Jackson #477836 et al v. Heyns et al

Filing 24

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

JAMES JACKSON et al.,
Plaintiffs,

Case No. 1:13-cv-636

v.

Honorable Robert J. Jonker

DANIEL H. HEYNS et al.,
Defendants.
____________________________________/
OPINION
This is a civil rights action brought by four state prisoners pursuant to 42 U.S.C.
§ 1983. The Court has granted Plaintiffs Jackson, Richards and Hill leave to proceed in forma
pauperis.1 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 Plaintiff’s complaint for failure to state a claim against Defendants Heyns, McKee,
Trieweller, Hadden, Mote, Davis, Dahms, Hickock, Frieburger, Wright, Maynor, Abbott and
Chilecoat. The Court will serve the complaint against Defendants Wise, Ferguson, Bennickson,
Bond, Marsh and Cowash.

1

Because Plaintiff Johnson failed to either pay his portion of the filing fee or apply to proceed In forma
pauperis, the Court dismissed Plaintiff Johnson from the case on September 10, 2013 (docket #22).

Discussion
I.

Factual allegations

Plaintiffs James Jackson, Kyle B. Richards, and Sylvester Hill are incarcerated with
the Michigan Department of Corrections (MDOC). At the time they filed their complaint, Plaintiffs
all were housed at the Bellamy Creek Correctional Facility (IBC).2
Plaintiffs purport to bring a class action suit against MDOC Director Daniel H. Heyns
and the following IBC officials: Warden (unknown) McKee; Deputy Warden (unknown) Trieweller;
Captain (unknown) Ferguson; Lieutenant (unknown) Wise; Sergeant (unknown) Bennickson;
Resident Unit Manager (RUM) (unknown) Mote; Assistant Resident Supervisors (ARUSs)
(unknown) Bond and (unknown) Hadden; Assistant Resident Unit Manager (ARUM) (unknown)
Wright; and Correctional Officers (unknown) Davis, (unknown) Dahms, (unknown) Hickock,
(unknown) Frieburger, (unknown) Cowash, (unknown) Marsh, (unknown) Maynor, (unknown)
Abbott, and (unknown) Chilecoat.
Plaintiffs allege that they and all similarly situated mentally ill prisoners housed in
segregation at IBC are being subjected to conditions that violate the Eighth Amendment and state
law prohibiting abuse of vulnerable persons.
Plaintiffs first assert that the heating system at IBC is faulty, causing them to be
uncomfortably cold at various times. Plaintiffs allege that they have complained to Defendants
Hadden and Mote, and that Defendants Trieweller and McKee have overall responsibility for the
conditions.

2

Plaintiff Hill subsequently was moved to the St. Louis Correctional Facility (SLF). (See docket #18.)

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Second, Plaintiffs assert that, while they are in segregation, they are allowed to wear
only slip-on, karate-style shoes. They contend that the shoes provide too little protection from the
weather, causing them to avoid going out to the exercise cages because they know that they will
freeze. They therefore assert that they are being deprived of outdoor exercise. Plaintiffs contend that
they have brought the issue to the attention of Hadden, Mote, Trieweller, and McKee, either verbally
or through the grievance process.
Third, Plaintiff Jackson asserts that he has asthma and has been in segregation for
approximately one year. During that time, he has been exposed to chemical agents, when those
agents are used on other prisoners during a cell extraction. Plaintiff Jackson alleges that he has
complained to Defendants Wise, Ferguson and Bennickson, as well as Captain Makara.3 He also
contends that Defendants Hadden, Mote, Trieweller and McKee are responsible as supervisors for
failing to take the proper precaution of moving medically listed inmates who have asthma or
bronchitis out of the hazardous area when chemicals are deployed. Plaintiff asserts that “many
[prisoners] ha[ve] passed out or had asthma attacks and seizures.” (Compl., docket #1, Page ID#5.)
According to Plaintiff Jackson, officers at Oaks Correctional Facility routinely take all prisoners who
use inhalers outside, before using chemical sprays.
Fourth, Plaintiffs complain about a variety of hygiene matters. Plaintiff Jackson
asserts that he has been in segregation Unit 1 for one year, and during that time, the plumbing closets
to the cells’ toilets and the vents have never been cleaned. In addition, the space under the bunks
are blocked by steel grates, preventing prisoners from cleaning under the bunks. Further, the toilets
have flooded more than once, and the water stagnates under the bunks. As a result, filthy air and

3

Captain Makara is not named as a Defendant in this action.

