Posner #718428 v. Larson et al

Filing 8

OPINION; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, sdb)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

ROBERT DALE POSNER,
Plaintiff,

Case No. 2:12-cv-427

v.

Honorable Robert Holmes Bell

UNKNOWN LARSON, et al.,
Defendants.
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OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
The Court has granted Plaintiff leave to proceed in forma pauperis without immediate payment of
an initial partial filing fee. Under the Prison Litigation Reform Act, PUB. L. NO. 104-134, 110 STAT.
1321 (1996), 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, Plaintiff’s action will be dismissed for failure to state a claim.

Discussion
I.

Factual allegations

Plaintiff Robert Dale Posner, a state prisoner confined at the Chippewa Correctional
Facility (URF), filed this civil rights action pursuant to 42 U.S.C. § 1983 against Defendants
Corrections Officer Unknown Larson, Corrections Officer Unknown Payment, Dr. Unknown
Brostowski, and Unknown Filion, R.N. In his handwritten complaint, which is somewhat garbled
and incoherent, Plaintiff alleges that he was placed in a suicide cell on Steamboat Unit on March 28,
2012, after “hearing voices.” Later that day, Plaintiff got into a fight with another inmate and was
given a misconduct ticket. In addition, Defendant Payment wrote a sexual misconduct on Plaintiff
and informed all the prisoners on D-wing that Plaintiff had been caught with “a dick in his head.”
Defendant Payment then looked at Plaintiff and said “Indians have little dicks.” As a result, Plaintiff
was sexually harassed by other inmates on D-wing. On March 29, 2012, Defendant Payment told
inmates on D-wing that Plaintiff had five charges of CSC and said that it was “5# on 5# or 5# on
1#.” All of D-wing began calling Plaintiff Choo-Moe-Blow. Defendant Payment subsequently got
inmates in Neebish unit to begin harassing Plaintiff as well. Plaintiff states that Defendants Larson
and Payment encouraged others to sexual harass, humiliate, and degrade Plaintiff, and engaged in
that behavior themselves.
Plaintiff also alleges that Defendants Brostowski and Filion negligently failed to
diagnose Plaintiff with a collapsed lung on April 2, 2012, and sent Plaintiff back to the suicide unit
where Plaintiff was engaging in a hunger strike. On April 3, 2012, Defendant Filion told the
Corrections Officer on Beemish Unit to bring Plaintiff down so that he could be evaluated for the
hunger strike and referred for a chest x-ray. Plaintiff remained in the suicide unit until April 4, 2012,
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on suicide watch and on a hunger strike. Plaintiff stayed on a hunger strike for 6 days in order to
ensure that he be sent to the hospital. Plaintiff states that he continues to suffer from difficulty
breathing and pain. Plaintiff seeks to file this lawsuit in order to prevent any other inmates from
being treated in this manner. Plaintiff seeks damages and injunctive relief.
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, 45-46 (1957)).
While a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include
more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”). The court must determine whether the complaint contains “enough
facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679.
Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – that
the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)); see also
Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility

