Burton #495156 v. Michigan Department of Corrections et al
OPINION ; signed by District Judge Hala Y. Jarbou (aks)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
Case No. 1:20-cv-898
Honorable Hala Y. Jarbou
MICHIGAN DEPARTMENT OF
CORRECTIONS et al.,
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 Michigan Department of Corrections, J. Davids, Unknown Davis, and Unknown
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Plaintiff is presently incarcerated with the Michigan Department of Corrections
(MDOC) at the Ionia Correctional Facility (ICF) in Ionia, Ionia County, Michigan. The events
about which he complains occurred at that facility. Plaintiff sues the Michigan Department of
Corrections (MDOC), Officer Unknown Nehf, Warden J. Davids, Assistant Deputy Warden
Unknown Davis, and Resident Unit Manager Unknown Oversmith.
Plaintiff alleges that on February 22, 2020, he told Defendant Nehf that he had been
having issues with his toilet since February 21, 2020, when he had first been placed in his cell.
Defendant Nehf told Plaintiff that he would have to wait until Monday, February 24, 2020, to have
his toilet fixed. Plaintiff explained that the toilet was full of human waste, but Defendant Nehf
told Plaintiff to “deal with it.” Plaintiff protested that Defendant Nehf was not allowed to violate
his rights in that manner. Defendant Nehf threatened to have Plaintiff placed on food loaf if he
didn’t “shut up.” Plaintiff then asked to speak with a sergeant, but Defendant Nehf refused.
Approximately one hour later, a maintenance man came to snake the toilet in a nearby cell but did
not fix the toilet in Plaintiff’s cell. Plaintiff claims that Defendant Nehf refused to have the
maintenance worker fix Plaintiff’s cell in retaliation for Plaintiff’s request to see the sergeant.
Plaintiff claims that Defendants violated his rights under the First, Fifth, Eighth,
and Fourteenth Amendments. Plaintiff seeks compensatory and punitive damages, as well as
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
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a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include
more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”). The court must determine whether the complaint contains “enough
facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
679. Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it
asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P.
8(a)(2)); see also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the
Twombly/Iqbal plausibility standard applies to dismissals of prisoner cases on initial review under
28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a
right secured by the federal Constitution or laws and must show that the deprivation was committed
by a person 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
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Plaintiff may not maintain a § 1983 action against the MDOC. Regardless of the
form of relief requested, the states and their departments are immune under the Eleventh
Amendment from suit in the federal courts, unless the state has waived immunity or Congress has
expressly abrogated Eleventh Amendment immunity by statute. See Pennhurst State Sch. & Hosp.
v. Halderman, 465 U.S. 89, 98-101 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978); O’Hara
v. Wigginton, 24 F.3d 823, 826 (6th Cir. 1993). Congress has not expressly abrogated Eleventh
Amendment immunity by statute, Quern v. Jordan, 440 U.S. 332, 341 (1979), and the State of
Michigan has not consented to civil rights suits in federal court. Abick v. Michigan, 803 F.2d 874,
877 (6th Cir. 1986). In numerous opinions, the Sixth Circuit has specifically held that the MDOC
is absolutely immune from a § 1983 suit under the Eleventh Amendment. See, e.g., Harrison v.
Michigan, 722 F.3d 768, 771 (6th Cir. 2013); Diaz v. Mich. Dep’t of Corr., 703 F.3d 956, 962
(6th Cir. 2013); McCoy v. Michigan, 369 F. App’x 646, 653-54 (6th Cir. 2010). In addition, the
State of Michigan (acting through the MDOC) is not a “person” who may be sued under § 1983
for money damages. See Lapides v. Bd. of Regents, 535 U.S. 613, 617 (2002) (citing Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 66 (1989)); Harrison, 722 F.3d at 771. Therefore, the Court
dismisses the MDOC.
Plaintiff fails to make specific factual allegations against Defendants Davids,
Davis, and Oversmith, other than his claim that they failed to properly train or supervise Defendant
Nehf. 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
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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 Davids, Davis, and Oversmith engaged in any active
unconstitutional behavior. Accordingly, he fails to state a claim against them.
Free exercise of religion
Plaintiff claims that he is asserting a “Freedom of Religious Practice Claim.” The
Free Exercise Clause of the First Amendment to the United States Constitution provides that
“Congress shall make no law . . . prohibiting the free exercise [of religion].” U.S. Const. amend.
I; see also Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (holding that the Fourteenth
Amendment incorporates the First Amendment’s protections against states). While “lawful
incarceration brings about the necessary withdrawal or limitation of many privileges and rights,”
inmates clearly retain the First Amendment protection to freely exercise their religion. See O’Lone
v. Shabazz, 482 U.S. 342, 348 (1987) (citations omitted). To establish that this right has been
violated, Plaintiff must establish that: (1) the belief or practice he seeks to protect is religious
within his own “scheme of things,” (2) that his belief is sincerely held, and (3) Defendant’s
behavior infringes upon this practice or belief. Kent v. Johnson, 821 F.2d 1220, 1224-25 (6th Cir.
1987); see also Flagner v. Wilkinson, 241 F.3d 475, 481 (6th Cir. 2001) (same); Bakr v. Johnson,
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No. 95-2348,1997 WL 428903, at *2 (6th Cir. July 30, 1997) (noting that “sincerely held religious
beliefs require accommodation by prison officials”).
Plaintiff fails to allege any facts showing that his ability to exercise his religion was
infringed upon in any way. Conclusory allegations of unconstitutional conduct without specific
factual allegations fail to state a claim under § 1983. See Iqbal, 556 U.S. at 678-79; Twombly, 550
U.S. at 555. Therefore, this claim is properly dismissed.
