Dykes #201541 v. Marshall 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

ROBERT L. DYKES,
Plaintiff,
v.

Case No. 1:14-cv-1167
Honorable Gordon J. Quist

N. MARSHALL et al.,
Defendants.
______________________________/

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 for failure to state a claim
Plaintiff’s counts alleging violations of his rights to due process, access to the courts, and the Eighth
Amendment. The Court will serve the complaint against Defendants on the counts of retaliation and
equal protection.

Discussion
I.

Factual allegations

Plaintiff Robert L. Dykes presently is incarcerated with the Michigan Department of
Corrections (MDOC) at the Michigan Reformatory (RMI). He sues the following RMI employees:
Classification Director N. Marshall; Correctional Officer S. Jones; and Food Service Supervisors
(unknown) Meadows and D. North.
Plaintiff’s complaint is not a model of clarity, as he initially alleges some of the facts
supporting his claims and only later provides a chronology of facts that do not wholly parallel his
earlier allegations. The Court has attempted to consolidate the allegations into a single sequence.
Plaintiff alleges that he was employed in a food service job at RMI for approximately
ten months, during which time he received no misconduct tickets, no counseled warnings and no
negative work reports. He alleges that, before Aramark took over food service delivery at RMI, the
food-service department had an informal procedure to request termination of an employee who had
been counseled three times for violating food service rules during a period of 30 days.
According to the complaint, Defendants conspired to issue counseled warnings
against Plaintiff in order to terminate Plaintiff’s employment. Plaintiff alleges that Defendant Jones
touched Plaintiff’s “private areas” during the course of seventeen pat-down searches, ostensibly in
violation of MICH . DEP ’T OF CORR., Policy Directive 03.03.140 ¶ D(2). (Compl., docket #1, Page
ID##7, 13.) Plaintiff subsequently defines his private areas as his “[b]uttocks, phallus, genit[]als,
and inner thighs.” (Id., Page ID#12.) Plaintiff also alleges that Defendant Meadows subjected him
to discriminatory harassment for not participating in food service conversations, ostensibly in
violation of MICH . DEP ’T OF CORR., Policy Directive 03.03.130. On April 21, 2014, he informed

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both Defendant Jones and Defendant Meadows that he was filing the grievances against them for
the conduct, and he subsequently filed the grievances.
On April 27, 2014, Defendant Meadows ordered Plaintiff to wash the walls in the
pots-and-pans area. Meadows later came up to Plaintiff and asked if he had washed the walls.
Plaintiff told Meadows he had, and Meadows, after consulting with Jones, told Plaintiff, “I got you,
this is your last day.” (Compl., Page ID#10.) Meadows wrote a Class III misconduct ticket against
Petitioner for Lying to an Employee, together with a Lay-in Notice and a work report that requested
Plaintiff’s termination from his position. Plaintiff objected, telling other staff that the camera
footage would reveal that Plaintiff had not lied and that he had washed the walls as directed. Upon
review of the camera footage, the misconduct ticket was found to be unsubstantiated. Plaintiff filed
a grievance against Meadows, who left his job a few days later.
Plaintiff observed Defendant North take a cookie from a cookie sheet and eat it while
supervising the food line on May 12, 2014. Plaintiff told supervisor Karr about North’s conduct.
Plaintiff then informed North that he would be filing a grievance against him for “unsanitary
practices.” (Id., Page ID#14.) North responded, “I don’t care. Hey Dykes. Just spell my name
right.” (Id.) Plaintiff contends that the comment referenced Plaintiff’s having mis-spelled
Meadows’ name on a prior grievance, and it indicated that Defendants were laughing at Plaintiff and
conspiring with one another.
Later that day, Plaintiff gave prisoner Robinson a note to deliver to prisoner Johnson.
Defendant Jones found the note during a patdown search, and Defendant North asked Plaintiff what
it was. Plaintiff explained that it was “a note to Johnson trying to get the coffees he said he would
give for a letter I wrote for him[.]” (Id.) North issued Plaintiff a counseled warning, “because there
is no passing of anything while on your assignment.” (Id.) Food-service employee Corter was
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standing nearby. She told Plaintiff that, “because you weren’t caught trying to get the items you
haven’t violated any rules, consider this your warning, because there is no passing of anything while
on your assignment.” (Id.) Plaintiff states that no rule prohibited the passing of notes, and North’s
write-up was merely another attempt to have Plaintiff fired from his job. The following day,
Plaintiff was informed that he was being laid-in from work, and he was handed a notice on which
North had claimed, as follows:
A) Prisoner Dykes #201541 was counseled by C/O S. Jones in the month of April
about doing legal work while on assignment. . . .
B) Dykes-Bey wrote a note for prisoner Robinson #858448 to pass to prisoner
Johnson #791359 while on assignment. . . .
C) This is prisoner Dyke’s 3rd write-up within 30 days. . . .
D) Prisoner admits in the letter he was charging prisoner Johnson 791359 for legal
work he completed and sent to the prosecutor. There are no (CSJ-337) Legal
Assistance Agreements that allow for compensation for another prisoner[’]s
assistance[.] . . .
(Id., Page ID#15.) Plaintiff disputes the reasons given for the counseled warnings. He contends that
the first warning was for being argumentative about the rules, not for doing legal work on the job,
and he insists that, because there was no rule infraction, Jones was retaliating against him. He also
asserts that writing a note to Robinson did not violate a rule. Further, he contends that the note does
not suggest to a prudent person that he did any legal work for Johnson, and he claims that Johnson
offered to pay him to write a letter to the prosecutor for him.1 Plaintiff filed a grievance against
Defendant North on May 13, 2014.

