Snelling #262770 v. Smith et al
Filing
23
OPINION; Amended Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THOMAS R. SNELLING,
Plaintiff,
Case No. 1:16-cv-656
v.
Honorable Janet T. Neff
W.O. SMITH et al.,
Defendants.
____________________________________/
OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. §§ 1983
and 1985. The Court has granted Plaintiff leave to proceed in forma pauperis. The Court conducted
an initial review of Plaintiff’s complaint under the Prison Litigation Reform Act (PLRA), PUB. L.
NO. 104-134, 110 STAT. 1321 (1996). Based on that review, the Court dismissed 33 of the 37
Defendants named in Plaintiff’s complaint for failure to state a claim. (Opinion and Order, ECF No.
11, 12.) The Court ordered the complaint to be served against the remaining four Defendants:
Defendants Leitheim, Jensen, Conner, and Strambaugh. (Id.) In response to the Court’s Opinion
and Order, Plaintiff moved to amend his complaint. (ECF No. 13.) The Court permitted the
amendment. (Order, ECF No. 14.) Plaintiff filed his amended complaint on September 29, 2016.
(ECF No. 21.)
The amended complaint is now before the Court for review under the PLRA. 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 complaint for failure to state a claim against Defendants Smith, Shiebner,
Christiansen, Miniard, Lewis, Thurlby, Powell, Hammond, Lemke, Dunn, Downing, Watkins,
Kotowicz, Martens, Hall, Howard, Bledsoe, Salina, Thomas, Doolittle, Zukon, Duitsman,
Daugherty, Mote, Fornwalt, Drabek, Edwards, Conklin, Davis, Desroaches, Salinas,
Vanamburg, Salame, Way, Simon, Wellman, Burns, Wilson, Merren, Helder, Horford,
Nielsen, Fraulick, Floyd, Greene, Chellium, Scott, Corbett, Davids, D. Robinson, Morris,
Russell, M. Robinson and Feliciono.1 The Court will serve the amended complaint against
Defendants Leitheim, Jensen, Conner, and Strambaugh.
Discussion
I.
Factual allegations
Plaintiff is currently incarcerated with the Michigan Department of Corrections
(MDOC) at the Marquette Branch Prison (MBP). Prior to his detention at MBP, he was housed at
the Ionia Correctional Facility (ICF). Prior to Plaintiff’s detention at ICF, he was housed at the
Bellamy Creek Correctional Facility (IBC). Plaintiff sues four Defendants from IBC: Deputy
Warden J. Davids; Residential Unit Manager (unknown) Mote; and Grievance Coordinators D.
1
Defendants who appear in the amended complaint, but not the initial complaint, are listed in bold. It is possible
that some of the “new” Defendants were part of the initial complaint, but their names were spelled differently. For
example, the initial complaint included Defendant Unit 3 Officer Salamey; the amended complaint lists Defendant
Corrections Officer Salame. Plaintiff’s allegations are not sufficiently detailed to determine whether these Defendants
are actually the same person.
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Robinson and M. Robinson. Plaintiff also sues many Defendants who are MDOC employees at ICF:
Warden W. O. Smith; Deputy Wardens (unknown) Shiebner and J. Christiansen; Resident Unit
Manager G. Miniard; Assistant Residential Unit Supervisors L. Thurlby, H. Powell, and J. Fornwalt;
Grievance Coordinator C. Lewis; Lieutenant D. Howard; Lieutenants (unknown) Drabek and
Edwards; Sergeants (unknown) Leitheim, (unknown) Conklin, (unknown) Davis, (unknown)
Desroaches, (unknown) Salinas, and
(unknown) Bledsoe; Corrections Officers (unknown)
Hammond, (unknown) Lemke, (unknown) Vanamburg, (unknown) Salame, P. Jensen, (unknown)
Downing, (unknown) Conner, (unknown) Strambaugh, (unknown) Watkins, (unknown) Way,
(unknown) Dunn, (unknown) Simon, (unknown) Wellman, (unknown) Burns, (unknown) Hall,
(unknown) Wilson, (unknown) Merren, (unknown) Helder, (unknown) Horford, (unknown)
Nielsen, (unknown) Fraulick, (unknown) Floyd, (unknown)
Greene, (unknown) Chellium,
(unknown) Scott, (unknown) Corbett, (unknown) Martens, and (unknown) Kotowicz; Registered
Nurses (unknown) Thomas and (unknown) Doolittle; Librarian P. Zukon; Food Service Director
(unknown) Daugherty; Hearing Investigator (unknown) Duitsman; and Hearing Officer S. Morris.
