Jones #260563 v. Brinkley et al

Filing 5

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

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

JESSE JONES,
Plaintiff,

Case No. 1:14-cv-1021

v.

Honorable Robert Holmes Bell

WENDY BRINKLEY et al.,
Defendants.
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OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
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 dismiss Plaintiff’s sexual harassment
claim against Defendants French and Torras. The Court will serve Plaintiff’s Eighth Amendment
failure to protect claim against Defendants Hulet, Zwiefka, Brinkely, Bassett, French and Torras and
Plaintiff’s retaliation claim against Defendants Brinkley, Hulet, Zwiefka, Torras, Bassett, Shelley,
Sutter and French.

Discussion
I.

Factual allegations

Plaintiff presently is incarcerated with the Michigan Department of Corrections at the
G. Robert Cotton Correctional facility, although the events about which he complains took place
while he was incarcerated at the Oaks Correctional Facility (ECF). Plaintiff sues the following ECF
employees as defendants: Assistant Resident Unit Supervisor (ARUS) Wendy Brinkley; Prison
Guards S. Hulet, (Unknown) Zwiefka, (Unknown) Shelley, and (Unknown) Sutter; and Grievance
Coordinator T. Bassett. Additionally, Plaintiff sues Aramark Food Service Supervisors (Unknown)
Torras and (Unknown) French. Plaintiff alleges three claims for relief: retaliation, deliberate
indifference and sexual harassment.
With respect to his retaliation claim, Plaintiff alleges that Defendant Hulet retaliated
against him for writing grievances by confiscating his allowable excess legal property and
maliciously destroying his trial transcripts and ten legal books. Defendant Hulet then issued Plaintiff
a false Class 2 misconduct for possession of stolen property. Plaintiff never received a hearing on
the misconduct. Plaintiff alleges that on another occasion, also in retaliation for his grievance
writing, Defendant Zwiefka confiscated his allowable clothing. Both Defendants Hulet and Zwiefka
told other prisoners that Plaintiff was a “rat” for filing a grievance. (Compl., docket# 1, Page ID# 4.)
Plaintiff further alleges that in retaliation for his grievance writing, Defendant Bassett issued a false
Class 3 misconduct for the same violation that Defendant Hulet had falsely reported--namely that
Plaintiff had excess legal property. Defendant Bassett also told other prisoners that Plaintiff was a
“rat” for filing a grievance. (Id. at Page ID#5.) Finally, Plaintiff alleges that in retaliation for
grievance writing and for Plaintiff obtaining a decision allowing him to possess excess legal
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property, Defendant Brinkley maliciously conducted a second hearing on Plaintiff’s allowable excess
legal property. In conducting the second hearing, Defendant Brinkley stated (verbatim): “I know
policy, I don’t give a fuck what the SOAHR hearing officer says, you can’t have the book and the
warden will back me up! Rat.” (Id.) Defendant Brinkley told other prisoners that Plaintiff was a
“rat” for filing a grievance and disposed of Plaintiff’s legal property. (Id.) As a result of Defendants
Hulet, Zwiefka, Brinkley and Bassett calling Plaintiff a “rat” in front of other prisoners, Plaintiff was
punched in the face by an unidentified prisoner who stated (verbatim): “Brinkley, Hulet, Bassett,
Zwiefka, said that you was a ‘rat.’ (Id.; see also id. at Page ID#4.)
Plaintiff alleges that in retaliation for his grievance writing, Defendant Sutter lied and,
as a result, he was terminated from his kitchen work assignment and he was found guilty of a
misconduct. Defendant Sutter stated (verbatim): “So what if I lied when I was interviewed by Lt.
Shelley, Shelley knows, he help[ed] me lie nigger, so you better sign off [on] the grievance against
my friend or else.” (Id. at Page ID#6.)
Plaintiff further alleges that Defendant Shelley stated (verbatim): “So you think it’s
a game? So what if I lied to find you guilty and terminated you from your work assignment. Now
you better drop the grievance, this time it’s your job, the next time I’ll kick your ass and throw you
in segregation.” (Id.) After this statement, Defendant Shelley found Plaintiff guilty of a misconduct
violation and sentenced him to 10 days loss of privileges. Plaintiff appealed and his appeal was
granted 7 days into his 10-day loss of privileges.
After Defendant Shelley learned that Plaintiff had prevailed on his appeal, Defendant
Shelley called Plaintiff out of his cell and conducted a second hearing on the misconduct violation,
stating (verbatim): “So what if you beat the misconduct on appeal. I have the power to do what I
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want and I’m finding you guilty. The next time I’ll put your ass in seg.” (Id.) Then, for the second
time, Defendant Shelley found Plaintiff guilty of the misconduct and sentenced him to 15 days loss
of privileges. Plaintiff again appealed and again prevailed. Plaintiff alleges that the hearing officer’s
decision stated that the guilty finding was reversed, no rehearing was necessary and the original
hearing “had due process issues.” (Id. at Page ID#7.)
In retaliation for Plaintiff filing a sexual harassment complaint against Defendant
Torras, Defendant Torras transferred Plaintiff from his morning kitchen work assignment and
maliciously denied Plaintiff a pay increase, stating (verbatim): “If you don’t give me some dick I’ll
have you fired.” Defendant Torras promoted other prisoners with less seniority and who were
unskilled for the job. Shortly after Plaintiff’s retaliatory transfer to the afternoon shift, Defendant
Torras moved to the afternoon shift. Defendant Torras flashed her prison gang tattoos and told
Plaintiff that she told her prison gang members that Plaintiff was a “rat and to kill him.” (Id.)
After being threatened by Defendant Torras, Plaintiff filed a complaint with
Defendant French. In retaliation for Plaintiff’s complaining about Defendant Torras, Defendant
French told Defendant Torras what Plaintiff had said and “they both tried to lure Plaintiff into the
cooler, ordering him to suck their breast[s].” (Id.) When Plaintiff refused their advances,
Defendants Torras and French wrote a false misconduct report on Plaintiff and terminated him from
his work assignment.
Plaintiff alleges that Defendants French and Torras told members of Torras’ gang that
Plaintiff was “gay and a rat.” (Id.) As a result of these statements, prison gang members have
threatened and continue to threaten to rape and kill Plaintiff.

