Antoine #836389 v. Carr

Filing 9

OPINION; signed by Magistrate Judge Phillip J. Green (jkw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
ABDIAS ANTOINE,
Plaintiff,
v.

Case No. 1:24-cv-1258
Honorable Phillip J. Green

UNKNOWN CARR,
Defendant.

____________________________/
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.8.)
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 . . . .”

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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 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 does
not contain a consent from the defendants[; h]owever, because they had not been
served, they were not parties to this 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.

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

Given this dismissal, Plaintiff’s motion for discovery (ECF No. 6) will be denied as
moot.
Discussion
I.

Factual Allegations
Plaintiff is presently incarcerated with the Michigan Department of

Corrections (MDOC) at the Alger Correctional Facility (LMF) in Munising, Alger
County, Michigan. The events about which he complains, however, occurred at the
Bellamy Creek Correctional Facility (IBC) in Ionia, Ionia County, Michigan. Plaintiff
sues Corrections Officer Unknown Carr in his official and personal capacities.
(Compl., ECF No. 1, PageID.2.)
Plaintiff alleges that on February 9, 2024, Defendant Carr and non-party
Officer Allen were escorting him to the 8 block transfer area when Plaintiff asked if
he could readjust his glasses because they were falling off of his nose. (Id., PageID.3.)
Plaintiff alleges that Defendant Carr “roughed him up and asked him what the f***
he was doing scum bag piece of shit?” (Id. (asterisks added).) Defendant Carr
continued to verbally abuse Plaintiff, suggesting that Plaintiff should never be let out
of prison. (Id.) Plaintiff responded that he had a “family he loves and he would love
to get out one day and be there for his family.” (Id.) Defendant Carr “snapped” and
told Plaintiff to “shut the f*** up” and that if Plaintiff did love his family, he would
not be in prison. (Id., PageID.4 (asterisks added).) Officer Allen “laugh[ed] and
nodd[ed] in agreement.” (Id.)

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After Plaintiff and the officers arrived at the 8 block transfer area, Defendant
Carr placed both of his hands on Plaintiff’s chest and “pushed him as hard as he
could.” (Id.) Plaintiff states that he was still in handcuffs at the time. (Id.)
Plaintiff submitted a Step I grievance on April 14, 2024, in which he also
requested that camera footage be preserved. (Id.) Ultimately, Plaintiff’s grievance
was denied at all three levels of the administrative remedy process. (Id., PageID.4–
6.)
Based upon the foregoing, Plaintiff contends that the assault by Defendant
Carr constituted cruel and unusual punishment in violation of the Eighth
Amendment. Plaintiff asks the Court to view the camera footage, and also seeks $1.5
million in damages. (Id., PageID.8.)
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
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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 wellpleaded 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.” 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 § 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).
Plaintiff contends that Defendant Carr violated Plaintiff’s Eighth Amendment rights.
III.

Discussion
A.

Official Capacity Claims

Plaintiff sues Defendant Carr in his official and personal capacities. (Compl.,
ECF No. 1, PageID.2.) A suit against an individual in his or her official capacity is
equivalent to a suit against the governmental entity; in this case, the MDOC. See
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Matthews v. Jones, 35 F.3d
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1046, 1049 (6th Cir. 1994). 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. 1994).

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 United States Court of
Appeals for 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).
Here, Plaintiff seeks monetary damages. (Compl., ECF No. 1, PageID.8.)
However, as noted above, the MDOC is not a “person” who may be sued under § 1983
for money damages. Therefore, Plaintiff has failed to state a claim against Defendant
Carr in his official capacity upon which relief can be granted, and Plaintiff’s official
capacity claim against Defendant Carr will be dismissed for failure to state a claim.
B.

Personal Capacity Claims for Damages

Plaintiff seeks $1.5 million in damages against Defendant Carr. That relief is
available to the extent Plaintiff is suing Defendant Carr in his personal capacity.

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1.

Eighth Amendment Claim for the Use of Excessive Force

The Eighth Amendment embodies a constitutional limitation on the power of
the states to punish those convicted of a crime. Punishment may not be “barbarous”,
nor may it contravene society’s “evolving standards of decency.”

See Rhodes v.

Chapman, 452 U.S. 337, 345–46 (1981) (quoting Trop v. Dulles, 356 U.S. 86, 101
(1958)). 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.
However, 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 v. McMillian,
503 U.S. 1, 9 (1992) (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)), quoted in Cordell v. McKinney, 759 F.3d 573, 580–81 (6th Cir. 2014).
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 good-faith 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 (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.

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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 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 (emphasis supplied).
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. Without
providing any further facts or explanation, Plaintiff states only that Defendant Carr
“roughed him up,” and then Plaintiff claims that later during the interaction with
Defendant Carr, Carr also “placed both of his hands on Plaintiff[’s] chest and pushed
him as hard as he could.” (Compl., ECF No. 1, PageID.3, 4.) Plaintiff presents no
further facts about the force used by Defendant Carr, and Plaintiff makes no mention
whatsoever of any injury that occurred as a result of Defendant Carr’s behavior.
Plaintiff appears to ask the Court to fabricate plausibility to his claims from mere
ambiguity; however, ambiguity does not support a claim. While the Court does not
condone such behavior, in light of the clear guidance set forth in Wilkins, the Court
concludes that the facts alleged by Plaintiff in describing the use of force and its
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consequences (or lack thereof) do not support an inference that the force used by
Defendant Carr against Plaintiff was excessive.

Accordingly, Plaintiff’s Eighth

Amendment excessive force claim against Defendant Carr will be dismissed.
2.

Eighth Amendment Claim for Verbal Harassment

Plaintiff also suggests that Defendant Carr verbally abused him during this
incident. (Compl., ECF No. 1, PageID.3–4.) 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. 961282, 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 or 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
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Eighth Amendment.”). Accordingly, Plaintiff fails to state an Eighth Amendment
claim against Defendant Carr arising from his alleged verbal abuse.
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). Plaintiff’s motion for discovery
(ECF No. 6) will be denied as moot.
The Court must next decide whether an appeal of this action would be in good
faith within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114
F.3d 601, 611 (6th Cir. 1997). 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 States, 369 U.S. 438, 445
(1962). Accordingly, the Court does not certify that an appeal would not be taken in
good faith. However, should Plaintiff appeal this decision, he is advised that he must
pay the $605.00 appellate filing fee in one lump sum because he is barred from

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proceeding in forma pauperis by the “three-strikes” rule set forth in 28 U.S.C. §
1915(g).2
This is a dismissal as described by 28 U.S.C. § 1915(g).
An order and judgment consistent with this opinion will be entered.

Dated: March 6, 2025

/s/ Phillip J. Green
PHILLIP J. GREEN
United States Magistrate Judge

2

Plaintiff has had three lawsuits dismissed on the basis that they were frivolous, malicious, or
failed to state a claim upon which relief could be granted. See Op. and J., Abdias v. King et al.,
No. 1:24-cv-1229 (W.D. Mich. Feb. 19, 2025) (ECF Nos. 7, 8); Op. and J., Abdias v. Macauley et
al., No. 1:24-cv-776 (W.D. Mich. Feb. 24, 2025) (ECF Nos. 10, 12); Op. and J., Abdias v. Bauman,
No. 2:24-cv-110 (W.D. Mich. Sept. 26, 2024) (ECF Nos. 9, 10).
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