Deberry #252396 v. Trinity Services Group Incorporated et al
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
Case No. 1:16-cv-1097
Honorable Gordon J. Quist
TRINITY SERVICES GROUP INC. et al.,
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
Plaintiff Quenton Deberry presently is incarcerated with the Michigan Department
of Corrections (MDOC) at the Oaks Correctional Facility, though the actions about which he
complains occurred while he was housed at the Michigan Reformatory (RMI). Plaintiff sues Trinity
Services Group, Inc. (Trinity), the unknown Trinity Supervisor at RMI (Unknown Party #1), RMI
Nurse (unknown) Slusher, and RMI Storekeeper (unknown) Spencer.
On March 24, 2016, Plaintiff went to breakfast. His breakfast tray included oatmeal.
After Plaintiff had consumed 75% of his oatmeal, he noticed what appeared to be a worm in it. He
showed it first to an unknown officer, who told him to show it to Lieutenant Whittinger. Whittinger
agreed that it looked like a worm and sent him to show it to Unknown Party #1. When Unknown
Pary #1 looked at the oatmeal, he laughed and pulled the “worm” from the oatmeal, saying it was
the tail of a rat. He added, “[I]t’s no big deal and he had just threw oatmeal and potatoes away a
few days prior to the incident . . . . .” (Compl., ECF No. 1, PageID.4.) Unknown Party #1 added
that, if Plaintiff would accept another tray, he would give Plaintiff extra food. Plaintiff refused.
Plaintiff went back to Lt. Whittinger and informed him that Unknown Party #1 was
just throwing away the evidence and that the object in Plaintiff’s oatmeal was not a worm, but was
a rat tail. Whittinger rushed to find Defendant Unknown Party #1 and instructed him to remove the
rat tail and the oatmeal from the trash can. Whittinger then went back into the dining hall and
ordered all inmates to stop consuming the oatmeal, to throw it away, and to get new trays.
On March 25, 2016, Plaintiff sent a request to health care to be examined about
having consumed a portion of a rat. Plaintiff complained that he had begun to experience
gastrointestinal complications. Defendant Slusher responded on March 27, 2016, denying Plaintiff’s
request for treatment and indicating that Plaintiff had already been examined by health care.
Plaintiff contends that the response was false, as he had not been seen since his consumption of the
On March 28, 2016, Plaintiff went to the commissary to pick up his pre-ordered
securepak from Defendant Spencer. After opening his bag, Plaintiff noticed that there were holes
and rat feces in all of his food items. Plaintiff returned to Defendant Spencer, who conceded that
a rat had been at Plaintiff’s food. Spencer informed Plaintiff that he had killed the rat. Defendant
Spencer then smirked and asked Plaintiff if he had had enough of finding rats in his food. When
Plaintiff asked what Spencer meant, Spencer merely laughed and walked away. Plaintiff showed
his damaged commissary products to Officer Wilson, who verified that there were holes and feces
in Plaintiff’s food items.
Plaintiff was called to health service by Health Unit Manager Bryan Deeren on April
5, 2016. Deeren, who is not a Defendant in this action, interviewed Plaintiff on his grievance
against Defendant Slusher. Deeren allegedly suggested that Plaintiff had put the rat into his own
oatmeal. Moreover, Deeren did not offer Plaintiff medical treatment.
Plaintiff alleges that Defendant Trinity has violated prison policy and the Eighth and
Fourteenth Amendments by having a custom and practice of ignoring complaints about its
substandard services, despite being aware that prisoners are served rotten and/or maggot- and
rodent-infested meals. He also alleges that the individual Defendants were deliberately indifferent
to his substantial risk of serious harm by failing to correct the problem of rodent infestation and
failing to treat his medical complaint. In addition, he alleges that Defendant Spencer retaliated
against him by laughing at his problem.
As the result of consuming food containing a portion of a rat, Plaintiff allegedly has
experienced non-stop headaches, blood in his urine and stools, acute diarrhea, and swollen legs and
feet. Due to the severity of his gastrointestinal problems, Plaintiff was treated at the Westshore
Hospital in Manistee, Michigan on August 4 and 10, 2016. He also was seen by a urologist on
August 19, 2016, in an attempt to find a solution to the blood in his urine and feces. Plaintiff
contends that he has lost over 50 pounds due to the damage inflicted on his digestive system. He
seeks declaratory relief, together with compensatory and punitive damages.
