Reynolds #222375 v. Warzak et al
Filing
71
OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
ANTONE REYNOLDS #222375,
Plaintiff,
Case No. 2:09-cv-144
v.
Honorable Robert Holmes Bell
UNKNOWN WARZAK, et al.,
Defendants.
___________________________________/
OPINION
Plaintiff Antone Reynolds #222375, a Michigan state prisoner who was confined at
the Alger Maximum Correctional Facility (LMF) during the pertinent time period, filed this pro se
civil rights action pursuant to 42 U.S.C. § 1983 against several employees of the Michigan
Department of Corrections (MDOC). The court ordered that Plaintiff’s complaint be served on
Defendants on October 8, 2009 (docket #3). Defendants subsequently moved to dismiss the
complaint for misjoinder of claims and parties. Plaintiff conceded that his complaint was improper
and moved to voluntarily dismiss all named Defendants except for Defendants Warden David Bergh,
Assistant Resident Unit Supervisor Lynne Phillipson, Sergeant Patricia Belfry, Resident Unit Officer
Steven Sharrett, Resident Unit Officer Todd Dejong, Sergeant Tim Lee and Resident Unit Officer
Christopher Feigel. On September 20, 2010, Plaintiff’s request was granted and his amended
complaint was entered (docket #60 and #61).
Plaintiff’s amended complaint alleges that on June 27, 2007, which was a Wednesday,
Plaintiff asked Resident Unit Officer Warzak if he could have a roll of toilet paper, and Warzak told
Plaintiff that he would have to wait until Sunday. Plaintiff states that prisoners in the housing unit
were given one roll of toilet paper per week, and that toilet paper was dispensed every Sunday. On
June 28, 2007, Plaintiff asked Defendant Dejong for toilet paper, but Defendant Dejong told Plaintiff
he would have to wait until Sunday. Plaintiff then wrote a memo to Defendant Belfry complaining
about his inability to get toilet paper and explaining that he was on a medication which required him
to use toilet paper three times a day. Plaintiff finally obtained toilet paper from a third shift officer
approximately 33 hours after his original request.
Plaintiff alleges that on June 29, 2007, he wrote a memo to Defendant Phillipson
regarding the issue. On June 30, 2007, Plaintiff filed a grievance on the issue, naming Officers
Utterback, Lintula, Arkins, Belfry, Barne, Sharrett, and Ollis. On July 17, 2007, Curt Rife responded
to the grievance, stating that when interviewed, Warzak stated that he did not remember the incident
and Dejong stated that he was not obligated to give Plaintiff toilet paper until Sunday, and that he had
in fact given Plaintiff toilet paper on June 28, 2007.
On August 8, 2007, Plaintiff appealed the grievance to step II because, even though
staff knew that he had a medical problem, officers Warzak, Dejong, Barne, and Sharrett continued
to refuse Plaintiff more than one roll of toilet paper per week. On August 20, 2007, Defendant Bergh
denied Plaintiff’s step II appeal, stating that it was unlikely that staff would deny Plaintiff toilet paper
for nearly two days. Plaintiff filed a step III appeal.
On October 17, 2007, Defendant Sharrett called Plaintiff a “homosexual dick sucking
nigger” and accused Plaintiff of engaging in sexual activity with another prisoner in the school
building. Plaintiff filed a grievance on Defendant Sharrett, who later denied making the statement.
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On October 18, 2007, Defendant Sharrett told Plaintiff that Defendant Belfry wanted to talk to him
about the grievance. During the interview, Defendant Sharrett was present, causing Plaintiff to feel
intimidated. While still in the presence of Defendant Belfry, Defendant Sharrett told Plaintiff that
he had better watch what he was getting himself into. Defendant Belfry did not intervene or
reprimand Defendant Sharrett for the comment. Plaintiff filed a grievance regarding this incident.
In the step I response, it was noted that the meeting was an “informal” attempt to resolve the issue,
so that it was appropriate for Defendant Sharrett to be present. In addition, Defendant Sharrett denied
making the threatening comment. In the step III response, it was implied that Defendant Sharrett’s
presence during the meeting was improper, but no corrective action was taken to resolve Defendant
Sharrett’s inappropriate behavior or threats toward Plaintiff.
