Reynolds v. Herrington et al

Filing 9

MEMORANDUM OPINION by Chief Judge Joseph H. McKinley, Jr; For the reasons set forth, the Court will dismiss the action.cc:Plaintiff, pro se; Defendants; Henderson County Attorney (EM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT OWENSBORO
ADAM REYNOLDS

PLAINTIFF

v.

CIVIL ACTION NO. 4:13CV-P132-M

RON HERRINGTON et al.

DEFENDANTS
MEMORANDUM OPINION

Plaintiff Adam Reynolds, a prisoner proceeding in forma pauperis, filed a pro se
complaint pursuant to 42 U.S.C. § 1983 (DN 1). This matter is before the Court for initial
review pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir.
1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). For the reasons set
forth below, this action will be dismissed.
I. SUMMARY OF CLAIMS
In his complaint Plaintiff names the following three Defendants: Ron Herrington, Jailer at
Henderson County Detention Center (HCDC); Rick Hendricks, a Captain at HCDC; and
McKnight,1 a Deputy at HCDC. He brings this action against Defendants in both their individual
and official capacities. As relief, Plaintiff seeks punitive damages and injunctive relief. The
injunctive relief he seeks is for an order directing his “conditional transfer” and directing
Defendant Herrington to reform certain policies at the HCDC.
Plaintiff represents that he is a state inmate housed at HCDC. Plaintiff alleges that during
his time at HCDC his “Constitutional Rights have been blatantly and repeatedly violated” by
Defendants. He sets forth six claims in his complaint.

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Plaintiff states that he does not know Defendant McKnight’s first name because it “was refused
to plaintiff.”

In his first claim, Plaintiff states that for the past nine months he has been housed in the
Community Service Complex (CSC) of the HCDC. According to Plaintiff, Defendant Hendricks
is the “overseer” of the CSC. Plaintiff states that the policy of the CSC “allows for a maximum
of 6 non-consecutive hours of dimmed lights for sleep.” According to Plaintiff, as a result of this
policy, “[v]ery few inmates can get over 5-6 hrs of sleep per night and it is interrupted
frequently.” Plaintiff states that this “causes [him] regular headaches and affects [his] appetite
and demeanor.” Plaintiff alleges that this sleep policy violates his Eighth Amendment right to be
free from cruel and unusual punishment. He connects this violation to Defendant Herrington
who, according to Plaintiff, allows the continuation of the policy and to Defendant Hendricks
because he enforces the policy.
Plaintiff’s second claim involves the painting of moldy ceiling tiles in A-dorm of the
CSC. According to Plaintiff, on or about August 26, 2013, Defendant Hendricks directed
inmates to remove moldy ceiling tiles from A-dorm and to paint over the mold. Plaintiff states
that Defendant Hendricks’s “justification of this . . . was that the paint used was mildew
resistant.” This was done, Plaintiff asserts, in order to hide the mold during an inspection.
Plaintiff contends that this violates his Eighth Amendment right to be free from cruel and
unusual punishment. He states that Defendant Hendricks is responsible for this violation
because he ordered “the cover-up” and that Defendant Herrington is responsible because he
failed “to resolve the issue when notified and fail[ed] to reprimand [Defendant Hendricks].”
Plaintiff’s third claim involves events on October 15, 2013. According to Plaintiff, at
1p.m. that day when he returned from work he was “covered in dirt, grease, and dog feces.” He
requested a towel, but Defendant Hendricks and “other deputies at CSC refused to give out

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towels until well after 5pm that evening.” According to Plaintiff, the towels in A-dorm had
been confiscated earlier that day when extra towels were found during a search. Plaintiff states
that this act by Defendant Hendricks violated the Eighth Amendment.
As to Plaintiff’s fourth claim, he states that from the time Defendant McKnight began
working at HCDC, on or around May or June 2013, Defendant McKnight has “harrassed,
demeaned, and humiliated [Plaintiff] in front of other inmates, as well as being racially
discriminative.” Plaintiff states that he overheard Defendant McKnight make racist remarks
about white men and women on two occasions. He states that this “harassment has gone as far
as [Defendant McKnight] hassling [Plaintiff’s] family at visit.” Plaintiff states that he has
grieved these issues “only to result in threats to me by [Defendants Hendricks and McKnight].”
Plaintiff contends that these actions violated his “right to be free of discrimination and [his] right
to due process.” He contends that Defendant McKnight “violated my rights by discrimination
against [him] based on [his] race.” Defendants Hendricks and McKnight, according to Plaintiff,
violated his rights by making “threats to [him] in regards to the situation.” Plaintiff contends
that Defendant Herrington violated his “rights by failing to take any action when informed on the
circumstances.”
Plaintiff’s fifth claim involves the visitation policy of the CSC. According to Plaintiff,
the policy only allows for two 30-minute contact visits weekly. Plaintiff states that the “jail has
refused to institute a policy for out-of-town visitors.” According to Plaintiff, his “family drives
around 4½ hrs round trip weekly, only to receive one 30 minute visit.” Plaintiff believes “this is
discrimination based on my origin since [he] cannot receive the same one hour total visit
priveledge as local inmates get weekly.” Plaintiff states that in the process of attempting to