Plaintiff also sues one Defendant from MBP: Librarian (unknown) Feliciono.
Finally, Plaintiff sues MDOC Grievance Manager R. Russell. Each Defendant is sued in his or her
official and personal capacity.
Plaintiff’s amended complaint purports to raise four claims: Count I, retaliation for
for Plaintiff’s protected conduct of filing civil suits against the MDOC; Count II, excessive force;
Count III, exhaustion of administrative remedies misled obstructed by prison staff; and Count IV,
cruel and unusual punishment. (Am. Comp., ECF No. 21, PageID.99-100.) Although those are the
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only numbered claims, Plaintiff also references First Amendment violations such as denial of access
to the law library and religious services as well as due process violations. (Id.)
The amended complaint contains only conclusory allegations of the elements of each
claim without specifying the underlying factual detail or identifying what claims are raised against
which Defendant. That deficiency is addressed to a certain extent on three pages of Plaintiff’s
amended complaint where he lists each Defendant by last name and includes a phrase, typically
three to ten words, that explains each Defendant’s “Personal Involvement.” (ECF No. 21,
PageID.100-102.) By way of example, the personal involvement of the first six Defendants is
described as follows:
W.O. Smith–In charge of Defendants made threats directly to plaintiff on 8-1-16
Shiebner–Deputy Warden brought complaints directly to for resolve violated rights
J. Christiansen–was directly responsible for immediate const. violations repeatedly
G. Miniard–was in acts with Christiansen directly involved in several acts v plaintiff
C. Lewis–MAIN issue is refusal of “exhaustion of Adm remedies” as most G.C.
fabricate
L. Thurlby–several acts within seg. refusal to mail legal mail and const. violations
(Am. Compl., ECF No. 21, PageID.100.)
Whether standing alone or combined with the conclusory allegations in the Statement of
Claim, Plaintiff’s cryptic “Personal Involvement” phrases do not provide sufficient detail to the
Defendants to give notice of the claim each Defendant must defend against. See Section II, infra.
The Court identified the same pleading deficiency in Plaintiff’s initial complaint. Rather than
correcting the problem in his amended complaint, Plaintiff simply employed the same insufficient
allegations against dozens of new Defendants.
When Plaintiff filed his initial complaint (ECF No. 1), he also filed a document
entitled Memorandum of Support for Plaintiff’s Complaint (ECF No. 2). Plaintiff’s Memorandum
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provides some additional detail to permit a more meaningful assessment of Plaintiff’s claims. It was
the detail provided in the Memorandum that permitted some of Plaintiff’s claims to survive initial
review under the PLRA. Although the initial complaint has been displaced by Plaintiff’s amended
complaint,2 the Court will consider Plaintiff’s Memorandum as part of the amended complaint as
well. However, the Court will consider Plaintiff’s Memorandum only with regard to the claims
raised in the amended complaint against the Defendants identified in the amended complaint.3
Plaintiff’s amended complaint covers the period beginning in November of 2015
through his current placement at MBP in 2016. Plaintiff was detained at IBC at the beginning of
the period. He contends that Warden Trierweiler and Defendants Davids and Mote increased
Plaintiff’s security level in retaliation for Plaintiff’s lawsuits against IBC staff. That allegedly
retaliatory action resulted in Plaintiff’s transfer to ICF.4
When Plaintiff arrived at ICF he claims he was subjected to inappropriate conditions
of confinement, all in retaliation for the lawsuits and grievances he had filed. Specifically, Plaintiff
contends he was placed in administrative segregation without hearing or justification; he was placed
in a dirty cell; his property was withheld, broken or simply stolen; he was denied store privileges,
shower privileges, yard privileges, laundry, clothing, bathroom facilities, a mattress, and appropriate
2
“‘An amended complaint supersedes an earlier complaint for all purposes.’” Calhoun v. Bergh, 763 F.3d 409,
410 (6th Cir. 2014) (citing In re Refrigerant Compressors Antitrust Litig., 731 F.3d 586, 589 (6th Cir. 2013)); see also
Pac. Bell Tel. Co. v. Linkline Commc’ns, Inc., 555 U.S. 438, 456 n. 4 (2009).