On October 22, 2007, Defendant Sharrett ordered Plaintiff to submit to a search,
during Defendant Sharrett grabbed Plaintiff’s butt cheeks with both hands and spread them apart.
During this action, Defendant Sharrett stated, “How’s that feel you little bitch?” Defendant Dejong
then approached and called Plaintiff a “little faggot bitch, grievance writing punk mother fucker” and
threatened to assault him. Plaintiff filed a grievance regarding the incident. In the step I response,
it was noted that Plaintiff had violated the grievance process by failing to attempt resolution of the
issue prior to filing the grievance. Plaintiff states that he did not believe such resolution was possible.
Defendants Sharrett and Belfry denied the misconduct and Plaintiff’s grievance was denied at each
level.
On October 23, 2007, Defendant Dejong and Resident Unit Officer Killips refused to
let Plaintiff out of his cell for the evening meal. Defendant Dejong claimed that this was because
Plaintiff did not have his shirt tucked in, which Plaintiff denies. Moreover, Plaintiff asserts that the
denial of a meal for such a minor misconduct violates MDOC policy. Plaintiff file a grievance
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regarding this issue on October 24, 2007, which was rejected because Plaintiff failed to attempt to
resolve the issue with staff prior to filing the grievance. Plaintiff appealed the rejection of the
grievance.
On November 2, 2007, Defendant Sharrett searched Plaintiff’s cell and confiscated
two dictionaries, a Bible, and a broken cup, and wrote Plaintiff a minor misconduct ticket for
possession of contraband. The next day, Plaintiff was interviewed by Defendant Belfry in the
presence of Defendant Sharrett. Plaintiff states that it was made clear to him that if he did not drop
his grievances against Defendant Sharrett, he would receive more misconduct reports. The minor
misconduct was dropped and most of Plaintiff’s property was returned to him. Plaintiff filed a
grievance regarding this issue, asserting staff corruption. On November 5, 2007, Plaintiff wrote a
letter to Defendant Phillipson, asserting that he was in fear of retaliation by staff. Plaintiff did not
receive a response to this letter.
On November 16, 2007, Defendant Sharrett demanded that Plaintiff submit to a search.
Plaintiff complied. During the search, Defendant Sharrett rubbed Plaintiff’s chest, legs, and inner and
outer thighs in a sexual manner, causing Plaintiff to have an erection. Plaintiff filed a grievance
regarding the incident. Later that day, Defendant Sharrett wrote a misconduct on Plaintiff for
insolence. Defendant Sharrett claimed that when he came by Plaintiff’s cell, Plaintiff had the window
covered. Defendant Sharrett tapped on the window several times, causing Plaintiff to uncover the
window and yell, “Sharrett you redneck bitch, get away from my door.” Plaintiff was found guilty
of the misconduct following a hearing on December 3, 2007, and was given 18 days loss of privileges,
and was placed in administrative segregation for 60 days. Plaintiff’s request for a rehearing was
denied on February 6, 2008.
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On November 18, 2007, Plaintiff wrote a letter to Defendant Bergh, stating that he
feared for his life because of the escalating retaliation by staff, which had been initiated by Defendant
Sharrett. On November 19, 2007, Defendant Sharrett claimed that while he was making rounds,
Plaintiff was standing in his cell holding two pieces of paper which read, “Sharrett, you & that Bitch
Belfry are going to get fucked up. You Bitch Ass Rednecks.” Defendant Sharrett wrote Plaintiff a
major misconduct ticket for threatening behavior, but did not confiscate the paper. Plaintiff claims
that the charges were untrue and that the misconduct was retaliatory. Plaintiff sought to enter the
grievances into the misconduct record as exhibits, but Hearing Officer Maki denied his request. On
November 20, 2007, Plaintiff wrote a letter of complaint to Defendant Bergh, but received no reply.
On November 21, 2007, Plaintiff wrote a grievance against Defendant Sharrett for writing the false
misconduct ticket and, on November 30, 2007, he wrote a grievance on Defendant Sharrett for writing
false misconduct tickets that caused Plaintiff to be placed in administrative segregation.
