Witham #732101 v. Piggott et al

Filing 5

OPINION; signed by Magistrate Judge Sally J. Berens (jln)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
CHARLES WITHAM,
Plaintiff,
v.

Case No. 1:24-cv-537
Honorable Sally J. Berens

UNKNOWN PIGGOTT et al.,
Defendants.

____________________________/
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. The Court
has granted Plaintiff leave to proceed in forma pauperis in a separate order. Pursuant to 28 U.S.C.
§ 636(c) and Rule 73 of the Federal Rules of Civil Procedure, Plaintiff consented to proceed in all
matters in this action under the jurisdiction of a United States magistrate judge. (ECF No. 1,
PageID.4.)
This case is presently before the Court for preliminary review under the Prison Litigation
Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The Court is required to conduct this initial
review prior to the service of the complaint. See In re Prison Litig. Reform Act, 105 F.3d 1131,
1131, 1134 (6th Cir. 1997); McGore v. Wrigglesworth, 114 F.3d 601, 604–05 (6th Cir. 1997).
Service of the complaint on the named defendants is of particular significance in defining
a putative defendant’s relationship to the proceedings. “An individual or entity named as a
defendant is not obliged to engage in litigation unless notified of the action, and brought under a
court’s authority, by formal process.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S.

344, 347 (1999). “Service of process, under longstanding tradition in our system of justice, is
fundamental to any procedural imposition on a named defendant.” Id. at 350. “[O]ne becomes a
party officially, and is required to take action in that capacity, only upon service of a summons or
other authority-asserting measure stating the time within which the party served must appear and
defend.” Id. (citations omitted). That is, “[u]nless a named defendant agrees to waive service, the
summons continues to function as the sine qua non directing an individual or entity to participate
in a civil action or forgo procedural or substantive rights.” Id. at 351. Therefore, the PLRA, by
requiring courts to review and even resolve a plaintiff’s claims before service, creates a
circumstance where there may only be one party to the proceeding—the plaintiff—at the district
court level and on appeal. See, e.g., Conway v. Fayette Cnty. Gov’t, 212 F. App’x 418 (6th Cir.
2007) (“Pursuant to 28 U.S.C. § 1915A, the district court screened the complaint and dismissed it
without prejudice before service was made upon any of the defendants . . . [such that] . . . only [the
plaintiff] [wa]s a party to this appeal.”).
Here, Plaintiff has consented to a United States magistrate judge conducting all
proceedings in this case under 28 U.S.C. § 636(c). That statute provides that “[u]pon the consent
of the parties, a full-time United States magistrate judge . . . may conduct any or all
proceedings . . . and order the entry of judgment in the case . . . .” 28 U.S.C. § 636(c). Because the
named Defendant has not yet been served, the undersigned concludes that the Defendant is not
presently a party whose consent is required to permit the undersigned to conduct a preliminary
review under the PLRA, in the same way the Defendant is not a party who will be served with or
given notice of this opinion. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (“The record

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does not contain a consent from the defendants[; h]owever, because they had not been served, they
were not parties to th[e] action at the time the magistrate entered judgment.”).1
Under the 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.
Discussion
I.

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

at the Bellamy Creek Correctional Facility (IBC) in Ionia, Ionia County, Michigan. The events
about which he complains occurred at that facility. Plaintiff sues IBC Corrections Officers
Unknown Piggott and Unknown Bennickson, as well as IBC Nurse Katherine West.
Plaintiff alleges that during mid-February of 2024, Defendants Piggott and Bennickson
escorted him to a dental appointment. Plaintiff reports that he has no left arm. Defendant Piggott
took the empty left sleeve of Plaintiff’s coat and smacked Plaintiff’s butt with it saying, “over and

1

But see Coleman v. Lab. & Indus. Rev. Comm’n of Wis., 860 F.3d 461, 471 (7th Cir. 2017)
(concluding that, when determining which parties are required to consent to proceed before a
United States magistrate judge under 28 U.S.C. § 636(c), “context matters” and the context the
United States Supreme Court considered in Murphy Bros. was nothing like the context of a
screening dismissal pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c));
Williams v. King, 875 F.3d 500, 503–04 (9th Cir. 2017) (relying on Black’s Law Dictionary for
the definition of “parties” and not addressing Murphy Bros.); Burton v. Schamp, 25 F.4th 198, 207
n.26 (3d Cir. 2022) (premising its discussion of “the term ‘parties’ solely in relation to its meaning
in Section 636(c)(1), and . . . not tak[ing] an opinion on the meaning of ‘parties’ in other contexts”).
3

over ‘that ass is mines.’” (Compl., ECF No. 1, PageID.7.) Then Piggott took the left empty sleeve
and put it around Plaintiff’s neck and stated, “I choke my bitches too.” (Id.) Plaintiff notes that
Defendant Bennickson did nothing to stop Piggott but instead cheered him on stating “I’ll tell you,
this boy looks to have some good ass.” (Id.) On the return trip from the dental appointment,
Plaintiff claims that Piggott “continued his sexual desire.” (Id., PageID.8.)
On February 23, 2024, Plaintiff placed a medical kite to Defendant West on his cell door.
Defendant Piggott took the kite and read it out loud. The kite inquired regarding the MAT program,
which Plaintiff describes as a program to cure illegal drug addictions. (Id., PageID.11.)
Plaintiff reports the following subsequent inappropriate behavior by Piggott, in the days
that followed:
2/24/24 at 8:20 a.m. comment:

