Watters #252812 v. Beebe et al

Filing 4

OPINION; Judgment 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

ROGER ALLEN WATTERS, JR.,
Plaintiff,

Case No. 1:16-cv-1450

v.

Honorable Janet T. Neff

UNKNOWN BEEBE, et al.,
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, Plaintiff’s action will be dismissed for failure to state
a claim.

Factual Allegations
Plaintiff Roger Allen Watters Jr. is presently incarcerated with the Michigan
Department of Corrections (MDOC) at the Muskegon Correctional Facility (MCF) in Muskegon
Heights, Michigan. The events of which he complains, however, occurred while he was incarcerated
at the Richard Handlon Correctional Facility (MTU) in Ionia, Michigan. He sues four Defendants:
MTU Correctional Officers Unknown Beebe, Unknown Mathis, and Unknown King; and MTU
Grievance Coordinator C. Heffelbower.
Plaintiff alleges that on July 29, 2016, Defendant Beebe called him to the officers’
desk. Defendant Beebe had Plaintiff’s picture pulled up on the computer screen. Defendant Beebe
asked Plaintiff about the crime he had committed. When Plaintiff told Defendant Beebe Plaintiff’s
crime, Defendant Beebe became upset and informed Plaintiff that the remainder of his days at MTU
would be very rough. Plaintiff claims he learned from another prisoner that Defendant Beebe was
upset because the victim of Plaintiff’s crime was a relative of Defendant Beebe.
On August 1, 2016, Plaintiff was taken to segregation. Later that day, Defendant
Mathis brought over Plaintiff’s personal property. When Plaintiff noted items were missing,
Defendant Mathis informed Plaintiff that he was lucky that he was only missing some property and
that Plaintiff had messed with the wrong person, presumably Defendant Beebe.
Plaintiff states that while he was in segregation from August 1 through August 8,
2016, temperatures were in the high 90’s. Plaintiff had a hard time breathing, his chest hurt, he
broke out in hives, and he was itching. Plaintiff asked Defendant King if Plaintiff could see a nurse.
Defendant King refused initially and again later, even after Plaintiff informed Defendant King that

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Plaintiff had a medical detail for being at risk of heat-related illness. Plaintiff does not allege that
he suffered any consequence from the failure to immediately treat his condition.
Plaintiff wrote several grievances with regard to the loss of his property and the
retaliatory conduct of Defendants Beebe, Mathis, and King. When he did not receive satisfactory
responses, he also grieved Defendant Heffelbower. Plaintiff asks the Court to award: compensatory
and punitive damages of $350,000 against Defendant Beebe for the mental and emotional suffering
Plaintiff endured as a result of Defendant Beebe’s threats and actions; compensatory and punitive
damages of $350,000 against Defendant Mathis for failing to safeguard Plaintiff’s property and for
the mental and emotional duress that followed from Defendant Mathis’s suggestion that Plaintiff was
lucky he only lost some property; compensatory and punitive damages of $500,000 against
Defendant King for the skin irritation and hard time breathing that Plaintiff suffered during hot days
in segregation and for the mental and emotional duress Plaintiff suffered from Defendant King’s
denial of medical treatment; and compensatory and punitive damages of $350,000 against Defendant
Heffelbower for mental and emotional duress caused by Defendant Heffelbower’s failure to answer
Plaintiff’s grievances and for making Plaintiff feel she was covering for the other Defendants.
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)

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(“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 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).

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II.

Defendant Beebe

Plaintiff does not identify the specific constitutional rights he alleges that Defendant
Beebe violated. Construed liberally, however, Plaintiff’s complaint can be construed as attempting
to state claims against Defendant Beebe for violation of Plaintiff’s Eighth Amendment right to be
free of cruel and unusual punishment, Fourteenth Amendment right to not be deprived of liberty
without due process of law, and First Amendment right to be free of retaliation for conduct protected
by the First Amendment. Plaintiff does not properly state any of those claims.
A.

Eighth Amendment

The Eighth Amendment prohibits punishments that are not only physically barbaric,
but also those which are incompatible with “the evolving standards of decency that mark the
progress of a maturing society,” or which “involve the unnecessary and wanton infliction of pain.”
Estelle v. Gamble, 429 U.S. 97, 102-103(1976). To establish an Eighth Amendment claim, the
prisoner must show that he was deprived of the “minimal civilized measure of life’s necessities.”
Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Restrictions that are restrictive or even harsh, but
are not cruel and unusual under contemporary standards, are not unconstitutional. Id. Thus, federal
courts may not intervene to remedy conditions that are merely unpleasant or undesirable.
Allegations of verbal harassment or threats by prison officials toward an inmate do
not constitute punishment within the meaning of the Eighth Amendment. Ivey v. Wilson, 832 F.2d
950, 955 (6th Cir.1987). Nor do allegations of verbal harassment rise to the level of unnecessary
and wanton infliction of pain proscribed by the Eighth Amendment. Id. Moreover, absent physical
injury, a plaintiff’s claim for emotional injuries is barred by 42 U.S.C. § 1997e(e), which precludes
any claim by a prisoner “for mental or emotional injury suffered while in custody without a prior