On December 4, 2007, Plaintiff was at his door awaiting a showing when Defendant
Fiegel closed his window shutter and denied him a shower. Plaintiff filed a grievance on Defendant
Fiegel for “constant” sexual harassment on December 6, 2006. Plaintiff claims that Defendants
Bergh, Phillipson, Lee, and Belfry had a duty to discipline their subordinates and to protect Plaintiff
from their misconduct. Plaintiff seeks compensatory and punitive damages, as well as other
unspecified relief.
Presently before the Court is the Defendants’ Motion to Dismiss, pursuant to Fed. R.
Civ. P. 12(b)(6). Plaintiff has filed a response and the matter is ready for decision. A motion to
dismiss under Rule 12(b)(6) tests the sufficiency of the pleading, requiring the court to determine
whether the plaintiff would be entitled to relief if everything alleged in the complaint is true. Mayer
v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993). “[A] complaint should not be dismissed for failure to
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state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of
its claim which would entitle [the plaintiff] to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
The court must construe the complaint in the light most favorable to plaintiff. Scheuer v. Rhodes, 416
U.S. 232, 236 (1974). A judge may not dismiss the complaint simply because he disbelieves the
complaint’s factual allegations. Conley, 355 U.S. at 47.
Generally, a complaint need only give “fair notice of what the plaintiff’s claim is and
the grounds upon which it rests.” In re Delorean Motor Co. v. Weitzman, 991 F.2d 1236, 1240 (6th
Cir. 1993) (quoting Conley, 355 U.S. at 47). The fundamental purpose of pleadings under the Federal
Rules of Civil Procedure is to give adequate notice to the parties of each side’s claims and to allow
cases to be decided on the merits after an adequate development of the facts. Mayer, 355 U.S. at 638.
While this standard is decidedly liberal, it requires more than the bare assertion of legal conclusions.
Delorean, 991 F.2d at 1240. “In practice, a complaint must contain either direct or inferential
allegations respecting all the material elements to sustain a recovery under some viable legal theory.”
Id. (internal quote omitted).
Initially, the court notes that Plaintiff’s amended complaint raises the same factual
allegations as those asserted in his original complaint. As background, this court undertakes an initial
review of every prisoner case that is filed in the Western District of Michigan. Prior to entering an
order for service of process of a summons and complaint, this court determines whether the complaint
is frivolous or fails to state a claim upon which relief may be granted. An initial review of the
complaint was completed in this case and service of process was ordered on October 8, 2009. If the
court felt that the complaint was frivolous or failed to state a claim for relief against any party, that
party would have been dismissed from this action and never would have received a summons and
complaint. Plaintiff’s amended complaint does not raise new allegations, but merely reasserts a
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portion of the claims that were raised in his original complaint. Moreover, the court would not have
granted Plaintiff’s motion to file an amended complaint if it was not sufficient to state a claim.
Clearly, Plaintiff has presented sufficient allegations to support at least some of the claims asserted
in his complaint.
In Plaintiff’s amended complaint, he asserts that Defendants violated his “First
Amendment Substantive Due Process” rights when they denied him toilet paper and subjected him
to sexual harassment. As noted by Defendants, the First Amendment does not have a “Substantive
Due Process Clause.” Plaintiff presumably is seeking to assert a substantive due process claim
pursuant to the Fourteenth Amendment. However, where a particular Amendment “provides an
explicit textual source of constitutional protection” against a particular sort of government behavior,
“that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide
for analyzing these claims. Albright v. Oliver, 510 U.S. 266, 273 (1994) (citing Graham v. Connor,
490 U.S. 386, 395 (1989)). The court concludes that Plaintiff’s claims of sexual harassment and
denial of toilet paper, a shower and a meal are best construed as claims for relief under 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, 60001 (6th Cir. 1998). The Eighth Amendment is only concerned with “deprivations of essential food,
7
medical care, or sanitation” or “other conditions intolerable for prison confinement.” Rhodes, 452
U.S. at 348 (citation omitted). Moreover, “[n]ot every unpleasant experience a prisoner might endure
while incarcerated constitutes cruel and unusual punishment within the meaning of the Eighth
Amendment.” Ivey, 832 F.2d at 954.
In order for a prisoner to prevail on an Eighth Amendment claim, he must show that
he faced a sufficiently serious risk to his health or safety and that the defendant official acted with
“‘deliberate indifference’ to inmate 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)).
