Carter v. GEO Group, Inc., The et al

Filing 10

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

BERNARD CARTER,
Plaintiff,

Case No. 1:16-cv-667

v.

Honorable Robert Holmes Bell

THE GEO GROUP, Inc.,
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 Plaintiff’s complaint for failure
to state a claim against all of the named Defendants, except Defendant Belahovt. The Court will
serve Plaintiff’s Eighth Amendment claim against Defendant Belahovt.

Factual Allegations
Plaintiff is incarcerated at the North Lake Correctional Facility, which is a private
prison in Michigan operated by the The GEO Group, Inc. (GEO). In his pro se complaint, Plaintiff
sues GEO, Warden Ralph Cherry, Chief of Security (unknown) Naidow, Nurse Theresa Belahovt
and the North Lake Correctional Facility Medical Department.
Plaintiff alleges that, beginning in August 2015, Defendant Belahovt began making
sexually explicit comments to him that made him uncomfortable. Plaintiff told her that he did not
want her to speak that way to him, but she said that she was not going to stop. Plaintiff further
alleges that “it got to where she would be touching [him] in ways that she shouldn’t have and it
made me feel uncomfortable.” (Compl. ECF No. 1, PageID.3.) Plaintiff claims that Defendant
Belahovt came to the high security unit where he was being held and called him out for medical
treatment three times per week. He alleges that during the call outs, she often had him expose
himself to her and rub her between the legs. Belahovt allegedly called Plaintiff out on December
16, 2015, and had him rub her between the legs as his birthday present. Plaintiff claims that
Belahovt’s conduct caused him mental distress, which resulted in weight loss of 25 pounds in less
than three months. Plaintiff claims that he was afraid to tell anyone for several months, but
eventually filed an informal complaint and grievance in March 2016. (Plaintiff’s Exhibits, ECF No.
4-1, PageID.16-19.) An investigation was conducted and it appears that Defendant Belahovt was
terminated from her employment.
Plaintiff contends that Defendants GEO and Cherry are responsible for Defendant
Belahovt’s conduct. Plaintiff alleges Defendant Naidow is responsible for inmate safety and
protection, and retaliated against Plaintiff by “keeping [him] in seg. longer than [he] should have

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as well as make a comment to me that was not proper.” (Compl. ECF No. 1, PageID.4.) He also
claims that the North Lake Correctional Facility Medical Department should have realized what
Defendant Belahovt was doing to him. He further alleges, “they retaliated against me, because, I
put in numerous med slips to see the psch doctor and they took their time.” (Compl. ECF No. 1,
PageID.4.) Plaintiff seeks injunctive relief and monetary damages.
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

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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).
I.

Defendants Cherry, GEO and North Lake Correctional Medical
Department

Plaintiff contends that Defendants Cherry and GEO were responsible for the conduct
of their employee, Defendant Belahovt. Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat superior or vicarious
liability. Iqbal, 556 U.S. at 676; Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658,
691(1978); Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). A claimed constitutional violation
must be based upon active unconstitutional behavior. Grinter v. Knight, 532 F.3d 567, 575-76 (6th
Cir. 2008); Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002). The acts of one’s subordinates are
not enough, nor can supervisory liability be based upon the mere failure to act. Grinter, 532 F.3d
at 576; Greene, 310 F.3d at 899; Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004). Moreover,
§ 1983 liability may not be imposed simply because a supervisor denied an administrative grievance
or failed to act based upon information contained in a grievance. See Shehee v. Luttrell, 199 F.3d
295, 300 (6th Cir. 1999). “[A] plaintiff must plead that each Government-official defendant, through
the official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676.
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Plaintiff has failed to allege that Defendants Cherry or GEO engaged in any active unconstitutional
behavior. Accordingly, he fails to state a claim against them.
Plaintiff alleges that North Lake Correctional Facility Medical Department also was
responsible for Defendant Belahovt’s conduct. He further claims “they retaliated against me,
because, I put in numerous med slips to see the psch doctor and they took their time.” (Compl. ECF
No. 1, PageID.4.) The prison medical department is not a “person” subject to suit under § 1983.
See Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989) (neither a prison nor a state
corrections department is a “person” within the meaning of section 1983). The medical department
is part of the prison, which is operated by GEO. As set forth above, GEO cannot be held liable for
the conduct of its employees under a theory of respondeat superior or vicarious liability. Iqbal, 556
U.S. at 676. Moreover, Plaintiff fails to identify or sue any specific individuals in the medical
department who had reason to know about the sexual harassment or were involved in the alleged
retaliation. Plaintiff, therefore, fails to state a claim against Defendants Cherry, GEO and North
Lake Correctional Medical Department.
II.

Defendant Naidow

Plaintiff alleges that Defendant Naidow was responsible for the protection of inmates
at the facility and suggests that Naidow should have protected him from Belahovt’s sexual
harassment. In its prohibition of “cruel and unusual punishments,” the Eighth Amendment places
restraints on prison officials, directing that they may not use excessive physical force against
prisoners and must also “take reasonable measures to guarantee the safety of the inmates.” Farmer
v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-527 (1984)).
To establish liability under the Eighth Amendment for a claim based on a failure to prevent harm
to a prisoner, plaintiffs must show that the prison officials acted with “deliberate indifference” to
a substantial risk that the defendant would cause prisoners serious harm. Farmer, 511 U.S. at 834;
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Helling v. McKinney, 509 U.S. 25, 32 (1993); Curry v. Scott, 249 F.3d 493, 506 (6th Cir. 2001);
Woods v. Lecureux, 110 F.3d 1215, 1222 (6th Cir. 1997); Street v. Corr. Corp. of Am., 102 F.3d 810,
814 (6th Cir. 1996). Plaintiff admittedly did not tell anyone about the alleged sexual harassment
until he filed his informal complaint and grievance in March 2016. Plaintiff does not allege how
Naidow could have known about Belahovt’s alleged conduct before Plaintiff reported it.
Consequently, Plaintiff cannot show that Defendant Naidow was deliberately indifferent to a
substantial risk of serious harm.
Plaintiff also asserts a retaliation claim against Defendant Naidow. 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. Moreover, a plaintiff must be able to prove that the exercise of the protected
right was a substantial or motivating factor in the defendant’s alleged retaliatory conduct. See Smith
v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy City Sch. Dist. Bd. of Educ.
v. Doyle, 429 U.S. 274, 287 (1977)).
In his complaint, Plaintiff alleges that Naidow retaliated against him by “keeping
[him] in seg. longer than [he] should have as well as make a comment to me that was not proper.”
(Compl. ECF No. 1, PageID.4.) Plaintiff does not make any additional factual allegations in support
of his retaliation claim. 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,
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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.’” HarbinBey, 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 does not allege
that he was engaged in protected conduct, let alone allege any facts to support his conclusion that
Defendant Naidow acted with retaliatory animus. Accordingly, his speculative allegation fails to
state a claim.
III.

Defendant Belahovt
Plaintiff’s allegations are sufficient to state an Eighth Amendment claim

against Defendant Belahovt.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants GEO, Cherry, Naidow and North Lake Correctional Facility Medical
Department will be dismissed for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A(b), and 42 U.S.C. § 1997e(c). The Court will serve the complaint against Defendant
Belahovt.
An Order consistent with this Opinion will be entered.

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

Dated: October 18, 2016

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