as unconstitutionally vague). The courts routinely have recognized that

prisoners and their correspondents have a First Amendment interest in

communication. Jones, 569 F.3d at 267, citing Procunier v. Martinez, 416 U.S.

396, 417 (1974). However, while a convicted prisoner does not forfeit all

constitutional protections by virtue of his confinement, “lawful incarceration

brings about the necessary withdrawal or limitation of many privileges and

rights ... .” Price v. Johnston, 334 U.S. 266, 285 (1948). “[W]hen a prison

regulation impinges on inmates’ constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S.

78, 89 (1987). 

Plaintiff relies heavily on the injunction issued in the Jones case enjoining

enforcement of ¶ HH(23) of Policy Directive 05.03.118. However, as

acknowledged in Jones and several other decisions, the MDOC can confiscate

UCC materials under the narrower rules in PD 05.03.118 ¶ D(7) and PD 05.03.118

¶ HH(3). See e.g., Clark v. Caruso. Paragraph D(7) prohibits mail that is a “threat

to the security, good order or discipline of the facility, may facilitate or encourage

criminal activity or may interfere with the rehabilitation of the prisoner,” including

“[m]ail for the purpose of operating a business enterprise from within the facility.” 

Paragraph HH(3) prohibits “mail advocating or promoting the violation of [a]

2:09-cv-10910-AJT-MJH Doc # 67 Filed 01/23/12 Pg 9 of 13 Pg ID 470
Report and Recommendation

Motions for Summary Judgment

10 Johnson v. Caruso; Case No. 09-10910

statute or federal laws.” The Jones court concluded that the narrower rules were

sufficient substitutes for ¶ HH(23), which it found unconstitutionally vague. As

has been recognized in a number of cases, the MDOC most certainly has a

legitimate penological purpose in preventing the filing of fraudulent liens and false

financing statements, and thus its rule regarding UCC materials has been

repeatedly held to be constitutional. Rector v. Caruso, 2011 WL 446149 (W.D.

Mich. 2011) (citing cases). It is also well-established that safety and internal

security are legitimate goals for prison administrators. Id. Here, according to the

administrative hearing report, defendant confiscated approximately 37 pages of

UCC materials sent to plaintiff. (Dkt. 53-3, Pg ID 320). According to the report,

plaintiff stated “I have copy-righted my name, I took control of my name and

became similar to foreign nation, like the United States of America Corporation

and I am claiming by sovereignty. I could have easily used this against staff but I

don’t need to.” Id. The confiscated material included The Redemption Manual, 4th

Edition, and several blank UCC forms. While the hearing officer cited ¶ HH(23) to

support the confiscation, in the view of the undersigned, the confiscation was

appropriate under other provisions of the policy directive, as held by several other

courts. The undersigned agrees that the “MDOC prisoner mail policy represents a

rational means by which to achieve the legitimate goal of preventing prisoners

from engaging in fraudulent and illegal behavior.” Id. Thus, the undersigned finds

2:09-cv-10910-AJT-MJH Doc # 67 Filed 01/23/12 Pg 10 of 13 Pg ID 471
Report and Recommendation

Motions for Summary Judgment

11 Johnson v. Caruso; Case No. 09-10910

no merit to plaintiff’s First Amendment/interference with mail claim.

D. Procedural Due Process

The Fourteenth Amendment provides, in part, that “[n]o State shall ...

deprive any person of life, liberty, or property, without due process of law.” U.S.

Const. amend. XIV, § 1. Procedural due process generally requires that the state

provide a person with notice and an opportunity to be heard before depriving that

person of a property or liberty interest. Zinermon v. Burch, 494 U.S. 113, 127

(1990); see also Thompson v. Ashe, 250 F.3d 399, 407 (6th Cir. 2001) (“Courts

have long recognized that the Fourteenth Amendment requires that an individual

who is deprived of an interest in liberty or property be given notice and a

hearing.”). Where a pre-deprivation hearing is impractical, a post-deprivation

hearing may be constitutionally adequate. Zinermon, 494 U.S. at 128. Often, “a

pre-deprivation hearing is impractical because of the prison’s legitimate

penological need to seize contraband immediately upon discovery.” Rector, at *7,

citing Pearce v. Sapp, 1999 WL 503568, at *2 (6th Cir. 1999). In Rector, the court

concluded that despite the fact that the plaintiff did not receive either a pre- or

post-deprivation hearing, due process was satisfied because he was able to seek

relief through the prison grievance system and was given the option of having the

confiscated materials sent out of the prison. Id. Here, plaintiff was provided with

a post-deprivation hearing and was given the opportunity to have the materials sent

2:09-cv-10910-AJT-MJH Doc # 67 Filed 01/23/12 Pg 11 of 13 Pg ID 472
Report and Recommendation

Motions for Summary Judgment

12 Johnson v. Caruso; Case No. 09-10910

elsewhere. (Dkt. 53-3, Pg ID 320). Thus, his due process rights were satisfied.

IV. RECOMMENDATION

For the reasons set forth above, the undersigned RECOMMENDS that

defendants’ motions for summary judgment be GRANTED.

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to file any objections within 14 days of service,

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule

72.1(d). Failure to file specific objections constitutes a waiver of any further right

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health and

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some

issues but fail to raise others with specificity will not preserve all the objections a

party might have to this Report and Recommendation. Willis v. Sec’y of Health

and Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of

Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule

72.1(d)(2), any objections must be served on this Magistrate Judge.

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”

etc. Any objection must recite precisely the provision of this Report and

Recommendation to which it pertains. Not later than 14 days after service of an

objection, the opposing party may file a concise response proportionate to the

objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d). 

2:09-cv-10910-AJT-MJH Doc # 67 Filed 01/23/12 Pg 12 of 13 Pg ID 473
Report and Recommendation

Motions for Summary Judgment

13 Johnson v. Caruso; Case No. 09-10910

The response must specifically address each issue raised in the objections, in the

same order, and labeled as “Response to Objection No. 1,” “Response to Objection

No. 2,” etc. If the Court determines that any objections are without merit, it may

rule without awaiting the response.

Date: January 23, 2012 s/Michael Hluchaniuk 

Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on January 23, 2012, I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system, which will send electronic

notification to the following: Joshua D. Marcum, and I certify that I have mailed by

United States Postal Service the paper to the following non-ECF participant:

Corielle Johnson, ID# 324642, BARAGA CORRECTIONAL FACILITY, 13924

Wadaga Road, Baraga, MI 49908.

s/Tammy Hallwood 

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

2:09-cv-10910-AJT-MJH Doc # 67 Filed 01/23/12 Pg 13 of 13 Pg ID 474