1

Plaintiff regularly refers to exhibits attached to his complaint, but the Court has not received exhibits from

Plaintiff.

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On June 2, 2014, Defendant Marshall conducted a hearing on Defendant North’s
request to reclassify Plaintiff.

At the hearing, in an effort to prove that the request for

reclassification was retaliatory, Plaintiff attempted to provide Marshall with copies of the grievances
he had filed against Defendants Jones, Meadows, and North, as well as copies of the kitchen rules
and the institutional policies. Defendant Marshall told Plaintiff that she did not need to see his
copies, as she was “fully aware of them and aware of the conflict [Plaintiff] was having with staff,
[] which is over, because I’m terminating you from you[r] job.” (Id., Page ID#16.) Marshall told
Plaintiff that he would not work again in food service as long as he was housed at RMI and that she
was placing him on “unemployable” status.2 (Id.)
Plaintiff filed a grievance against Defendant Marshall the next day, contending that
Marshall was assisting the other Defendants in having Plaintiff terminated from his job assignment
without due process. He states that Marshall fabricated the reclassification report by asserting that
Plaintiff had been terminated because he had received a misconduct ticket for being out of place,
despite the fact that Plaintiff had been misconduct-free for more than a year. When Assistant
Resident Unit Supervisor (ARUS) Rogers investigated the grievance, Marshall told Rogers that she
had terminated Plaintiff because of the counseled warnings Plaintiff had been issued by the other
Defendants. Plaintiff contends that the changing reasons given for the termination, together with
the absence of a legitimate reason for the termination, demonstrate that Defendant Marshall acted

2

Under MDOC Policy Directive 05.02.110 ¶ A, all prisoners must be assigned to work and/or school, unless
they are classified as “unemployable” under Policy Directive 05.01.100 ¶ X. Unless that status is assigned because of
a medical restriction or placement in segregation, the prisoner is not permitted to participate in more leisure time than
those who work full time. M IC H . D EP ’T OF C O RR ., Policy Directive 05.01.100 ¶ Z. A prisoner’s unemployable status
is reconsidered for reclassification every 30 calendar days. Id. ¶ AA. Moreover, a prisoner who has been “terminated
from a work or school assignment for unsatisfactory performance, or as the result of being found guilty of misconduct,
within the 12 months preceding application for indigent status” is not eligible for indigent status. M ICH . D EP ’T O F C O RR .,
Policy Directive 04.02.120 ¶ B(4).

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as part of a conspiracy to retaliate against Plaintiff. He also alleges that his unwarranted placement
on unemployable status was both unsupported and retaliatory. He argues that under MDOC Policy
Directive 05.01.100, he should be eligible for a new job after 30 days. On July 15, 2014, ARUS
Rogers sought reclassification for Plaintiff, and she identified three job pools for placement.
Defendant Marshall allegedly refused to process the request for reclassification and, on August 8,
2014, merely marked the form “Review” instead of “Reclassification,” which had the effect of
keeping Plaintiff on unemployable status for an additional 30 days. ARUS Rogers submitted
another reclassification request for Plaintiff on August 20, 2014, after finding that the computer
showed the reason given for the reclassification, a misconduct ticket, was not correct. Defendant
Marshall again merely marked the request as “Review” and refused to reclassify Plaintiff. Plaintiff
argues that the treatment of white prisoners Hill, Moore, Fox, Duranso and Eagle, who were
terminated from food service following misconducts but not placed on unemployable status,
demonstrates that Defendant Marshall’s treatment of Plaintiff violated the Equal Protection Clause
and was retaliatory. Plaintiff also contends that Defendant Marshall’s conduct violated his right to
access the courts, because he will be unable to file a state-court lawsuit until he pays a minimum of
$375.00, and he currently owes $2,030.00 to the courts. Plaintiff argues that he has two pending
suits, one of which is at the trial stage and the other of which is in the Sixth Circuit.3
In sum, Plaintiff alleges that Defendants conspired to violate and violated his First
Amendment rights by retaliating against him for filing grievances; denying him due process;
denying him access to the courts; denying his right to equal protection; and violating his Eighth