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)
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); 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
Plaintiff alleges that Defendants violated the Eighth Amendment by allowing a rat
to get into the oatmeal, allowing a rat to chew on Plaintiff’s commissary items, failing to provide
adequate medical care, and laughing at Plaintiff’s predicament.
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.
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)). The deliberate indifference
standard has both an objective and a subjective element. The objective element requires that the
deprivation be “sufficiently serious.” Wilson v. Seiter, 501 U.S. 294, 298 (1991); see also Rhodes,
452 U.S. at 348-49. The subjective element of an Eighth Amendment claim mandates an inquiry
into the prison official’s mental state. An official must have acted with a “sufficiently culpable state
of mind.” Wilson, 501 U.S. at 298. “[M]ere inadvertence or error in good faith” does not rise to the
level of a constitutional violation. Id. Instead, a successful Eighth Amendment claim must entail
conduct which is characterized by “obduracy and wantonness.” Id. (citations omitted).
The presence of a rodent in the food service area on a single day does not rise to the
level of an Eighth Amendment violation. Courts consistently have held that isolated incidents of
foreign bodies, including rodents and insects, surfacing in the food served to prisoners is not an
Eighth Amendment violation. See Tucker v. Rose, 955 F. Supp. 810, 815 (N.D. Ohio 1997) (holding
that the occasional presence of a rodent is insufficient to establish the objective component of an
Eighth Amendment claim); see also Smith v. Younger, No. 985482, 1999 WL 623355, at *2 (6th Cir.
Aug. 9, 1999) (affirming district court’s dismissal of plaintiff’s Eighth Amendment claim based on
the presence of a worm in her peanut butter); LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993)
(“The fact that the food occasionally contains foreign objects or sometimes is served cold, while
unpleasant, does not amount to a constitutional deprivation”); Hamm v. DeKalb County, 774 F.2d
1567, 1575 (11th Cir. 1985); Wiley v. Kentucky Dep’t of Corr., No. 11-97-HRW, 2012 WL 5878678,
at *8 (N.D. Ky. Nov. 21, 2012) (holding that a single instance of a rat in the soup does not violate
the Eighth Amendment); Miles v. Konvalenka, 791 F. Supp. 212 (N.D. Ill. 1992) (single instance
of finding mouse in food not actionable). Plaintiff makes no allegation that Defendant Unknown
Party #1 was aware that a rodent was in the oatmeal before Plaintiff discovered it, and he has cited
no other incident involving vermin contamination in the food service unit. See Tucker, 955 F. Supp.
at 815. In addition, Plaintiff’s allegations about Defendant Unknown Party’s reaction to being
shown the rat tail do not lend support to his Eighth Amendment claim. Regardless of Plaintiff’s
dissatisfaction with it, nothing about Defendant Unknown Party’s response placed Plaintiff at an
increased risk of harm. Plaintiff’s allegations about a single incident of rat contamination fall short
of demonstrating deliberate indifference. As a consequence, Plaintiff fails to state an Eighth
Amendment claim against Defendant Unknown Party #1.
Moreover, while Plaintiff claims that Defendant Trinity had “policy and practice of
ignoring complaints of there companies [sic] substandard and inadequate services” and “continues
to allow prisoners to be served rotten and/or maggot and rodent infested meals,” he makes no factual
allegations supporting his conclusory claim. (Compl., ECF No. 1, PageID.6.) He alleges a single
incident of rat contamination in the delivery of food services by Trinity employees. He describes
no other incident to demonstrate the existence of any policy or pattern. Plaintiff’s conclusory
allegations therefore fail to state a claim against Trinity. Twombly, 550 U.S. at 555; Iqbal, 556 U.S.