3
Plaintiff’s amended complaint abandoned a conspiracy claim he raised in his initial complaint as well as several
Defendants.
4
Plaintiff also names Defendant M. Robinson and D. Robinson from IBC. His allegations against M. Robinson
consist of the following: “participated in several due process, constitutional violations of protected conduct by plaintiff”
(Pl.’s Mem., ECF No. 2, PageID.12) and “blocking exhaust of Adm. remedies fabricated responses placement on mod
status” (Am. Compl., ECF No. 21, PageID.102). His allegations against D. Robinson consist of the following:
“Grievance Coordinator IBC several exhaust of remedies violations.” (Id.)
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food (he was denied meals, placed on food loaf, and provided different food than that given to
prisoners at Level II); he was not permitted to send legal mail or access the law library; he was
subjected to threats of violence; he was branded a snitch and put in jeopardy of harm from other
prisoners; he was refused protective custody; denied medication; and denied access to religious
services. Plaintiff contends that all of these “adverse actions” were in retaliation for his lawsuits and
grievances against the Defendants or other MDOC personnel. Read liberally, Plaintiff’s amended
complaint also describes the “adverse actions” as cruel and unusual punishment in violation of the
Eighth Amendment.
Plaintiff also claims he was subjected to excessive force. Plaintiff notes that he was
sprayed with a chemical agent without cause on April 27, 2016, by Defendant Leitheim. Plaintiff
further claims that “staff” participated in the spraying and subsequent physical abuse, but he does
not identify the staff members involved.
Plaintiff complains that he was also subjected to excessive force on November 10,
2015, by Defendant Jensen. Plaintiff claims that Defendant Jensen, while removing Plaintiff’s
handcuffs through the food slot, forcefully ripped them off causing injury. Plaintiff alleges that
Defendant Downing was present, but he does not allege that Defendant Downing used excessive
force.
Plaintiff claims he suffered similar injuries on November 25, 2015. On that date,
while removing Plaintiff’s handcuffs through the food slot, Defendant Conner pulled Plaintiff’s
hands directly through the slot and Defendant Strambaugh forcefully bent Plaintiff’s hands and
wrists upward.
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Finally, Plaintiff claims that several Defendants fabricated misconduct charges
against him, interfered with his use of the prison grievance system to exhaust his administrative
remedies, and interfered with his access to the courts by preventing him from making copies, using
the law library, or having or sending legal mail.
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. Id. 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.” Id. 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.” Id. 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)).
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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.
First Amendment retaliation
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
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.
There is little question that Plaintiff was engaged in protected conduct. The filing
of a prison grievance is constitutionally protected conduct for which a prisoner cannot be subjected
to retaliation. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001); Hall v. Nusholtz, No.
99-2442, 2000 WL 1679458, at *2 (6th Cir. Nov. 1, 2000); Burton v. Rowley, No. 00-1144, 2000
WL 1679463, at *2 (6th Cir. Nov. 1, 2000). The same is true for the filing of a civil rights action.
Bell v. Johnson, 308 F.3d 594, 607 (6th Cir. 2002).
It is certainly possible that the unpleasant conditions of confinement allegedly forced
upon him by the Defendants would be sufficiently adverse to deter a person from exercising his or
her First Amendment rights. On the third element, however, Plaintiff’s allegations fall short.