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mold are being circulated, causing all Plaintiffs to experience breathing problems and allergic
reactions. On February 27, 2013, Plaintiff Hill wrote a kite to Defendant Bond, complaining about
mold in his cell. He received no response. One week later, Hill complained to Defendants Cowash
and Marsh about the same issue. Cowash told him that the condition was not harmful, and refused
to move Plaintiff Hill. Hill was experiencing symptoms of nausea, dizziness and diarrhea, and he
complained to Marsh, who also failed to move Plaintiff. Plaintiff Hill submitted a health care kite
on March 27, 2013, but he was not seen until April 10. Plaintiff Hill alleges that he complained to
Cowash and Marsh, who told him that the mold did not present a health problem. In addition,
Plaintiffs generally allege that they filed kites and grievances about the conditions with Defendants
McKee, Trieweller, Ferguson, Wise and Heyns, but no action was taken.
In their fifth set of allegations, Plaintiffs complain that guards routinely use foul and
degrading language to address prisoners. Defendants Hickock, Bennickson, Davis, Dahms and
Frieburger all allegedly have heard such degrading comments, but have taken no action. The
degrading language allegedly interferes with Plaintiffs’ mental health.4
Sixth, Plaintiffs make a variety of allegations about their food deliveries. They allege
that Defendants Davis, Hickock and Dahms have distributed food trays without wearing gloves.
Plaintiffs allegedly have complained to Defendants Wise, Bennickson, Mote, Trieweller and McKee
either verbally or through the grievance process. In addition, Plaintiffs allege that the food trays are
cracked, preventing a dishwasher from adequately removing all contaminants from the tray. Further,
4

Plaintiff state that he also wishes to “admit into court file a section 1983 that was filed on 2/28/13 on Warden
McKee, Warden Trieweller, Ferguson, Wise, Bennickson, Mote, Hadden, Heyns, Dahms, Hickock, and Frieburger for
a campaign of harassment, food tampering, threatening to kill plaintiffs, and refusing to feed plaintiffs.” (Compl., Page
ID#6.) The Court is unaware of any case filed on February 28, 2013 by Plaintiff Jackson, the drafter of the instant
complaint, or any of the other Plaintiffs. Moreover, the mere filing of another civil rights complaint is not relevant to
the instant case, and Plaintiffs may not simply incorporate by reference allegations made in another complaint.

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Plaintiffs allegedly have been receiving cold or lukewarm meals. Plaintiffs also complain that the
portions of food served to segregation prisoners are smaller, barely enough to sustain a person.
Plaintiffs seek declaratory and injunctive relief against all Defendants to stop abusing
their authority and acting with deliberate indifference to the conditions about which Plaintiffs
complain. They also seek compensatory and punitive damages.
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, 47 (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 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
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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.

Class Action

Plaintiffs assert their intent to bring a class action on behalf of all mentally ill
prisoners in segregation at IBC. The Court construes Plaintiffs’ allegations as a request for class
certification. For a case to proceed as a class action, the Court must be satisfied on a number of
grounds, including the adequacy of class representation. See FED. R. CIV. P. 23(a)(4). It is well
established that pro se litigants are inappropriate representatives of the interests of others. See
Garrison v. Mich. Dep’t of Corr., 333 F. App’x 914, 919 (6th Cir. 2009) (citing Oxendine v.
Williams, 509 F.2d 1405, 1407 (4th Cir. 1975)); see also Dodson v. Wilkinson, 304 F. App’x 434,
438 (6th Cir. 2008); Ziegler v. Michigan, 59 F. App’x 622, 624 (6th Cir. 2003); Palasty v. Hawk,
15 F. App’x 197, 200 (6th Cir. 2001); Howard v. Dougan, No. 99-2232, 2000 WL 876770, at *1 (6th
Cir. June 23, 2000); Ballard v. Campbell, No. 98-6156, 1999 WL 777435, at *1 (6th Cir. Sept. 21,
1999); Marr v. Mich., No. 95-1794, 1996 WL 205582, at * 1 (6th Cir. April 25, 1996). Accordingly,
because Plaintiffs are incarcerated, pro se litigants, the Court finds that they are not appropriate
representatives of a class. Therefore, the Court will deny Plaintiffs’ request for class certification.
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B.