Plaintiff alleges that Defendant Dejong denied Plaintiff toilet paper on June 28, 2007,
and that Plaintiff was without toilet paper for 33 hours. In addition, Plaintiff asserts that Defendants
Sharrett and Dejong, as well as other officers, have continually denied Plaintiff more than one roll
of per week despite the fact that Plaintiff is taking a medication which requires him to use toilet paper
three times a day. Consequently, Plaintiff asserts that one roll of toilet paper a week is inadequate
to meet his needs. The court notes that toilet paper is a basic component of the minimal civilized
measure of life’s necessities. Therefore, the repeated deprivation of toilet paper implicates the Eighth
Amendment.
Plaintiff also claims that Defendant Sharrett called him a “nigger” on one occasion and
called him a “faggot” on another occasion. 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
8
Amendment prohibits); Violett v. Reynolds, No. No. 02-6366, 2003 WL 22097827, at *3 (6th Cir.
Sept. 5, 2003) (verbal abuse and harassment do not constitute punishment that would support an
Eighth Amendment claim); Thaddeus-X v. Langley, No. 96-1282, 1997 WL 205604, at *1 (6th Cir.
Apr. 24, 1997)(verbal harassment is insufficient to state a claim); Murray v. United States 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. 963265, 1996 WL 721798, at *2 (6th Cir. Dec. 13, 1996) (“Verbal harassment and idle threats are
generally not sufficient to constitute an invasion of an inmate’s constitutional rights.”); Brown v.
Toombs, No. 92-1756, 1993 WL 11882 (6th Cir. Jan. 21, 1993) (“Brown’s allegation that a
corrections officer used derogatory language and insulting racial epithets is insufficient to support his
claim under the Eighth Amendment.”). Accordingly, Plaintiff fails to state an Eighth Amendment
claim against Defendant Sharrett arising from his alleged verbal abuse.
Plaintiff also claims that Defendant Sharrett groped him in a sexual manner during pat
down searches on October 22, 2007, and November 16, 2007. “[B]ecause the sexual harassment or
abuse of an inmate by a corrections officer can never serve a legitimate penological purpose and may
well result in severe physical and psychological harm, such abuse can, in certain circumstances,
constitute the ‘unnecessary and wanton infliction of pain’ forbidden by the Eighth Amendment.”
Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997) (quoted cases omitted). “To prevail on a
constitutional claim of sexual harassment, an inmate must therefore prove, as an objective matter, that
the alleged abuse or harassment caused ‘pain’ and, as a subjective matter, that the officer in question
acted with a sufficiently culpable state of mind.” Freitas, 109 F.3d at 1338 (citing Hudson v.
McMillian, 503 U.S. 1, 8 (1992)).
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Circuit courts consistently have held that sexual harassment, absent contact or
touching, does not satisfy the objective requirement because such conduct does not constitute the
unnecessary and wanton infliction of pain. See Morales v. Mackalm, 278 F.3d 126, 132 (2d Cir.
2002) (allegations that prison guard asked prisoner to have sex with her and to masturbate in front
of her and other female staffers did not rise to level of Eighth Amendment violation); Barney v.