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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)). It is well recognized that “retaliation” is easy to allege and that
it can seldom be demonstrated by direct evidence. See Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th
Cir. 2005); Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987); Vega v. DeRobertis, 598 F. Supp.
501, 506 (C.D. Ill. 1984), aff’d, 774 F.2d 1167 (7th Cir. 1985). “[A]lleging merely the ultimate fact
of retaliation is insufficient.” Murphy, 833 F.2d at 108. “[C]onclusory allegations of retaliatory
motive ‘unsupported by material facts will not be sufficient to state . . . a claim under § 1983.’”
Harbin-Bey, 420 F.3d at 580 (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987));
see also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.”); Skinner v. Bolden, 89 F. App’x 579, 579-80 (6th
Cir. 2004) (without more, conclusory allegations of temporal proximity are not sufficient to show
a retaliatory motive).
Plaintiff merely alleges the ultimate fact of retaliation in this action. He has not
presented any facts to support his conclusion that any Defendants acted with a purpose of retaliating
against him because he filed grievances or lawsuits against other MDOC employees. Accordingly,
his conclusory allegations of retaliatory motive fail to state a claim.
B.
Eighth Amendment excessive force
The Eighth Amendment prohibits the imposition of “cruel and unusual punishments”
upon prisoners. U.S. CONST. amend. VIII. But not every shove or restraint gives rise to a
constitutional violation. Parrish v. Johnson, 800 F.2d 600, 604 (6th Cir. 1986). On occasion, “[t]he
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maintenance of prison security and discipline may require that inmates be subjected to physical
contact actionable as assault under common law.” Combs, 315 F.3d at 556 (citing Pelfrey v.
Chambers, 43 F.3d 1034, 1037 (6th Cir. 1995)). Prison officials nonetheless violate the Eighth
Amendment when their “offending conduct reflects an unnecessary and wanton infliction of pain.”
Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (internal quotation marks omitted); Bailey v.
Golladay, 421 F.App’x 579, 582 (6th Cir. 2011).
There is an objective component and a subjective component to an excessive force
claim. Santiago v. Ringle, 734 F.3d 585, 590 (6th Cir. 2013) (citing Comstock v. McCrary, 273 F.3d
693, 702 (6th Cir. 2001)). First, “[t]he subjective component focuses on the state of mind of the
prison officials.” Williams, 631 F.3d at 383. We ask “whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v.
McMillian, 503 U.S. 1, 7 (1992). Second, “[t]he objective component requires the pain inflicted to
be ‘sufficiently serious.’ ” Williams, 631 F.3d at 383 (quoting Wilson v. Seiter, 501 U.S. 294, 298
(1991)).
This component requires a “contextual” investigation, one that is “responsive to
‘contemporary standards of decency.’ ” Hudson, 503 U.S. at 8, (quoting Estelle v. Gamble, 429 U.S.
97, 103 (1976)). While the extent of a prisoner’s injury may help determine the amount of force
used by the prison official, it is not dispositive of whether an Eighth Amendment violation has
occurred. Wilkins v. Gaddy, 559 U.S. 34, 37 (2010). “When prison officials maliciously and
sadistically use force to cause harm, contemporary standards of decency always are violated . . .
[w]hether or not significant injury is evident.” Hudson, 503 U.S. at 9. “Otherwise, the Eighth
Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting
less than some arbitrary quantity of injury.” Id.
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Plaintiff alleges that Defendants Leitheim, Jensen, Downing, Conner and Strambaugh
used excessive force against him. His allegations regarding Defendant Downing fail with respect
to the November 10, 2015, incident. In the amended complaint personal involvement section, with
respect to Defendant Downing, Plaintiff states only “was with Jensen during asslt. helping along.”
(Am. Compl., ECF No. 21, PageID.101.)
There are simply no facts alleged that Defendant
Downing took any action to cause Plaintiff pain. Plaintiff attributes the entire physical assault to
Defendant Jensen.
