Malott #467434 v. Weaver et al

Filing 11

OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

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

MICHAEL MALOTT,
Plaintiff,

Case No. 1:16-cv-1009

v.

Honorable Paul L. Maloney

UNKNOWN WEAVER et al.,
Defendants.
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OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. The
Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation Reform Act,
PUB. L. NO. 104-134, 110 STAT. 1321 (1996), the Court is required to dismiss any prisoner action
brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can
be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2),
1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s pro se complaint indulgently, see Haines
v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s allegations as true, unless they are clearly
irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards,
Plaintiff’s action will be dismissed for failure to state a claim.

Factual Allegations
Plaintiff Michael Malott presently is housed with the Michigan Department of Corrections
at the Oaks Correctional Facility (ECF). He sues the following ECF officials: Assistant Resident Unit
Supervisor (ARUS) (unknown) Weaver; Resident Unit Manager (RUM) (unknown) Thomas; Deputy
Wardens (unknown) Ball and (unknown) Sharp; Lieutenants (unknown) Schreiber and (unknown) Baker;
Sergeant (unknown) Mitchell; and Warden Thomas Mackie.
Plaintiff is a frequent litigator in this Court and in the Eastern District of Michigan. During
the last year, he has filed four actions (including this one) about his treatment at ECF. See Malott v.
Crompton et al., No. 1:16-cv-1007 (W.D. Mich.); Malott v. Mackie et al., No. 1:15-cv-1148 (W.D.
Mich.); Malott v. Hill et al., No. 1:15-cv-1092 (W.D. Mich.). In the instant action, Plaintiff makes the
following limited allegations:
from the date of 7/5/16 - 7/20/16 I was forced to live in a cell that was unhealthy and
unsanitary, and not fit for human living. Cell conditions were inadequate to live in.
The cells vents did not work, they did not circulate. The vents were also clogged
with mold and dust. The cell had no Electrical Power, no locker to store my cloth[e]s &
Property, no desk to complete legal work at, no pillow, And no fire or sprinkler system.
The cell[’]s toilet was disabled and would not flush at all. The sink water would not get
cold – only hot water worked (note: it[’]s summer time and 80/90 degree weather and I
don[’]t have no cold water to drink). The cell was filthy from head to toe with dirt, dust,
mold, and spider webs. The cell even had a Rodent infestation. I was never allowed to
clean and sanitize my cell during Regular clean up times. I was denied hygiene items. I
was denied writing paper and all of my legal supplies while house[d] in that cell (#4-226).
(Compl., ECF No. 1, PageID.5.)
Plaintiff seeks declaratory relief, together with compensatory and punitive damages.

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Discussion
I.

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 by a person
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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).
It is a basic pleading essential that a plaintiff attribute factual allegations to particular
defendants. See Twombly, 550 U.S. at 544 (holding that, in order to state a claim, a plaintiff must make
sufficient allegations to give a defendant fair notice of the claim). Where a person is named as a defendant
without an allegation of specific conduct, the complaint is subject to dismissal, even under the liberal
construction afforded to pro se complaints. See Frazier v. Michigan, 41 F. App’x 762, 764 (6th Cir.
2002) (dismissing the plaintiff’s claims where the complaint did not allege with any degree of specificity
which of the named defendants were personally involved in or responsible for each alleged violation of
rights); Griffin v. Montgomery, No. 00-3402, 2000 WL 1800569, at *2 (6th Cir. Nov. 30, 2000)
(requiring allegations of personal involvement against each defendant)); Rodriguez v. Jabe, No. 90-1010,
1990 WL 82722, at *1 (6th Cir. June 19, 1990) (“Plaintiff’s claims against those individuals are without
a basis in law as the complaint is totally devoid of allegations as to them which would suggest their
involvement in the events leading to his injuries.”); see also Wright v. Smith, 21 F.3d 496, 501 (2d Cir.
1994); Krych v. Hvass, 83 F. App’x 854, 855 (8th Cir. 2003); Potter v. Clark, 497 F.2d 1206, 1207
(7th Cir. 1974); Williams v. Hopkins, No. 06-14064, 2007 WL 2572406, at *4 (E.D. Mich. Sept. 6,
2007); McCoy v. McBride, No. 3:96-cv-227RP, 1996 WL 697937, at *2 (N.D. Ind. Nov. 5, 1996);
Eckford-El v. Toombs, 760 F. Supp. 1267, 1272-73 (W.D. Mich. 1991). Plaintiff fails to even to
mention any Defendant in the body of his complaint. His allegations therefore fall far short of the minimal
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pleading standards under FED. R. CIV. P. 8 (requiring “a short and plain statement of the claim showing that
the pleader is entitled to relief”).
In addition, all of the Defendants whom Plaintiff names appear to occupy leadership
positions; none are ordinary correctional officers. In particular, Plaintiff sues the deputy wardens and
warden of ECF, none of whom would have ordinary custodial duties in the prison. Therefore, to the extent
that Plaintiff attempts to hold these Defendants responsible for his unpleasant cell, he appears to do so on
the theory that they are responsible for the actions of their subordinates. 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.
For both reasons, Plaintiff fails to state a claim against any individual Defendant.
Moreover, even if Plaintiff had alleged that one or more Defendant actively took part in the
decision to keep Plaintiff in the cell for 15 days, his allegations do not rise to the level of an Eighth
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Amendment claim. 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. ) “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.
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)).

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Plaintiff makes no allegations suggesting that he experienced an extreme deprivation that
posed a serious risk to his health or safety. Allegations about temporary inconveniences, e.g., being
deprived of a lower bunk, subjected to a flooded cell, or deprived of a working toilet, do not demonstrate
that the conditions fell beneath the minimal civilized measure of life’s necessities as measured by a
contemporary standard of decency. Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001);
see also J.P. v. Taft, 439 F. Supp. 2d 793, 811 (S.D. Ohio 2006) (“[M]inor inconveniences resulting
from the difficulties in administering a large detention facility do not give rise to a constitutional claim.”
(internal citation omitted)). But see Flanory v. Bonn, 604 F.3d 249, 255-56 (6th Cir. 2010) (holding that
allegations that an inmate was deprived of toothpaste for 337 days and experienced dental health problems
did not constitute a temporary inconvenience and were sufficient to state an Eighth Amendment claim).
Plaintiff alleges no more than that he was held in a cell that was not clean for two weeks. His complaint
therefore falls short of stating an Eighth Amendment violation.
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
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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:

October 12, 2016

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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