Burton #495156 v. Heyns et al
Filing
5
OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LAMAR BURTON,
Plaintiff,
Case No. 1:14-cv-972
v.
Honorable Gordon J. Quist
DANIEL H. HEYNS et al.,
Defendants.
______________________________/
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. §§ 1983,
1986. The Court has granted Plaintiff 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 Plaintiff’s
pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s
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 serve the complaint against Defendant
Gust, solely with respect to Plaintiff’s claim regarding the use of force by Gust on July 31, 2012.
All other claims and Defendants will be dismissed.
Discussion
I.
Factual allegations
Plaintiff Lamar Burton is incarcerated by the Michigan Department of Corrections
(MDOC) at the Bellamy Creek Correctional Facility, though the events giving rise to the complaint
occurred while he was incarcerated at the E.C. Brooks Correctional Facility (LRF). He sues MDOC
Director Daniel H. Heyns and the following MDOC employees at LRF: Warden Mary Berghuis;
Deputy Warden J. Verboncouer; Inspector S. Walton; Captains B. Evans and C. Smith; Sergeant R.
Moore; and Corrections Officers J. Young, J. Bush and L. Gust.
Plaintiff alleges that on July 31, 2012, he approached the officer’s desk to obtain
some hand soap, which is stocked at the desk for prisoners to obtain as needed. Officer Gust was
standing at the desk and Officers Bush and Young were present in the area. Plaintiff made sure that
Officer Gust was aware of his presence, and Gust acknowledged him. Plaintiff stated, “excuse me,
may I get some soap” as he reached across the desk and put his hand into the soap box. (Compl.,
docket #1, Page ID#3.) As Plaintiff was pulling his hand away from the soap box, Officer Gust
applied a “karate chop” to Plaintiff’s arm in a “hard” motion. (Id.)
Plaintiff asked to see the sergeant and to have his arm examined by healthcare
services, because he had sustained a bruise on his arm. Officer Gust told him to return to his cell.
Plaintiff then spoke with a supervising officer, Sergeant Moore, about the incident, and asked for
the state to pursue criminal charges against Gust. Moore indicated that he would have Captain
Smith come and talk with Plaintiff and that Plaintiff should send a kite to healthcare services
regarding any injuries. Plaintiff returned to his cell, but Captain Smith never arrived.
Plaintiff then sent letters to various officials, including the Warden, the Deputy
Warden, the Inspector, and the Litigation Coordinator, explaining what had happened to him and
requesting that criminal charges be filed against Gust and that Gust be reassigned to another housing
unit and/or terminated from his position. Plaintiff also filed grievances about the incident, but he
asserts that he never received any meaningful assistance from the foregoing officials.
According to attachments to the complaint, Inspector Evans interviewed Officer Gust
and prepared a memorandum to Deputy Warden Verboncouer regarding the incident. (See 8/8/2012
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Evans Memo. to J. Verboncouer, docket #1-1, Page ID#29.) Evans accepted Gust’s account that
Gust “pushed” Plaintiff’s arm away from the officer’s desk, and concluded that the contact was
appropriate. (Id. at Page ID#30.)
On August 22, 2012, Plaintiff was in his cell watching television when Officer Gust
approached and stated, “nigger the next time you reach over my desk it’s not going to be a karate
chop that I give you, I’m going to fry your black ass.” (Compl. at Page ID#8.) Gust placed his hand
on his taser as he spoke. Gust also threw Plaintiff’s mail on the floor, saying, “door close[,] count
time.” (Id.) Plaintiff later filed a grievance complaining about intimidation and its adverse effects
on him, emotionally and psychologically.
Plaintiff also asserts that he received a medical detail from healthcare staff exempting
him from work duties because of the injury to his arm. Attached to the complaint is a list of
Plaintiff’s “medical detail orders,” which shows that a nurse placed a “temporary” restriction on
Plaintiff for “no work assignment,” effective August 1, 2012, to September 22, 2012.1 (See MDOC
Medical Detail Orders, docket #1-1, Page ID#71.) On September 26, 2012, Officer Thompson
(who is not a defendant in this action) told Plaintiff to report to his work assignment. Plaintiff
explained that he was on a waiting list to be re-examined for medical restrictions related to his
ability to work. Thompson charged Plaintiff with a misconduct for disobeying a direct order.
