Reyes #266511 v. Palmer et al

Filing 10

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

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
TYRONE REYES,
Plaintiff,
v.

Case No. 1:17-cv-755
Honorable Paul L. Maloney

CARMEN PALMER et al.,
Defendants.

____________________________/
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983.
Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (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 Palmer, Schooley, and Unknown Party. The Court also will dismiss for failure to state
a claim Plaintiff’s retaliation claim against Defendant Stewart, as well as his claimed violations of
due process, the Eighth Amendment, and the PREA. The Court will serve the complaint against
Defendants King, Martin, and Stewart.

Discussion
I.

Factual allegations

Plaintiff is presently incarcerated with the Michigan Department of Corrections
(MDOC) at the G. Robert Cotton Correctional Facility (JCF) in Jackson, Jackson County,
Michigan. The events about which he complains, however, occurred at the Michigan Reformatory
(RMI) in Ionia, Ionia County, Michigan. Plaintiff sues the following RMI officials: Warden
Carmen Palmer, Deputy Warden (unknown) Schooley, Captain (unknown) King, Lieutenant
(unknown) Martin, Unknown Party (named as Sergeant Doe), and Unknown Stewart.
Plaintiff alleges that, on December 26, 2015, he went to dinner in the chow hall,
proceeded through the food line, and received his dinner tray. However, when he sat down, he
noticed that he had no eating utensil. Plaintiff got up to get a spork, but Defendant Stewart stopped
him and asked what he was doing. Plaintiff explained that he either was not given or may have
dropped his eating utensil. Stewart ordered Plaintiff to come over for a shakedown, to make sure
that Plaintiff was not trying to steal a set of utensils. Plaintiff responded, “I have no reason to steal
anything from the chow hall.” (Compl., ECF No. 1, PageID.11.)
Plaintiff contends that Defendant Stewart searched him roughly, and Plaintiff
started to get upset. When searching Plaintiff’s first leg, Stewart allegedly touched Plaintiff’s
testicle roughly. Plaintiff complained, saying, “can’t you be a little more easier, and watch where
you’re touching me?” (Id.) After hearing Plaintiff’s question, Defendant Stewart allegedly
became even rougher in his search of the other leg, this time squeezing Plaintiff’s testicles.
After Stewart finished the search, Plaintiff walked toward the chow line to get his
spork. Defendant Martin, who had been watching Plaintiff’s interaction with Stewart, walked up
to Plaintiff and asked if he had a problem with the officer shaking him down. Plaintiff responded,

2

“No, but I do have a problem with your officer squeezing my gonad area.” (Id.) Defendant Martin
replied, “If you have a problem with my officer shaking you down, you can leave the chow hall.”
(Id.) Plaintiff remained silent. When Plaintiff made no response, Defendant Martin repeated his
statement and asked Plaintiff if he had a problem. Plaintiff again stood silent. Defendant Martin
told Plaintiff that he was talking to him and ordered Plaintiff to answer. Plaintiff responded that
he had already told Martin that Defendant Stewart had sexually assaulted him during the
shakedown.
After making his statement, Plaintiff began to walk away to get his eating utensil.
Lt. Martin ordered Plaintiff to stop, because he was not finished talking to Plaintiff. Plaintiff
responded that he was finished talking and just wanted his spork so that he could eat his meal
before it was cold. At that point, Defendant Martin stated, “Since you have a problem with my
officer shaking you down, you can leave the chow hall now.” (Id., PageID.12.) Plaintiff asked,
“[S]o you’re going to deny me a meal, because I told you that Officer Steward grabbed my gonad?”
(Id.) Lt. Martin responded, “YES I AM!” (Id.)
Plaintiff returned back to his cell without dinner, and he promptly began to write a
grievance against Defendants Martin and Stewart. He claims that he was so upset, however, that
he got some of the details of his grievance wrong. He filed the grievance on December 28, 2015.
Plantiff thereafter received notice that the grievance may fall under the scope of the Prison Rape
Elimination Act (PREA), and it therefore had been referred for investigation and determination of
the possible violation.
Defendant Captain King reviewed the grievance and conducted an investigation
under the PREA. As he reported in the Step I grievance response, King reviewed the video footage
of December 26, 2015, between 7:00 and 7:15 p.m., and interviewed Defendants Stewart and