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showing of physical injury.” Id. See also Hardin-Bey v. Rutter, 524 F.3d 789, 795-96 (6th Cir.
2008); Taylor v. United States, 161 F. App’x 483, 486-87 (6th Cir. 2007); Jarriett v. Wilson, 162
F. App’x 394, 400 (6th Cir. 2005); Oliver v. Sundquist, No. 00-6372, 2001 WL 669994, at *1 (6th
Cir. June 7, 2001); Siller v. Dean, No. 99-5323, 2000 WL 145167, at *2 (6th Cir. Feb. 1, 2000).
Plaintiff alleges no physical injury resulting from Defendant Beebe’s threats. As a consequence,
Plaintiff’s claim for emotional damages is barred.
Alternatively, Plaintiff might argue that the conditions Defendant Beebe imposed
upon Plaintiff by placing him in segregation constituted cruel and unusual punishment. Placement
in segregation is a routine discomfort that 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.
337, 347 (1981); see also Jones v. Waller, No. 98-5739, 1999 WL 313893, at *2 (6th Cir. May 4,
1999). Although Plaintiff complains that he was put in segregation during a hot week in the
summer, he has not alleged that he was denied basic human needs and requirements. The Sixth
Circuit has held that without a showing that basic human needs were not met, the denial of privileges
as a result of administrative segregation cannot establish an Eighth Amendment violation. See
Evans v. Vinson, 427 F. App’x 437, 443 (6th Cir. 2011); Harden-Bey v. Rutter, 524 F.3d 789, 795
(6th Cir. 2008).
B.

Fourteenth Amendment

Plaintiff might alternatively be claiming that he was deprived of liberty without due
process when he was placed in segregation. The Supreme Court long has held that the Due Process
Clause does not protect every change in the conditions of confinement having an impact on a
prisoner. See Meachum v. Fano, 427 U.S. 215, 225 (1976). In Sandin v. Conner, 515 U.S. 472, 484

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(1995), the Court set forth the standard for determining when a prisoner’s loss of liberty implicates
a federally cognizable liberty interest protected by the Due Process Clause. According to the Sandin
Court, a prisoner is entitled to the protections of due process only when a deprivation “will
inevitably affect the duration of his sentence” or imposes an “atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 486-87; see also
Jones v. Baker, 155 F.3d 810, 812 (6th Cir. 1998); Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th
Cir. 1995).
Confinement in administrative segregation “is the sort of confinement that inmates
should reasonably anticipate receiving at some point in their incarceration.” Hewitt v. Helms, 459
U.S. 460, 467-73 (1983). Thus, it is considered atypical and significant only in “extreme
circumstances.” Joseph v. Curtin, 410 F. App’x 865, 868 (6th Cir. 2010). Generally, courts will
consider the nature and duration of a stay in segregation to determine whether it imposes an
“atypical and significant hardship.” Harden–Bey v. Rutter, 524 F.3d 789, 794 (6th. Cir. 2008).
In Sandin, the Supreme Court concluded that the segregation at issue in that case
(disciplinary segregation for 30 days) did not impose an atypical and significant hardship. Sandin,
515 U.S. at 484. Similarly, the Sixth Circuit has held that mere placement in administrative
segregation, and placement for a relatively short period of time, do not require the protections of due
process. Rimmer-Bey, 62 F.3d at 790-91; see Joseph v. Curtin, 410 F. App’x 865, 868 (6th Cir.
2010) (61 days in segregation is not atypical and significant). The Sixth Circuit has also held, in
specific circumstances, that confinement in segregation for a relatively long period of time does not
implicate a liberty interest. See, e.g., Baker, 155 F.3d at 812-23 (two years of segregation while the
inmate was investigated for the murder of a prison guard in a riot); Mackey v. Dyke, 111 F.3d 460

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(6th Cir. 1997) (one year of segregation following convictions for possession of illegal contraband
and assault, including a 117-day delay in reclassification due to prison crowding). But cf. Selby v.
Caruso, 734 F.3d 554, 559 (6th Cir. 2013) (13 years of segregation implicates a liberty interest);
Harden-Bey, 524 F.3d at 795 (remanding to the district court to consider whether the plaintiff's
allegedly “indefinite” period of segregation, i.e., three years without an explanation from prison
officials, implicates a liberty interest); Harris v. Caruso, 465 F. App’x 481, 484 (6th Cir. 2012)
(eight years of segregation implicates a liberty interest). Plaintiff’s brief stay in segregation does
not rise to the level of an atypical and significant hardship. Accordingly, Plaintiff fails to state a
claim for violation of his Fourteenth Amendment rights.
C.