A claimed constitutional violation 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). “[A] plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal, 556
U.S. at 676. Plaintiff has failed to allege that Defendant Downing engaged in any active
unconstitutional behavior. Accordingly, he fails to state a claim against him. Plaintiff’s Eighth
Amendment allegations with respect to Defendants Leitheim, Jensen, Conner and Strambaugh,
however, suffice to state a claim and will be served.
C.
Eighth Amendment - conditions of confinement
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
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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.
In order for a prisoner to prevail on an Eighth Amendment claim, he must show that
he faced a sufficiently serious risk to his health or safety and that the defendant official acted with
“‘deliberate indifference’ to [his] health or safety.” Mingus v. Butler, 591 F.3d 474, 479-80 (6th Cir.
2010) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)) (applying deliberate indifference
standard to medical claims); see also Helling v. McKinney, 509 U.S. 25, 35 (1993) (applying
deliberate indifference standard to conditions of confinement claims). “Routine discomfort is ‘part
of the penalty that criminal offenders pay for their offenses against society.’” Hudson v. McMillian,
503 U.S. 1, 9 (1992) (quoting Rhodes, 452 U.S. at 347). As a consequence, “extreme deprivations
are required to make out a conditions-of-confinement claim.” Id.
Plaintiff provides an extensive list of unpleasant conditions he has faced during his
incarceration. For the most part, Plaintiff has failed to allege the requisite deliberate indifference.
He also generally fails to link particular unpleasant conditions to particular Defendants. In those
instances where Plaintiff has linked a particular Defendant to a specific unpleasant condition, the
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allegations still fail to establish deprivations sufficiently egregious to constitute violations of the
Eighth Amendment.
Isolated instances of squirting toothpaste into a new bag of chips, causing Plaintiff
to miss meals or showers, or refusing Plaintiff access to a mattress or supplies, as alleged, simply
do not constitute sufficiently serious risks to Plaintiff’s health or safety nor do they evidence the sort
of deliberate indifference necessary to establish an Eighth Amendment violation. The same is true
with respect to Plaintiff’s allegations of threats or sexual harassment.
Plaintiff alleges that several Defendants5 made threats or sexually harassed him.
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. Nor do
allegations of verbal harassment rise to the level of unnecessary and wanton infliction of pain
proscribed by the Eighth Amendment. Id. Even the occasional or sporadic use of racial slurs,
although unprofessional and reprehensible, does not rise to a level of constitutional magnitude. See
Torres v. Oakland Cty., 758 F.2d 147, 152 (6th Cir. 1985).
With respect to sexual threats or harassment, 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)
5
Defendants Smith, Drabek, Conklin, Jensen, Way, Simon, Wilson, Nielsen, Martens, and Morris “made
threats;” Defendant Watkins made “sexual threats;” and Defendants Way and Scott committed “sexual harassment.”
(Am. Compl., ECF No. 21, PageID.100-102.)
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(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. 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
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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); 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).
Plaintiff does not allege that any of the allegedly threatening or harassing Defendants
ever touched him or had any form of physical contact with him in connection with sexual threats or
harassment. 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 allegation fails to state an Eighth Amendment claim.
D.
Due process
Plaintiff alleges that he was deprived of property and his liberty without due process
of law. With respect to Plaintiff’s claims that he was deprived of property, the claims are barred by
the doctrine of Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part by Daniels v. Williams, 474
U.S. 327 (1986). Under Parratt, a person deprived of property by a “random and unauthorized act”
of a state employee has no federal due process claim unless the state fails to afford an adequate postdeprivation remedy. If an adequate post-deprivation remedy exists, the deprivation, although real,
is not “without due process of law.” Parratt, 451 U.S. at 537. This rule applies to both negligent
and intentional deprivation of property, as long as the deprivation was not done pursuant to an
established state procedure. See Hudson v. Palmer, 468 U.S. 517, 530-36 (1984). Because
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Plaintiff’s claim is premised upon allegedly unauthorized acts of state officials, he must plead and
prove the inadequacy of state post-deprivation remedies. See Copeland v. Machulis, 57 F.3d 476,
479-80 (6th Cir. 1995); Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir. 1993). Under settled Sixth
Circuit authority, a prisoner’s failure to sustain this burden requires dismissal of his § 1983 due
process action. See Brooks v. Dutton, 751 F.2d 197 (6th Cir. 1985).
