United States District Court, E.D. Kentucky, Northern Division, Ashland
MEMORANDUM OPINION AND ORDER
R. Wilhoit Jr. United States District Judge
Phillip Leroy Wines is an individual confined at the Eastern
Kentucky Correctional Facility in West Liberty, Kentucky.
Proceeding without an attorney, Wines has filed a civil
rights action against prison officials pursuant to 42 U.S.C.
§ 1983 and has paid the filing fee. [D.E. No. 1]
Wines is a prisoner seeking redress from officers and/or
employees of a governmental entity, the Court must conduct a
preliminary review of Wines' complaint pursuant to 28
U.S.C. §§ 1915(e)(2), 1915A. A district court must
dismiss any claim that is frivolous or malicious, fails to
state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such
relief. McGore v. Wrigglesworth, 114 F.3d 601,
607-08 (6th Cir. 1997). A complaint is subject to dismissal
as "frivolous" where "it lacks an arguable
basis in either law or fact." Neitzke v.
Williams, 490 U.S. 319, 325 (1989).
Court evaluates Wines' complaint under a more lenient
standard because he is not represented by an attorney.
Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003).
At this stage, the Court accepts the plaintiffs factual
allegations as true, and his legal claims are liberally
construed in his favor. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007). Even so, the
principles requiring generous construction of pro se
pleadings are not without limits. Wells v. Brown,
891 F.2d 591, 594 (6th Cir. 1989); Wilson v. Lexington
Fayette Urban County Government, No. 07-cv-95-KSF, 2007
WL 1136743 (E.D. Ky. April 16, 2007). The Court is not
required to create a claim for the Plaintiff, nor to
"conjure up unpled allegations." Moorman v.
Herrington, No. CIV A 4:08-CV-P127-M, 2009 WL 2020669,
at *1 (W.D. Ky. July 9, 2009)(citations omitted).
to Wines' complaint and the documents that he attaches
thereto, in June 2017, he received a large amount of money
and went to see Defendant Donna Miller, CUA II, about opening
a bank account. [D.E. No. 1 at p. 2; 1-2] Wines alleges
that he asked about buying government foreclosure homes to
fix them up for his kids and was told that he was not allowed
to buy any property while he was in prison. [Id.] He
then alleges that, in November 2017, he put in a cash pay out
("CPO") request for $2, 300.00 to send to his
attorney, Tracy Todd Blevins. [Id]
is a conflict between his complaint and the grievance form
attached to his complaint regarding the reason for his
request. In his complaint, Wines states that he was
attempting to send $2, 300.00 to his attorney in November
2017 as payment towards the $5, 000.00 retainer "for my
two cases to appeal KY murder conviction and get my Florida
detainer." [D.E. No. 1 at p. 2] However, this directly
contradicts his statement in his original grievance that,
after his meeting with Miller in June 2017 about opening a
bank account (during which he mentioned that he was thinking
about buying real property for his children), "on
November 13th, 2017, I put a C.P.O. under my caseworkers door
for $2, 300.00 to send to my attorney (Tracy Todd Blevens
(sic) - Blevens Law), that I was going to send to
the bank for money to pay the balance due." [D.E. No.
1-2] Moreover, although the complaint cites to an October 24,
2017 letter from Blevins to Wines in support of his
suggestion that she was being retained to assist with his
appeal and/or other criminal matters, this letter does not
indicate the subject matter of the representation. [D.E. No.
1 at p. 2, 1-2]
suggestion that he was seeking to retain Blevins to assist
with his criminal matters is also contradicted by a review of
the Kentucky court records related to Wines' criminal
case, of which the Court takes judicial notice. According to
these court records, although Wines appealed his 2006
conviction, his conviction was affirmed by the Kentucky
Supreme Court in June 2009. Wines v. Commonwealth,
No. 2007-SC-81 (Ky. 2018). Although Wines filed a motion to
vacate, set aside or correct sentence in the Jefferson
Circuit Court pursuant to R.Cr. 11.42 of the Kentucky Rules
of Criminal Procedure, the trial court's denial of this
motion was affirmed by the Court of Appeals of Kentucky on
October 17, 2014. Wines v. Commonwealth, No.
2012-CA-001306-MR, 2014 WL 5314698, at *1 (Ky. Ct. App. Oct.
17, 2014). The court records do not reflect any further
filings by Wines seeking relief from his conviction or
Miller told Wines that she needed verification that his
request that the money be sent to Blevins was related to a
court case. [D.E. No. 1 at p. 2; 1-2] Wines states that he
provided her with the above-referenced letter from Blevins
requesting a retainer for her retention, but his request was
denied by Warden Kathy Litteral. [Id.] He appealed
the denial to Kentucky Department of Corrections
("KDOC") Commissioner James Erwin, but appeal was
denied. [D.E. No. 1 at p. 2-3] In his letter denying
Wines' appeal (a copy of which is attached to Wines'
complaint), Commissioner Erwin states that "[a]s stated
at all levels of the grievance, according to CPP 15.7 inmates
are not allowed to send money outside of the facility...