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resolve this issue he has been “threatened and retaliated against.” He contends that this violated
his right to be free from discrimination. According to Plaintiff, Defendant Herrington is
responsible for this violation because he failed “to institute a fair and equal policy for visitation,
even after being made aware of the problem.”
Plaintiff’s sixth claim involves alleged problems he has encountered when participating
in the institution’s grievance process. According to Plaintiff, he has attempted to resolve
legitimate issues through the grievance process. Plaintiff states that “[w]hen grievances are
written from CSC they are returned to Defendant [Hendricks], even when addressed to his
superiors.” Further, Plaintiff asserts that Defendant Hendricks’s way of addressing grievances is
to “call an inmate aside and make threats, leaving everything unresolved.” Plaintiff states that
when he grieved his complaint about the lack of sufficient contact visits, Defendant Hendricks
had him transferred out of CSC into the main jail facility. According to Plaintiff, the day after
the transfer he spoke with “Colonel Brady of HCDC about all of the issues in this complaint, and
the jailer [Defendant Herrington] was informed as well.” Plaintiff states that as a result of this
conversation, “[t]he only resolution to any issue was that [he] was allowed to return to CSC for
work purposes.” Plaintiff states that “[m]inimal resolution, if any, is ever reached.” He further
states that Defendant Hendricks does not allow appeal to the jailer. Plaintiff asserts that he is
afraid to use the grievance procedure any more because of the “threats and recent punishment
imposed for initiating grievances.” As to his sixth claim, Plaintiff contends that his Eighth
Amendment right to be free from cruel and unusual punishment has been violated, that these
actions constitute retaliation, and that his due process right was violated. It was Defendant
Hendricks, Plaintiff asserts, who violated these rights by “failing to resolve legitimate issues and

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by his threats and retaliation in regards to the issues.” Plaintiff contends that Defendant
Herrington is also responsible for these violations because he failed “to enforce a fair and just
grievance procedure, fail[ed] to resolve any issues, and fail[ed] to reprimand his employees for
violating [Plaintiff’s] rights.”
II. STANDARD OF REVIEW
When a prisoner initiates a civil action seeking redress from a governmental entity,
officer, or employee, the trial court must review the complaint and dismiss the complaint, or any
portion of it, if it determines that the complaint 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. 28 U.S.C. § 1915A; McGore v. Wrigglesworth, 114 F.3d at 604. A claim is
legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams,
490 U.S. 319, 325 (1989). The trial court may, therefore, dismiss a claim as frivolous where it is
based on an indisputably meritless legal theory or where the factual contentions are clearly
baseless. Id. at 327. In order to survive dismissal for failure to state a claim, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
“[A] district court must (1) view the complaint in the light most favorable to the plaintiff
and (2) take all well-pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC,
561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)
(citations omitted)). “But the district court need not accept a ‘bare assertion of legal
conclusions.’” Tackett v. M & G Polymers, USA, LLC, 561 F.3d at 488 (quoting Columbia