Lack of Allegations

It is a basic pleading essential that a plaintiff attribute factual allegations to particular
defendants. See Twombly, 550 U.S. at 544 (holding that, in order to state a claim, Plaintiff must
make sufficient allegations to give a defendant fair notice of the claim). Where a person is named
as a defendant without an allegation of specific conduct, the complaint is subject to dismissal, even
under the liberal construction afforded to pro se complaints. See Frazier v. Michigan, 41 F. App’x
762, 764 (6th Cir. 2002) (dismissing Plaintiff’s claims where the complaint did not allege with any
degree of specificity which of the named defendants were personally involved in or responsible for
each alleged violation of rights); Griffin v. Montgomery, No. 00-3402, 2000 WL 1800569, at *2 (6th
Cir. Nov. 30, 2000) (requiring allegations of personal involvement against each defendant));
Rodriguez v. Jabe, No. 90-1010, 1990 WL 82722, at *1 (6th Cir. June 19, 1990) (“Plaintiff’s claims
against those individuals are without a basis in law as the complaint is totally devoid of allegations
as to them which would suggest their involvement in the events leading to his injuries.”); see also
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); Krych v. Hvass, 83 F. App’x 854, 855 (8th Cir.
2003); Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974); Williams v. Hopkins, No. 06-14064,
2007 WL 2572406, at *4 (E.D. Mich. Sept. 6, 2007); McCoy v. McBride, No. 3:96-cv-227RP, 1996
WL 697937, at *2 (N.D. Ind. Nov. 5, 1996); Eckford-El v. Toombs, 760 F. Supp. 1267, 1272-73
(W.D. Mich. 1991). Plaintiffs fail even to mention Defendants Maynor, Abbott, and Chilecoat in
the body of their complaint. Their allegations therefore fall far short of the minimal pleading
standards under FED. R. CIV. P. 8 (requiring “a short and plain statement of the claim showing that
the pleader is entitled to relief”). The Court therefore will dismiss Defendants Maynor, Abbott, and
Chilecoat.
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C.

Degrading Language

Plaintiff alleges that correctional officers routinely use degrading language, and
Defendants Hickock, Bennickson, Davis, Dahms and Freiburger all have heard that degrading
language but have taken no action.
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 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. 921756, 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, Plaintiff fails to state an Eighth Amendment claim against Defendants
Hickock, Bennickson, Davis, Dahms and Freiburger arising from their alleged acquiescence to verbal
abuse.
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D.

Food and Temperature Claims

Plaintiffs contend that their rights under the Eighth Amendment were violated by a
number of actions related to their meals: (1) Defendants Davis and Dahms distributed their food
trays without wearing gloves; (2) the trays on which their food is delivered are cracked and therefore
unsanitary, because the dishwasher cannot adequately removed contaminants from cracked trays;
(3) their meals are frequently either cold or lukewarm when they receive them; and (4) the food
portions they receive are very small – “just enough to sustain a person.” (Compl., Page ID#7.)
Plaintiffs also allege two issues related to temperature: (1) the segregation unit sometimes is not
warm enough, due to a faulty heating system; and (2) prisoners in the segregation unit are not
allowed standard-issue shoes, but must wear karate-style shoes that provide insufficient protection
from the cold, thereby discouraging them from going to the outdoor-exercise yard.
The Eighth Amendment imposes a constitutional limitation on the power of the states
to punish those convicted of crimes. Punishment may not be “barbarous” nor may it contravene
society’s “evolving standards of decency.” Rhodes v. Chapman, 452 U.S. 337, 345-46 (1981). The
Amendment, therefore, prohibits conduct by prison officials that involves the “unnecessary and
wanton infliction of pain.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987) (per curiam) (quoting
Rhodes, 452 U.S. at 346). The deprivation alleged must result in the denial of the “minimal civilized
measure of life’s necessities.” Rhodes, 452 U.S. at 347; see also Wilson v. Yaklich, 148 F.3d 596,
600-01 (6th Cir. 1998). The Eighth Amendment is only concerned with “deprivations of essential
food, medical care, or sanitation” or “other conditions intolerable for prison confinement.” Rhodes,
452 U.S. at 348 (citation omitted). Moreover, “[n]ot every unpleasant experience a prisoner might