Pulsipher, 143 F.3d 1299, 1311 n.11 (10th Cir. 1998) (allegations that county jailer subjected female
prisoners to severe verbal sexual harassment and intimidation was not sufficient to state a claim under
the Eighth Amendment); Howard v. Everett, No. 99-1277EA, 2000 WL 268493, at *1 (8th Cir. March
10, 2000) (sexual comments and gestures by prison guards did not constitute unnecessary and wanton
infliction of pain); cf. Seltzer-Bey v. Delo, 66 F.3d 961, 962-63 (8th Cir. 1995) (allegations that prison
guard conducted daily strip searches, made sexual comments about prisoner’s penis and buttocks, and
rubbed prisoner’s buttocks with nightstick were sufficient to withstand motion for summary
judgment); Zander v. McGinnis, No. 97-1484, 1998 WL 384625, at *2 (6th Cir. June 19, 1998)
(verbal abuse of mouthing “pet names” at prisoner for ten months failed to state an Eighth
Amendment claim); Murray v. United States Bureau of Prisons, No. 95-5204, 1997 WL 34677, at
*3 (6th Cir. Jan. 28, 1997) (magistrate judge correctly held that verbal abuse in the form of offensive
remarks regarding a transsexual prisoner’s bodily appearance, transsexualism, and presumed sexual
preference cannot state an Eighth Amendment claim). Other courts have held that even minor,
isolated incidents of sexual touching coupled with occasional offensive sexual remarks do not rise
to the level of an Eighth Amendment violation. See, e.g., Jackson v. Madery, 158 F. App’x 656, 661
(6th Cir. 2005) (correction officer’s conduct in allegedly rubbing and grabbing prisoner’s buttocks
in degrading manner was “isolated, brief, and not severe” and so failed to meet Eighth Amendment
standards); Johnson v. Ward, No. 99-1596, 2000 WL 659354, at *1 (6th Cir. May 11, 2000) (male
10
prisoner’s claim that a male officer placed his hand on the prisoner’s buttock in a sexual manner and
made an offensive sexual remark did not meet the objective component of the Eighth Amendment);
Berryhill v. Schriro, 137 F.3d 1073, 1075 (8th Cir. 1998) (where inmate failed to assert that he feared
sexual abuse, two brief touches to his buttocks could not be construed as sexual assault); accord
Boxer X v. Harris, 437 F.3d 1107, 1111 (11th Cir. 2006); Boddie v. Schneider, 105 F.3d 857, 859-61
(2d Cir. 1997) (court dismissed as inadequate prisoner’s claim that female corrections officer made
a pass at him, squeezed his hand, touched his penis, called him a “sexy black devil,” pressed her
breasts against his chest, and pressed against his private parts).
In this case, Plaintiff alleges that on October 22, 2007, Defendant Sharrett ordered
Plaintiff to submit to a search, during Defendant Sharrett grabbed Plaintiff’s butt cheeks with both
hands and spread them apart. During this action, Defendant Sharrett stated, “How’s that feel you little
bitch?” In addition, Plaintiff states that on November 16, 2007, Defendant Sharrett rubbed Plaintiff’s
chest, legs, and inner and outer thighs in a sexual manner during a pat down search, causing Plaintiff
to have an erection. “[B]ecause the sexual harassment or abuse of an inmate by a corrections officer
can never serve a legitimate penological purpose and may well result in severe physical and
psychological harm, such abuse can, in certain circumstances, constitute the ‘unnecessary and wanton
infliction of pain’ forbidden by the Eighth Amendment.” Freitas v. Ault, 109 F.3d 1335, 1338 (8th
Cir. 1997) (quoted cases omitted). “To prevail on a constitutional claim of sexual harassment, an
inmate must therefore prove, as an objective matter, that the alleged abuse or harassment caused
‘pain’ and, as a subjective matter, that the officer in question acted with a sufficiently culpable state
of mind.” Freitas, 109 F.3d at 1338 (citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)).
Circuit courts consistently have held that sexual harassment, absent contact or
touching, does not satisfy the objective requirement because such conduct does not constitute the
11
unnecessary and wanton infliction of pain. See Morales v. Mackalm, 278 F.3d 126, 132 (2d Cir.
2002) (allegations that prison guard asked prisoner to have sex with her and to masturbate in front
of her and other female staffers did not rise to level of Eighth Amendment violation); Barney v.
