Brown #251402 v. Woods et al
Filing
4
OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
MILTON BROWN,
Plaintiff,
v.
Case No. 2:14-cv-136
Honorable Gordon J. Quist
JEFFREY WOODS et al.,
Defendants.
______________________________/
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. 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, the Court will dismiss Plaintiff’s claims against all
of the Defendants, except for Plaintiff’s retaliation claims against Defendants Williams and
McDonald. Accordingly, the Court will order service of the complaint against Defendants Williams
and McDonald.
Factual Allegations
Plaintiff currently is incarcerated in the Carson City Correctional Facility, but the
events giving rise to his complaint occurred while he was incarcerated in the Chippewa and Alger
Correctional Facilities. In his pro se complaint, Plaintiff sues the following Chippewa employees:
Warden Jeffrey Woods; Corrections Officers (Unknown) Williams, (Unknown) Pawley, and
(Unknown) McDonald; Inspector (Unknown) Hubbard; Hearing Investigator John Doe; Resident
Unit Manager (Unknown) Mansfield; Acting Assistant Deputy Warden (Unknown) Bailey; and
Assistant Deputy Wardens (Unknown) Mackie and (Unknown) Horton. Plaintiff also sues the
following Alger employees: Assistant Deputy Warden (Unknown) Rutter, Captain (Unknown)
Taskila, Inspector (Unknown) Contreras, and Assistant Resident Unit Supervisor (Unknown)
Crumell. In addition, Plaintiff sues Michigan Department of Corrections (MDOC) Hearing Officer
Thomas Mohrman, MDOC Hearing Administrator Matt Young and MDOC Grievance Coordinator
John Doe.
Plaintiff alleges that on August 17, 2011, Defendant Taskila wrote a false Notice of
Intent (NOI) to classify Plaintiff to administrative segregation because Plaintiff allegedly had
attempted to poison Officer Hubble by putting something in the officer’s drink bottle. Plaintiff
denied the charge and urged Taskila to check the video from the security camera. Taskila allegedly
told Plaintiff that if the video showed that Plaintiff was innocent, he would not be placed in
segregation. However, Defendant Rutter told Plaintiff that he did not care what the video showed,
Rutter was not letting Plaintiff out of the “hole.” Plaintiff submitted questions to the hearing
investigator assigned to the NOI. The hearing on the NOI originally was scheduled for August 25,
2011, but was postponed.
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On August 25, Defendant Contreras wrote a Class II misconduct ticket against
Plaintiff for theft. Later that day, Defendant Crumell delivered the misconduct report to Plaintiff
and informed him that it had been elevated to a Class I charge.1 Crumell told Plaintiff that his
“boss” told him to elevate the charge to a Class I misconduct, but would not tell Plaintiff his bosses’
name. A hearing on the misconduct charge was held the following day by Defendant Mohrman.
Plaintiff’s request for a hearing investigator was denied and Defendant Mohrman denied Plaintiff’s
request to call witnesses before finding Plaintiff guilty of the charge. At the hearing, Plaintiff
learned that the NOI to place him in segregation had been dismissed. He contends that the
misconduct charge was improperly elevated to Class I in order to keep him in segregation. Plaintiff
further claims that Defendant Young denied him the right to call witnesses on June 6, 2012,
presumably in connection with Plaintiff’s motion for a rehearing on the misconduct conviction.
On November 21, 2011, after Plaintiff had returned to the general population, he
asked Defendants Mansfield and Horton for protection because he feared being assaulted by other
prisoners in the general population. Mansfield and Horton denied his request and Plaintiff wrote
a grievance against them. Plaintiff renewed his request the following day with Defendant Bailey,
who also refused to transfer him to protective custody. On November 29 or 30, Plaintiff made
another request for protection, but Defendants Bailey and Thompson denied his request and ordered
him to return to the general population. Plaintiff refused the orders because he did not want to risk
being assaulted. As a result, Plaintiff allegedly received three Class I misconduct tickets for
disobeying a direct order.
