Brown #712722 v. LeBarre et al

Filing 7

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

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______

JOSEPH BROWN,
Plaintiff,
v.

Case No. 1:20-cv-545
Honorable Paul L. Maloney

JODY LEBARRE 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 Roberts and Davids.
Discussion
I.

Factual Allegations
Plaintiff is presently incarcerated with the Michigan Department of Corrections

(MDOC) at the Ionia Correctional Facility (ICF) in Ionia, Ionia County, Michigan. The events

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about which he complains occurred at that facility. Plaintiff sues the following ICF officials:
Health Unit Manager (HUM) Jody LeBarre; Nurses Unknown Doolittle, J. Fletcher, and Unknown
Gaskill; Warden Unknown Davids; and Correctional Officer Unknown Roberts.
Plaintiff’s complaint lacks specificity about each Defendant’s actions. Plaintiff
contends that he has significant and chronic pain in his left leg, due to injuries from a car accident.
He alleges that he was issued a special accommodation for a wooden cane, but he is being denied
the use of the cane in retaliation for his numerous grievances and alleged disrespect for prison
officials. Plaintiff conclusorily states that all Defendants have made remarks to him to the effect
that he is being denied his cane because of his disrespect and/or grievances.
Plaintiff also alleges that he has sought medication to control his pain. He was
prescribed Cymbalta. He complains, however, that Cymbalta causes him to suffer serious side
effects, including coughing up blood and terrible stomach pain. Plaintiff has asked to be seen by
the pain committee, but the medical Defendants allegedly have refused his requests. When
Plaintiff sought medical attention for the side effects of Cymbalta, Defendant LeBarre advised him
to keep some food from his meal tray (crackers or fruit) so that he could eat it with his medication.
Plaintiff submitted a health-care grievance, indicating that following Defendant LeBarre’s advice
violated prison policy. Plaintiff asked for a snack bag instead, so that he would have food to take
with his Cymbalta.
In the Step-I grievance response, Defendants Fletcher and Gaskill responded that
Plaintiff’s medication was issued within an hour of mealtime, which was a medically reasonable
time preceding the taking of his medication. They added that, because his meals were delivered
to him, there was no reason he could not save an item to eat with his medication. Defendants

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therefore denied the grievance. (Step-I Grievance Response, Attach. to Compl, ECF No. 1,
PageID.7.)
Plaintiff appealed the grievance denial.

He alleges that the grievance was

improperly sent to Defendant Warden Davids, in violation of policy, as the Warden was not the
proper Step-II respondent on a medical grievance. Defendant Davids upheld the grievance at Step
II. Plaintiff then appealed the grievance denial to Step III, where the denial was upheld.
Plaintiff contends that Defendants’ conduct has violated his rights under the First,
Eighth, and Fourteenth Amendments.
Plaintiff seeks declaratory 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
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
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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).
III.

Supervisory Liability
Plaintiff alleges that Defendant Davids improperly handled his Step-II grievance

challenging the failure to address the side effects of his medication and the failure to provide a
snack bag. He also arguably intends to suggest that Defendant Davids, as Warden at ICF, failed
adequately to supervise his 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
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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 Davids engaged in active unconstitutional behavior by either
supervising his subordinates or responding to the Step-II grievance. Plaintiff’s remaining claims
against Defendant Davids are discussed below.
IV.

Fourteenth Amendment—Due Process
Plaintiff broadly states that Defendants’ actions violated the Fourteenth

Amendment. He does not specify the nature of his Fourteenth Amendment claims. However,
construing Plaintiff’s factual allegations liberally, he appears to suggest that he was deprived of
procedural due process in the handling of his grievance, based on the improper reference of his
medical grievance to the wrong Step-II respondent. He also arguably suggests that Defendants’
failures to issue him a cane and deal with his pain violated his right to substantive due process.
A.