3

Martin, as well as another officer. (Ex. C to Compl., ECF No. 1-1, PageID.32.) King found that
Plaintiff was pictured leaving his seat in the chow hall, being stopped by Stewart, and being patted
down by Stewart. Nothing untoward was visible on the video, and Plaintiff did not appear to react
to any part of the search. Plaintiff proceeded to the chow line, where he was stopped by Defendant
Martin. During the conversation with Martin, Plaintiff appeared to become upset and subsequently
left the chow hall. (Id.)
After conducting an investigation, King concluded that Plaintiff’s grievance was
unsubstantiated and denied the grievance on February 1, 2016. (Id., PageID.32-33.) That same
date, King wrote a Class II misconduct against Plaintiff, charging him with interference with the
administration of rules for filing a false claim against a staff member. At the initial review of the
misconduct charge, Plaintiff claimed that the date of the incident listed on his grievance was
wrong, and therefore Defendant King had reviewed the wrong videotape. Having heard Plaintiff’s
information about the mistaken date, Sgt. John Doe (Defendant Unknown Party) advised Plaintiff
that he should beat the misconduct ticket because the body of the ticket was wrong.
Plaintiff was called out for a hearing with Defendant Martin the next day. Plaintiff
objected to Defendant Martin hearing the misconduct charge, because Martin was involved in the
subject matter and because Plaintiff had filed a grievance against Martin, rendering Martin biased.
Defendant Martin nevertheless insisted on presiding over the hearing. When Plaintiff revealed
that the body of the ticket was wrong, Martin postponed the hearing. On February 4, 2016, Martin
reheld the hearing, over Plaintiff’s objection that Martin was violating his right to due process.
Defendant Martin revealed that he had talked to Defendant King about the typographical error in
the date of the incident. But Martin said that he was nevertheless going to find Plaintiff guilty for
lying about an officer. He sanctioned Plaintiff to 5 days’ toplock and 30 days’ loss of privileges.

4

As a result of the guilty determination, Plaintiff wrote a grievance against Defendants King and
Martin for staff corruption in denying him due process.
Plaintiff appealed his misconduct conviction to the deputy warden’s office. When
the office failed to respond for 30 days, Plaintiff wrote another grievance, alleging staff corruption
for the failure to follow administrative rules. Plaintiff pursued all of his grievances to Step III. In
addition, on March 13, 2016, Plaintiff wrote a letter to Warden Palmer, outlining the events that
had taken place in the chow hall and in the PREA investigation. On March 30, 2016, Plaintiff
wrote a grievance on the deputy warden for refusing to respond to his misconduct appeal. On June
22, he received his Step III response refusing to hear his appeal.
Plaintiff also complains that Defendant King told a correctional officer to remove
Plaintiff from his position as a block representative before Plaintiff had been found guilty of the
misconduct charge. Toward the end of the grievance process, Plaintiff informed Defendant
Schooley that he had been denied due process by Defendant Martin’s decision to preside over the
misconduct. Defendant Schooley responded that Defendant Martin had improperly reviewed the
misconduct, but he asked Plaintiff why he had not spoken with Schooley sooner. Plaintiff
responded that he had been told not to talk to anyone under the PREA standards.
Plaintiff seeks declaratory and injunctive relief, together with compensatory and
punitive damages.
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

5

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 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).

6

A.

Supervisory Liability

Plaintiff’s only allegations against Defendants Palmer and Schooley are that they
failed to take action on his grievances and, arguably, failed to supervise 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. Plaintiff has failed
to allege that Defendants Palmer or Schooley engaged in any active unconstitutional behavior.
Accordingly, he fails to state a claim against them.
B.

Due Process

Plaintiff alleges that Defendant Martin improperly reviewed the misconduct charge
against Plaintiff that was filed by Defendant King, because Defendant Martin was involved in the
incident that led to the misconduct charge. Plaintiff asserts that Martin’s review of the misconduct
charge violated Plaintiff’s rights under MDOC policy and the Due Process Clause. In addition,
Plaintiff alleges that Defendant King violated his right to due process when he ordered Plaintiff

7

removed from the Warden’s Forum before Plaintiff had been found guilty of the misconduct
charge.
Defendant Martin’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);
McVeigh v. Bartlett, No. 94-23347, 1995 WL 236687, at *1 (6th Cir. Apr. 21, 1995) (failure to
follow policy directive does not rise to the level of a constitutional violation because policy
directive does not create a protectible liberty interest). 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.
Moreover, Plaintiff’s claim that he was deprived of procedural due process in the
resolution of the misconduct charge is meritless. A prisoner’s ability to challenge a prison
misconduct conviction depends on whether the conviction implicated any liberty interest. A
prisoner does not have a protected liberty interest in prison disciplinary proceedings unless the
sanction “will inevitably affect the duration of his sentence” or the resulting restraint imposes an
“atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”
See Sandin v. Conner, 515 U.S. 472, 486-87 (1995). Under Michigan Department of Corrections
Policy Directive 03.03.105, ¶ B, a Class I misconduct is a “major” misconduct and Class II and III
misconducts are “minor” misconducts. The policy further provides that prisoners are deprived of
good time or disciplinary credits only when they are found guilty of a Class I misconduct. See
MICH. DEP’T OF CORR., Policy Directive 03.03.105, ¶ AAAA. Therefore, contrary to the assertion
in his complaint, Plaintiff should not have been denied good time or disciplinary credits as a result