“You have pretty eyes.”

at 10:42 a.m. comment:

“Take down your cover off the window
baby.”

at 1:20 p.m. comment:

“Why you acting like that, come on now.”

at 1:22 p.m. comment:

“Come right back, smile at me.”

at 1:42 p.m. comment:

“See you tomorrow.”

2/25/24 at 1:29 p.m. comment:

“I been busy on my wing. I’m still here
baby.”

2/26/24 at 1:11 p.m. comment:

“What have I done? This how you do me?”

2/28/24 at 8:41 a.m. bangs on the door and comment:
“Daddy’s here, come here baby”
at 11:10 a.m. comment:
2/29/24 at 9:40 a.m. comment:
At 9:43 a.m. comment:

“What’s wrong with you?
“You need anything?”
“If I have to take it ruff, I can make it ruff for
you.”

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3/2/24 at 11:00 a.m., 11:04 a.m., 11:05 a.m., 12:37 p.m., 1:33 p.m. camera will
show Piggott’s strong pursuit[2]
3/4/24 11:05 a.m. comment:

“Who are you telling? Are you being a
snitch? 20 years ago I would have had you in
my arms by now.”

3/8/24 at 8:40 a.m., 9:23 a.m., 11:45 a.m., 1:03 p.m., 1:32 p.m., Piggott appears to
be agitated and becomes threatening saying
“Okay, you won’t be going home any time
soon.
(Id., PageID.8–9.) Plaintiff explains that these comments are all the more troubling because
Defendant Piggott is not assigned to Plaintiff’s tier. On April 16, 2024, Piggot violently slammed
Plaintiff’s window shutter.
Plaintiff filed a Prison Rape Elimination Act (PREA)3 complaint against Piggott, as well
as grievances. Plaintiff reports that, as a result of the grievance regarding Piggott’s reading of the
medical kite, “Piggott exaggerated a misconduct of disobeying a direct order.” (Id., PageID.12.)
Plaintiff was sanctioned by 30 days’ loss of privileges. Plaintiff claims that such a severe
punishment warrants due process protection, and he did not receive those protections at the
disciplinary hearing.

2

On this date, Piggott also threatened to push Plaintiff’s earliest release date back. (Compl., ECF
No. 1, PageID.10.) It is not clear how Piggott could accomplish that feat as the earliest release date
is established by adding the combined minimum sentences Plaintiff was serving. Mich. Comp.
Laws § 791.234(4).

3

The PREA, as the title suggests, is intended to reduce the incidence of prison sexual assaults.
One of the key purposes of the PREA was the development and implementation of national
standards for the detection, prevention, reduction, and punishment of prison rape. 34 U.S.C.
§ 30302. The PREA directed the United States Attorney General to publish a rule adopting a
national standard for the detection, prevention, reduction, and punishment of prison rape and then
tied funding to the state to compliance with the national standards. Id. § 30307. The national
standards are set forth in 28 C.F.R. Ch. I, Pt. 115. MDOC Policy Directive 03.03.140, Sexual
Abuse and Sexual Harassment of Prisoners-Prison Rape Elimination Act (PREA) (eff. Apr. 5,
2021), and the PREA Manual for the MDOC, reflect the national standards.
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Plaintiff claims that Defendants Piggott and Bennickson violated the PREA and the
Americans with Disabilities Act (ADA), as well as the Fourth and Fourteenth Amendments by
their sexual misconduct and discrimination in services and programs. Plaintiff also claims that
Defendants Piggott and West violated the Health Insurance Portability and Accountability Act
(HIPAA) by exposing Plaintiff’s medical kites to other prisoners on the tier, and violated the ADA
and Fourteenth Amendment by denying Plaintiff access to the MAT program. Finally, Plaintiff
claims that Piggott violated Plaintiff’s First Amendment rights by retaliating against Piggott
through “an exaggerated misconduct” for Plaintiff’s filing of a grievance. (Id., PageID.14.)
Plaintiff asks the Court to compel Defendants to place him at a medical facility and to
follow HIPAA. Plaintiff also asks the Court to award monetary 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. Id.; 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.” Id. 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
6

misconduct, the complaint has alleged—but it has not ‘show[n]’—that the pleader is entitled to
relief.” Id. 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)(ii)).
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 Section 1983 is a method for vindicating
federal rights, not a source of substantive rights itself, the first step in an action under Section 1983
is to identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266,
271 (1994).
A.

