Carnell Davis v. Louis Miron, et al

Filing

Per Curiam OPINION: the district court's judgment is AFFIRMED, decision not for publication pursuant to local rule 206. Gilbert S. Merritt, Circuit Judge; Boyce F. Martin , Jr., Circuit Judge and Ronald Lee Gilman, Circuit Judge.

Case: 12-1238

Document: 006111473843

Filed: 10/23/2012

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1096n.06
No. 12-1238

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CARNELL DAVIS,
Plaintiff-Appellant,
v.
LOUIS MIRON, Correctional Officer;
CHERIE KONRAD, Correctional Officer,
Defendants-Appellees.

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Oct 23, 2012
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF
MICHIGAN

Before: MERRITT, MARTIN, and GILMAN, Circuit Judges.

PER CURIAM. Carnell Davis, a pro se Michigan prisoner, appeals a district court judgment
dismissing his civil rights complaint filed pursuant to 42 U.S.C. § 1983.
In January 2011, Davis filed a complaint against correctional officers Louis Miron and Cherie
Konrad. He alleged that on six dates in December 2008 and March 2009, in retaliation for Davis
exposing himself to female correctional officers including Konrad, Miron was verbally abusive,
refused to serve him seven meals, and turned off the water to his cell on one occasion. Davis sought
compensatory and punitive damages. The district court dismissed Davis’s complaint for failure to
state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e) and 1915A.
The district court’s judgment is reviewed de novo. Grinter v. Knight, 532 F.3d 567, 571–72
(6th Cir. 2008). Dismissal for failure to state a claim is appropriate when the complaint’s factual
allegations, taken as true, fail to show entitlement to relief. Hill v. Lappin, 630 F.3d 468, 470–71
(6th Cir. 2010).

Case: 12-1238

Document: 006111473843

Filed: 10/23/2012

Page: 2

No. 12-1238
-2The district court properly dismissed Davis’s retaliation claim. A prisoner establishes a First
Amendment retaliation claim by demonstrating: “(1) [he] engaged in protected conduct; (2) an
adverse action was taken against [him] 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 [his] protected conduct.” Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc).
Davis claimed that Miron retaliated against him because of his sexual misconduct directed at
Konrad. Davis’s sexual misconduct is not protected conduct. See id. at 395. Thus, he failed to
establish the first element of a retaliation claim.
The Eighth Amendment prohibits any punishment which violates civilized standards of
decency or “involve[s] the unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S.
97, 102–03 (1976) (internal quotation marks and citation omitted). To establish an Eighth
Amendment violation, a prisoner must demonstrate that he was deprived of “the minimal civilized
measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
Davis claims that Miron denied him seven meals over six days between 2008 and 2009, thus
violating the Eighth Amendment. However, the alleged deprivation does not rise to the level of an
Eighth Amendment violation. See Cunningham v. Jones, 667 F.2d 565, 566 (6th Cir. 1982).
Regarding Davis’s claims that Miron verbally harassed him, verbal harassment does not constitute
cruel and unusual punishment. Johnson v. Unknown Dellatifa, 357 F.3d 539, 546 (6th Cir. 2004);
see also Ivey v. Wilson, 832 F.2d 950, 954–55 (6th Cir. 1987). Finally, Davis claims that Miron
turned off the water to his cell. This claim also fails to state an Eighth Amendment violation. See
Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001) (holding that allegations of
temporary inconveniences do not state an Eighth Amendment claim).
The district court’s judgment is affirmed.