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Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). The court’s duty “does not
require [it] to conjure up unpled allegations,” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979),
or to create a claim for a plaintiff. Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169
(6th Cir. 1975). To command otherwise would require the Court “to explore exhaustively all
potential claims of a pro se plaintiff, [and] would also transform the district court from its
legitimate advisory role to the improper role of an advocate seeking out the strongest arguments
and most successful strategies for a party.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985).
III. LEGAL ANALYSIS
A. Conditions-of-Confinement Claims
“Extreme deprivations are required to make out a conditions-of-confinement claim”
under the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 9 (1992). “Not every
unpleasant experience a prisoner might endure while incarcerated constitutes cruel and unusual
punishment within the meaning of the Eighth Amendment.” Ivey v. Wilson, 832 F.2d 950, 955
(6th Cir. 1987). An Eighth Amendment claim has both an objective and subjective component:
(1) a sufficiently grave deprivation of a basic human need; and (2) a sufficiently culpable state of
mind. Wilson v. Seiter, 501 U.S. 294, 298 (1991). “[P]rison officials must ensure that inmates
receive adequate food, clothing, shelter, and medical care, and must ‘take reasonable measures to
guarantee the safety of the inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting
Hudson v. Palmer, 468 U.S. 517, 526–27 (1984)). However, as former Chief Justice Rehnquist
remarked, “[i]n short, nobody promised [inmates] a rose garden; and I know of nothing in the

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Eighth Amendment which requires that they be housed in a manner most pleasing to them . . . .”
Atiyeh v. Capps, 449 U.S. 1312, 1315-16 (1981).
1. Deprivation of Sleep
In his first claim, Plaintiff alleges that the CSC policy only allows for a maximum of six,
non-consecutive hours of dimmed lights for sleep which causes him “regular headaches and
affects [his] appetite and demeanor.” According to Plaintiff, the lights in the CSC are turned off
from approximately 10:00p.m. until 11:00p.m. at which time they are turned back on for the
guards to count the inmates. The lights remain on for approximately 45 minutes when they are
again turned off until 4:45a.m. when the inmates are awakened for breakfast.
Providing inmates with approximately six hours of dimmed lights each night in which to
sleep is not a constitutional deprivation. See Chavarria v. Stacks, 102 F. App’x 433, 435 (5th
Cir. 2004) (holding that constant illumination of a prison administrative unit at night in order to
prevent guards from being assaulted was a reasonable security measure and thus did not violate
the Eighth Amendment); Kamau v. La. State Police Dep’t, No. 09-1488-P, 2013 WL 5462234,
at *10 (W.D. La. Sept. 30, 2013); Zatko v. Rowland, 835 F. Supp. 1174, 1181 (N.D. Cal.1993)
(noting that continuous light depriving a prisoner of sleep would be unconstitutional but holding
there was no constitutional violation because the officers did not use the light to keep the
prisoner awake); Williams v. Ward, 567 F. Supp. 10, 15 (E.D.N.Y. 1982) (holding that keeping
hallway lights on all night for security reasons was not a constitutional violation even where
plaintiff claimed he was unable to sleep). If courts have failed to find that constant illumination
is a constitutional violation when done for legitimate penological reasons, clearly dimmed lights
for six hours is not a constitutional violation. Plaintiff “has not shown an egregious deprivation

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of a minimal life necessity that was so base or inhumane as to give rise to a constitutional
violation.” Conlin v. Thaler, 347 F. App’x 983, 984 (5th Cir. 2009).
Accordingly, Plaintiff’s § 1983 deprivation-of-sleep claim will be dismissed from this
action.
2. Mold and Bath Towel
Title 42 United States Code Section 1997e(e) provides, “[n]o Federal civil action may be
brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or
emotional injury suffered while in custody without a prior showing of physical injury.” Thus,
with the passage of the Prison Litigation Reform Act, Congress required that there must be a
showing of physical injury in order to bring an action for emotional injury. Jennings v. Mitchell,
93 F. App’x 723, 725 (6th Cir. 2004); Adams v. Rockafellow, 66 F. App’x 584, 586 (6th Cir.
2003); Pryor v. Cox, No. 97-3912, 1999 WL 1253040 (6th Cir. Dec. 13, 1999); Perkins v. Kan.
Dep’t of Corr., 165 F.3d 803, 807 (10th Cir. 1999); Zehner v. Trigg, 133 F.3d 459, 461 (7th Cir.
1997); Siglar v. Hightower, 112 F.3d 191 (5th Cir. 1997). The Sixth Circuit has “indicated that
even though the physical injury required by § 1997e(e) for a § 1983 claim need not be
significant, it must be more than de minimis for an Eighth Amendment claim to go forward.”
Flanory v. Bonn, 604 F.3d 249, 254 (6th Cir. 2010).
Plaintiff fails to allege any physical harm resulted from him being denied a bath towel for
approximately four hours. He contends that he “was covered in dirt, grease, and dog feces from
working,” but fails to allege any harm or even that he was unable to shower. His complaint is
that he was not provided a towel. Again, Plaintiff “has not shown an egregious deprivation of a
minimal life necessity that was so base or inhumane as to give rise to a constitutional violation.”
Conlin v. Thaler, 347 F. App’x at 984. Furthermore, he states that the denial of the towel was
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due to the guards finding extra towels during a search earlier that day; he does not state the
denial was in any way related to some animus toward him. Thus, he has presented no allegations
of a sufficiently culpable state of mind.
As to the claim involving the painting of moldy ceiling tiles, Plaintiff alleges that
Defendant Hendricks directed inmates to remove ceiling tiles which had black mold on them and
to paint over the mold. He states that this is a “serious and imminent danger to the health of
Plaintiff and all inmates housed at CSC.”
The relevant standard for evaluating a claim alleging exposure that may result in future
harm was set forth in Helling v. McKinney, 509 U.S. 25 (1993). In Helling, a prisoner initiated a
§ 1983 action against prison officials claiming that his involuntary exposure to environmental
tobacco smoke (ETS) from a cellmate posed an unreasonable risk of serious damage to his future
health. Helling v. McKinney, 509 U.S. at 35. To prove the objective element for such a claim,
the prisoner must show that he has been exposed to unreasonably high levels of black mold. Id.
at 35. “More than mere scientific and statistical inquiry into the seriousness of the potential
harm and the likelihood that such injury to health will be caused by exposure” is necessary to
establish the objective component of such an Eighth Amendment claim. Id. at 36. Further, “the
prisoner must show that the risk of which he complains is not one that today’s society chooses to
tolerate.” Id.
In the present case, Plaintiff does not state that he is housed in the area where the mold is
located nor does he present any basis for his belief that the mold is a harmful type of mold. He
states only that the mold was black. “The mere allegation of the presence of some mold does not
create a condition ‘intolerable for prison confinement.’” Lyons v. Wickersham, No. 2:12-CV-