HIPAA

Plaintiff claims that Defendants Piggott and West violated Plaintiff’s rights under HIPAA4
because they permitted the disclosure of Plaintiff’s healthcare information to other prisoners on
the tier. Plaintiff cannot maintain these claims because there is no private cause of action for a
HIPAA violation. See Burley v. Rider, No. 1:17-cv-88, 2018 WL 6033531, at *5 (W.D. Mich.
Aug. 27, 2018), R&R adopted, 2018 WL 4443071 (W.D. Mich. Sept. 18, 2018); see also Faber v.
Ciox Health, LLC, 944 F.3d 593, 596 (6th Cir. 2019) (noting that “HIPAA doesn’t authorize a

4

According to the Department of Health and Human Services, “[a] major goal of the [HIPAA]
Privacy Rule is to assure that individuals’ health information is properly protected while allowing
the flow of health information needed to provide and promote high quality health care and to
protect the public’s health and well being. The Rule strikes a balance that permits important uses
of information, while protecting the privacy of people who seek care and healing.” U.S. Dep’t of
Health & Hum. Servs., Summary of the HIPAA Privacy Rule, https://www.hhs.gov/hipaa/forprofessionals/privacy/laws-regulations/index.html (last visited Sept. 15, 2024).
7

private cause of action.”); Pitchford v. Metro Nashville Police Dep’t, No. 3:19-cv-00256, 2021
WL 2474461, at *3 (M.D. Tenn. June 17, 2021) (collecting cases).
If Plaintiff believes that a HIPAA violation has occurred, his only recourse is to file a
complaint with the Secretary of Health and Human Services. See 45 C.F.R. § 160.306; see also
Johnson v. Kuehne & Nagel Inc., No. 11-cv-02317-STA-cgc, 2012 WL 1022939, at *5 (W.D.
Tenn. Mar. 26, 2012). Accordingly, Plaintiff’s claims asserting violations of the HIPAA will be
dismissed for failure to state a claim upon which relief may be granted.
B.

PREA

Plaintiff claims that Defendants Piggott and Bennickson violated the PREA. Plaintiff “has
no independent cause of action for any [individual’s] failure to comply with the [PREA].” Beeman
v. Heyns, No. 1:16-cv-27, 2016 WL 1316771, at *12 n.4 (W.D. Mich. Apr. 5, 2016) (“Although
not addressed in the Sixth Circuit, district courts have found that the PREA does not create a private
cause of action which can be brought by an individual plaintiff.” (quoting Montgomery v. Harper,
No. 5:14-cv-P38R, 2014 WL 4104163, at *2 (W.D. Ky. Aug. 19, 2014))); see also McCloud v.
Prack, 55 F. Supp. 3d 478, 482 n.2 (W.D.N.Y. 2014) (“[N]othing in the statute suggests that PREA
intended to establish a private cause of action for allegations of prison rape, and every court to
address the issue has determined that PREA cannot support such a cause of action by an inmate.”
(quoting Amaker v. Fischer, No. 10-cv-977, 2014 WL 4772202, at *14 (W.D.N.Y. Sept. 24,
2014))); Barhite v. Berghuis, No. 1:14-cv-670, 2014 WL 4627166, at *5 (W.D. Mich. Sept. 15,
2014) (“Plaintiff’s request is predicated on the assumption that the PREA provides him a cause of
action for Defendants’ alleged sexual assaults. It does not.”). Plaintiff’s claims asserting violations
of the PREA will, therefore, be dismissed for failure to state a claim upon which relief may be
granted.

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C.

ADA

Plaintiff alleges that Defendants have violated his rights as a disabled prisoner. Title II of
the ADA provides that “no qualified individual with a disability shall, by reason of such disability,
be excluded from participation in or be denied the benefits of the services, programs, or activities
of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. In
other words, the ADA “prohibit[s] public or federally funded entities, including prisons, from
discriminating against disabled individuals while operating services or programs.” Finley v. Huss,
102 F.4th 789, 819–20 (6th Cir. 2024) (internal citations omitted). Therefore, to state a claim under
the ADA, “a plaintiff must establish that (1) he has a qualifying disability, (2) he is otherwise
qualified for a program, and (3) he was excluded from participation in, denied the benefits of, or
subjected to discrimination under a program because of his disability.” Id. at 820.
The Supreme Court has held that Title II of the ADA applies to state prisons and inmates,
Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210–12 (1998), The proper defendant for a
Title II ADA claim is the public entity or an official acting in his official capacity. Carten v. Kent
State Univ., 282 F.3d 391, 396–97 (6th Cir. 2002); see, e.g., Tanney v. Boles, 400 F. Supp. 2d
1027, 1044 (E.D. Mich. 2005) (citations omitted). Plaintiff sues Defendants in their respective
official capacities for his ADA claims. (Compl., ECF No. 1, PageID.6 (“All Defendants are being
sued in their . . . “official” capacity due to ADA claims.”).)
As to Plaintiff’s official capacity ADA claims, the State of Michigan (acting through the
MDOC) is not necessarily immune from Plaintiff’s claims under the ADA. See, e.g., Tanney, 400
F. Supp. 2d at 1044–47. At this stage of the proceedings, the Court assumes, without deciding, that
Defendants are not immune from liability in their official capacities under the ADA. See, e.g.,
Tanney, 400 F. Supp. 2d at 1047 (citing cases).