Pulsipher, 143 F.3d 1299, 1311 n.11 (10th Cir. 1998) (allegations that county jailer subjected female
prisoners to severe verbal sexual harassment and intimidation was not sufficient to state a claim under
the Eighth Amendment); Howard v. Everett, No. 99-1277EA, 2000 WL 268493, at *1 (8th Cir. March
10, 2000) (sexual comments and gestures by prison guards did not constitute unnecessary and wanton
infliction of pain); cf. Seltzer-Bey v. Delo, 66 F.3d 961, 962-63 (8th Cir. 1995) (allegations that prison
guard conducted daily strip searches, made sexual comments about prisoner’s penis and buttocks, and
rubbed prisoner’s buttocks with nightstick were sufficient to withstand motion for summary
judgment); Zander v. McGinnis, No. 97-1484, 1998 WL 384625, at *2 (6th Cir. June 19, 1998)
(verbal abuse of mouthing “pet names” at prisoner for ten months failed to state an Eighth
Amendment claim); Murray v. United States Bureau of Prisons, No. 95-5204, 1997 WL 34677, at
*3 (6th Cir. Jan. 28, 1997) (magistrate judge correctly held that verbal abuse in the form of offensive
remarks regarding a transsexual prisoner’s bodily appearance, transsexualism, and presumed sexual
preference cannot state an Eighth Amendment claim). Other courts have held that even minor,
isolated incidents of sexual touching coupled with occasional offensive sexual remarks do not rise
to the level of an Eighth Amendment violation. See, e.g., Jackson v. Madery, 158 F. App’x 656, 661
(6th Cir. 2005) (correction officer’s conduct in allegedly rubbing and grabbing prisoner’s buttocks
in degrading manner was “isolated, brief, and not severe” and so failed to meet Eighth Amendment
standards); Johnson v. Ward, No. 99-1596, 2000 WL 659354, at *1 (6th Cir. May 11, 2000) (male
prisoner’s claim that a male officer placed his hand on the prisoner’s buttock in a sexual manner and
made an offensive sexual remark did not meet the objective component of the Eighth Amendment);
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Berryhill v. Schriro, 137 F.3d 1073, 1075 (8th Cir. 1998) (where inmate failed to assert that he feared
sexual abuse, two brief touches to his buttocks could not be construed as sexual assault); accord
Boxer X v. Harris, 437 F.3d 1107, 1111 (11th Cir. 2006); Boddie v. Schneider, 105 F.3d 857, 859-61
(2d Cir. 1997) (court dismissed as inadequate prisoner’s claim that female corrections officer made
a pass at him, squeezed his hand, touched his penis, called him a “sexy black devil,” pressed her
breasts against his chest, and pressed against his private parts).
The court concludes that if true, Defendant Sharrett’s conduct toward Plaintiff was
reprehensible, but it does not rise to the level of an Eighth Amendment violation. According to
Plaintiff, there were two incidents, on October 22, 2007, and November 16, 2007, where Defendant
Sharrett touched him inappropriately while conducting pat-down searches. As noted above, minor,
isolated incidents of sexual touching coupled with occasional offensive sexual remarks do not rise
to the level of an Eighth Amendment violation. Moreover, Plaintiff does not suggest in his complaint
that he was subjected to any physical injury whatsoever as a result of the search. Rather, Plaintiff
claims mental or emotional injury as a result of the incident. Title 42 U.S.C. § 1997e(e) precludes
any claim by a prisoner “for mental or emotional injury suffered while in custody without a prior
showing of physical injury.” The Sixth Circuit repeatedly has held that Eighth Amendment claims
for monetary relief based on mental or emotional injury are precluded by § 1997e(e) absent a showing
of physical injury. See, e.g., Jackson v. Herrington, 393 F. App’x 348, 354 (6th Cir.2010);
Harden–Bey v. Rutter, 524 F.3d 789, 795 (6th Cir.2008). Therefore, Plaintiff’s allegations of sexual
harassment fail to state an Eighth Amendment claim against Defendant Sharrett.
Finally, Plaintiff alleges that he was denied one meal by Defendant Dejong, and one
shower by Defendant Feigel. Allegations regarding temporary inconveniences, e..g, being deprived
of a lower bunk, subjected to a flooded cell, or deprived of a working toilet, do not demonstrate that
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the conditions fell beneath the minimal civilized measure of life’s necessities as measured by a
contemporary standard of decency. Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001);
see also J.P. v. Taft, 439 F.Supp.2d 793, 811 (S.D. Ohio 2006) (“[M]inor inconveniences resulting
from the difficulties in administering a large detention facility do not give rise to a constitutional
claim.” (internal citation omitted)); but see Flanory v. Bonn, 604 F.3d 249, 255-56 (6th Cir. 2010)
(holding that allegations that an inmate was deprived of toothpaste for 337 days and experienced
dental health problems did not constitute a temporary inconvenience and were sufficient to state an
Eighth Amendment claim). The court concludes that the one-time denial of a meal by Defendant
Dejong and of a shower by Defendant Feigel are insufficient to state a claim under the Eighth
Amendment. See Hartsfield v. Vidor, 199 F.3d 305, 310 (6th Cir. 1999) (stating that “deprivations
of fresh water and access to the toilet for a 20-hour period, while harsh, were not cruel and unusual
punishment”) (citing Stephens v. Carter County Jail, 816 F.2d 682 (6th Cir.1987)).