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standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1)
and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right
secured by the federal Constitution or laws and must show that the deprivation was committed by
a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr.
Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating federal
rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify
the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).
As noted above, Plaintiff claims that Defendants Larson and Payment sexually
harassed him and encouraged other prisoners to do the same. “[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
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
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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); Berryhill v. Schriro, 137 F.3d 1073, 1075 (8th Cir. 1998) (where inmate
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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).
If true, the conduct of Defendants Payment and Larson toward Plaintiff was
reprehensible, but it does not rise to the level of an Eighth Amendment violation. Plaintiff does not
allege that Defendants Payment and Larson ever touched him or had form of physical contact with
him. Acts of verbal sexual harassment, standing alone, are insufficient to state a claim under the
Eighth Amendment. See Morales, 278 F.3d at 132; Zander, 1998 WL 384625, at *2. Therefore,
Plaintiff’s allegations fail to state an Eighth Amendment claim against Defendants Payment and
Larson.
Plaintiff also claims that the treatment he received from Defendants Brostowski and
Filion violated his Eighth Amendment rights. The Eighth Amendment prohibits the infliction of
cruel and unusual punishment against those convicted of crimes. U.S. Const. amend. VIII. The
Eighth Amendment obligates prison authorities to provide medical care to incarcerated individuals,
as a failure to provide such care would be inconsistent with contemporary standards of decency.
Estelle v. Gamble, 429 U.S. 102, 103-04 (1976). The Eighth Amendment is violated when a prison
official is deliberately indifferent to the serious medical needs of a prisoner. Id. at 104-05; Comstock
v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001).
A claim for the deprivation of adequate medical care has an objective and a subjective
component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To satisfy the objective component, the
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plaintiff must allege that the medical need at issue is sufficiently serious. Id. In other words, the
inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.
Id. The objective component of the adequate medical care test is satisfied “[w]here the seriousness
of a prisoner’s need[ ] for medical care is obvious even to a lay person.” Blackmore v. Kalamazoo
County, 390 F.3d 890, 899 (6th Cir. 2004). If, however the need involves “minor maladies or
non-obvious complaints of a serious need for medical care,” Blackmore, 390 F.3d at 898, the inmate
must “place verifying medical evidence in the record to establish the detrimental effect of the delay
in medical treatment.” Napier v. Madison County, 238 F.3d 739, 742 (6th Cir. 2001).
The subjective component requires an inmate to show that prison officials have “a
sufficiently culpable state of mind in denying medical care.” Brown v. Bargery, 207 F.3d 863, 867
(6th Cir. 2000) (citing Farmer, 511 U.S. at 834). Deliberate indifference “entails something more
than mere negligence,” Farmer, 511 U.S. at 835, but can be “satisfied by something less than acts
or omissions for the very purpose of causing harm or with knowledge that harm will result.” Id.
Under Farmer, “the official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837.
Not every claim by a prisoner that he has received inadequate medical treatment states
a violation of the Eighth Amendment. Estelle, 429 U.S. at 105. As the Supreme Court explained:
[A]n inadvertent failure to provide adequate medical care cannot be
said to constitute an unnecessary and wanton infliction of pain or to
be repugnant to the conscience of mankind. Thus, a complaint that
a physician has been negligent in diagnosing or treating a medical
condition does not state a valid claim of medical mistreatment under
the Eighth Amendment. Medical malpractice does not become a
constitutional violation merely because the victim is a prisoner. In
order to state a cognizable claim, a prisoner must allege acts or

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omissions sufficiently harmful to evidence deliberate indifference to
serious medical needs.
Estelle, 429 U.S. at 105-06 (quotations omitted). Thus, differences in judgment between an inmate
and prison medical personnel regarding the appropriate medical diagnoses or treatment are not
enough to state a deliberate indifference claim. Sanderfer v. Nichols, 62 F.3d 151, 154-55 (6th Cir.
1995); Ward v. Smith, No. 95-6666, 1996 WL 627724, at *1 (6th Cir. Oct. 29, 1996). This is so even
if the misdiagnosis results in an inadequate course of treatment and considerable suffering.
Gabehart v. Chapleau, No. 96-5050, 1997 WL 160322, at *2 (6th Cir. Apr. 4, 1997).
The Sixth Circuit distinguishes “between cases where the complaint alleges a
complete denial of medical care and those cases where the claim is that a prisoner received
inadequate medical treatment.” Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). In this
case, Plaintiff states that Defendants Brostowski and Filion were negligent in his diagnosis and
treatment. However, Plaintiff does not assert that he was subjected to a complete denial of treatment.
The court notes that Defendant Filion allegedly kept Plaintiff on suicide watch while he was engaged
in a hunger strike and referred Plaintiff for a chest x-ray. Where, as here, “a prisoner has received
some medical attention and the dispute is over the adequacy of the treatment, federal courts are
generally reluctant to second guess medical judgments and to constitutionalize claims which sound
in state tort law.” Id.; see also Perez v. Oakland County, 466 F.3d 416, 434 (6th Cir. 2006);
Kellerman v. Simpson, 258 F. App’x 720, 727 (6th Cir. 2007); McFarland v. Austin, 196 F. App’x
410 (6th Cir. 2006); Edmonds v. Horton, 113 F. App’x 62, 65 (6th Cir. 2004); Brock v. Crall, 8 F.
App’x 439, 440 (6th Cir. 2001); Berryman v. Rieger, 150 F.3d 561, 566 (6th Cir. 1998). Therefore,
the court will dismiss Plaintiff’s claims against Defendants Brostowski and Filion.

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Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s action will be dismissed for failure to state a claim pursuant to 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 v. Wrigglesworth, 114 F.3d 601, 611
(6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no
good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the
$455.00 appellate filing fee pursuant to § 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 § 1915(g).
If he is barred, he will be required to pay the $455.00 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: December 31, 2012

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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