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With respect to his deliberate indifference claim, Plaintiff alleges that Defendants
Hulet, Zwiefka, Brinkley and Bassett maliciously exposed Plaintiff to a substantial risk of danger
when they stated to the prison population that Plaintiff was a “switch [sic],” which resulted in
Plaintiff being punched in the face by an unidentified prisoner who stated during the attack that:
“Niemi, Brinkley, Hulet, Bassett, [and] Zwiefka said [you] were a rat.” (Id. at Page ID#8.)
Additionally, Plaintiff alleges that Defendant French and Torras maliciously exposed
Plaintiff to a substantial risk of danger when they told the prison population that Plaintiff was “gay
and a rat,” which resulted in prison gang members threatening to rape and kill Plaintiff. (Id.)
With respect to his sexual harassment claim, Plaintiff alleges that Defendants French
and Torras maliciously made unwelcome sexual advances towards Plaintiff and when he refused to
comply with their demands they wrote a false misconduct and terminated from his work assignment.
As relief, Plaintiff seeks 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
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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.

Eighth Amendment: Sexual Harassement

Plaintiff alleges that Defendants French and Torras made unwelcome sexual advances
and when he refused to comply with their demands, they wrote a false misconduct and terminated
Plaintiff from his work assignment.
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
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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
endure while incarcerated constitutes cruel and unusual punishment within the meaning of the Eighth
Amendment.” Ivey, 832 F.2d at 954.
“[B]ecause the sexual harassment or abuse of an inmate by a corrections officer can
never serve a legitimate penological purpose and may well result in severe physical and
psychological harm, such abuse can, in certain circumstances, constitute the ‘unnecessary and
wanton infliction of pain’ forbidden by the Eighth Amendment.” Freitas v. Ault, 109 F.3d 1335,
1338 (8th Cir. 1997) (quoted cases omitted).
However, circuit courts consistently have held that sexual harassment, absent contact
or touching, does not satisfy the objective requirement because such conduct does not constitute the
unnecessary and wanton infliction of pain. See Morales v. Mackalm, 278 F.3d 126, 132 (2d Cir.
2002) (allegations that prison guard asked prisoner to have sex with her and to masturbate in front
of her and other female staffers did not rise to level of Eighth Amendment violation); Barney v.
Pulsipher, 143 F.3d 1299, 1311 n.11 (10th Cir. 1998) (allegations that county jailer subjected female
prisoners to severe verbal sexual harassment and intimidation was not sufficient to state a claim
under the Eighth Amendment); Howard v. Everett, No. 99-1277EA, 2000 WL 268493, at *1 (8th
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Cir. Mar. 10, 2000) (sexual comments and gestures by prison guards did not constitute unnecessary
and wanton infliction of pain); cf. Seltzer-Bey v. Delo, 66 F.3d 961, 962-63 (8th Cir. 1995)
(allegations that prison guard conducted daily strip searches, made sexual comments about prisoner’s
penis and buttocks, and rubbed prisoner’s buttocks with nightstick were sufficient to withstand
motion for summary judgment); Zander v. McGinnis, No. 97-1484, 1998 WL 384625, at *2 (6th Cir.
June 19, 1998) (verbal abuse of mouthing “pet names” at prisoner for ten months failed to state an
Eighth Amendment claim); Murray v. United States Bureau of Prisons, No. 95-5204, 1997 WL
34677, at *3 (6th Cir. Jan. 28, 1997) (magistrate judge correctly held that verbal abuse in the form
of offensive remarks regarding a transsexual prisoner’s bodily appearance, transsexualism, and
presumed sexual preference cannot state an Eighth Amendment claim). Some courts have held that