In his amended complaint, Plaintiff claims that he received false misconduct tickets
and was subjected to mistreatment in retaliation for filing grievances. Plaintiff states that on October
17, 2007, he filed a grievance on Defendant Sharrett, and that on October 18, 2007, Defendant
Sharrett told Plaintiff that Defendant Belfry wanted to talk to him about the grievance. During the
interview, Defendant Sharrett was present, causing Plaintiff to feel intimidated. While still in the
presence of Defendant Belfry, Defendant Sharrett told Plaintiff that he had better watch what he was
getting himself into. On October 22, 2007, Defendant Dejong approached and called Plaintiff a “little
faggot bitch, grievance writing punk mother fucker” and threatened to assault him. On October 23,
2007, Defendant Dejong refused to let Plaintiff out of his cell for the evening meal. Defendant
Dejong claimed that this was because Plaintiff did not have his shirt tucked in, which Plaintiff denies.
Plaintiff file a grievance regarding this issue on October 24, 2007, which was rejected because
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Plaintiff failed to attempt to resolve the issue with staff prior to filing the grievance. On November
2, 2007, Defendant Sharrett searched his cell and confiscated two dictionaries, a Bible, and a broken
cup, and wrote Plaintiff a minor misconduct ticket. Plaintiff was called to Defendant Belfry’s office
on November 3, 2007, and Defendants Belfry and Sharrett made it clear that if he did not drop his
grievances against Defendant Sharrett, he would receive additional misconducts. Plaintiff states the
minor misconduct was dropped and most of his property was returned. Plaintiff continued to write
grievances and on November 17, 2007, Plaintiff received a falsified major misconduct ticket written
by Defendant Sharrett. Plaintiff wrote additional grievances and on November 19, 2007, Defendant
Sharrett wrote another major misconduct on Plaintiff. On November 30, 2007, Plaintiff wrote a
grievance on Defendant Sharrett for writing false misconduct tickets that caused Plaintiff to be placed
in administrative segregation and on December 4, 2007, Plaintiff was at his door awaiting a showing
when Defendant Fiegel closed his window shutter and denied him a shower. Plaintiff claims that each
of the Defendants retaliated against him for his use of the grievance system.
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. Thaddeus-X, 175 F.3d at 394. 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)).
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The filing of a prison grievance is constitutionally protected conduct for which a
prisoner cannot be subjected to retaliation. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir.
2001); Hall v. Nusholtz, No. 99-2442, 2000 WL 1679458, at *2 (6th Cir. Nov. 1, 2000); Burton v.
Rowley, No. 00-1144, 2000 WL 1679463, at *2 (6th Cir. Nov. 1, 2000). Temporal proximity may
be “‘significant enough to constitute indirect evidence of a causal connection so as to create an
inference of retaliatory motive.’” Muhammad v. Close, 379 F.3d 413, 417-18 (6th Cir. 2004) (quoting
DiCarlo v. Potter, 358 F.3d 408, 422 (6th Cir. 2004)). However, “[c]onclusory allegations of
temporal proximity are not sufficient to show a retaliatory motive.” Skinner v. Bolden, 89 F. App’x
579, 580 (6th Cir. 2004).
In this case, Plaintiff alleges temporal proximity between the conduct of Defendants
Sharrett, Dejong, and Fiegel and Plaintiff’s use of the grievance system. Moreover, Plaintiff also
alleges that Defendants Sharrett and Dejong made specific comments indicating that they wished to
punish him for using the grievance system, and that Defendant Belfry was part of a discussion
between Plaintiff, Sharrett and Belfry during which Plaintiff was made to understand that if he did
not cease filing grievances, he would be receive additional misconduct tickets. The court concludes
that these allegations are sufficient to state a retaliation claim.