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14353, 2012 WL 6591581, at *4 (E.D. Mich. Dec. 18, 2012) (quoting Rhodes v. Chapman, 452
U.S. 337, 348 (1981)).
Further, Plaintiff’s allegation of harm is speculative; he does not set forth any injury he
has allegedly suffered as a result of the mold. “A speculative injury does not vest a plaintiff with
standing. . . .” King v. Deskins, No. 99-6381, 2000 WL 1140760, at *2 (6th Cir. Aug. 8, 2000);
see also Voorhees v. Huber, No. 1:01CV-76-M, 2010 WL 3211046, at *2 (W.D. Ky. Aug. 12,
2010) (finding that plaintiff’s speculation that his exposure to mold in his sleeping area could
endanger his health failed to state an Eighth Amendment claim); Simpson v. Osborne, 4:09CVP84-M, 2010 WL 2898808, at *3 (W.D. Ky. July 22, 2010) (finding that plaintiff’s speculative
injury of future harm from mold in the shower failed to state an Eighth Amendment claim);
McIntyre v. Phillips, No. 1:07–cv–527, 2007 WL 2986470, at *2-4 (W.D. Mich. Sept. 10, 2007)
(finding that plaintiff’s conclusory allegations regarding his exposure to black mold and his lack
of anything other than future speculative harm failed to support an Eighth Amendment claim).
Likewise, in the present action, Plaintiff’s conclusory allegations about the presence of mold do
not demonstrate the existence of a sufficiently serious risk to prisoner health; thus his allegation
regarding mold in the CSC is insufficient to state an Eighth Amendment claim.
Accordingly, Plaintiff’s claims regarding mold and the temporary denial of a towel will
be dismissed from this action.
B. Visitation
According to Plaintiff, the policy regarding visitation for inmates housed in the CSC only
allows for two 30-minute contact visits weekly. Plaintiff states that the “jail has refused to
institute a policy for out-of-town visitors.” According to Plaintiff, his “family drives around 4½
hrs round trip weekly, only to receive one 30 minute visit.” Plaintiff believes “this is
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discrimination based on [his] origin, since [he] cannot receive the same one hour total visit
priveledge as local inmates get weekly.” He contends that the policy violates his rights to be free
from discrimination.
It is a “well-established principle that there is no inherent, absolute constitutional right to
contact visits with prisoners.” Bazzetta v. McGinnis, 124 F.3d 774, 779 (6th Cir. 1997) (citations
omitted), opinion supplemented, 133 F.3d 382 (1998). “A properly imposed ban on contact
visits will survive claims of Due Process violation.” Id. Plaintiff does not even allege a
complete ban on contact visits. In fact, he states that he enjoys weekly visits from his family.
Clearly, Plaintiff fails to state a constitutional claim as to the contact visits about which he
complains. Nor does his discrimination claim help his lack-of-sufficient-contact-visits’ claim
since being from a location further from the institution than other inmates does not place him in a
protected class of people.
Accordingly, Plaintiff’s § 1983 claim regarding the institution’s visitation policy will be
dismissed from this action.
C. Threats
Plaintiff alleges that Defendant McKnight has “harrassed, demeaned, and humiliated
[him] in front of other inmates, as well as being racially discriminative.” Plaintiff states that he
overheard Defendant McKnight make racist remarks about white men and women on two
occasions.
Although reprehensible and not condoned, verbal abuse, harassment, and threats are
insufficient to state a constitutional violation under 42 U.S.C. § 1983. Ivey v. Wilson, 832 F.2d
950, 955 (6th Cir. 1987); see also Montgomery v. Conner, No. 5:13CV-P166-R, 2013 WL
6222990, at *1 (W.D. Ky. Nov. 27, 2013) (finding that plaintiff’s allegations regarding sexual
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comments made to him by prison guards were only verbal abuse that did not rise to the level of a
constitutional violation); Searcy v. Gardner, No. 3:07-0361, 2008 WL 400424, at *4 (M.D.
Tenn. Feb. 11, 2008) (“A claim under 42 U.S.C. § 1983 cannot be based on mere threats, abusive
language, racial slurs, or verbal harassment by prison officials.”).
Accordingly, Plaintiff’s § 1983 claim regarding threats will be dismissed from this
action.
D. Grievance Process
Plaintiff makes allegations regarding various problems with the grievance process. He
states that when grievances are written from CSC they are returned to Defendant Hendricks
whose means of addressing them is to “call an inmate aside and make threats, leaving everything
unresolved.” Plaintiff states that “minimal resolution, if any, is ever reached.” He further states
that Defendant Hendricks does not allow appeal to the jailer.
Prisoners do not possess a constitutional right to a prison grievance procedure. See
Young v. Gundy, 30 F. App’x 568, 569-70 (6th Cir. 2002) (“A grievance appeal does not