Plaintiff has not sustained his burden in this case. Plaintiff has not alleged that state
post-deprivation remedies are inadequate. Moreover, numerous state post-deprivation remedies are
available to him. First, a prisoner who incurs a loss through no fault of his own may petition the
institution’s Prisoner Benefit Fund for compensation. MICH. DEP’T OF CORR., Policy Directive
04.07.112, ¶ B (effective Dec. 12, 2013). Aggrieved prisoners may also submit claims for property
loss of less than $1,000 to the State Administrative Board. MICH. COMP. LAWS § 600.6419; MDOC
Policy Directive 03.02.131 (effective Oct. 21, 2013). Alternatively, Michigan law authorizes actions
in the Court of Claims asserting tort or contract claims “against the state and any of its departments,
commissions, boards, institutions, arms, or agencies.” MICH. COMP. LAWS § 600.6419(1)(a). The
Sixth Circuit specifically has held that Michigan provides adequate post-deprivation remedies for
deprivation of property. See Copeland, 57 F.3d at 480. Plaintiff does not allege any reason why a
state-court action would not afford him complete relief for the deprivation, either negligent or
intentional, of his personal property. Accordingly, Plaintiff’s claims for deprivation of property
without due process of law will be dismissed.
Read liberally, Plaintiff’s amended complaint also claims that he has been deprived
of liberty without due process of law by fabricated misconduct tickets. A prisoner’s ability to
challenge a prison misconduct conviction depends on whether the convictions implicated any liberty
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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. Wolff, 418 U.S. at 557.
Plaintiff does not allege that his major misconduct convictions resulted in any loss
of good-time credits, nor could he. The Sixth Circuit has examined Michigan statutory law, as it
relates to the creation and forfeiture of disciplinary credits6 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
6
For crimes committed after April 1, 1987, Michigan prisoners earn “disciplinary credits” under a statute that abolished
the former good-time system. MICH. COMP. LAWS § 800.33(5).
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process claim based on the loss of disciplinary credits. See Bell v. Anderson, 301 F. App’x 459, 46162 (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
identified any significant deprivation arising from his convictions. 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 v. Jewell, 94 F. App’x 271, 273 (6th Cir. 2004).
Plaintiff has not alleged a consequence of his “false” misconducts that extended his sentence or
caused an atypical hardship; accordingly, he has failed to state a claim for a due process violation.
E.
Interference with the prison grievance procedure
Plaintiff complains that several Defendants have interfered with the grievance proces
by virtue of their fabricated responses or by placing him on modified status. Plaintiff has no due
process right to file a prison grievance. The courts repeatedly have held that there exists no
constitutionally protected due process right to an effective prison grievance procedure. See Hewitt
v. Helms, 459 U.S. 460, 467 (1983); Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 445 (6th Cir.
2005); Argue v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003); Young v. Gundy, 30 F. App’x 568,
569-70 (6th Cir. 2002); Carpenter v. Wilkinson, No. 99-3562, 2000 WL 190054, at *2 (6th Cir. Feb.
7, 2000); see also Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Adams v. Rice, 40 F.3d
72, 75 (4th Cir. 1994) (collecting cases). Michigan law does not create a liberty interest in the
grievance procedure. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983); Keenan v. Marker, 23 F.
App’x 405, 407 (6th Cir. 2001); Wynn v. Wolf, No. 93-2411, 1994 WL 105907, at *1 (6th Cir. Mar.
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28, 1994).
Because Plaintiff has no liberty interest in the grievance process, Defendants’
unsatisfactory responses to Plaintiff’s grievances did not deprive him of due process.