9

Turning to the merits of Plaintiff’s ADA claims, Plaintiff identifies two disabling
conditions: first, with regard to the harassment by Piggott and Bennickson, Plaintiff notes that he
is a “handicapped” prisoner because he has one arm (Compl., ECF No. 1, PageID.5); and second,
with regard to his claim relating to the MAT program, he notes that he suffers from the disability
of “drug addiction” (id., PageID.11). Even accepting that Plaintiff’s conditions fall within the
definition of “disability,” Plaintiff’s allegations do not show that he was excluded from a service
or program, denied accommodation, or discriminated against due to his disability. Plaintiff alleges
no facts that support an inference that Piggott and Bennickson excluded Plaintiff from a program
or denied him an accommodation. Moreover, to the extent that Defendants’ harassment of Plaintiff
can be described as discriminatory, Plaintiff has failed to allege facts to support an inference that
Defendants discriminated against him through harassment because of his disability.
Similarly, although Plaintiff’s allegations might support a claim that Defendants somehow
excluded him from the MAT program, Plaintiff alleges no facts to support an inference that they
excluded him because of his drug addiction. Indeed, it would be absurd to exclude prisoners from
a drug addiction treatment program because of a drug addiction. Plaintiff’s conclusory allegation
of discrimination without specific supporting factual allegations fails to state a claim. See Iqbal,
556 U.S. at 678–79; Twombly, 550 U.S. at 555. For these reasons, Plaintiff’s ADA claims will be
dismissed.
D.

Fourth Amendment

In Plaintiff’s allegations regarding Piggott’s and Bennickson’s conduct while they escorted
Plaintiff to his dental appointment, he makes passing reference to the Fourth Amendment.
“Excessive force claims can be resolved under the Fourth, Eighth and Fourteenth Amendments –
the applicable amendment depends on the plaintiff’s status at the time of the incident: a free citizen
in the process of being arrested or seized; a convicted prisoner; or someone in “gray area[s]”
10

around the two. Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir. 2013). When a free citizen claims
that a government actor used excessive force during the process of an arrest, seizure, or
investigatory stop, we perform a Fourth Amendment inquiry into what was objectively
“reasonable” under the circumstances. Graham v. Connor, 490 U.S. 386, 396 (1989); Lanman v.
Hinson, 529 F.3d 673, 680 (6th Cir. 2008). These Fourth Amendment protections extend through
police booking until the completion of a probable cause hearing. Aldini v. Johnson, 609 F.3d 858,
866-67 (6th Cir. 2010). When convicted prisoners bring claims of excessive force, we turn to the
Eighth Amendment, which forbids the “unnecessary and wanton infliction of pain” that constitutes
“cruel and unusual punishment,” and specifically conduct that is malicious and sadistic. Hudson
v. McMillian, 503 U.S. 1, 5, 7 (1992) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)); United
States v. Budd, 496 F.3d 517, 531-32 (6th Cir. 2007). Plaintiff’s protection against the misconduct
he alleges flows from the Eighth Amendment, not the Fourth Amendment; accordingly, Plaintiff’s
allegations that Defendants violated the Fourth Amendment fail to state a claim upon which relief
may be granted.5
E.

Fourteenth Amendment-Equal Protection

Plaintiff claims that Defendants Piggott and Bennickson violated Plaintiff’s equal
protection rights by virtue of their “sexual misconduct, sexual assault, and ‘discrimination’ of
services and programs.” (Compl., ECF No. 1, PageID.13.) Similarly, Plaintiff claims that
Defendants Piggott and West violated Plaintiff’s equal protection rights by exposing Plaintiff’s
medical records and, presumably, by denying Plaintiff access to the MAT program.
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 essentially a