Thompson also prepared a work evaluation which stated that Plaintiff “refuse[s] to work, had a 7
week medical lay-in. He is lazy and [a] future bad report could result in termination and room
confinement.” (Compl. at Page ID#9.)
Captain Evans was the hearing officer for the misconduct hearing. On October 5,
2012, he adjourned the hearing so that he could speak with Officer Thompson. On October 6, after
1
On October 3, 2012, Plaintiff was approved for a “light duty” work assignment. (See MDOC Medical Detail
Orders, docket #1-1, Page ID#76.)
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speaking with Thompson, Evans found Plaintiff guilty of the charge and sanctioned him with two
days of loss of privileges. Plaintiff alleges that he provided Evans with documents showing that his
work restrictions had been renewed, but Evans disregarded the documents.2 Plaintiff appealed
Evans’ decision, but the warden denied the appeal.
Plaintiff complains that he fears for his safety and that he continues to suffer
“physically, mentally and emotionally” as a result of Gust’s assault and intimidating conduct. (Id.
at Page ID#10.) He also contends that medical staff at the facility have evaluated him for possible
nerve damage resulting from the assault by Officer Gust.
As relief, Plaintiff seeks the following: damages; a declaratory judgment that
Defendants have substantially burdened his First Amendment rights; and an injunction requiring
Defendants to provide “humane” treatment for him and to implement policies and practices that
prevent staff from using excessive force. (See id. at Page ID#13.)
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
2
Contrary to Plaintiff’s allegations, the attachments to the complaint indicate that the work restriction was not
renewed. Instead, it was modified to permit Plaintiff to perform a “light duty” work assignment. (10/3/2012 MDOC
Medical Detail Orders, docket #1-1, Page ID#77.)
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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
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. Supervisory Liability / Failure to Act
Plaintiff’s only allegations against MDOC Director Heyns, Warden Berghuis, Deputy
Warden Verboncouer, Inspector Walton, Sergeant Moore and Captain Smith are that they failed to
act in response to Plaintiff’s grievances and letters of complaint (Defendants Heyns, Berghuis,
Verboncouer, Walton) or failed to investigate or take corrective action following the assault by Gust
(Defendants Moore and Smith).
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
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must be based upon active unconstitutional behavior. Grinter v. Knight, 532 F.3d 567, 575-76 (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 576; 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 does not allege any unconstitutional conduct by Defendants Heyns, Berghuis, Verboncouer,
Walton, Moore, Walton or Smith. Thus, he does not state a claim against them.
B. Eighth Amendment
1. Excessive force
Plaintiff alleges that Officer Gust forcefully struck him in the arm when Plaintiff tried
to reach for some soap at the officer’s desk, causing pain and possible nerve damage in Plaintiff’s
arm. At this stage of the proceedings, the Court concludes that these allegations are sufficient to
state an Eighth Amendment claim against Defendant Gust.
2. Failure to protect
Plaintiff also alleges that Officers Bush and Young were present when Officer Gust
hit him in the arm. In some circumstances, an officer’s failure to protect a prisoner from harm can
rise to the level of an Eighth Amendment violation. Inmates have a constitutionally protected right
to personal safety grounded in the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 833
(1994). Prison staff are obliged “to take reasonable measures to guarantee the safety of the inmates”
in their care. Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). To establish a violation of this right,
Plaintiff must show that Defendants were deliberately indifferent to Plaintiff’s risk of injury. Walker
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v. Norris, 917 F.2d 1449, 1453 (6th Cir. 1990); McGhee v. Foltz, 852 F.2d 876, 880-81 (6th Cir.
1988). In this case, there is no indication that Officers Bush or Young could have done anything to
prevent Gust from harming Plaintiff. Gust apparently struck Plaintiff without warning, before even
Plaintiff could react; thus, Plaintiff cannot claim that Defendants Bush and Young were deliberately
indifferent to a risk of harm. The Court discerns no other possible claim against them. Accordingly,
they will be dismissed for failure to state a claim.
3. Medical care
Plaintiff asserts that he requested medical care for his arm shortly after he was
assaulted by Gust, because his arm was bruised. Officer Gust told him to return to his cell, and
Officer Moore stated that he would speak to Captain Smith and that Plaintiff should send a kite for
medical care. Plaintiff returned to his cell as instructed, but Captain Smith never arrived.
