Colar #787400 et al v. Hienz et al

Filing 13

OPINION ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ANTHONY COLAR et al.,
Plaintiffs,

Case No. 1:12-cv-1197

v.

Honorable Robert J. Jonker

DANIEL HIENZ et al.,
Defendants.
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OPINION
This is a civil rights action brought by three state prisoners pursuant to 42 U.S.C.
§ 1983. The Court has granted Plaintiffs leave to proceed in forma pauperis. Under the Prison
Litigation Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321 (1996), the Court is required to dismiss
any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state
a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from
such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiffs’
pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiffs’
allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504
U.S. 25, 33 (1992). Applying these standards, the Court will dismiss Plaintiffs’ complaint for failure
to state a claim.

Discussion
I.

Factual allegations

Plaintiffs Anthony Colar, Kyle B. Richards, and James Jackson presently are
incarcerated with the Michigan Department of Corrections (MDOC) at the Bellamy Creek
Correctional Facility (IBC). In their complaint, they sue MDOC Director Daniel Heyns1 and the
following IBC employees: Warden Ken McKee; Assistant Deputy Warden Tony Trieweiller;
Assistant Resident Unit Supervisor (ARUS) Brian Hadden; Resident Unit Manager (RUM)
(unknown) Mote; Captain (unknown) Makara; Lieutenant (unknown) Wise; Sergeant (unknown)
Bennickson; and Corrections Officers (unknown) Strait, (unknown) Warr, (unknown) Wall,
(unknown) Frieburger, and (unknown) Abbott.
Plaintiffs allege that they have been kept in segregation for an “extensive” period of
time. (Compl., docket #1, Page ID#3.) For instance, Plaintiffs Richards and Jackson have been in
segregation for five months. Plaintiffs complain that their meals are inadequate to keep them
healthy, and as a result, they have experienced nausea, vomiting, fatigue, and weakness. They assert
that the lack of food amounts to forced starvation or torture. Plaintiffs also assert that they have
suffered psychological damage and stress from “sensory deprivation,” because they cannot afford
televisions or radios, and they are not provided “sufficient entert[ai]nment appliances.” (Id. at
Page ID#5.) Plaintiffs allegedly filed grievances and complained to Defendants Trieweiller, McKee,
Hadden, Bennickson, and Wise, but “no resolution was reached.” (Id. at Page ID#4.) Plaintiffs also
contacted the office of MDOC Director Heyns, but no response was received.

1

Plaintiffs refer to the MDOC director as “Hienz” in the complaint. The Court will use the correct spelling of
Director Heyns’ name for purposes of this opinion.

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Plaintiffs further allege that Defendants Wall, Warr, and Frieburger have engaged in
“der[]ogatory, har[]assing, and threatening” behavior. (Id. at Page ID#5.) Officers Warr and Strait
threatened to shoot Plaintiff Richards. Also, on October 20, 2012, Officer Frieburger threatened to
ejaculate in Plaintiffs’ food.
Plaintiffs contend that Defendants have violated their rights under the Eighth
Amendment. As relief, Plaintiffs seek damages and an injunction requiring that the MDOC provide
“appliances” to indigent prisoners for their psychological well being. (Id. at Page ID#6.)
II.

Failure to state a claim

A complaint may be dismissed for failure to state a claim if “‘it fails to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
While a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include
more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”). The court must determine whether the complaint contains “enough
facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679.
Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – that
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the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)); see also
Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility
standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1)
and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right
secured by the federal Constitution or laws and must show that the deprivation was committed by
a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr.
Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating federal
rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify
the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).
A.

Defendants Heyns, Trieweiller, McKee, Hadden, Bennickson,
Abbott, Makara, Mote & Wise

Plaintiffs fail to make specific factual allegations against Defendants Heyns,
Trieweiller, McKee, Hadden, Bennickson, Abbott, Makara, Mote, and Wise, other than to claim that
they failed to adequately respond to unspecified grievances or complaints filed by Plaintiffs, or failed
to properly oversee the operation of Plaintiffs’ housing unit. Indeed, Defendants Abbott, Makara,
and Mote are not even mentioned by name in the body of the complaint. Government officials may
not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat
superior or vicarious liability. Iqbal, 556 U.S. at 676; Monell v. New York City Dep’t of Soc. Servs.,
436 U.S. 658, 691(1978); Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). A claimed
constitutional violation must be based upon active unconstitutional behavior. Grinter v. Knight, 532
F.3d 567, 575 (6th Cir. 2008); Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002). The acts of