5

Plaintiff’s Eighth Amendment claims are addressed below.
11

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). To state an equal protection claim,
Plaintiff must show “intentional and arbitrary discrimination” by the state; that is, he must show
that he “has been intentionally treated differently from others similarly situated and that there is
no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562,
564 (2000). The threshold element of an equal protection claim is disparate treatment. Scarbrough
v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006). Further, “‘[s]imilarly situated’
is a term of art—a comparator . . . must be similar in ‘all relevant respects.’” Paterek v. Vill. of
Armada, 801 F.3d 630, 650 (6th Cir. 2015) (quoting United States v. Green, 654 F.3d 637, 651
(6th Cir. 2011)).
Here, Plaintiff fails to allege any facts to suggest that he was treated differently than others,
let alone that the others were similarly situated. Instead, any allegations of discriminatory treatment
are wholly conclusory. Conclusory allegations of unconstitutional conduct without specific factual
allegations fail to state a claim under Section 1983. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S.
at 555. Furthermore, even viewing Plaintiff’s equal protection claim as a class-of-one claim, the
Court would reach the same conclusion because Plaintiff’s equal protection claims are wholly
conclusory and he has alleged no facts that plausibly suggest that his equal protection rights were
violated.
Accordingly, for all of the reasons set forth above, Plaintiff fails to state a claim for
violation of his Fourteenth Amendment equal protection rights.
F.

Fourteenth Amendment-Due Process

Plaintiff does not specifically mention the Due Process Clause of the Fourteenth
Amendment in his complaint, but he does suggest that the sanction he got for a Class II
misconduct—30 days’ loss of privileges—was severe enough to warrant due process protections
12

for the misconduct hearing under Sandin v. Conner, 515 U.S. 472 (1995). (Compl., ECF No. 1,
PageID.12.) To the extent that Plaintiff is seeking to assert a due process claim related to the ClassII misconduct ticket, that claim lacks merit.
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, 515 U.S. at 486–87.
No matter what happened with respect to any misconduct ticket, the duration of Plaintiff’s
sentence would not change. Plaintiff is incarcerated for crimes committed during September of
2022 and January of 2024. See MDOC Offender Tracking Information System, https://mdocweb.
state.mi.us/otis2/otis2profile.aspx?mdocNumber=732101 (last visited Sept. 15, 2024). The
MDOC reward for serving time “misconduct free” has changed significantly over the last 25 years.
For years inmates could earn “good time credits.” Taylor v. Lantagne, 418 F. App’x 408, 412 (6th
Cir. 2011); Mich. Comp. Laws § 800.33. For prisoners who committed crimes on or after April 1
of 1987, however, “good time credits” were discontinued and replaced by “disciplinary credits.”
Taylor, 418 F. App’x at 412; Mich. Comp. Laws § 800.33. Then, for prisoners convicted of crimes
committed on or after December 15, 1998, for a particular list of crimes, and on or after December
15, 2000, for all other crimes, “disciplinary credits” were replaced by “disciplinary time.” Taylor,
418 F. App’x at 412; Mich. Comp. Laws § 800.34.
Plaintiff is subject to disciplinary time with regard to his indeterminate sentences for assault
with the intent to commit murder; but not with regard to his life without parole sentence for firstdegree murder. Mich. Comp. Laws § 800.34. Disciplinary time accrues when a prisoner is found
guilty of a major misconduct. A prisoner’s accumulated disciplinary time is submitted to the parole

13

board for consideration at parole reviews or interviews. The Sixth Circuit has concluded that
“disciplinary time” never impacts the duration of a sentence in the sense contemplated by Sandin.
Nali v. Ekman, 355 F. App’x 909, 912 (6th Cir. 2009).
Second, the sanctions for a disciplinary finding of guilt would not rise to the level of
atypical and significant hardships. Under MDOC Policy Directive 03.3.105, Attachment D, the
maximum sanctions for a Class-I misconduct conviction are as follows: 10 days of punitive
segregation for each violation, but not to exceed 20 days for violations arising out of a single
incident; 30 days of toplock (but not to be combined with punitive segregation); 30 days of lossof-privileges sanctions, or 60 days maximum for multiple violations arising out of a single
incident; and restitution. The sanctions for Class-II and Class-III misconducts are similar, but with
shorter maximum durations.
The most significant sanction and, therefore, hardship, is placement in segregation. The
Supreme Court has held that placement in 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, 468 (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 placement in administrative segregation
for two months does not require the protections of due process. See Joseph, 410 F. App’x at 868
(61 days in segregation is not atypical and significant). Lesser sanctions of toplock or loss of

14

privileges would certainly be no worse than segregation. Thus, any penalty Plaintiff might have
faced because of Piggott’s misconduct report would not rise to the level of an atypical and
significant hardship. Accordingly, the Court finds that, to the extent pled, Plaintiff fails to state a
plausible Fourteenth Amendment procedural due process claim with regard to the misconduct
proceedings.
G.