Plaintiff claims that he is asserting a Fifth Amendment right to representation claim.
The Fifth Amendment protects a person’s right against self-incrimination. Baxter v. Palmigiano,
425 U.S. 308, 316 (1975). The Court has created only a limited Fifth Amendment right to counsel
in order to protect the Fifth Amendment’s privilege against self-incrimination. Miranda v.
Arizona, 384 U.S. 436, 536–37 (1966). However, in the context of prison disciplinary hearings,
although a prisoner may remain silent, his silence may be weighed against him in determining his
guilt. Baxter, 425 U.S. at 316-319. Plaintiff in this case failed to allege any facts which would
implicate his rights under the Fifth Amendment. Therefore, plaintiff’s Fifth Amendment claim
should be dismissed as frivolous.
Substantive due process
Plaintiff also asserts 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
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v. Cuyahoga Cnty. 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.
2014) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998) (quoting Rochin v.
California, 342 U.S. 165, 172-73 (1952))). The Sixth Circuit has held that framing an inmate by
planting evidence may violate substantive due process where a defendant’s conduct shocks the
conscience and constitutes an “egregious abuse of governmental power.” Cale v. Johnson, 861
F.2d 943, 950 (6th Cir. 1988), overruled in other part by Thaddeus-X v. Blatter, 175 F.3d 378, 388
(6th Cir. 1999); see also Davis v. Gallagher, No. 1:16-cv-1405, 2016 WL 7403941, *4 (W.D.
Mich. Dec. 22, 2016); Robinson v. Schertz, No. 2:07-cv-78, 2007 WL 4454293 (W.D. Mich. Dec.
“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 cruel and unusual punishment claim. See Whitley v. Albers,
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475 U.S. 312, 327 (1986) (rejecting a substantive due process claim where the Eighth Amendment
supplies a textual source for prison-condition claims); 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 claim. 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
is duplicative of [a] First Amendment retaliation claim.”). Consequently, Plaintiff’s substantive
due process claim will be dismissed.
VIII. Eighth Amendment
Plaintiff claims that Defendant Nehf subjected him to cruel and unusual punishment
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, 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
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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 deliberateindifference standard includes both objective and subjective components. Farmer, 511 U.S. at 834;
Helling, 509 U.S. at 35-37. To satisfy the objective prong, an inmate must show “that he is
incarcerated under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834.
Under the subjective prong, an official must “know of and disregard an excessive risk to inmate
health or safety.” Id. at 837. “[I]t is enough that the official acted or failed to act despite his
knowledge of a substantial risk of serious harm.” Id. at 842. “It is, indeed, fair to say that acting
or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is
the equivalent of recklessly disregarding that risk.” Id. at 836. “[P]rison officials who actually
knew of a substantial risk to inmate health or safety may be found free from liability if they
responded reasonably to the risk, even if the harm ultimately was not averted.” Id. at 844.
In this case, Plaintiff claims that he was denied access to a working toilet for a
period of three days and was exposed to the presence of human waste in his cell toilet for that
period of time. These allegations implicate constitutional concerns regarding the denial of the
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“minimal civilized measure of life’s necessities.” Rhodes, 452 U.S. at 347. Therefore, Plaintiff’s
Eighth Amendment claim against Defendant Nehf is not properly dismissed on initial review.
Plaintiff claims that Defendant Nehf retaliated against him by refusing to have his
toilet fixed. 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 when he told Defendant Nehf that he was not allowed to violate
Plaintiff’s rights, Defendant Nehf threatened to have Plaintiff placed on food loaf if he didn’t “shut
up.” Defendant Nehf refused Plaintiff’s subsequent request to speak with a sergeant. Shortly
thereafter, Defendant Nehf refused to allow the maintenance man who was snaking the toilet
nearby to fix the toilet in Plaintiff’s cell in retaliation for Plaintiff’s request to see the sergeant.
The Court concludes that Plaintiff has alleged sufficient facts to state a claim for retaliation.
Plaintiff asserts that his equal protection rights were violated when Defendant Nehf
refused to let a maintenance worker fix his toilet, but allowed the worker to snake the toilet in a
neighboring cell. The Equal Protection Clause of the Fourteenth Amendment provides that a state
may not “deny to any person within its jurisdiction the equal protection of the laws,” which is
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essentially a direction that all persons similarly situated should be treated alike. U.S. Const.,
amend. XIV; City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). A state practice
generally will not require strict scrutiny unless it interferes with a fundamental right or
discriminates against a suspect class of individuals. Mass. Bd. of Ret. v. Murgia, 427 U.S. 307,
312 (1976). Plaintiff does not allege that he is a member of a suspect class, however, he is asserting
that the denial of a functioning toilet violated a fundamental right by depriving him of sanitation.
Therefore, Plaintiff is entitled to strict scrutiny.
Plaintiff alleges that he was intentionally treated differently than another prisoner
on the unit, which deprived him of a fundamental right. Plaintiff’s allegations, if true, could
support his claim for relief. Accordingly, Plaintiff’s equal protection claim is sufficient to warrant
service of his complaint.
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that Defendants MDOC, Davids, Davis, and Oversmith 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, the following claims against the remaining
Defendant: Plaintiff’s substantive due process claim, his free exercise claim, and his Fifth
Amendment right to representation claim. Plaintiff’s Eighth Amendment, retaliation, and equal
protection claims against Defendant Nehf remain in the case.
An order consistent with this opinion will be entered.
October 14, 2020
/s/ HALA Y. JARBOU
Hala Y. Jarbou
United States District Judge
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