Procedural due process
The Fourteenth Amendment protects an individual from deprivation of life, liberty

or property, without due process of law.” Bazetta v. McGinnis, 430 F.3d 795, 801 (6th Cir. 2005).
To establish a Fourteenth Amendment procedural due process violation, a plaintiff must show that
one of these interests is at stake. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Analysis of a
procedural due process claim involves two steps: “[T]he first asks whether there exists a liberty or
property interest which has been interfered with by the State; the second examines whether the
procedures attendant upon that deprivation were constitutionally sufficient.” Ky. Dep’t of Corr. v.
Thompson, 490 U.S. 454, 460 (1989).
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Plaintiff has no due process right to file a prison grievance or to have it handled in
accordance with prison policy. The courts repeatedly have held that there exists no constitutionally
protected due process right to an effective prison grievance procedure. See Hewitt v. Helms, 459
U.S. 460, 467 (1983); Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 445 (6th Cir. 2005);
Argue v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003); Young v. Gundy, 30 F. App’x 568, 56970 (6th Cir. 2002); Carpenter v. Wilkinson, No. 99-3562, 2000 WL 190054, at *2 (6th Cir. Feb. 7,
2000); see also Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Adams v. Rice, 40 F.3d
72, 75 (4th Cir. 1994) (collecting cases). Michigan law does not create a liberty interest in the
grievance procedure. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983); Keenan v. Marker, 23
F. App’x 405, 407 (6th Cir. 2001); Wynn v. Wolf, No. 93-2411, 1994 WL 105907, at *1 (6th Cir.
Mar. 28, 1994). Because Plaintiff has no liberty interest in the grievance process, Defendants’
improper application of that policy did not deprive him of due process.
B.

Substantive due process
Plaintiff also appears to assert a violation of his substantive due process rights under

the Fourteenth Amendment, which prohibits states from “depriv[ing] any person of life, liberty, or
property, without due process of law[.]” U.S. Const. amend. XIV. “Substantive due process
prevents the government from engaging in conduct that shocks the conscience or interferes with
rights implicit in the concept of ordered liberty.” Prater v. City of Burnside, 289 F.3d 417, 431
(6th Cir. 2002). “Substantive due process serves the goal of preventing governmental power from
being used for purposes of oppression, regardless of the fairness of the procedures used.” Pittman
v. Cuyahoga Cty. Dep’t of Children & Family Servs., 640 F.3d 716, 728 (6th Cir. 2011) (quoting
Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir. 1996)). “Conduct shocks the conscience if it
‘violates the “decencies of civilized conduct.”’” Range v. Douglas, 763 F.3d 573, 589 (6th Cir.

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2014) (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998) (quoting Rochin v.
California, 342 U.S. 165, 172-73 (1952))).
“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).
In this case, there are specific constitutional amendments that apply to Plaintiff’s
claims. For example, the Eighth Amendment provides an explicit source of constitutional
protection to Plaintiff concerning his medical claims. See Dodson v. Wilkinson, 304 F. App’x 434,
438 (6th Cir. 2008) (because the Eighth Amendment supplies the explicit textual source of
constitutional protection for claims governing a prisoner’s health and safety, the plaintiff’s
substantive due process claim was subject to dismissal). Similarly, the First Amendment provides
an explicit textual source of constitutional protection for Plaintiff’s retaliation claims. Thus, the
standard applicable to that source, the First Amendment right to be free from retaliation, and not
the more generalized notion of substantive due process should be applied. Graham, 490 U.S. at
395; see also Bell v. Johnson, 308 F.3d 594, 610 (6th Cir. 2002) (holding that, after Graham, the
First Amendment standard is the sole source of substantive protection); Brandenburg v. Housing
Auth. of Irvine, 253 F.3d 891, 900 (6th Cir. 2001) (A “substantive due process right to free speech

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is duplicative of [a] First Amendment retaliation claim.”). Consequently, Plaintiff’s substantive
due process claim will be dismissed.
V.

Retaliation
Plaintiff alleges that Defendants LeBarre, Doolittle, Fletcher, and Gaskill are

refusing to provide him a snack bag or to place him on a different pain medication and are refusing
to allow him the use of a cane, in retaliation for his filing of grievances. 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)).
The filing of a prison grievance is constitutionally protected conduct for which a
prisoner cannot be subjected to retaliation.