Eighth Amendment-Sexual Harassment

The Eighth Amendment imposes a constitutional limitation on the power of the states to
punish those convicted of crimes. Punishment may not be “barbarous,” nor may it contravene
society’s “evolving standards of decency.” Rhodes v. Chapman, 452 U.S. 337, 345–46 (1981). The
Amendment, therefore, prohibits conduct by prison officials that involves the “unnecessary and
wanton infliction of pain.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987) (per curiam) (quoting
Rhodes, 452 U.S. at 346). The deprivation alleged must result in the denial of the “minimal
civilized measure of life’s necessities.” Rhodes, 452 U.S. at 347; see also Wilson v. Yaklich, 148
F.3d 596, 600–01 (6th Cir. 1998). The Eighth Amendment is only concerned with “deprivations
of essential food, medical care, or sanitation” or “other conditions intolerable for prison
confinement.” Rhodes, 452 U.S. at 348 (citation omitted). Moreover, “[n]ot every unpleasant
experience a prisoner might endure while incarcerated constitutes cruel and unusual punishment
within the meaning of the Eighth Amendment.” Ivey, 832 F.2d at 954. “[R]outine discomfort is
‘part of the penalty that criminal offenders pay for their offenses against society.’” Hudson, 503
U.S. at 9 (quoting Rhodes, 452 U.S. at 347). As a consequence, “extreme deprivations are required
to make out a conditions-of-confinement claim.” Id.
Plaintiff alleges that Defendant Piggott hit Plaintiff on the butt several times with Plaintiff’s
empty left coat sleeve and made sexual remarks to Plaintiff on several occasions over a two-month
period. Plaintiff alleges that Defendant Bennickson made a sexual remark while Piggott was hitting
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Plaintiff’s butt with the coat sleeve and failed to stop Piggott from hitting Plaintiff with the coat
sleeve.
“Federal courts have long held that sexual abuse is sufficiently serious to violate the Eighth
Amendment[;] [t]his is true whether the sexual abuse is perpetrated by other inmates or by guards.”
Rafferty v. Trumbull Cnty., 915 F.3d 1087, 1095 (6th Cir. 2019) (citations omitted); Bishop v.
Hackel, 636 F.3d 757, 761 (6th Cir. 2011) (discussing inmate abuse); Washington v. Hively, 695
F.3d 641, 642 (7th Cir. 2012) (discussing abuse by guards). However, in the context of claims
against prison officials, the Sixth Circuit has repeatedly held that the use of harassing or degrading
language by a prison official, although unprofessional and deplorable, does not necessarily rise to
constitutional dimensions. See, e.g., Ivey, 832 F.2d at 954–55; see also Johnson v. Dellatifa, 357
F.3d 539, 546 (6th Cir. 2004) (concluding that harassment and verbal abuse do not constitute the
type of infliction of pain that the Eighth Amendment prohibits); Violett v. Reynolds, 76 F. App’x
24, 27 (6th Cir. 2003) (finding that verbal abuse and harassment do not constitute punishment that
would support an Eighth Amendment claim).
Further, some courts, including the Sixth Circuit, have held that minor, isolated incidents
of sexual touching coupled with offensive sexual remarks also 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) (finding that 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, 662 (6th Cir. 2005),
abrogated on other grounds by Maben v. Thelen, 887 F.3d 252, 266–67 (6th Cir. 2018)
(concluding that correctional 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

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Amendment standards); Johnson v. Ward, No. 99-1596, 2000 WL 659354, at *1 (6th Cir. May 11,
2000) (holding that 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)
(finding that, where inmate failed to assert that he feared sexual abuse, two brief touches to his
buttocks could not be construed as sexual assault).
In contrast, repeated and extreme incidents may sufficiently state a claim. For example, the
Sixth Circuit found an Eighth Amendment violation when a male prison official sexually harassed
a female prisoner by demanding on multiple occasions that the prisoner expose herself and
masturbate while the official watched and intimidated her into complying. Rafferty, 915 F.3d
at 1095–96. The Rafferty court noted that, in light of the coercive dynamic of the relationship
between prison staff and prisoners, such demands amount to sexual abuse. Id. at 1096.
Rafferty, however, is distinguishable from Plaintiff’s claim. Here, Plaintiff alleges that on
several occasions, Defendant Piggott made a sexual comment to Plaintiff. Few of the comments
Plaintiff has identified are obviously “sexual” in nature, see supra pp. 4–5; although they might
certainly qualify as innuendo. None of them demanded that Plaintiff engage in sexual conduct, as
was the case in Rafferty. Moreover, the “sexual” touching at issue here—smacking Plaintiff on the
butt with his coat sleeve—though coarse and unprofessional—does not rise to the level of an
Eighth Amendment violation.
The Court does not minimize Plaintiff’s experience; however, nothing in the complaint
suggests that Defendant Piggott physically touched Plaintiff in a sexual way. Under the
circumstances alleged by Plaintiff, Defendant Piggott’s (and Defendant Bennickson’s) remarks,

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while offensive and unprofessional, do not evidence the sort of coercive sexual demand at issue in
Rafferty. See Rafferty, 915 F.3d at 1095–96.
Accordingly, Plaintiff’s Eighth Amendment claim against Defendants Piggott and
Bennickson based on sexual harassment will be dismissed for failure to state a claim upon which
relief may be granted.
H.