The Eighth Amendment obligates prison authorities to provide medical care to
incarcerated individuals, as a failure to provide such care would be inconsistent with contemporary
standards of decency. Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). A prison official violates the
Eighth Amendment when he or she is deliberately indifferent to the serious medical needs of a
prisoner. Id. at 104-05; Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001).
A claim for the deprivation of adequate medical care has an objective and a
subjective component. Farmer, 511 U.S. at 834. To satisfy the objective component, the plaintiff
must allege that the medical need at issue is sufficiently serious. Id. In other words, the inmate
must show that he is incarcerated under conditions posing a substantial risk of serious harm. Id.
The objective component of the adequate medical care test is satisfied “[w]here the seriousness of
a prisoner’s need[ ] for medical care is obvious even to a lay person.” Blackmore v. Kalamazoo
Cnty., 390 F.3d 890, 899 (6th Cir. 2004). If, however the need involves “minor maladies or
non-obvious complaints of a serious need for medical care,” Blackmore, 390 F.3d at 898, the inmate
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must “place verifying medical evidence in the record to establish the detrimental effect of the delay
in medical treatment.” Napier v. Madison Cnty., 238 F.3d 739, 742 (6th Cir. 2001).
The subjective component requires an inmate to show that prison officials have “a
sufficiently culpable state of mind in denying medical care.” Brown v. Bargery, 207 F.3d 863, 867
(6th Cir. 2000) (citing Farmer, 511 U.S. at 834). Deliberate indifference “entails something more
than mere negligence,” Farmer, 511 U.S. at 835, but can be “satisfied by something less than acts
or omissions for the very purpose of causing harm or with knowledge that harm will result.” Id.
Under Farmer, “the official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837.
Plaintiff’s allegations do not satisfy the objective component of the deliberate
indifference standard; he does not allege that he faced a serious medical need requiring prompt
medical attention. A bruise on the arm does not present a serious need for care. Even assuming that
Plaintiff needed some form of medical care, the officers were not deliberately indifferent to his
needs. They did not deprive him of care or prevent him from obtaining it; instead, they told him to
send a kite to healthcare services for evaluation of his injuries. The attachments to the complaint
indicate that he received substantial medical attention for his injury from healthcare staff. He was
seen by a doctor, who determined that he should be exempt from a work assignment for a period of
time and who prescribed Meloxicam (ostensibly for pain or swelling in Plaintiff’s arm). (See
10/4/2012 Statement of Plaintiff to Hearings Investigator, docket #1-1, Page ID#50; 8/29/2012
Health Care Request, docket #1-1, Page ID#57.) In addition, Plaintiff received an x-ray of his arm,
the results of which were “negative.” (10/15/2012 MDOC Kite Response, docket #1-1, Page
ID#78.) In short, none of the facts alleged indicate that Defendants were deliberately indifferent to
a serious need for medical care. Thus, insofar as Defendants failed to provide such care, Plaintiff
does not state an Eighth Amendment claim.
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4. Work assignment
Plaintiff implies that an officer who is not a defendant in this action endangered his
health by ordering him to report to a work assignment, even though Plaintiff was waiting for renewal
of a medical detail that would exempt him from work. After Plaintiff refused, the officer charged
him with a misconduct for disobeying an order, and Defendant Evans found Plaintiff guilty of the
misconduct. Like Plaintiff’s claim concerning the failure to provide immediate care for his arm, his
claim with respect to the work assignment fails to satisfy the objective component of an Eighth
Amendment claim. He alleges no serious risk of harm from being required to work seven weeks
after his injury, let alone that any of the named Defendants were aware of such a risk and were
deliberately indifferent to it. Indeed, Plaintiff’s work restriction expired a few days before he was
required to work, and that restriction was not renewed. Approximately one week after Plaintiff was
charged with a misconduct, and before he was convicted, a medical provider determined that
Plaintiff could perform a “light duty” assignment. (See 10/3/2012 Medical Detail Orders, docket #11, Page ID#77.) Plaintiff does not indicate how the assignment given to him would have posed a
risk of harm. Thus, the officer’s decision to order Plaintiff to work, and Defendant Evans’ decision
that Plaintiff committed a misconduct by failing to comply that order, did not violate Plaintiff’s
rights under the Eighth Amendment.
