Terrio #622008 v. Sanders
Filing
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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
BRUCE TERRIO,
Plaintiff,
Case No. 1:15-cv-787
v.
Honorable Gordon J. Quist
UNKNOWN SANDERS,
Defendant.
______________________/
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, Plaintiff’s action will be dismissed for failure to state
a claim.
Factual Allegations
Plaintiff currently is incarcerated at the Michigan Reformatory. In his pro se
complaint, he sues Corrections Officer (Unknown) Sanders. Plaintiff alleges that when he asked
Defendants Sanders if he could heat up his coffee, Sanders told Plaintiff that if he “caus[ed] any
problems that [Sanders] was going to put his family parts on [Plaintiff’s] face from between
[Sanders’] legs.” (Compl., docket #1, Page ID#3.) Defendant Sanders also allegedly stated that he
wished someone could “beat [Plaintiff’s] ass.” (Id.)
For relief, Plaintiff seeks damages for the suffering that Defendant Sanders’
comments have caused him.
Discussion
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); Dominguez v.
Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). 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).
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
endure while incarcerated constitutes cruel and unusual punishment within the meaning of the
Eighth Amendment.” Ivey, 832 F.2d at 954.
Allegations of verbal harassment or threats by prison officials toward an inmate do
not constitute punishment within the meaning of the Eighth Amendment. Ivey, 832 F.2d at 955; 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). Moreover, federal
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
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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 Cir. March 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).
If true, Officer Sanders’ comments to Plaintiff were extremely unprofessional, but
do not rise to the level of an Eighth Amendment violation. Plaintiff does not allege that Officer
Sanders ever touched him sexually 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. The Sixth Circuit has 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
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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).
Therefore, Plaintiff’s allegations fail to state an Eighth Amendment claim against Officer Sanders.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s action 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 must next decide whether an appeal of this action would be in good faith
within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611
(6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no
good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the
$505.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless
Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g).
If he is barred, he will be required to pay the $505.00 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A Judgment consistent with this Opinion will be entered.
Dated: September 3, 2015
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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