Plaintiff frequently describes the Defendants’ conduct as interference with his
exhaustion of administrative remedies. Defendants’ actions have not barred Plaintiff from seeking
a remedy for his grievances. See Cruz v. Beto, 405 U.S. 319, 321 (1972). “A prisoner’s
constitutional right to assert grievances typically is not violated when prison officials prohibit only
‘one of several ways in which inmates may voice their complaints to, and seek relief, from prison
officials’ while leaving a formal grievance procedure intact.” Griffin v. Berghuis, 563 F. App’x 411,
415-416 (6th Cir. 2014) (citing North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 130 n.6
(1977)). Indeed, Plaintiff’s ability to seek redress is underscored by his pro se invocation of the
judicial process. See Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982). Even if Plaintiff had
been improperly prevented from filing a grievance, his right of access to the courts to petition for
redress of his grievances (i.e., by filing a lawsuit) cannot be compromised by his inability to file
institutional grievances, and he therefore cannot demonstrate the actual injury required for an accessto-the-courts claim. See, e.g., Lewis v. Casey, 518 U.S. 343, 355 (1996) (requiring actual injury);
Bounds v. Smith, 430 U.S. 817, 821-24 (1977). The exhaustion requirement only mandates
exhaustion of available administrative remedies. See 42 U.S.C. § 1997e(a). If Plaintiff were
improperly denied access to the grievance process, the process would be rendered unavailable, and
exhaustion would not be a prerequisite for initiation of a civil rights action. See Ross v. Blake, 136
S. Ct. 1850, 1858-59 (2016) (reiterating that, if the prisoner is barred from pursuing a remedy by
policy or by the interference of officials, the grievance process is not available, and exhaustion is
not required); Kennedy v. Tallio, 20 F. App’x 469, 470 (6th Cir. 2001). In light of the foregoing,
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the Court finds that Plaintiff fails to state a cognizable claim when he claims Defendants prevented
him from exhausting his administrative remedies.
Plaintiff also complains that he has been placed on modified grievance access for
filing grievances. Placement on modified access does not prohibit an inmate from utilizing the
grievance process. See Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 445-47 (6th Cir. 2005);
Corsetti v. McGinnis, 24 F. App’x 238, 241 (6th Cir. 2001). The inmate may still submit grievances
to the grievance coordinator, who reviews the grievance to determine whether it complies with
institutional rules regarding the filing of grievances. There is nothing constitutionally improper
about this review process for a prisoner who has demonstrated an inability to properly utilize the
grievance process in the past. Moreover, even if a grievance coordinator denied Plaintiff a grievance
form, Plaintiff could file a grievance directly to the Director’s Office at Step III claiming staff
corruption. Policy Directive 03.02.130, ¶ II.
F.
Access to the courts
Petitioner contends that several Defendants have interfered with his access to the
courts by refusing to make copies, refusing access to the law library, and interfering with legal mail.
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. at 824-
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25. The right of access to the courts also prohibits prison officials from erecting barriers that may
impede the inmate’s access 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 non-frivolous 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).
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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, 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 failed to allege any actual
injury here; accordingly, he has failed to state a claim for violation of his right to access the courts.
Conclusion
Having conducted the review of Plaintiff’s amended complaint required by the Prison
Litigation Reform Act, the Court determines that Defendants Smith, Shiebner, Christiansen,
Miniard, Lewis, Thurlby, Powell, Hammond, Lemke, Dunn, Downing, Conner, Watkins, Kotowicz,
Martens, Hall, Howard, Bledsoe, Salina, Thomas, Doolittle, Zukon, Duitsman, Daugherty, Mote,
Fornwalt, Drabek, Edwards, Conklin, Davis, Desroaches, Salinas, Vanamburg, Salame, Way, Simon,
Wellman, Burns, Wilson, Merren, Helder, Horford, Nielsen, Fraulick, Floyd, Greene, Chellium,
Scott, Corbett, Davids, D. Robinson, Morris, Russell, M. Robinson and Feliciono 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 Leitheim, Jensen, Conner, and
Strambaugh.
An Order consistent with this Opinion will be entered.
Dated: November 3, 2016
/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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