Defendants Bergh, Lee, Belfry and Phillipson contend that they should be dismissed
for lack of personal involvement. Liability under Section 1983 must be based on more than merely
the right to control employees. Polk Co. v. Dodson, 454 U.S. 312, 325-26 (1981); Monell v. New
York City Department of Social Services, 436 U.S. 658 (1978). Thus, Section 1983 liability cannot
be premised upon mere allegations of respondeat superior. Monell, 436 U.S. at 691; Polk, 454 U.S.
at 325. A party cannot be held liable under Section 1983 absent a showing that the party personally
participated in, or otherwise authorized, approved or knowingly acquiesced in, the allegedly
16
unconstitutional conduct. See e.g. Leach v. Shelby Co. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989),
cert. denied, 495 U.S. 932 (1990); Hays v. Jefferson, 668 F.2d 869, 874 (6th Cir.), cert. denied, 459
U.S. 833 (1982). See also Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.), cert. denied 469 U.S. 845
(1984).
Supervisory officials can be held liable for the acts of their subordinates only if
plaintiff establishes that the supervisor failed to appropriately discharge his supervisory duties, and
that this failure resulted in a denial or deprivation of plaintiff’s federal rights. See e.g. Leach, 891
F.2d at 1246; Hayes v. Vessey, 777 F.2d 1149, 1154 (6th Cir. 1985). However, the failure of a
supervisor to supervise, control or train the offending employee is not actionable absent a showing
that the official implicitly encouraged, authorized, approved or knowingly acquiesced in, or in some
other way directly participated in, the offensive conduct. Leach, 891 F.2d at 1246. Such a claim
requires, at a minimum, that the official had knowledge of the offending employee’s conduct at a time
when the conduct could be prevented, or that such conduct was otherwise foreseeable or predictable.
See e.g. Gibson v. Foltz, 963 F.2d 851, 854 (6th Cir. 1992). In addition, plaintiff must show that
defendant had some duty or authority to act. See e.g. Birrell v. Brown, 867 F.2d 956, 959 (6th Cir.
1989) (lower level official not liable for shortcomings of building); Ghandi v. Police Dept. of City
of Detroit, 747 F.2d 338, 351 (6th Cir. 1984) (mere presence at the scene is insufficient grounds to
impose Section 1983 liability in the absence of a duty to act); accord Hall v. Shipley, 932 F.2d 1147
(6th Cir. 1991). In addition, merely bringing a problem to the attention of a supervisory official is
not sufficient to impose such liability. See Shelly v. Johnson, 684 F. Supp. 941, 946 (W.D. Mich.
1987) (Hillman, C.J.), aff’d 849 F.2d 228 (6th Cir. 1988). Finally, supervisory liability claims cannot
be based on simple negligence. Leach, 891 F.2d at 1246; Weaver v. Toombs, 756 F. Supp. 335, 337
(W.D. Mich. 1989), aff’d 915 F.2d 1574 (6th Cir. 1990).
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As noted above, Plaintiff makes specific allegations with regard to Defendant Belfry.
Therefore, Defendant Belfry is not entitled to dismissal for lack of personal involvement. However,
Plaintiff has not alleged facts establishing that Defendants Bergh, Lee, and Phillipson were personally
involved in the activity which forms the basis of his claim. The only roles that Defendants Bergh,
Lee, and Phillipson had in this action involve the denial of administrative grievances or the failure
to act. Defendants Bergh, Lee, and Phillipson cannot be liable for such conduct under § 1983.
Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999), cert. denied, 530 U.S. 1264 (2000).
Accordingly, the Court concludes that Plaintiff’s claims against Defendants Bergh, Lee, and
Phillipson are properly dismissed for lack of personal involvement.
As noted above, the court concludes that Plaintiff’s Eighth Amendment claims against
Defendant Sharrett for using racial slurs and touching him inappropriately during a pat down search
fail to state a claim, as do Plaintiff’s Eighth Amendment claims against Defendant Dejong and Feigel
for the denial of a single meal and of a shower. The court further notes that Defendants Bergh, Lee,
and Phillipson are entitled to dismissal for lack of personal involvement. However, for the reasons
stated by the court, Plaintiff’s Eighth Amendment claims against Defendants Sharrett and Dejong for
repeatedly denying Plaintiff toilet paper are non-frivolous and state a claim, as do Plaintiff’s
retaliation claims against Defendants Sharrett, Dejong, Fiegel and Belfry. Therefore, Defendants
Sharrett, Dejong, Fiegel and Belfry are not entitled to dismissal on these claims.
In light of the foregoing, Defendants’ motion to dismiss (docket #62) will be DENIED,
in part, and GRANTED, in part.
An Order consistent with this Opinion will be entered.
Dated: September 7, 2011
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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