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endure while incarcerated constitutes cruel and unusual punishment within the meaning of the Eighth
Amendment.” Ivey, 832 F.2d at 954.
In order for a prisoner to prevail on an Eighth Amendment claim, he must show that
he faced a sufficiently serious risk to his health or safety and that the defendant official acted with
“‘deliberate indifference’ to [his] health or safety.” Mingus v. Butler, 591 F.3d 474, 479-80 (6th Cir.
2010) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994) (applying deliberate indifference
standard to medical claims); see also Helling v. McKinney, 509 U.S. 25, 35 (1993) (applying
deliberate indifference standard to conditions of confinement claims)).
Plaintiffs’ claims about the food service in segregation fail to rise to the level of an
Eighth Amendment violation. “The mere fact that no gloves were worn [during food handling] does
not establish that the food itself was unsanitary. ” Smith v. Roosevelt County Jail, No. CV 05-120
GFSEH, 2007 WL 30272, at *3 (D. Mont. Jan. 3, 2007); see also Browne v. Morris, No. 3:05-cv618-HDM-VPC, 2007 WL 2288333 (D. Nev. Aug. 9, 2007) (allegation that food was served without
wearing gloves fails to demonstrate a risk to health and safety). Similarly, Plaintiffs’ allegation that
the food trays are cracked does not demonstrate that the food Plaintiffs were provided contaminated.
Cf. Hayes v. Walsh, No. 3:11-CV-168, 2013 WL 2285365, at *9 (M.D. Pa. May 23, 2013) (holding
that the fact that food was served by officers not wearing hats and that food trays were not covered
did not deprive inmates of the minimal civilized measure of life’s necessities).
In addition, Plaintiffs fail to allege a constitutional deprivation based on the portions
of food they receive. They do not allege that they lost any weight or suffered any negative health
effects because of the size of the portions. In fact, Plaintiffs acknowledge that the amount of food

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they are receiving is “just enough to sustain a person.” (Compl., Page ID#7.) By their own
admissions, therefore, Plaintiffs are receiving constitutionally adequate food portions.
Further, the fact that Plaintiffs frequently receive cold or lukewarm food does not
constitute the type of extreme deprivation that would violate the Eighth Amendment. In general,
complaints about the preparation or quality of prison food are “far removed from Eighth Amendment
concerns.” Cunningham v. Jones, 567 F.2d 653, 659-60 (6th Cir. 1977). Moreover, “cold food
apparently is an ordinary incident in prison life.” Thaddeus-X v. Blatter, 175 F.3d 378, 404 (6th Cir.
1999) (collecting cases) (Surheinrich, J., in dissent). Consequently, a prisoner’s claim that he was
served cold meals does not amount to a constitutional deprivation. See Laufgas v. Speziale, 263 F.
App’x 192, 198 (3d Cir. 2008); Strauss v. Ray, No. 99-5370, 2000 WL 875690, at *2 (6th Cir. Jun.
19, 2000) (citing Hamm v. DeKalb Cnty., 774 F.2d 1567, 1575 (11th Cir. 1985)); see also Dean v.
Campbell, No. 97-5955, 1998 WL 466137, at *2 (6th Cir. July 30, 1998) (per curiam) (holding that
allegation of cold meals for a short period of time “fail[ed] to allege facts showing that [prisoner]
was subjected to the type of extreme deprivations which are necessary for an Eighth Amendment
conditions of confinement claim”); Johnson v. Horn, 150 F.3d 276, 282 (3d Cir. 1998) (holding that
serving cold instead of hot kosher food to inmate did not violate prisoner’s First Amendment rights);
Brown-El v. Delo, 969 F.2d 644, 648 (8th Cir. 1992) (holding that prisoner’s constitutional rights
were not violated when he was served cold food); Madyun v. Thompson, 657 F.2d 868, 874-75 (7th
Cir. 1981) (holding that allegation that food served to segregated prisoners was cold and not on menu
served to general prison population was insufficient to state an Eighth Amendment claim); Woods
v. Frederick, No. 4:07 CV 68, 2007 WL 1198882, at *4 (N.D. Ohio Apr. 18, 2007) (finding that a