5. Verbal harassment and intimidation
Likewise, Defendant Gust’s statements and threats do not state a claim under the
Eighth Amendment. Verbal harassment, although unprofessional and reprehensible, does not rise
to constitutional dimensions. See Ivey v. Wilson, 832 F.2d 950, 954-55 (6th Cir. 1987) (per curiam);
Jones Bey v. Johnson, 248 F. App’x 675, 677-78 (6th Cir. 2007) (prison guard’s use of racial slurs
and other derogatory language against state prisoner did not rise to level of a violation of the Eighth
Amendment) (citing Torres v. County of Oakland, 758 F.2d 147, 152 (6th Cir.1985)); Williams v.
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Gobles, No. 99-1701, 2000 WL 571936, at *1 (6th Cir. May 1, 2000) (occasional or sporadic use
of racial slurs does not rise to a level of constitutional magnitude); Bell-Bey v. Mayer, No. 98-1425,
1999 WL 1021859, at *1 (6th Cir. Nov. 3, 1999) (same); 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); 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.”).
C. Due Process
1. Misconduct proceedings
Plaintiff complains about the fact that Captain Evans found him guilty of a
misconduct for disobeying a direct order and then sanctioned him with two days of lost privileges,
despite the fact that Plaintiff presented evidence that he was not required to go to work. A prisoner’s
ability to challenge a prison misconduct conviction depends on whether the conviction implicated
a protected interest. In the seminal case in this area, Wolff v. McDonnell, 418 U.S. 539 (1974), the
Court prescribed certain minimal procedural safeguards that prison officials must follow before
depriving a prisoner of good-time credits on account of alleged misbehavior. The Wolff Court did
not create a free-floating right to process that attaches to all prison disciplinary proceedings; rather
the right to process arises only when the prisoner faces a loss of liberty, in the form of a longer
prison sentence caused by forfeiture of good-time credits:
It is true that the Constitution itself does not guarantee good-time credit for
satisfactory behavior while in prison. But here the State itself has not only provided
a statutory right to good time but also specifies that it is to be forfeited only for
serious misbehavior. Nebraska may have the authority to create, or not, a right to a
shortened prison sentence through the accumulation of credits for good behavior, and
it is true that the Due Process Clause does not require a hearing “in every
conceivable case of government impairment of private interest.” But the State
having created the right to good time and itself recognizing that its deprivation is a
sanction authorized for major misconduct, the prisoner’s interest has real substance
and is sufficiently embraced within Fourteenth Amendment “liberty” to entitle him
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to those minimum procedures appropriate under the circumstances and required by
the Due Process Clause to insure that the state-created right is not arbitrarily
abrogated.
Wolff, 418 U.S. at 557 (citations omitted).
Plaintiff does not allege that his misconduct conviction resulted in the loss of goodtime credits, nor could he. The Sixth Circuit has examined Michigan statutory law as it relates to
the creation and forfeiture of disciplinary credits3 for prisoners convicted of crimes occurring after
April 1, 1987. In Thomas v. Eby, 481 F.3d 434 (6th Cir. 2007), the court determined that loss of
disciplinary credits does not necessarily affect the duration of a prisoner’s sentence. Rather, it
merely affects parole eligibility, which remains discretionary with the parole board. Id. at 440.
Building on this ruling, in Nali v. Ekman, 355 F. App’x 909 (6th Cir. 2009), the court held that a
misconduct citation in the Michigan prison system does not affect a prisoner’s constitutionally
protected liberty interests, because it does not necessarily affect the length of confinement. 355 F.
App’x at 912; accord, Taylor v. Lantagne, 418 F. App’x 408, 412 (6th Cir. 2011); Wilson v.
Rapelje, No. 09-13030, 2010 WL 5491196, at *4 (E.D. Mich. Nov. 24, 2010) (Report &
Recommendation) (holding that “plaintiff’s disciplinary hearing and major misconduct sanction
does not implicate the Fourteenth Amendment Due Process Clause”), adopted as judgment of court,
2011 WL 5491196 (Jan. 4, 2011). In the absence of a demonstrated liberty interest, Plaintiff has no
due-process claim based on the loss of disciplinary credits. See Bell v. Anderson, 301 F. App’x 459,
461-62 (6th Cir. 2008).