1
Under Michigan Department of Corrections Policy Directive 03.03.105, ¶ B, a Class I misconduct is a “major”
misconduct and Class II and III misconducts are “minor” misconducts. The policy further provides that prisoners are
deprived of good time or disciplinary credits only when they are found guilty of a Class I misconduct. (See Policy
Directive 03.03.105, ¶ AAAA).
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Plaintiff alleges that on December 20, 2011, Defendant Pawley told nurse Amy that
Plaintiff wanted Pawley to see his (Plaintiff’s) penis. Plaintiff contends that Pawley’s statement was
intended to degrade and harass Plaintiff. According to Plaintiff, Defendants Pawley, Williams and
McDonald repeatedly harassed him and treated him in a degrading manner. Plaintiff wrote several
grievances against the officers on January 8 and 9, 2012, and complained to their supervisor,
Defendant Mansfield. After Plaintiff filed two grievances against Defendant Pawley, Pawley came
to Plaintiff’s cell and said (verbatim), “keep kiting cup cake its not gone help you, just like nobody
gone be able to help you if you ever go to Round Unit I will be waiting.” (Compl., docket #1, Page
ID#9.) Later that evening, Pawley made reference to Plaintiff’s prior convictions for criminal sexual
conduct (CSC). Plaintiff also wrote a grievance against Mansfield for failing to take corrective
action after Pawley read Plaintiff’s file and then talked loudly in the unit about the fact that Plaintiff
had two CSC convictions. Plaintiff further claims that on April 21, 2012, Defendant Pawley took
all of the personal property that Plaintiff had in segregation. When Plaintiff got his duffel bag back,
all of the property that Pawley had confiscated was gone.
Plaintiff claims that on January 20, 2012, Defendants Williams and McDonald called
him a “baby raper” and Williams said, “[Y]eah I got something for him anyway he like to write
grievances.” (Compl. ¶ 30.) At approximately 3:00 p.m., Defendants Williams and McDonald
“trashed” Plaintiff’s cell and ripped up some of Plaintiff’s photos. Later that afternoon, Defendant
Williams refused to give Plaintiff his food tray. Plaintiff contends that Williams’ conduct was
retaliation for the grievance Plaintiff filed on January 8. Plaintiff filed a grievance against Williams,
which was denied at Step I by ARUS Deary.2 It appears from Plaintiff’s allegations that Defendant
2
Deary is not named as a Defendant in this action.
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Mackie denied the Step II appeal. Plaintiff further claims that Defendant Mackie failed to interview
him regarding a grievance he filed against Williams and simply adopted Williams’ version of the
events. The John Doe MDOC Grievance Coordinator denied Plaintiff’s Step III appeal.
On January 21, 2012, Plaintiff received a misconduct ticket from Defendant Williams
for possession of a weapon. Williams claimed that Plaintiff had a 9" piece of metal in his coat.
Plaintiff alleges that he was denied a hearings investigation on the charge. Plaintiff alleges that on
January 23, Defendant McDonald came to his cell and said (verbatim), “[Y]ou’re next in the
observation cell I see the knife wasn’t enough for you and don’t worry about eating tonight because
you won’t.” (Compl. ¶ 33.) True to his word, Williams did not give Plaintiff a dinner tray that
evening. Then, on January 30, 2012, Williams said to Plaintiff, “I thought you said you were going
home Brown,” to which Plaintiff responded, “F*** you.” (Compl. ¶ 39.) As Williams walked away,
he said, “[L]ast time you said you didn’t care you were going home but I guess you not gone make
it now with a weapon, all you had to do was keep your mouth shut.” (Id.) As a result of the
weapons conviction, Plaintiff claims that he received a 12-month continuance from the parole board
in February 2012.