8

of his Class II misconduct convictions. The Sixth Circuit routinely has held that misconduct
convictions that do not result in the loss of good time are not atypical and significant deprivations
and therefore do not implicate due process. See, e.g., Ingram v. Jewell, 94 F. App’x 271, 273 (6th
Cir. 2004); Carter v. Tucker, 69 F. App’x 678, 680 (6th Cir. 2003); Green v. Waldren, No. 991561, 2000 WL 876765, at *2 (6th Cir. June 23, 2000); Staffney v. Allen, No. 98-1880, 1999 WL
617967, at *2 (6th Cir. Aug. 12, 1999). Plaintiff, therefore, fails to state a due process claim arising
from his Class II misconduct conviction.
Finally, Plaintiff fails to allege a due process violation based on King’s order to
remove Plaintiff from the Warden’s Forum prior to Plaintiff’s conviction on the misconduct
charge. Plaintiff , has no protected liberty interest in his position on the Warden’s Forum. See
Miller v. Berghuis, 2013 WL 8445625 *2 (W.D. Mich. 2013); Reeves v. Chapman, 2011 WL
2518843, *2 (E.D. Mich. 2011); see also Newsom v. Norris, 888 F2d 371, 374 (6th Cir. 1989)
(finding no liberty interest in continued appointment to position of inmate adviser); VanDiver v.
Martin, 48 F. App’x 517, 519 (6th Cir. 2002) (inmate “has no liberty or property interest in his
position . . . on the warden’s forum”); Green v. Waldren, No. 99-1561, 2000 WL 876765, at *1
(6th Cir. June 23, 2000) (inmate “had no constitutional right to hold the position of block or
prisoner representative.”).

Plaintiff therefore was not entitled to due process prior to his

termination from the Warden’s Forum.
C.

Retaliation

Plaintiff alleges that Defendants Martin and Stewart retaliated against him for filing
grievances, by subjecting him to a harsh and sexually abusive search and depriving him of his
meal. Plaintiff also alleges that Defendants generally retaliated against him by not finding in his
favor on his grievances. Further, he contends that Defendants King and Martin retaliated against

9

him by filing and upholding a misconduct charge solely because Plaintiff had filed a grievance
about being sexually abused.
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)).
Plaintiff alleges that, because he entered prison as a minor in 1998, he was exposed
in his early years to harassment and sexual intimidation by both inmates and staff alike. As a
result, Plaintiff has since become an advocate for prisoners who were convicted as minors, for
which he has been exposed to additional harassment by unspecified staff members. He contends
that his protected conduct as an advocate was the motivation for Defendant Stewart’s sexually
inappropriate search.
The Sixth Circuit has held that there exists a constitutional right not to be retaliated
against for having filed a nonfrivolous grievance. See Herron v. Harrison, 203 F.3d 410, 415 (6th
Cir. 2000). However, a prisoner does not have an independent right to help others with their legal
claims and grievances. Id. at 415-16. It therefore is not at all clear that Plaintiff engaged in
protected conduct. In any event, Plaintiff fails to allege any specifics concerning when he filed
grievances and against whom. Instead, Plaintiff’s allegation that Defendant Stewart retaliated

10

against him is wholly conclusory. Moreover, even if Plaintiff was engaged in filing a grievance at
the time of the incident, he alleges no facts from which to reasonably infer that Defendant Stewart’s
actions were motivated by his protected conduct. He merely concludes that because he has filed
grievances and served as an advocate in the past, Defendant Stewart’s search and Defendant
Martin’s order to leave the chow hall without a meal must have been motivated by Plaintiff’s
unspecified grievances and complaints.
“[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).
This is especially true where, as here, the plaintiff is a prolific filer of grievances. Coleman v.
Bowerman, 474 F. App’x 435, 437 (6th Cir. 2012) (holding that temporal proximity to the filing
of a grievance is insufficient because any adverse action “would likely be in ‘close temporal
proximity’ to one of [the plaintiff’s] many grievances or grievance interviews”). Plaintiff merely
alleges Defendants’ conduct followed Plaintiff’s unspecified grievances and advocacy. Such
allegations are insufficient to state a retaliation claim.
Plaintiff next argues that the remaining Defendants retaliated against him by
denying or rejecting his grievances against Defendants Stewart and Martin. Even assuming that
Plaintiff has successfully alleged that he was engaged in protected conduct when he filed his
grievance and grievance appeals, but see Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001)
(filing of a non-frivolous grievance is protected conduct) (emphasis added), Plaintiff cannot