Eighth Amendment-Excessive Force

In addition to Defendant Piggott smacking Plaintiff on the butt with his coat sleeve, Piggott
also placed the sleeve around Plaintiff’s neck. Construed liberally, those allegations might be an
attempt to state an Eighth Amendment claim for the use of excessive force. The Eighth
Amendment also prohibits conditions of confinement which, although not physically barbarous,
“involve the unnecessary and wanton infliction of pain.” Rhodes, 452 U.S. at 346 (quoting Gregg
v. Georgia, 428 U.S. 153, 183 (1976)). Among unnecessary and wanton inflictions of pain are
those that are “totally without penological justification.” Id.
But not every shove or restraint gives rise to a constitutional violation. Parrish v. Johnson,
800 F.2d 600, 604 (6th Cir. 1986); see also Hudson, 503 U.S. at 9 (holding that “[n]ot every push
or shove . . . violates a prisoner’s constitutional rights” (internal quotation marks omitted)). On
occasion, “[t]he maintenance of prison security and discipline may require that inmates be
subjected to physical contact actionable as assault under common law.” Combs v. Wilkinson, 315
F.3d 548, 556 (6th Cir. 2002) (citing Pelfrey v. Chambers, 43 F.3d 1034, 1037 (6th Cir. 1995)).
Prison officials nonetheless violate the Eighth Amendment when their “offending conduct reflects
an unnecessary and wanton infliction of pain.” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir.
2011) (internal quotation marks omitted); Bailey v. Golladay, 421 F. App’x. 579, 582 (6th Cir.
2011).

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There is an objective component and a subjective component to an Eighth Amendment
claim. Santiago v. Ringle, 734 F.3d 585, 590 (6th Cir. 2013) (citing Comstock v. McCrary, 273
F.3d 693, 702 (6th Cir. 2001)). First, “[t]he subjective component focuses on the state of mind of
the prison officials.” Williams, 631 F.3d at 383. Courts ask “whether force was applied in a goodfaith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”
Hudson, 503 U.S. at 7. Second, “[t]he objective component requires the pain inflicted to be
‘sufficiently serious.’” Williams, 631 F.3d at 383 (quoting Wilson v. Seiter, 501 U.S. 294, 298
(1991)). “The Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments necessarily
excludes from constitutional recognition de minimis uses of physical force, provided that the use
of force is not of a sort repugnant to the conscience of mankind.” Hudson, 503 U.S. at 9-10
(internal quotation marks omitted). The objective component requires a “contextual” investigation,
one that is “responsive to ‘contemporary standards of decency.’” Id. at 8 (quoting Estelle v.
Gamble, 429 U.S. 97, 103 (1976)). While the extent of a prisoner’s injury may help determine the
amount of force used by the prison official, it is not dispositive of whether an Eighth Amendment
violation has occurred. Wilkins v. Gaddy, 559 U.S. 34, 37 (2010). “When prison officials
maliciously and sadistically use force to cause harm, contemporary standards of decency always
are violated . . . [w]hether or not significant injury is evident.” Hudson, 503 U.S. at 9. “Otherwise,
the Eighth Amendment would permit any physical punishment, no matter how diabolic or
inhuman, inflicting less than some arbitrary quantity of injury.” Id.
However, the Court notes that the “absence of serious injury” is relevant to the Eighth
Amendment inquiry. Wilkins, 559 U.S. at 37 (citing Hudson, 503 U.S. at 7).
“[T]he extent of injury suffered by an inmate is one factor that may suggest
‘whether the use of force could plausibly have been thought necessary’ in a
particular situation.” [Hudson, 503 U.S. at 7 (quoting Whitley v. Albers, 475 U.S.
312, 321 (1986)]. The extent of injury may also provide some indication of the
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amount of force applied. As we stated in Hudson, not “every malevolent touch by
a prison guard gives rise to a federal cause of action.” 503 U.S. at 9. “The Eighth
Amendment’s prohibition of ‘cruel and unusual’ punishments necessarily excludes
from constitutional recognition de minimis uses of physical force, provided that the
use of force is not of a sort repugnant to the conscience of mankind.” Id., at 9–10
(some internal quotation marks omitted). An inmate who complains of a “‘push or
shove’” that causes no discernible injury almost certainly fails to state a valid
excessive force claim. Id., at 9 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d
Cir. 1973)).
Wilkins, 559 U.S. at 37–38.
Plaintiff’s claim falls squarely into the Wilkins description of allegations that “almost
certainly fail[] to state a valid excessive force claim.” Id. at 38. Plaintiff states only that Defendant
Piggott smacked him on the butt with his coat sleeve and put the sleeve around Plaintiff’s neck.
Plaintiff makes no mention of any resulting pain or injury. In light of the clear guidance of Wilkins,
the Court concludes that the facts alleged by Plaintiff in describing the use of force and its
consequences do not support an inference that the force used by Defendant Piggott against Plaintiff
was excessive. Accordingly, Plaintiff has failed to state an Eighth Amendment excessive force
claim against Defendants upon which relief may be granted.
I.