Plaintiff claims that on February 1, 2012, he was placed on “no out of cell
movement” in retaliation for his grievances, although prison officials claimed that the cell
confinement was imposed as a result of the January 20 weapons misconduct and a January 30, 2012
misconduct charge for threatening behavior. On February 10, 2012, McDonald allegedly stated
(verbatim), “Aye, what’s up Brown how are your grievances turning out, I thought you wanted to
f*** me up, your slot was just open for laundry, you just all talk coward keep writing your
grievances they not gone get you no where spell my name right.” (Compl ¶ 47.) Plaintiff maintains
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that Defendants Williams and McDonald repeatedly harassed him and brought false misconduct
charges against him in retaliation for his grievances against them.
Plaintiff contends that Defendant Woods routinely denied his Step II grievance
appeals without interviewing Plaintiff or conducting an investigation. Plaintiff also claims that
Defendants Woods and Hubbard failed to conduct a prompt and thorough investigation of Plaintiff’s
complaints and grievances. Likewise, Plaintiff alleges that the John Doe MDOC Grievance
Coordinator routinely denied his Step III grievance appeals.
Plaintiff seeks punitive and compensatory damages of $500,000.00.
Discussion
I.
Immunity
Plaintiff sues Hearings Officer Mohrman and Hearings Administrator Young for
allegedly denying his right to call witnesses in misconduct proceedings. Generally, a judge is
absolutely immune from a suit for monetary damages. Mireles v. Waco, 502 U.S. 9, 9-10 (1991).
The Sixth Circuit, recognizing that a Michigan hearings officer has adjudicatory functions spelled
out by statute in the nature of an administrative law judge, has held that hearings officers are entitled
to absolute judicial immunity from damages in relation to actions within the officer’s authority.
Shelly v. Johnson, 849 F.2d 228, 229 (6th Cir. 1988); MICH . COMP . LAWS §§ 791.251-255. See also
Williams v. McGinnis, Nos. 02-1336, 02-1837, 2003 WL 245352, at *2 (6th Cir. Jan. 31, 2003)
(recognizing that Michigan’s prison hearings officers are entitled to absolute immunity); Thompson
v. Mich. Dep’t of Corr., No. 01-1943, 2002 WL 22011, at *1 (6th Cir. Jan. 2, 2002) (same); Gribble
v. Bass, No. 93-5413, 1993 WL 524022, at *2 (6th Cir. Dec. 16, 1993) (same). Because Plaintiff’s
claims against Defendants Mohrman and Young arise from actions taken in their capacities as
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hearings officers, they are absolutely immune from suit for damages in this case. Accordingly, they
must be dismissed from this action.
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. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.”). The court must determine whether the complaint contains “enough facts to state
a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679. Although
the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for more than
a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – that the
pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting FED . R. CIV . P. 8(a)(2)); see also Hill
v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility
standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1)
and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a
right secured by the federal Constitution or laws and must show that the deprivation was committed
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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).
A.
Defendant John Doe Grievance Coordinator
Plaintiff sues the “John Doe” MDOC Grievance Coordinator for denying his Step III
grievance appeals. Plaintiff has no due process right to file a prison grievance. The Sixth Circuit
and other circuit courts have held that there is no constitutionally protected due process right to an
effective prison grievance procedure. Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 445 (6th
Cir. 2005); Argue v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003); Young v. Gundy, 30 F. App’x
568, 569-70 (6th Cir. 2002); Carpenter v. Wilkinson, No. 99-3562, 2000 WL 190054, at *2 (6th Cir.
Feb. 7, 2000); see also Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Adams v. Rice, 40
F.3d 72, 75 (4th Cir. 1994). Michigan law does not create a liberty interest in the grievance
procedure. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983); Keenan v. Marker, 23 F. App’x 405,
407 (6th Cir. 2001); Wynn v. Wolf, No. 93-2411, 1994 WL 105907, at *1 (6th Cir. Mar. 28, 1994).
Because Plaintiff has no liberty interest in the grievance process, Defendant’s conduct did not
deprive him of due process. Consequently, the John Doe MDOC Grievance Coordinator will be
dismissed.
B.