Even in the absence of a protectible liberty interest in disciplinary credits, a prisoner
may be able to raise a due-process challenge to prison misconduct convictions that result in a
significant, atypical deprivation. See Sandin v. Connor, 515 U.S. 472 (1995). Plaintiff has not
3
For crimes committed after April 1, 1987, Michigan prisoners earn “disciplinary credits” under a statute that abolished
the former good-time system. M IC H . C O M P . L AW S § 800.33(5).
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identified any significant deprivation arising from his conviction. Two days of lost privileges is not
an atypical and significant hardship. Ingram v. Jewel, 94 F. App’x 271, 273 (6th Cir. 2004)
(fourteen day loss-of-privileges sanction did not impose an atypical, significant deprivation); see
also Wolff, 418 U.S. at 571 n.19 (“We do not suggest . . . that the procedures required by today’s
decision for the deprivation of good time would also be required for the imposition of lesser
penalties such as the loss of privileges.”). Unless a prison misconduct conviction results in an
extension of the duration of a prisoner’s sentence or some other atypical hardship, a due-process
claim fails. Ingram, 94 F. App’x at 273.
2. Work reports
Plaintiff also contends that he received “negative programming reports” in connection
with the misconduct conviction. (Compl., docket #1, Page ID#10.) Plaintiff ostensibly refers to the
work evaluation by Officer Thompson, who reported that Plaintiff is lazy and refuses to work.
Plaintiff does not indicate how the negative work reports impacted him, however. Even if they
adversely impacted his ability to obtain another work assignment, he does not state a claim because
he does not have a constitutional right to, or a protected interest in, a prison job. See, e.g., Dellis v.
Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001) (district court properly dismissed as frivolous
the plaintiff’s claim that he was fired from his prison job); Newsom v. Norris, 888 F.2d 371, 374 (6th
Cir. 1989) (no constitutional right to prison employment); Ivey v. Wilson, 832 F.2d 950, 955 (6th
Cir. 1987) (“no prisoner has a constitutional right to a particular job or to any job”). Thus, Plaintiff
does not state a due process claim.
D. Discrimination
Plaintiff contends that his allegations involve “racial discrimination” and that
Defendants denied him equal protection. (Compl., docket #1, Page ID##5, 6.) Discrimination is
generally prohibited by the Equal Protection Clause of the Fourteenth Amendment, which
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“commands that no state shall deny to any person within its jurisdiction the equal protection of the
laws.” Club Italia Soccer & Sports Org., Inc. v. Charter Twp., 470 F.3d 286, 298 (6th Cir. 2006)
(internal quotation marks omitted). “To establish a claim for relief under the Equal Protection
Clause, a plaintiff must demonstrate that the government treated the plaintiff disparately as
compared to similarly situated persons and that such disparate treatment either burdens a
fundamental right, targets a suspect class, or has no rational basis.” Id.
Plaintiff contends Defendant Gust verbally harassed and intimidated him, throwing
his mail on the floor and threatening him while using a racial slur. Absent meaningful harm or an
accompanying violation of rights, verbal harassment and intimidation are not sufficient to state a
claim. See Jones v. Porter, No. 99-1326, 2000 WL 572059, at *2 (6th Cir. May 1, 2000) (“Jones’s
Fourteenth Amendment equal protection claim is without merit, as a prison official’s verbal
harassment or idle threats do not rise to a constitutional level.”); Clark v. Turner, No. 96-3265, 1996
WL 721798, at *2 (6th Cir. Dec. 13, 1996) (“Verbal harassment or idle threats are generally not
sufficient to constitute an invasion of an inmate’s constitutional rights.”); see also DeWalt v. Carter,
224 F.3d 607, 612 (7th Cir. 2000) (“Standing alone, simple verbal harassment does not constitute
cruel and unusual punishment, deprive a prisoner of a protected liberty interest or deny a prisoner
equal protection of the laws.”); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (holding
that verbal harassment and abuse do not state a claim under § 1983). If accompanied by
“harassment or a violation of established rights,” a racial epithet “may amount to a separate equal
protection violation.” Williams v. Kaufman Cnty., 352 F.3d 994, 1013 & n.61 (5th Cir. 2003). In
this case, however, Plaintiff does not allege any meaningful injury or accompanying violation of
rights that would give rise to an equal protection claim. Gust allegedly threw Plaintiff’s mail on the
floor, but Plaintiff does not allege any significant harm as a result of those actions. See Price v.