See Smith v. Campbell, 250 F.3d 1032, 1037

(6th Cir. 2001); Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000). However, the right to file
grievances is protected only insofar as the grievances are not “frivolous.” Herron, 203 F.3d at
415. “Abusive or manipulative use of a grievance system would not be protected conduct,” King
v. Zamiara, 680 F.3d 686, 699 (6th Cir. 2012), and an “inmate cannot immunize himself from
adverse administrative action by prison officials merely by filing a grievance or a lawsuit and then
claiming that everything that happens to him is retaliatory,” Spies v. Voinovich, 48 F. App’x 520,
525 (6th Cir. 2002). As the Supreme Court held in Lewis v. Casey, “[d]epriving someone of a
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frivolous claim . . . deprives him of nothing at all, except perhaps the punishment of Federal Rule
of Civil Procedure 11 sanctions.”).
Plaintiff’s utterly fails to identify what grievances he filed, when he filed those
grievances, or against whom he filed them. He most certainly fails to allege facts indicating that
any such grievances were nonfrivolous. Instead, his retaliation claims are wholly conclusory.
It is well recognized that “retaliation” is easy to allege and that it can seldom be
demonstrated by direct evidence. See Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005);
Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987). “[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.’”
Harbin-Bey, 420 F.3d at 580 (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987));
see also Murray v. Unknown Evert, 84 F. App’x 553, 556 (6th Cir. 2003) (in complaints screened
pursuant to 28 U.S.C. § 1915A, “[c]onclusory allegations of retaliatory motive with no concrete
and relevant particulars fail to raise a genuine issue of fact for trial”) (internal quotations omitted);
Lewis v. Jarvie, 20 F. App’x 457, 459 (6th Cir. 2001) (“bare allegations of malice on the
defendants’ parts are not enough to establish retaliation claims” that will survive § 1915A
screening). In some circumstances, temporal proximity “may be ‘significant enough to constitute
indirect evidence of a causal connection so as to create an inference of retaliatory motive.’”
Muhammad v. Close, 379 F.3d 413, 417-18 (6th Cir. 2004) (quoting DiCarlo v. Potter, 358 F.3d
408, 422 (6th Cir. 2004)). However, “[c]onclusory allegations of temporal proximity are not
sufficient to show a retaliatory motive.” Skinner v. Bolden, 89 F. App’x 579, 580 (6th Cir. 2004).
In the instant case, Plaintiff alleges no facts from which to reasonably infer that any
Defendant took adverse action against him that was motivated by his protected conduct. He merely

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states that Defendants stated on one or more occasions that Plaintiff “was disrespectful and files
to[o] many grievances” or that “he will not get his cane due to disrespect.” (Compl., ECF No. 1,
PgeID.1.) Plaintiff does not allege which Defendants indicated that he was disrespectful, and
which indicated that he filed too many grievances. Being disrespectful to staff members is not
protected conduct. See Lockett v. Suardini, 526 F.3d 866, 874 (6th Cir. 2008) (prisoner’s act of
calling the hearing officer a “foul and corrupt bitch” was not protected conduct because such
behavior fell within the definition of “insolence” under MDOC Policy Directive 03.03.105 Attach.
C); see also Caffey v. Maue, 679 F. App’x 487 (7th Cir. Feb. 15, 2017) (holding that an inmate’s
name-calling of guards (calling them unprofessional) was a challenge to the guards’ authority that
was not protected by the First Amendment); Felton v. Huibregtse, 525 F. App’x 484, 487 (7th Cir.
2013) (holding that the use of disrespectful language was not protected conduct) (citing cases);
Freeman v. Tex. Dep’t of Crim. Justice, 369 F.3d 854, 858, 864 (5th Cir. 2004) (concluding that
an inmate who accused a chaplain of theological errors during a religious service had engaged in
an unprotected challenge to institutional authority).
Moreover, beyond alleging that Defendants made harassing statements, Plaintiff
fails to identify conduct by any Defendant that was adverse. Minor harassment is insufficient to
constitute adverse action, because recognition of such a standard would “‘trivialize the First
Amendment.’” Thaddeus 175 F.3d at 398-99 (citing Bart v. Telford, 677 F.2d 622, 625 (7th Cir.
1982)). Indeed, neither Defendant Warden Davids nor Defendant Correctional Officer Roberts
had control over the delivery of medical care to Plaintiff, and Plaintiff makes no allegation that
they took any action in regard to his medical claims. As a result, Plaintiff’s retaliation claims
against Defendants Davids and Roberts fail for this additional reason.
For these reasons, Plaintiff fails to state a retaliation claim against any Defendant.