3

Plaintiff apparently is referring to Dykes v. Winn, No. 2:13-cv-13813 (E.D. Mich.), which remains pending in
the Eastern District of Michigan, and Dykes v. McRoberts, Case No. 14-1766 (6th Cir.), on appeal from No. 5:13-cv13812 (E.D. Mich) (Op. & Order of Dismissal Dec. 19, 2013).

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Amendment right to be free from pat-down searches that touch his pubic area. For 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
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
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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.

Due Process

Plaintiff argues that Defendants deprived him of his right to due process by issuing
him false employment warnings, discharging him from his food service job, and placing him on
unemployable status, all in violation of MDOC policy directives.
“Without a protected liberty or property interest, there can be no federal procedural
due process claim.” Experimental Holdings, Inc. v. Farris, 503 F.3d 514, 519 (6th Cir. 2007) (citing
Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 579 (1972)). Defendants’ alleged failure to
comply with an administrative rule or policy does not itself rise to the level of a constitutional
violation. Laney v. Farley, 501 F.3d 577, 581 n.2 (6th Cir. 2007); Brody v. City of Mason, 250 F.3d
432, 437 (6th Cir. 2001); Smith v. Freland, 954 F.2d 343, 347-48 (6th Cir. 1992); Barber v. City of
Salem, 953 F.2d 232, 240 (6th Cir. 1992); McVeigh v. Bartlett, No. 94-23347, 1995 WL 236687, at
*1 (6th Cir. Apr. 21, 1995) (failure to follow policy directive does not rise to the level of a
constitutional violation because policy directive does not create a protectible liberty interest).
Section 1983 is addressed to remedying violations of federal law, not state law. Lugar v.
Edmondson Oil Co., 457 U.S. 922, 924 (1982); Laney, 501 F.3d at 580-81.
Moreover, the Sixth Circuit consistently has found that prisoners have no
constitutionally protected liberty interest in prison employment under the Fourteenth Amendment.
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,
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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) (“[N]o prisoner has a constitutional right to a particular job or to
any job”); Carter v. Tucker, No. 03-5021, 2003 WL 21518730, at *2 (6th Cir. July 1, 2003) (same).
Morever, “as the Constitution and federal law do not create a property right for inmates in a job, they
likewise do not create a property right to wages for work performed by inmates.” Carter, 2003 WL
21518730, at *2 (citing Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991), and James v.
Quinlan, 866 F.2d 627, 629-30 (3d Cir. 1989)). Under these authorities, Plaintiff fails to state a due
process claim arising from the termination of his prison employment and placement on
unemployable status.
B.

Access to the Courts

Plaintiff contends that Defendant Marshall violated his First Amendment right to
access the courts by terminating him from his food-service job and refusing to reclassify him to
another position. He alleges that he owes the courts $2,030.00 in fees and costs. In addition, he
contends that he will not be allowed to file a new state-court action until he pays at least $375.00.
He also asserts that he has pending cases in the federal trial and appellate courts. As a consequence
of his unemployable status, he argues, he is deprived of both income and indigent status, which he
contends will affect his ability to litigate his pending cases and file new ones.
It is well established that prisoners have a constitutional right of access to the courts.
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 further 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.
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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
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).
The Supreme Court has strictly limited the types of cases for which there may be an actual injury:

Bounds does not guarantee inmates the wherewithal to transform themselves into
litigating engines capable of filing everything from shareholder derivative actions
to slip-and-fall claims. The tools it requires to be provided are those that the inmates
need in order to attack their sentences, directly or collaterally, and in order to
challenge the conditions of their confinement. Impairment of any other litigating
capacity is simply one of the incidental (and perfectly constitutional) consequences
of conviction and incarceration.
Lewis, 518 U.S. at 355. “Thus, a prisoner’s right to access the courts extends to direct appeals,
habeas corpus applications, and civil rights claims only.” Thaddeus-X v. Blatter, 175 F.3d 378, 391
(6th Cir. 1999) (en banc). Moreover, the underlying action must have asserted a non-frivolous
claim. Lewis, 518 U.S. at 353; accord Hadix v. Johnson, 182 F.3d 400, 405 (6th Cir. 1999) (Lewis
changed actual injury to include requirement that action be non-frivolous).
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
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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.
Although Plaintiff broadly alleges that his ability to litigate his cases will be affected
by his inability to pay for his copies, paper, pens, envelopes and notarial services, he fails to identify
an actual injury. A review of the public docket sheets of his cases pending in the Sixth Circuit
indicates that he has suffered no such injury. Indeed, between July 24, 2014 and December 2, 2014,
he filed a brief, two motions, correspondence, a financial affidavit, and an amended notice of appeal.
See Dykes-Bey v. McRoberts, No. 14-1766 (6th Cir.) (docket ##6-10). Although Plaintiff filed a
second appeal in that case that was dismissed, the case was not dismissed for any failure to litigate
by Plaintiff; it was dismissed as duplicative of Case No. 14-1777. See Dykes-Bey v. McRoberts, No.
14-1977 (6th Cir. Dec. 2, 2014).
Further, with respect to his case pending in the Eastern District of Michigan, between
August 7, 2014 and October 6, 2014, Plaintiff filed a motion for summary judgment, a motion for
default judgment, an objection to Defendants’ response to the motion for summary judgment, and
a reply to Defendants’ response to the motion for default judgment. Both motions remain pending
at this time, and no filing is owed by Plaintiff. See Dykes v. Winn, No. 2:13-cv-13813 (E.D. Mich.)
(docket ##38, 41-44). Moreover, Plaintiff makes no allegations concerning his need and inability
to file any matter in the state courts.
In sum, not only has Plaintiff failed to allege actual injury, but also his allegations
of harm are wholly contrary to the public record. He therefore fails to state an access-to-the-courts
claim.
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C.

Improper Touching

Plaintiff contends that Defendant Jones impermissibly touched Plaintiff’s private
areas (his buttocks, phallus, genitals, and inner thighs) on 17 occasions, while conducting clothed,
pat-down searches of Plaintiff. Plaintiff contends that Jones’ conduct violated MDOC Policy
Directive 03.03.140 ¶ D(2), which prohibits any touching of the groin area for any reason. He also
appears to allege that Jones’ touching of his groin area during the pat-down searches violates
Plaintiff’s Eighth Amendment rights.
As previously discussed, a defendant’s failure to comply with an administrative rule
or policy does not itself rise to the level of a constitutional violation. Laney, 501 F.3d at 581 n.2;
Brody, 250 F.3d at 437; Smith, 954 F.2d at 347-48 (6th Cir. 1992); Barber, 953 F.2d at 240. Plaintiff
therefore fails to state a § 1983 claim based on any violation of MDOC rules.4
Plaintiff’s claim that Defendant Jones’ pat-down searches violated the Eighth
Amendment must be analyzed under the Supreme Court authority limiting the use of force against
prisoners. The Eighth Amendment embodies a constitutional limitation on the power of the states
to punish those convicted of a crime. Punishment may not be “barbarous” nor may it contravene
society’s “evolving standards of decency.” See Rhodes v. Chapman, 452 U.S. 337, 345-46 (1981);
Trop v. Dulles, 356 U.S. 86, 101 (1958). The Eighth Amendment also prohibits conditions of
confinement which, although not physically barbarous, “involve the unnecessary and wanton

4

The Court also notes that MDOC Policy Directive 03.03.140 ¶ D(2) bars the “intentional touching of a
prisoner’s genitals, anus, groin, breast, inner thigh, or buttocks with the intent to abuse, arouse, or gratify the sexual
desire of any person. Id. (emphasis added). Plaintiff does not allege that Defendant Jones touched him with any of the
described intents, nor does he allege facts that would support the existence of such intent. Instead, Plaintiff specifically
alleges that Jones touched him in his groin area during the course of routine pat-down searches. As a result, even if the
policy claim were cognizable under § 1983, Plaintiff fails to allege facts that would demonstrate a violation of policy.