Lighthart, No. 1:10–cv–265, 2010 WL 1741385, at *2 (W.D. Mich. Apr. 28, 2010) (holding that an
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allegation that a prison official used racial slurs and threw the prisoner’s property on the floor does
not violate the Fourteenth Amendment’s guarantee of equal protection).
Furthermore, there is no plausible factual basis from which to infer that any of the
other conduct alleged in the complaint (for example, Gust’s decision to strike Plaintiff on the arm,
Defendants’ responses to that incident, the misconduct conviction, and Defendants’ responses or
lack of response to his complaints, grievances and appeals) involved discriminatory treatment, let
alone discrimination on the basis of race. Consequently, Plaintiff does not state an equal protection
claim.
E. Access to the Courts
In his request for relief in the complaint, Plaintiff states that Defendants have
burdened his First Amendment rights, and he requests an order prohibiting Defendants from
retaining his “legal material” and from denying him access to the courts under the First Amendment.
(Compl., docket #1, Page ID#13.) It is well established that prisoners have a constitutional right of
access to the courts under the First and Fourteenth Amendments. Bounds v. Smith, 430 U.S. 817,
821 (1977). The principal issue in Bounds was whether the states must protect the right of access
to the courts by providing law libraries or alternative sources of legal information for prisoners. Id.
at 817. The Court noted that in addition to law libraries or alternative sources of legal knowledge,
the states must provide indigent inmates with “paper and pen to draft legal documents, notarial
services to authenticate them, and with stamps to mail them.” Id. at 824-25. The right of access to
the courts also prohibits prison officials from erecting barriers that may impede the inmate’s
accessibility to the courts. See Knop v. Johnson, 977 F.2d 996, 1009 (6th Cir. 1992).
An indigent prisoner’s constitutional right to legal resources and materials is not,
however, without limit. In order to state a viable claim for interference with his access to the courts,
a plaintiff must show “actual injury.” Lewis v. Casey, 518 U.S. 343, 349 (1996); see also Talley-Bey
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v. Knebl, 168 F.3d 884, 886 (6th Cir. 1999); Knop, 977 F.2d at 1000. In other words, a plaintiff
must plead and demonstrate that the shortcomings in the prison legal assistance program or lack of
legal materials have hindered, or are presently hindering, his efforts to pursue a nonfrivolous legal
claim. Lewis, 518 U.S. at 351-53; see also Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996).
In addition, the Supreme Court squarely has held that “the underlying cause of action . . . is an
element that must be described in the complaint, just as much as allegations must describe the
official acts frustrating the litigation.” Christopher v. Harbury, 536 U.S. 403, 415 (2002) (citing
Lewis, 518 U.S. at 353 & n.3). “Like any other element of an access claim, the underlying cause of
action and its lost remedy must be addressed by allegations in the complaint sufficient to give fair
notice to a defendant.” Id. at 416.
Plaintiff has not alleged any facts regarding a non-frivolous legal claim that he is
unable to pursue as a result of Defendants’ actions. Thus, he does not state an access-to-courts
claim.
F. Retaliation
Plaintiff alleges that his grievances were denied and claims that the grievance
respondents retaliated against him by labeling him a “liar” and accusing him of making “false
accusations” against Officer Gust. (Comp., docket #1, Page ID#9.) Plaintiff apparently refers to
one of the responses to his grievances, in which the respondent stated that the grievance appeared
to have been filed “in retaliation of an incident alleged to have occurred in July during which the
prisoner made other false accusations against the same Officer.” (Step II Grievance Response,
docket #1-1, Page ID#32.).