With respect to the allegations against Defendant Spencer, Plaintiff also fails to state
a claim. Despite the fact that another rat was involved, the incident occurred in an entirely separate
area of the prison that was operated by RMI employees, not Trinity employees. According to
Plaintiff’s own allegations, Defendant Spencer actually located and killed the offending rodent. The
mere fact that the rodent had already damaged Plaintiff’s commissary items demonstrates, at best,
negligence by Spencer. Allegations of negligence fall short of the deliberate indifference required
to state an Eighth Amendment claim. See Farmer, 511 U.S. at 835 (holding that an Eighth
Amendment violation requires a “state of mind more blameworthy than negligence”).
Moreover, to the extent that Plaintiff alleges that Defendants Unknown Party #1 and
Spencer may have laughed at him or made remarks minimizing his concerns, he fails to state a claim
under the Eighth Amendment. The use of harassing or degrading language by a prison official,
although unprofessional, does not rise to constitutional dimensions. See Ivey v. Wilson, 832 F.2d
950, 954-55 (6th Cir. 1987); 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); Thaddeus-X v. Langley, No. 96-1282, 1997 WL 205604, at *1 (6th Cir. Apr.
24, 1997) (verbal harassment is insufficient to state a claim); Murray v. U.S. Bureau of Prisons, No.
95-5204, 1997 WL 34677, at *3 (6th Cir. Jan. 28, 1997) (“Although we do not condone the alleged
statements, the Eighth Amendment does not afford us the power to correct every action, statement
or attitude of a prison official with which we might disagree.”); Clark v. Turner, No. 96-3265, 1996
WL 721798, at *2 (6th Cir. Dec. 13, 1996) (“Verbal harassment and idle threats are generally not
sufficient to constitute an invasion of an inmate’s constitutional rights.”); Brown v. Toombs, No.
92-1756, 1993 WL 11882 (6th Cir. Jan. 21, 1993) (“Brown’s allegation that a corrections officer
used derogatory language and insulting racial epithets is insufficient to support his claim under the
Eighth Amendment.”) Accordingly, Plaintiff fails to state an Eighth Amendment claim against any
Defendant based on their callous comments or joking about Plaintiff’s problems.
Finally, Plaintiff’s allegations against Defendant Slusher also fall short of
demonstrating an Eighth Amendment violation. As with other Eighth Amendment claims, a claim
for the deprivation of adequate medical care has an objective and a subjective component. Farmer,
511 U.S. at 834. To satisfy the objective component, the plaintiff must allege that the medical need
at issue is sufficiently serious. Id. The objective component of the adequate medical care test is
satisfied “[w]here the seriousness of a prisoner’s need[ ] for medical care is obvious even to a lay
person.” Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 899 (6th Cir. 2004). The subjective
component requires an inmate to show that prison officials have “a sufficiently culpable state of
mind in denying medical care.” Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000) (citing
Farmer, 511 U.S. at 834). Deliberate indifference “entails something more than mere negligence,”
Farmer, 511 U.S. at 835, but can be “satisfied by something less than acts or omissions for the very
purpose of causing harm or with knowledge that harm will result.” Id. Under Farmer, “the official
must both be aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.” Id. at 837.
In the instant case, Plaintiff alleges Defendant Slusher denied his March 25, 2016
request to be seen by a medical provider. Plaintiff references and attaches both the medical request
he sent and the response from Slusher. (Attach. to Compl., ECF No. 1-1, PageID.12-13.) In his
health care request, Plaintiff described his problem as follows:
Yesterday, I reported to Staff that something was in my Breakfast tray on what I
thought was a worm later was found out it was a mouse tail. I ate some of that food
befor [sic] I realize it was in my oatmeal. Since I haven’t eat anything at all. I been
feeling really funny. Stomach cramps, mouth been itching. I’m just taking the right
steps just in case something is wrong with me.
(Id., PageID.12.) On March 27, 2016, Defendant Slusher responded as follows:
You have been seen in healthcare for this issue and the reason you are having
stomach cramps is probably because you are not eating. It is not good for your body
to not eat. Try eating to see if you feel better if not rekite healthcare. Thank you.