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prison’s failure to provide two hot meals per day for thirty days while the cafeteria was being
remodeled did not violate the Eighth Amendment).
Moreover, Plaintiffs’ claims that the temperatures in the segregation unit are
sometimes too cold is too vague to rise to an objectively level of serious deprivation required to state
a claim under the Eighth Amendment. See Dean v. Campbell, No. 97-5955, 1998 WL 466137, at
*2 (6th Cir. Jul. 30, 1998). To show an objectively serious condition, the Court must look to the
duration and totality of the conditions leading to the alleged deprivation. See Fracis v. Altiere, 491
F. App’x 539, 542-43 (6th Cir. 2012) (citing Spencer v. Bouchard, 449 F.3d 721, 728-29 (6th Cir.
2006) (holding that allegations of extreme cold over a period of months, coupled with allegations
that guards wore their coats indoors and that the prisoner was naked except for a suicide gown that
didn’t fully close, were sufficient to state a claim), abrogated on other grounds by Jones v. Bock, 549
U.S. 199 (2007)); see also Cosetti v. Hackel, No. 10-12823, 2013 WL 2372284, at *14 (E.D. Mich.
May 28, 2013) (citing Spencer). Plaintiffs make no factual allegations regarding the severity of the
cold, the adequacy of their clothing and blankets, or the duration of time they were subjected to
uncomfortable temperatures. Their conclusory allegations that the unit has been uncomfortably cold
are therefore insufficient to state a claim. See Ivey, 832 F.2d at 954.
Finally, courts routinely have recognized that inmates possess no constitutional right
to extra clothing and heavier shoes to permit them to exercise outdoors in winter. See Rahmeen v.
Davis, No. 3:11-cv-1893, at *2 (D. Conn. Feb. 3, 2012) (holding that prisoners lacked a
constitutional right to thermal underwear and heavy shoes to permit outdoor exercise in freezing
weather) (citing Geber v. Sweeney, 292 F. Supp. 2d 700, 709-10 (E.D. Pa. 2003) (holding that
prisoners are not entitled to hats, gloves and heavier shoes for outdoor recreation in winter). As a
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consequence, Plaintiffs’ allegations about the shoes they are issued in segregation fall short of
demonstrating the sort of “conditions intolerable for prison confinement.” Rhodes, 452 U.S. at 348
(citation omitted).
E.

Supervisory Liability

Plaintiffs allege that Defendants Heyns, McKee, Trieweller, Hadden, Wright, Marsh
and Mote are liable for the alleged Eighth Amendment violations because they have supervisory
responsibility over other Defendants and/or because they failed to take action on one or more
grievances filed by Plaintiffs. 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 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. Plaintiff has failed to
allege that Defendants Heyns, McKee, Trieweller, Hadden or Mote engaged in any active
unconstitutional behavior. Accordingly, he fails to state a claim against them.

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F.

Remaining Claims

Plaintiffs’ remaining claims involve two sets of allegations: (1) that Defendants Wise,
Ferguson and Bennickson repeatedly failed to move them out of their cells before they used chemical
sprays on other segregation prisoners, thereby causing Plaintiffs to experience respiratory problems;
and (2) that Defendants Bond, Marsh and Cowash ignored their requests to clean the mold from
under their bunks and in the ventilation system, thereby causing them to suffer respiratory problems,
nausea and fatigue. Upon initial review, the Court concludes that Plaintiffs’ allegations are sufficient
to warrant service of the complaint.
G.

Motion to Appoint Counsel

Also pending before the Court is Plaintiffs’ motion to appoint counsel. Indigent
parties in civil cases have no constitutional right to a court-appointed attorney. Abdur-Rahman v.
Mich. Dep’t of Corr., 65 F.3d 489, 492 (6th Cir. 1995); Lavado v. Keohane, 992 F.2d 601, 604-05
(6th Cir. 1993). The Court may, however, request an attorney to serve as counsel, in the Court’s
discretion. Abdur- Rahman, 65 F.3d at 492; Lavado, 992 F.2d at 604-05; see Mallard v. U.S. Dist.
Court, 490 U.S. 296 (1989).
Appointment of counsel is a privilege that is justified only in exceptional
circumstances. In determining whether to exercise its discretion, the Court should consider the
complexity of the issues, the procedural posture of the case, and Plaintiff’s apparent ability to
prosecute the action without the help of counsel. See Lavado, 992 F.2d at 606. The Court has
carefully considered these factors and determines that, at this stage of the case, the assistance of
counsel does not appear necessary to the proper presentation of Plaintiff’s position. Plaintiff’s
request for appointment of counsel (docket #19) is therefore DENIED.
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Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Heyns, McKee, Trieweller, Hadden, Mote, Davis, Dahms, Hickock,
Frieburger, Wright, Maynor, Abbott and Chilecoat will 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). The Court will serve
the complaint against Defendants Wise, Ferguson, Bennickson, Bond, Marsh and Cowash.
An Order consistent with this Opinion will be entered.

Dated:

November 13, 2013

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

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