First Amendment Retaliation

Finally, Plaintiff contends that Defendant Piggott retaliated against Plaintiff for the
exercise of his First Amendment rights by filing an “exaggerated” misconduct. (Compl., ECF
No. 1, PageID.14.) 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 three elements:
(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
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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 nonfrivolous prison grievance is constitutionally protected conduct for
which a prisoner cannot be subjected to retaliation. See Smith, 250 F.3d at 1037; Herron v.
Harrison, 203 F.3d 410, 415 (6th Cir. 2000). Accepting Plaintiff’s allegations as true, the protected
conduct that purportedly prompted the retaliation was Plaintiff’s grievance against Piggott relating
to the disclosure of Plaintiff’s medical records. (Id., PageID.11.) The Court concludes that Plaintiff
engaged in conduct protected by the First Amendment.
To establish the second element of a retaliation claim, a prisoner-plaintiff must show
adverse action by a prison official sufficient to deter a person of ordinary firmness from exercising
his constitutional rights. Thaddeus-X, 175 F.3d at 396. The adverseness inquiry is an objective one
and does not depend on how a particular plaintiff reacted. The relevant question is whether the
defendants’ conduct is “capable of deterring a person of ordinary firmness”; the plaintiff need not
show actual deterrence. Bell v. Johnson, 308 F.3d 594, 606 (6th Cir. 2002) (emphasis in original).
The “adverse action” at issue here is the “exaggerated misconduct.”
Even seven days’ loss of privileges—which includes loss of the rights to use the exercise
facilities, to attend group meetings, to use the telephone, to have visitors, to access the general
library, and to access the activity room—amounts to adverse action. Maben, 887 F.3d at 266–67
(quoting Hill v. Lapin, 630 F3d 468, 474 (6th Cir. 2010)) (holding that “actions that result in more
restrictions and fewer privileges for prisoners are considered adverse”). Therefore, Plaintiff has
alleged sufficient facts to show that Defendant Piggott’s writing of a Class II misconduct would
rise to the level of an adverse action.

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Plaintiff’s retaliation claim falters at the third step. 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) (discussing that 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 quotation marks omitted)); Lewis v. Jarvie, 20 F.
App’x 457, 459 (6th Cir. 2001) (“[B]are allegations of malice on the defendants’ parts are not
enough to establish retaliation claims [that will survive Section 1915A screening].” (citing
Crawford-El v. Britton, 523 U.S. 574, 588 (1998))).
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, 579-80 (6th Cir.
2004).
Here, Plaintiff merely alleges the ultimate fact of retaliation. He alleges no facts from which
to reasonably infer that Defendants’ actions were motivated by any of his protected conduct.
Indeed, Plaintiff alleges no facts to support an inference that Defendant Piggott was even aware of
that grievance. The grievance was rejected; Plaintiff was on modified access to the grievance

22

system. (Compl., ECF No. 1, PageID.10–11.) Plaintiff merely concludes that, because he is able
to identify a grievance he filed before6 the misconduct was written, Defendant Piggott’s writing of
the misconduct must have been motivated by the grievance. The Sixth Circuit, however, has been
reluctant to find that temporal proximity between the filing of a grievance and an official’s adverse
conduct, standing alone, is sufficient to establish a retaliation claim. Hill v. Lappin, 630 F.3d 468,
476 (6th Cir. 2010). This is especially true where, as here, the plaintiff is a prolific filer of
grievances. Coleman v. Bowerman, 474 F. App’x 435, 438 (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 offers nothing more than a suggestion that one event occurred before the other. To the
extent he relies upon temporal proximity, he has failed to allege facts to support an inference that
the events were even temporally proximate. These allegations are insufficient to state a retaliation
claim. Accordingly, Plaintiff’s retaliation claim will be dismissed.
Conclusion
Having conducted the review required by the PLRA, the Court determines that Plaintiff’s
complaint 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 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, 114 F.3d
at 611. Although the Court concludes that Plaintiff’s claims are properly dismissed, the Court does
not conclude that any issue Plaintiff might raise on appeal would be frivolous. Coppedge v. United

6

Plaintiff does not actually allege the order of these events. He does not provide the date he filed
the grievance, the date it was rejected, or the date that Defendant Piggott wrote the misconduct
report. The Court presumes, for purposes of this analysis that the grievance preceded the
misconduct report.
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States, 369 U.S. 438, 445 (1962). Accordingly, the Court does not certify that an appeal would not
be taken in good faith. Should Plaintiff appeal this decision, the Court will assess the $605.00
appellate filing fee pursuant to Section 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
Section 1915(g). If he is barred, he will be required to pay the $605.00 appellate filing fee in one
lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A judgment consistent with this opinion will be entered.

Dated:

September 24, 2024

/s/ Sally J. Berens
SALLY J. BERENS
United States Magistrate Judge

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