Retaliation based upon a prisoner’s exercise of his or her constitutional rights violates
the Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). In order
to set forth a First Amendment retaliation claim, a plaintiff must establish that: (1) he was engaged
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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. Moreover, a plaintiff must be able to prove that the exercise
of the protected right was a substantial or motivating factor in the defendant’s alleged retaliatory
conduct. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
The filing of a prisoner grievance is protected conduct, but the denial of a grievance
is not an adverse action. See Burgos v. Canino, 641 F. Supp. 2d 443, 455 (E.D. Pa. 2009) (“[T]he
mere denial of grievances does not rise to the level of adverse action sufficient to deter a person of
ordinary firmness from exercising his constitutional rights.”); accord Gordon v. Benson, No. 1:12CV-295, 2012 WL 2522290, at *9 (W.D. Mich. June 28, 2012); Alexander v. Fritch, No. 07–1732,
2010 WL 1257709, at *18 (W.D. Pa. Mar. 26, 2010). To the extent that Plaintiff complains about
the statements in the grievance response, he does not indicate how these statements adversely
impacted him. Thus, the foregoing allegations are not adequate to state a retaliation claim.
G. Conspiracy
Plaintiff also claims that Defendants conspired with one another. A civil conspiracy
under § 1983 is “an agreement between two or more persons to injure another by unlawful action.”
See Hensley v. Gassman, 693 F.3d 681, 695 (6th Cir. 2012) (quoting Hooks v. Hooks, 771 F.2d 935,
943-44 (6th Cir. 1985)). The plaintiff must show the existence of a single plan, that the alleged
coconspirator shared in the general conspiratorial objective to deprive the plaintiff of a federal right,
and that an overt action committed in furtherance of the conspiracy caused an injury to the plaintiff.
Hensley, 693 F.3d at 695; Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th Cir. 2011). Moreover,
a plaintiff must plead a conspiracy with particularity, as vague and conclusory allegations
unsupported by material facts are insufficient. Twombly, 550 U.S. at 565 (recognizing that
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allegations of conspiracy must be supported by allegations of fact that support a “plausible
suggestion of conspiracy,” not merely a “possible” one); Fieger v. Cox, 524 F.3d 770, 776 (6th Cir.
2008); Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003); Gutierrez v. Lynch, 826 F.2d 1534,
1538 (6th Cir. 1987).
Plaintiff’s claim of conspiracy is conclusory and speculative. His allegations merely
describe a number of discrete incidents involving different individual officers. Plaintiff has
provided no allegations establishing a link between the alleged conspirators or any agreement
between them. He relies entirely on a highly attenuated inference from the mere fact that he has
been disciplined by or subjected to objectionable treatment by a variety of prison officials in various
circumstances with which he disagreed. As the Supreme Court has held, such allegations, while
hinting at a “possibility” of conspiracy, do not contain “enough factual matter (taken as true) to
suggest that an agreement was made.”
Twombly, 550 U.S. at 556. Instead, the Court has
recognized that although parallel conduct may be consistent with an unlawful agreement, it is
insufficient to state a claim where that conduct “was not only compatible with, but indeed was more
likely explained by, lawful, unchoreographed . . . behavior.” Iqbal, 556 U.S. at 680. Accordingly,
Plaintiff fails to state a plausible claim of conspiracy.
Plaintiff also purports to state a claim under 42 U.S.C. § 1986, which imposes
liability on those who have knowledge that “any of the wrongs conspired to be done, and mentioned
in section 1985 of this title are about to be committed” and who neglect or refuse to prevent them.
Id. To state a conspiracy claim under 42 U.S.C. § 1985(3), a plaintiff must allege facts showing that
(1) two or more persons conspired (2) for the purpose of depriving the plaintiff of the equal
protection of the laws and (3) that the conspirators committed an overt act (4) that injured the
plaintiff. See Radvansky v. City of Olmsted Falls, 395 F.3d 291, 314 (6th Cir. 2005). Just as
Plaintiff fails to state a conspiracy claim under § 1983, he also fails to state a claim of conspiracy
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under § 1985(3). His allegations are wholly conclusory and devoid of any facts from which to infer
that Defendants conspired to violate his rights. “Without a violation of section 1985(3), there can
be no violation of section 1986.” Seguin v. City of Sterling Heights, 968 F.2d 584, 590 (6th Cir.
1992). Thus, Plaintiff also does not state a claim under § 1986.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that all Defendants other than Defendant Gust 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 Defendant Gust, solely with respect to the claim under § 1983 regarding
Defendant Gust’s use of force against him. All other claims will be dismissed.
An Order consistent with this Opinion will be entered.
Dated: December 12, 2014
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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