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VI.

Eighth Amendment
Plaintiff contends that Defendants have violated and continue to violate his rights

under the Eighth Amendment by refusing to allow him the use of a cane, failing to adequately treat
his pain, and failing to provide a snack bag to prevent him from suffering pain and bleeding when
he takes his Cymbalta. Plaintiff also appears to allege that all Defendants’ made comments about
his behavior, which amounted to harassment sufficient to violate the Eighth Amendment.
Taking the verbal-harassment issue first, Plaintiff fails to state a claim. The Eighth
Amendment prohibits the infliction of cruel and unusual punishment against those convicted of
crimes. U.S. Const. amend. VIII. The use of harassing or degrading language by a prison official,
although unprofessional and deplorable, 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
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state an Eighth Amendment claim against any Defendant arising from alleged verbal abuse.
Because Plaintiff’s only factual allegation against Defendant Roberts is that Roberts made a
remark about why Plaintiff was not receiving his cane, Plaintiff fails to state an Eighth Amendment
claim against Defendant Roberts.
Respecting Plaintiff’s allegations concerning denials of medical care, 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 Cty., 390 F.3d 890, 899 (6th Cir. 2004); see also Phillips v. Roane Cty.,
534 F.3d 531, 540 (6th Cir. 2008). Obviousness, however, is not strictly limited to what is
detectable to the eye. Even if the layman cannot see the medical need, a condition may be
obviously medically serious where a layman, if informed of the true medical situation, would deem
the need for medical attention clear. See, e.g., Rouster v. Cty. Of Saginaw, 749 F.3d 437, 466, 451
(6th Cir. 2014) (holding that a prisoner who died from a perforated duodenum exhibited an
“objectively serious need for medical treatment,” even though his symptoms appeared to the

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medical staff at the time to be consistent with alcohol withdrawal); Johnson v. Karnes, 398 F.3d
868, 874 (6th Cir. 2005) (holding that prisoner’s severed tendon was a “quite obvious” medical
need, since “any lay person would realize to be serious,” even though the condition was not
visually obvious). 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, 390 F.3d at 898, the plaintiff must “place verifying medical evidence in the record to
establish the detrimental effect of the delay in medical treatment,” Napier v. Madison Cty., 238
F.3d 739, 742 (6th Cir. 2001) (internal quotation marks omitted).
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). Deliberate indifference “entails something more than mere negligence,” 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.” Farmer, 511 U.S. at 835. “[T]he 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.
As earlier discussed, Plaintiff’s only allegations against Defendant Warden Davids
are that Davids denied his Step-II grievance regarding his medical request for a snack bag and that
Davids allegedly told Plaintiff that his cane was being denied because of his disrespect. However,
as discussed, Davids’ remarks, even if true, do not implicate the Eighth Amendment. Ivey, 832
F.2d at 954-55; Johnson, 357 F.3d at 546. As further discussed, Davids’ denial of Plaintiff’s
grievance does not amount to active conduct that would create liability under § 1983. Shehee, 199
F.3d at 300. Plaintiff therefore fails to state an Eighth Amendment claim against Defendant
Davids.

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With respect to Defendants LeBarre, Doolittle, Fletcher, and Gaskill, however. the
Court concludes that Plaintiff’s allegations are minimally sufficient to state an Eighth Amendment
claim.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that Defendants Davids and Roberts 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 will also
dismiss, for failure to state a claim, Plaintiff’s procedural and substantive due process claims and
retaliation claims against the remaining Defendants. Plaintiff’s Eighth Amendment claims against
Defendants LeBarre, Doolittle, Fletcher, and Gaskill remain in the case.
An order consistent with this opinion will be entered.

Dated:

August 10, 2020

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

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