First Amendment

Plaintiff alleges that the Defendants’ conduct was retaliatory. 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)).
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);

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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.’” 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). Here, however, Plaintiff alleges that Defendant Beebe stated his retaliatory motive to
another prisoner. Plaintiff claims Defendant Beebe was motivated by Plaintiff’s crime which
allegedly victimized Defendant Beebe’s relative. Plaintiff’s crime of armed robbery is not protected
conduct. Accordingly, Plaintiff has failed to state a claim against Defendant Beebe for retaliation
in violation of the First Amendment.
III.

Defendant Mathis

Plaintiff claims that Defendant Mathis caused him emotional distress by stating that
Plaintiff had “messed with the wrong person” when he offended Defendant Beebe. As was the case
with the more direct threats from Defendant Beebe, such verbal harassment does not rise to the level
of a constitutional violation.
Plaintiff also claims that Defendant Mathis failed to safeguard his property.
Construed liberally, Plaintiff’s allegation might be taken as a claim that Defendant Mathis deprived
Plaintiff of Plaintiff’s property without due process of law. Such a claim is barred by the doctrine

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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
Plaintiff’s claim is premised upon allegedly unauthorized acts of a state official, 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 dueprocess 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

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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 has failed to state a claim.
IV.

Defendant King

Plaintiff claims that Defendant King ignored the medical difficulties he suffered in
the August heat. Specifically, Plaintiff claims he had a hard time breathing, his chest was hurting,
he was itching, and he broke out in hives. The Eighth Amendment obligates prison authorities to
provide medical care to incarcerated individuals, as a failure to provide such care would be
inconsistent with contemporary standards of decency. Estelle v. Gamble, 429 U.S. 102, 103-04
(1976). The Eighth Amendment is violated when a prison official is deliberately indifferent to the
serious medical needs of a prisoner. Id. at 104-05; Comstock v. McCrary, 273 F.3d 693, 702 (6th
Cir. 2001).
A claim for the deprivation of adequate medical care has an objective and a
subjective component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To satisfy the objective
component, the plaintiff must allege that the medical need at issue is sufficiently serious. Id. In
other words, the inmate must show that he is incarcerated under conditions posing a substantial risk
of serious harm. 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). If the plaintiff’s claim, however, is based
on “the prison’s failure to treat a condition adequately, or where the prisoner’s affliction is
seemingly minor or non-obvious,” Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 898 (6th Cir.

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2004), the plaintiff must “place verifying medical evidence in the record to establish the detrimental
effect of the delay in medical treatment,” Napier v. Madison Cnty., 238 F.3d 739, 742 (6th Cir.
2001) (internal quotation marks omitted). Plaintiff’s complaints regarding the discomfort he
suffered in the August heat are not sufficiently serious medical needs to support an Eighth
Amendment claim.
Plaintiff’s contention that Defendant King’s denial of medical care was retaliatory
also fails. In this instance, in contrast to Plaintiff’s retaliation claims against Defendant Beebe,
Plaintiff fails to indicate what conduct motivated the alleged retaliation. Plaintiff merely alleges the
ultimate fact of retaliation with respect to Defendant King. Plaintiff has not presented any facts to
support his conclusion that Defendant King retaliated against him. Indeed, Plaintiff does not even
have the benefit of temporal proximity from which one might infer retaliatory motive. The only
“protected conduct” alleged with respect to Defendant King is the filing of grievances. The only
grievance Plaintiff filed against Defendant King was for retaliation and was filed after Defendant
King’s alleged deliberate indifference to Plaintiff’s medical need. (Compl., ECF No. 1, PageID.2.)
Plaintiff has failed to state a retaliation claim against Defendant King.
V.

Defendant Heffelbower

Plaintiff’s only allegations against Defendant Heffelbower contend that she failed to
adequately respond to his grievances. 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

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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.
Plaintiff has failed to allege that Defendant Heffelbower engaged in any active unconstitutional
behavior. Accordingly, Plaintiff fails to state a claim against her.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s action will be dismissed for failure to state a claim pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c).
The Court must next decide whether an appeal of this action would be in good faith
within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611
(6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no
good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the
$505.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless
Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g).
If he is barred, he will be required to pay the $505.00 appellate filing fee in one lump sum.

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This is a dismissal as described by 28 U.S.C. § 1915(g).
A Judgment consistent with this Opinion will be entered.

Dated: January 10, 2017

/s/ Janet T. Neff
Janet T. Neff
United States District Judge

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