even minor, isolated incidents of sexual touching coupled with offensive sexual remarks do not rise
to the level of an Eighth Amendment violation. See, e.g., Solomon v. Mich. Dep’t of Corr., 478 F.
App’x 318, 320-21 (6th Cir. 2012) (two “brief” incidents of physical contact during pat-down
searches, including touching and squeezing the prisoner’s penis, coupled with sexual remarks, do
not rise to the level of a constitutional violation); Jackson v. Madery, 158 F. App’x 656, 661 (6th
Cir. 2005) (correction officer’s conduct in allegedly rubbing and grabbing prisoner’s buttocks in
degrading manner was “isolated, brief, and not severe” and so failed to meet Eighth Amendment
standards); Johnson v. Ward, No. 99-1596, 2000 WL 659354, at *1 (6th Cir. May 11, 2000) (male
prisoner’s claim that a male officer placed his hand on the prisoner’s buttock in a sexual manner and
made an offensive sexual remark did not meet the objective component of the Eighth Amendment);
Berryhill v. Schriro, 137 F.3d 1073, 1075 (8th Cir. 1998) (where inmate failed to assert that he
feared sexual abuse, two brief touches to his buttocks could not be construed as sexual assault);
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accord Boxer X v. Harris, 437 F.3d 1107, 1111 (11th Cir. 2006); Boddie v. Schneider, 105 F.3d 857,
859-61 (2d Cir. 1997) (court dismissed as inadequate prisoner’s claim that female corrections officer
made a pass at him, squeezed his hand, touched his penis, called him a “sexy black devil,” pressed
her breasts against his chest, and pressed against his private parts).
If true, the conduct of Defendants French and Torras toward Plaintiff was
reprehensible, but it does not rise to the level of an Eighth Amendment violation. Plaintiff does not
allege that Defendants French or Torras ever touched him or had any form of physical contact with
him. Acts of verbal sexual harassment, standing alone, are insufficient to state a claim under the
Eighth Amendment. See Morales, 278 F.3d at 132; Zander, 1998 WL 384625, at *2. Therefore,
Plaintiff’s allegations fail to state a claim for sexual harassment under the Eighth Amendment
against Defendants French and Torras.
B.

Eighth Amendment: Failure to Protect

Plaintiff alleges that Defendants Hulet, Zwiefka, Brinkley and Bassett maliciously
exposed Plaintiff to a substantial risk of danger by stating to the prison population that Plaintiff was
a snitch, which resulted in Plaintiff being punched in the face while the perpetrator stated: “Niemi,
Brinkley, Hulet, Bassett, [and] Zwiefka said [you] are a rat.” (Compl., docket #1, Page ID##4-5.)
Additionally, Plaintiff alleges that Defendants French and Torras maliciously exposed
him to a substantial risk of danger when they stated to the prison gang population that Plaintiff was
“gay and a rat,” which resulted in prison gang members threatening to rape and kill Plaintiff. (Id.
at Page ID#7.)

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At this juncture, Plaintiff’s allegations against Defendants Hulet, Zwiefka, Brinkley,
Bassett, French and Torras warrant service of Plaintiff’s Eighth Amendment claim for failure to
protect.
C.

Retaliation

Plaintiff alleges that Defendants Brinkley, Hulet, Zwiefka, Torras, Bassett, Shelley,
Sutter and French retaliated against him in a variety of ways. At this juncture, Plaintiff’s allegations
warrant service of Plaintiff’s retaliation claim against these Defendants
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s sexual harassment claim against Defendants French and Torras 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 Plaintiff’s Eighth Amendment failure to protect claim
against Defendants Hulet, Zwiefka, Brinkley, Basset, French and Torras and Plaintiff’s retaliation
claim against Defendants Brinkley, Hulet, Zwiefka, Torras, Bassett, Shelley, Sutter and French.
An Order consistent with this Opinion will be entered.

Dated: December 4, 2014

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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