implicate the First Amendment right of access to the courts because there is no inherent
constitutional right to an effective prison grievance procedure.”); LaFlame v. Montgomery Cnty.
Sheriff’s Dep’t, 3 F. App’x 346, 348 (6th Cir. 2001) (holding that plaintiff’s allegation that jail
staff ignored the grievances he filed did not state a § 1983 claim “because there is no inherent
constitutional right to an effective prison grievance procedure”); Antonelli v. Sheahan, 81 F.3d
1422, 1430 (7th Cir. 1996) (finding that plaintiff’s allegation that the institution’s grievance
procedures were inadequate to redress his grievances did not violate the Due Process Clause and
did not “give rise to a liberty interest protected by the Due Process Clause”); Buckley v. Barlow,
997 F.2d 494, 495 (8th Cir. 1993) (holding that “no constitutional right was violated by the
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defendants’ failure, if any, to process all of the grievances [plaintiff] submitted for
consideration”). Nor does state law create a liberty interest in the grievance procedures. Olim v.
Wakinekona, 461 U.S. 238, 249 (1983). Further, if the prison provides a grievance process,
violations of its procedures or its ineffectiveness do not rise to the level of a federal
constitutional right. See Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 445 (6th Cir. 2005)
(“All circuits to consider this issue have . . . found that there is no constitutionally protected due
process right to unfettered access to prison grievance procedures.”); Argue v. Hofmeyer, 80 F.
App’x 427, 430 (6th Cir. 2003) (stating that “there is no inherent constitutional right to an
effective prison grievance procedure”) (citing cases).
For these reasons, Plaintiff’s § 1983 claim regarding problems with the grievance process
will be dismissed from this action.
E. Retaliation
Plaintiff states that when he grieved his complaint about the lack of sufficient contact
visits in the CSC, Defendant Hendricks had him transferred to the main jail. According to
Plaintiff, the following day he spoke with “Colonel Brady of HCDC about all of the issues in this
complaint, and the jailer [Defendant Herrington] was informed as well. The only resolution to
any issue was that [plaintiff] was allowed to return to CSC for work purposes.” Plaintiff further
states that he is afraid to use the grievance procedure any more because of the “threats and recent
punishment imposed for initiating grievances.”
In the present case, Plaintiff contends that he was threatened and transferred from the
CSC to the main jail temporarily in retaliation for filing grievances. Retaliation based upon a
prisoner’s exercise of his constitutional rights violates the Constitution. Thaddeus-X v. Blatter,
175 F.3d 378, 394 (6th Cir. 1999) (en banc). In order to set forth a First Amendment retaliation
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claim, a plaintiff must establish that: (1) he was engaged in protected conduct; (2) an adverse
action was taken against him that would deter a person of ordinary firmness from engaging in
that conduct; and (3) the adverse action was motivated, at least in part, by the protected conduct.
Id.
Plaintiff alleges that the protected conduct in which he engaged was filing institutional
grievances and complaints. Plaintiff does have a constitutionally protected right to file
grievances for retaliation purposes as long as they are not frivolous. Herron v. Harrison, 203
F.3d 410, 415 (6th Cir. 2000); Noble v. Schmitt, 87 F.3d 157, 162 (6th Cir. 1996). As previously
discussed, the allegations made by Plaintiff fail to state a claim.
Plaintiff alleges that the adverse action taken against him was his transfer to the main jail
from the CSC. The Sixth Circuit has repeatedly held that a prison transfer is generally not a
sufficiently adverse action to deter a person of ordinary firmness from engaging in protected
conduct. See Jewell v. Leroux, 20 F. App’x 375, 378 (6th Cir. 2001) (stating that “[a] transfer to
the general population of another prison is not considered sufficiently adverse to deter a person
of ordinary firmness from exercising his First Amendment rights”); Geiger v. Prison Realty
Trust, Inc., 13 F. App’x 313, 315 (6th Cir. 2001) (finding no First Amendment right of access to
the courts claim because the prisoner failed to allege that his transfer to another institution
prevented or deterred him from continuing to write grievances and file lawsuits.); Friedman v.
Corr. Corp. of Am., 11 F. App’x 467, 471 (6th Cir. 2001) (finding that transfer to another
institution that was farther away from those who visited him and did not offer the programs in
which he previously participated was not an “adverse action” for purposes of a retaliation
claim.); Goddard v. Ky. Dep’t of Corr., No. 99-5348, 99-5971, 2000 WL 191758 (6th Cir. Feb.