[d]ue to illicit activities that inmates have been engaged in
while housed in the Department." [D.E. No. 1-2]
Commissioner Erwin further explained that, because Wines'
"request to send money out to an attorney was not for a
criminal case but for a property issue.. .the facility was
correct to deny your request." [Id.]
on these allegations, Wines claims that his inability to
transfer money to his attorney violates his due process
rights because he has been denied his rights to meaningful
access to the courts. [D.E. No. 1 at p. 4] Wines seeks to
bring his claims in this action pursuant to 42 U.S.C. §
1983. To establish a § 1983 claim, a plaintiff must show
that he was deprived of a constitutional right
and that the deprivation occurred at the
hands of defendant who was a "state actor," or
acted under color of state law. See Gomez v. Toledo,
446 U.S. 635, 640 (1980); Searcy v. City of Dayton,
38 F.3d 282, 286 (6th Cir. 1994).
initial matter, "[p]risoners have no constitutional
right to conduct business activities." Johnson v.
Wilkinson, 42 F.3d 1388 at *3 (Table) (6th Cir. 1994)
(citing French v. Butterworth, 614 F.2d 23, 24 (1st
Cir. 1980). See also Garland v. Polley, 594 F.2d
1220, 1221-1222 (8th Cir. 1979); Jackson v. Russo,
495 F.Supp.2d 225, 228-29 (D.Mass. 2007); Valentine v.
Gray, 410 F.Supp. 1394, 1396 (S.D. Ohio 1975). Thus, to
the extent that Wines' complaint alleges that his
inability to transfer money to his attorney interfered with
his ability to purchase property outside of prison, this
claim fails to allege a constitutional violation. Wines
simply does not have any constitutional rights with respect
to efforts to conduct business activities while incarcerated,
including to purchase real property.
the right of access to the courts guaranteed by the First
Amendment "requires prison authorities to assist inmates
in the preparation and filing of meaningful legal papers by
providing prisoners with adequate law libraries or adequate
assistance from persons trained in the law." Bounds
v. Smith, 430 U.S. 817, 828 (1977). By its terms, the
right of access to the courts extends only to an inmate's
direct criminal appeal, habeas corpus applications, and civil
rights claims related to the conditions of confinement.
Lewis v. Casey, 518 U.S. 343, 354-55 (1996). See
also Lewis v. Randle, 66 Fed.Appx. 560, 561-62 (6th Cir.
state a claim for denial of access to the courts, a plaintiff
must show actual injury to a nonfrivolous claim.
Lewis, 518 U.S. at 353-55. "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).
See also Pilgrim v. Littlefield, 92 F.3d 413, 416
(6th Cir. 1996) ("Plaintiffs must demonstrate, for
example, that the inadequacy of the prison law library or the
available legal assistance caused such actual injury as the
late filing of a court document or the dismissal of an
otherwise meritorious claim.").
Wines fails to allege any injury to a nonfrivolous legal
claim. To the extent that Wines' allegations imply that
he sought to retain Blevins to represent him with respect to
"two cases to appeal KY murder conviction and get my
Florida detainer," his complaint is devoid of any
specific information regarding these proceedings (for
example, case numbers, where these cases are pending, when
these cases were filed), much less any allegations that he
has suffered any actual injury to his claims in those cases.
Indeed, any suggestion that Wines' inability to retain
Blevins in November 2017 caused him injury with respect to
his criminal appeal is clearly without merit, as his
conviction was affirmed on appeal by the Kentucky Supreme
Court in June 2009 and the Court of Appeals of Kentucky
affirmed the trial court's denial of his motion to vacate
in October 2014, decisions that Wines did not appeal further.
See Arflack v. Cty. of Henderson, Ky., No.
CIV.A.4:07CVP144-M, 2009 WL 3210604, at *9 (W.D. Ky. Sept.
30, 2009), affd sub nom. Arflack v. Cty. of Henderson,
Kentucky, 412 Fed.Appx. 829 (6th Cir. 201 l)(no
"actual injury" alleged where review of state court
appellate records demonstrates that plaintiff was neither
prejudiced by defendant's delay in processing copy
requests nor prevented from accessing the appellate courts).
Wines' vague references to a criminal appeal and a
Florida detainer, even if such cases exist, Wines'
complaint fails to allege any litigation-related detriment he
has suffered in these cases related to his inability to
forward $2, 300.00 to Blevins, an essential component of a
right-of-access claim. Lewis, 518 U.S. at 348-50.
Because Wines does not allege that he was prevented from
asserting any particular legal ...