Plaintiff’s request for health care fell far short of describing a sufficiently serious
need for medical care that would have been “obvious even to a lay person.” Blackmore, 390 F.3d
at 899. Indeed, Plaintiff himself indicated that he was kiting health care as a precautionary measure,
in case something was seriously wrong with him. Plaintiff’s complaint about stomach cramps
simply does not create the sort of serious and obvious need for immediate medical attention that
would meet the objective component of the deliberate-indifference standard. Moreover, regardless
of whether Defendant Slusher was correct in stating that Plaintiff had already been seen on the issue,
her response demonstrates that she lacked a subjective awareness of any more serious problem than
stomach cramping. “[A]llegations of ‘inadvertent failure to provide adequate medical care’ . . . or
of a ‘negligent diagnosis’ fail to establish the requisite culpable state of mind.” Wilson, 501 U.S.
at 297 (quoting Estelle v. Gamble, 429 U.S. 97, 105-06 (1976)).
For all these reasons, Plaintiff fails to state an Eighth Amendment claim against any
Plaintiff also alleges that the identical conduct violated the Due Process Clause of the Fourteenth Amendment.
The Fourteenth Amendment, rather than the Eighth Amendment, governs claims made by pretrial detainees about
unlawful conditions of confinement. See Griffin v. Hardrick, 604 F.3d 949, 953 (6th Cir. 2010) (but observing that a
strong argument exists whether the Due Process Clause guarantees greater protections to a pretrial detainee than the
Eighth Amendment standard) (citing cases). Plaintiff, however, is a prisoner who is incarcerated after being convicted
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Plaintiff claims that Defendant Spencer retaliated against him by laughing at him.
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)).
Even assuming that Plaintiff was engaged in protected conduct, his retaliation claim
fails at the second step. Spencer’s act of joking about Plaintiff’s bad luck with rodents is not
sufficiently adverse to support the second prong of Plaintiff’s retaliation claim. The adverseness
inquiry is an objective one, and does not depend on how a particular plaintiff reacted. The relevant
question is whether the defendants’ conduct is “capable of deterring a person of ordinary firmness”;
the plaintiff need not show actual deterrence. Bell v. Johnson, 308 F.3d 594, 606 (6th Cir. 2002)
(emphasis in original). A single instance of comment and laughter simply could not deter a
of criminal offenses. “Where a particular [a]mendment provides an explicit textual source of constitutional protection
against a particular sort of government behavior, that [a]mendment, not the more generalized notion of ‘substantive due
process,’ must be the guide for analyzing such a claim.” Albright v. Oliver, 510 U.S. 266, 266 (1994) (quoting Graham
v. Connor, 490 U.S. 386, 395 (1989)) (holding that the Fourth Amendment, not substantive due process, provides the
standard for analyzing claims involving unreasonable search or seizure of free citizens, and the Eighth Amendment
provides the standard for such searches of prisoners)). If such an amendment exists, the substantive due process claim
is properly dismissed. Heike v. Guevara, 519 F. App’x 911, 923 (6th Cir. 2013). Because the Eighth Amendment
supplies the explicit textual source of constitutional protection for claims governing a convicted prisoner’s health and
safety, Plaintiff’s substantive due process claim must be dismissed. See Dodson v. Wilkinson, 304 F. App’x 434, 438
(6th Cir. 2008).
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reasonable person from exercising his First Amendment rights. See Thaddeus 175 F.3d at 398-99
(holding that minor harassment is insufficient to constitute adverse action, because recognition of
such a standard would “‘trivialize the First Amendment’”) (quoting Bart v. Telford, 677 F.2d 622,
625 (7th Cir. 1982)). Because he fails to allege adverse action, Plaintiff fails to state a retaliation
Violation of Prison Policy
Plaintiff alleges that Trinity was obligated under its contract with the MDOC to
provide inmate meals and food services that met prison policies. Seer MICH. DEP’T OF CORR., Policy
Directive 04.07.100 (Offender Meals); MICH. DEP’T OF CORR., Policy Directive 04.07.102 (Food
Quality Assurance). Plaintiff contends that, by allowing food to be served that was contaminated
by a rat, Trinity violated those policies.
Defendant Trinity’s 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).
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. As a consequence,
Plaintiff’s allegations about policy violations fail to state a constitutional claim.
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).
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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: October 14, 2016
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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