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7, 2000) (“The transfer to the general population of another prison is not considered sufficiently
adverse to deter a person of ordinary firmness from exercising his First Amendment rights.”).
Plaintiff also states he was threatened. Not every action is constitutionally cognizable.
Ingraham v. Wright, 430 U.S. 651, 674 (1977); Thaddeus-X v. Blatter, 175 F.3d at 396. “There
is, of course a de minimis level of imposition with which the Constitution is not concerned.”
Ingraham v. Wright, 430 U.S. at 674. The adverse action necessary to state a constitutional
violation must be such that it would “‘deter a person of ordinary firmness’ from the exercise of
the right at stake.” Thaddeus-X v. Blatter, 175 F.3d at 396 (quoting Bart v. Telford, 677 F.2d
622, 625 (7th Cir. 1982)). This standard is an objective inquiry which is flexible enough to
accommodate the various circumstances in which retaliation claims arise and capable of
screening the most trivial of actions. Thaddeus-X v. Blatter, 175 F.3d at 398. The law is clear
that verbal harassment and minor threats are not adverse actions that would deter a person of
ordinary firmness. See Thaddeus-X v. Blatter, 175 F.3d at 398 (stating that “certain threats or
deprivations are so de minimis that they do not rise to the level of being constitutional violations
. . .”); Smith v. Craven, No. 01-5634, 2003 WL 1465396, at *6 (6th Cir. Mar. 19, 2003) (failing
to find that verbal harassment and minor threats were adverse actions that could deter a person of
ordinary firmness from engaging in protected conduct); Carney v. Craven, No. 01-6270, 2002
WL 1315605, at *2 (6th Cir. June 14, 2002) (failing to find that verbal harassment and minor
threats were adverse actions that could deter a person of ordinary firmness from engaging in
protected conduct).
Accordingly, Plaintiff’s § 1983 retaliation claim will be dismissed from this action.

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IV. CONCLUSION
Plaintiff having failed to state a claim upon which relief may be granted, the Court will
enter a separate Order dismissing this case pursuant to 28 U.S.C. § 1915A.
Date:

March 31, 2014

cc:

Plaintiff, pro se
Defendants
Henderson County Attorney
4414.003

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