11

demonstrate that the other Defendants took adverse action against him. Rejection of a grievance
does not impair a prisoner’s right to bring a lawsuit. See Weatherspoon v. Williams, No. 2:14-cv108, 2015 WL 2106401 (W.D. Mich. May 6, 2015) (holding that the rejection of a grievance is
not adverse action); cf., Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 446 (6th Cir. 2005)
(“[A]n ordinary person of reasonable firmness would not be deterred from filing legitimate
grievances by a policy that merely provided that a grievance officer would screen frivolous
grievances.”); see also Jackson v. Madery, 158 F. App’x 656 (6th Cir. 2005) (placement of
modified grievance access does not constitute adverse action). Moreover, the rejection of a
grievance is itself appealable to all levels of the grievance process. See MICH. DEP’T OF CORR.,
Policy Directive 03.02.130 ¶ I (“A grievant whose grievance is rejected may appeal the rejection
to the next step as set forth in this policy.”). Finally, “the denial of administrative grievances or
the failure to act” does not constitute active conduct that would subject a defendant to liability
under § 1983. Shehee, 199 F.3d at 300. For all these reasons, the mere denial or rejection of a
grievance does not amount to adverse action.
Plaintiff also claims that Defendant Martin ordered Plaintiff out of the chow hall
because Plaintiff complained about a sexual assault. The Court concludes that the allegation, while
not strong, is sufficient to warrant this claim of retaliation against Defendant Martin. The Court
also concludes that Plaintiff has sufficiently alleged that Defendant King retaliated against him for
filing a grievance against Defendants Stewart and Martin by issuing a misconduct charge against
him. The Court therefore will order service of these retaliation claims against Defendants Martin
and King.

12

D.

Eighth Amendment

Although Plaintiff does not expressly claim that Defendant Stewart’s search
violated the Eighth Amendment, the facts Plaintiff alleges require analysis under the Eighth
Amendment. Plaintiff also arguably suggests that Defendant Martin deprived him of his meal in
violation of the Eighth Amendment.
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, 34546 (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)). “Routine

13

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.
1. sexual touching
Plaintiff alleges that Defendant Stewart improperly touched and squeezed
Plaintiff’s testicles during the conduct of a pat-down search. “[B]ecause the sexual harassment or
abuse of an inmate by a corrections officer can never serve a legitimate penological purpose and
may well result in severe physical and psychological harm, such abuse can, in certain
circumstances, constitute the ‘unnecessary and wanton infliction of pain’ forbidden by the Eighth
Amendment.” Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997) (quoted cases omitted). 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) (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. March 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,

14

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). In addition, 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 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).

15

If Plaintiff’s allegations against Defendant Stewart are true, Stewart’s conduct
toward Plaintiff was reprehensible, but it does not rise to the level of an Eighth Amendment
violation. Plaintiff alleges that, at best, Defendant Stewart briefly touched him during a single patdown search. Stewart engaged in no concomitant verbal sexual harassment. The allegations at
best demonstrate an isolated instance of minor contact during the course of a search, which does
not represent a sufficiently serious use of improper force to be actionable under the Eighth
Amendment. See Solomon, 478 F. App’x at 320-21; Jackson, 158 F. App’x at 661. Therefore,
Plaintiff’s allegation fails to state an Eighth Amendment claim against Officer Stewart.
2.

deprivation of a meal

“[T]he Eighth Amendment imposes a duty on officials to provide ‘humane
conditions of confinement,’ including insuring, among other things, that prisoners receive
adequate . . . food.” Young ex rel. Estate of Young v. Martin, 51 F. App’x 509, 513 (6th Cir. 2002)
(quoting Farmer, 511 U.S. at 832). The Constitution “does not mandate comfortable prisons,”
however. Rhodes, 452 U.S. at 349. “Not 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. Thus, the deprivation of a few meals for a limited time
generally does not rise to the level of an Eighth Amendment violation. See Cunningham v. Jones,
667 F.2d 565, 566 (6th Cir. 1982) (per curiam) (providing a prisoner only one meal per day for
fifteen days did not violate the Eighth Amendment, because the meals provided contained
sufficient nutrition to sustain normal health); Davis v. Miron, 502 F. App’x 569, 570 (6th Cir.
2012) (denial of seven meals over six days is not an Eighth Amendment violation); Richmond v.
Settles, 450 F. App’x 448, 456 (6th Cir. 2011) (same); see also Berry v. Brady, 192 F.3d 504, 507–
08 (5th Cir. 1999) (denial of a few meals over several months does not state a claim); Staten v.