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infliction of pain.” Rhodes, 452 U.S. at 346. Among unnecessary and wanton inflictions of pain
are those that are “totally without penological justification.” Id.
Generally, restrictions and even harsh conditions of confinement are not necessarily
cruel and unusual punishment prohibited by the Eighth Amendment. Rhodes, 452 U.S. 347. The
Supreme Court has held that “whenever guards use force to keep order,” the standards enunciated
in Whitley v. Albers, 475 U.S. 312, 321-22 (1986) should be applied. Hudson v. McMillian, 503 U.S.
1, 7 (1992); see also Wilkins v. Gaddy, 130 S. Ct. 1175, 1178-79 (2010). Under Whitley, the core
judicial inquiry is “whether force was applied in a good-faith effort to maintain or restore discipline,
or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 6-7; Wilkins, 130 S. Ct. at 1178.
In determining whether the use of force is wanton and unnecessary, the court should evaluate the
need for application of force, the relationship between that need and the amount of force used, the
threat “reasonably perceived by the responsible officials,” and any efforts made to temper the
severity of the forceful response. Hudson, 503 U.S. at 6-7 (citing Whitley, 475 U.S. at 321); accord
Griffin v. Hardrick, 604 F.3d 949, 953-54 (6th Cir. 2010); McHenry v. Chadwick, 896 F.2d 184 (6th
Cir. 1990). This analysis must be made in the context of the constant admonitions by the Supreme
Court regarding the deference that courts must accord to prison or jail officials as they attempt to
maintain order and discipline within dangerous institutional settings. See, e.g., Whitley, 475 U.S.
at 321-22.
In the instant case, Plaintiff alleges no more than that, during the course of routine,
clothed, pat-down searches, Jones touched Plaintiff’s private areas. He makes no allegation that any
pat-down search was itself improper or that Jones lingered, fondled, or in any manner suggested an
intent to humiliate Plaintiff or to derive sexual pleasure from the incident. See Washington v.
Hively, 695 F.3d 641, 643-44 (7th Cir. 2012) (distinguishing between the plaintiff’s allegations that
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a guard spent five to seven seconds gratuitously fondling a prisoner’s nude genitals and a proper
incident of a pat-down search, only the first of which would constitute an Eighth Amendment
claim); Murray v. U.S. Bureau of Prisons, No. 95-9204, 1997 WL 34677, at *3 (6th Cir. Jan. 28,
1997) (recognizing the need for allegations of an improper search). Instead, Plaintiff’s allegations
are that he should not have had to undergo full pat-down searches.
Plaintiff’s allegations fail to state an Eighth Amendment claim. The penological
justification for conducting pat-down searches of prisoners who work in the kitchen is apparent. See
Soloman v. Michigan Dep’t of Corr., 478 F. App’x 318, 320-21 (6th Cir. 2012) (concluding that a
pat-down search that touches the groin area is warranted after a prisoner completes his work detail
in the kitchen); cf. Florence v. Bd. of Chosen Feeholders, 132 S. Ct. 1510, 1517 (2012) (recognizing
that correctional officials must be permitted to devise reasonable searches to detect the possession
of contraband, even strip searches of prisoners charged with minor offenses). The clothed, pat-down
searches alleged by Plaintiff fail entirely to support a claim that Jones used force that was wanton
or malicious. Id. (rejecting Eighth Amendment claim based on pat-down searches that touched the
groin area, even when coupled with sexually suggestive remarks); see also Tuttle v. Carroll Cnty.
Detention Ctr., 500 App’x 480, 481–482 (6th Cir. 2010) (affirming the dismissal of an Eighth
Amendment claim where the plaintiff alleged that a female prison guard “grabbed [his] privates and
squeezed them really hard”) (emphasis omitted); Brown v. Withrow, No. 92-1765, 1993 WL 15141,
at *1 (6th Cir. Jan. 22, 1993) (“A pat-down search, which is by definition of short duration and
minimal intrusiveness, is not unconstitutional, even when performed by a female officer.”) (citing
Timm v. Gunter, 917 F.2d 1093, 1100 (8th Cir. 1990)). Plaintiff therefore fails to state an Eighth
Amendment claim against Defendant Jones.

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D.

Remaining Claims

Plaintiff alleges that all Defendants retaliated and conspired to retaliate against him
for filing grievances. He also alleges that Defendant Marshall discriminated against him in violation
of the Equal Protection Clause. The Court concludes that Plaintiff has alleged sufficient facts to
warrant service of those claims on Defendants. Accordingly, the Court will order service of the
complaint on Defendants.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s claims alleging violations of due process, access to the courts, and the
Eighth Amendment 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.
An Order consistent with this Opinion will be entered.

Dated: December 15, 2014

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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