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one’s subordinates are not enough, nor can supervisory liability be based upon the mere failure to
act. Grinter, 532 F.3d at 575; Greene, 310 F.3d at 899; Summers v. Leis, 368 F.3d 881, 888 (6th Cir.
2004). Moreover, § 1983 liability may not be imposed simply because a supervisor denied an
administrative grievance or failed to act based upon information contained in a grievance. See
Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). “[A] plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has violated the
Constitution.” Iqbal, 556 U.S. at 676. Plaintiffs have failed to allege that Defendants Heyns,
Trieweiller, McKee, Hadden, Bennickson, Abbot, Makara, Mote, and Wise engaged in any active
unconstitutional behavior. Accordingly, Plaintiffs fail to state a claim against them.
B. Defendants Wall, Warr, Frieburger & Strait
Plaintiffs assert that Defendants Wall, Warr, Frieburger and Strait have engaged in
harassing or threatening behavior. Defendants Warr and Strait threatened to shoot Plaintiff Richards,
and Defendant Frieburger threatened to ejaculate in Plaintiffs’ food. The use of harassing or
degrading language by a prison official, although unprofessional and deplorable, does not rise to
constitutional dimensions. See Ivey v. Wilson, 832 F.2d 950, 954-55 (6th Cir. 1987); see also
Johnson v. Dellatifa, 357 F.3d 539, 546 (6th Cir. 2004) (harassment and verbal abuse do not
constitute the type of infliction of pain that the Eighth Amendment prohibits); Violett v. Reynolds,
No. 02-6366, 2003 WL 22097827, at *3 (6th Cir. Sept. 5, 2003) (verbal abuse and harassment do
not constitute punishment that would support an Eighth Amendment claim); Thaddeus-X v. Langley,
No. 96-1282, 1997 WL 205604, at *1 (6th Cir. Apr. 24, 1997) (verbal harassment is insufficient to
state a claim); Murray v. U.S. Bureau of Prisons, No. 95-5204, 1997 WL 34677, at *3 (6th Cir. Jan.
28, 1997) (“Although we do not condone the alleged statements, the Eighth Amendment does not
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afford us the power to correct every action, statement or attitude of a prison official with which we
might disagree.”); Clark v. Turner, No. 96-3265, 1996 WL 721798, at *2 (6th Cir. Dec. 13, 1996)
(“Verbal harassment and idle threats are generally not sufficient to constitute an invasion of an
inmate’s constitutional rights.”); Brown v. Toombs, No. 92-1756, 1993 WL 11882 (6th Cir. Jan. 21,
1993) (“Brown’s allegation that a corrections officer used derogatory language and insulting racial
epithets is insufficient to support his claim under the Eighth Amendment.”). Accordingly, Plaintiffs
fail to state a claim against Defendants based on their alleged threats and verbal abuse.
In addition, Plaintiffs fail to describe in any detail the offending behavior by
Defendant Wall. Thus, Wall must be dismissed for the additional reason that Plaintiffs’ allegations
against him are too vague to “plausibly suggest an entitlement to relief.” Iqbal, 556 U.S. at 681.
III.

Duplicative action

The Court notes that, less than a month before filing the instant action, Plaintiffs
Richards and Jackson filed a separate action against almost all of the Defendants named herein,2
asserting essentially identical claims, i.e., that Plaintiffs were being deprived of adequate food and
entertainment.3 See Jackson et al. v. Snyder et al., No. 1:12-cv-1134 (W.D. Mich.) (filed Sept. 28,
2012). Plaintiffs Richards and Jackson cannot proceed against the same Defendants in a second
action based on the same set of facts.

2

All Defendants except for Abbott, Strait, and Wall were named as defendants in Case No. 1:12-cv-1134.
Defendant Makara was later dropped from that action when Plaintiffs amended their complaint.
3

In an amended version of their complaint, Plaintiffs also alleged that Defendants Frieburger and Warr
threatened to ejaculate in Plaintiff Jackson’s food. See Jackson, No. 1:12-cv-1134 (Am. Compl., docket #31, Page
ID#129).

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Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiffs’ action must be dismissed for failure to state a claim pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c).
An Order consistent with this Opinion will be entered.

Dated:

March 5, 2013

/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE

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