16

Terhune, No. 01–17355, 2003 WL 21436162, at *1 (9th Cir. June 16, 2003) (deprivation of two
meals is not sufficiently serious to form the basis of an Eighth Amendment claim); Cagle v. Perry,
No. 9:04–CV–1151, 2007 WL 3124806, at *14 (N.D.N.Y. Oct. 24, 2007) (deprivation of two
meals is “not sufficiently numerous, prolonged or severe” to give rise to an Eighth Amendment
claim).
In Richmond, the Sixth Circuit determined that a prisoner who was deprived of five
meals over three consecutive days, and a total of seven meals over six consecutive days, did not
state a viable Eighth Amendment claim, because he “does not allege that his health suffered as a
result of not receiving the meals.” Richmond, 450 F. App’x at 456. In Cunningham, the Sixth
Circuit determined that providing a prisoner only one meal a day for over two weeks was not an
Eighth Amendment violation, because the meals provided were adequate to sustain normal health.
Cunningham, 667 F.2d at 566. Here, Plaintiff missed only one meal. He does not allege that his
health suffered as a result of the deprivation, or that the other meals he did receive were inadequate
to sustain his health. Consequently, Plaintiff does not state a plausible claim. See Iqbal, 556 U.S.
at 679.
E.

PREA

To the extent that Plaintiff suggests that Defendants’ actions in resolving his
complaint of sexual touching violated the PREA, he fails to state a claim. Although the question
has not been addressed by the Sixth Circuit, several district courts have found that the PREA “does
not create a right of action that is privately enforceable by an individual civil litigant.” Porter v.
Louisville Jefferson Cty. Metro Gov’t, No. 3:13CV-923-H, 2014 WL 6883268, at *3 (W.D. Ky.
Dec. 5, 2014) (quoting LeMasters v. Fabian, Civ. No. 09702, 2009 WL 1405176, at *2 (D. Minn.
May 18, 2009), and collecting cases); see also Hill v. Hickman Cty. Jail, No. 1:15-cv-71, 2015

17

WL 5009301, at *3 (M.D. Tenn. Aug. 21, 2015); Simmons v. Solozano, No. 3:14CV-P354-H, 2014
WL 4627278, at *4 (W.D. Ky. Sept. 16, 2014).
The PREA is intended to address the problem of rape in prison, authorizes
grant money, and creates a commission to study the issue. 42 U.S.C. § 15601 et
seq. The statute does not grant prisoners any specific rights. In the absence of “an
‘unambiguous’ intent to confer individual rights,” such as a right to sue, courts will
not imply such a right in a federal funding provision.
Id. (quoting Chinnici v. Edwards, No. 1:07-cv-229, 2008 WL 3851294, at *3 (D. Vt. Aug.12,
2008) (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 280 (2002))); see also Hunter v. Palmer, No.
1:17-cv-109 (W.D. Mich. Apr. 6, 2017).
Like the cited courts, this Court concludes that the PREA creates no private right
of action. As a result, to the extent the complaint might be construed as bringing a claim under
the PREA, such claim must be dismissed.
F.

Inadequate Allegations

Plaintiff’s only allegations against Defendant Sergeant Unknown Party are that,
after hearing Plaintiff’s description of the error in the misconduct charging document, Defendant
Sergeant predicted that the misconduct ticket would be dismissed on review because its content
was inaccurate. Plaintiff utterly fails to allege that Defendant Sergeant Unknown Party took any
action against Plaintiff.
It is a basic pleading essential that a plaintiff attribute factual allegations of
improper conduct 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

18

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’s allegations against Defendant Unknown Party contain no suggestion that the Unknown
Party engaged in active improper conduct. They therefore fall far short of the minimal 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”).

19

Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that Defendants Palmer, Schooley, and Unknown Party will be dismissed for
failure to state a claim, under 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c).
The Court also will dismiss for failure to state a claim Plaintiff’s retaliation claim against
Defendant Stewart, as well as his claimed violations of due process, the Eighth Amendment, and
the PREA. The Court will serve the remainder of the complaint against King, Martin, and Stewart.
An Order consistent with this Opinion will be entered.

Dated: November 8, 2017

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

20