Defendants Woods, Hubbard and Mackie
Plaintiff fails to make any specific factual allegations against Defendant Warden
Woods, other than his claims that Woods denied his Step II grievance appeals without conducting
a prompt and thorough investigation. He also alleges that Defendants Woods and Hubbard “failed
to perform their duties” after Plaintiff sent them kites and grievances concerning the unconstitutional
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conduct of Defendants Williams and McDonald. (Compl., Page ID#14.) Plaintiff further claims
that Defendant Mackie failed to interview him regarding a grievance he filed against Williams and
simply adopted Williams’ version of the events.
Government officials may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior or vicarious liability. Iqbal, 556 U.S. at 676;
Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691(1978); Everson v. Leis, 556 F.3d
484, 495 (6th Cir. 2009).
A claimed constitutional violation must be based upon active
unconstitutional behavior. Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008); Greene v. Barber,
310 F.3d 889, 899 (6th Cir. 2002). The acts of one’s subordinates are not enough, nor can
supervisory liability be based upon the mere failure to act. Grinter, 532 F.3d at 575; Greene, 310
F.3d at 899; Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004). Moreover, § 1983 liability may
not be imposed simply because a supervisor denied an administrative grievance or failed to act based
upon information contained in a grievance. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.
1999). “[A] plaintiff must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. Plaintiff has failed to
allege that Defendants Woods, Hubbard, or Mackie engaged in any active unconstitutional behavior.
Because Plaintiff fails to state a claim against Woods, Hubbard or Mackie, they must be dismissed
from this action.
C.
Defendants Taskila and Rutter
Plaintiff alleges that Defendant Taskila wrote a false NOI to classify Plaintiff to
administrative segregation for allegedly attempting to poison Officer Hubble by putting something
in the officer’s drink bottle. Plaintiff further claims that Defendant Rutter told Plaintiff that he did
not care what the video evidence showed, Rutter was not letting Plaintiff out of the “hole.”
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Plaintiff’s allegations against Defendants Taskila and Rutter implicate the Due
Process Clause. The Supreme Court long has held that the Due Process Clause does not protect
every change in the conditions of confinement having an impact on a prisoner. See Meachum v.
Fano, 427 U.S. 215, 225 (1976). In Sandin v. Conner, 515 U.S. 472, 484 (1995), the Court set forth
the standard for determining when a prisoner’s loss of liberty implicates a federally cognizable
liberty interest protected by the Due Process Clause. According to the Sandin Court, a prisoner is
entitled to the protections of due process only when a deprivation “will inevitably affect the duration
of his sentence” or imposes an “atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Sandin, 515 U.S. at 486-87; see also Jones v. Baker, 155 F.3d
810, 812 (6th Cir. 1998); Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir. 1995).
Confinement in administrative 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, 467-73 (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 mere placement in administrative
segregation, and placement for a relatively short period of time, do not require the protections of due
process. Rimmer-Bey, 62 F.3d at 790-91; see Joseph, 410 F. App’x at 868 (61 days in segregation
is not atypical and significant). The Sixth Circuit has also held, in specific circumstances, that
confinement in segregation for a relatively long period of time does not implicate a liberty interest.
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See, e.g., Baker, 155 F.3d at 812-23 (two years of segregation while the inmate was investigated for
the murder of a prison guard in a riot); Mackey v. Dyke, 111 F.3d 460 (6th Cir.1997) (one year of
segregation following convictions for possession of illegal contraband and assault, including a 117day delay in reclassification due to prison crowding). But cf. Selby v. Caruso, 734 F.3d 554, 559
(6th Cir. 2013) (13 years of segregation implicates a liberty interest); Harden-Bey, 524 F.3d at 795
(remanding to the district court to consider whether the plaintiff's allegedly “indefinite” period of
segregation, i.e., three years without an explanation from prison officials, implicates a liberty
interest); Harris v. Caruso, 465 F. App’x 481, 484 (6th Cir. 2012) (eight years of segregation
implicates a liberty interest).
In this case, Plaintiff never was placed in segregation on the NOI because it was
dismissed. Even if he had been transferred to segregation as a result of the NOI, he does not allege
how his placement imposed an atypical and significant hardship. See Sandin, 515 U.S. at 484.
Plaintiff, therefore, fails to state a claim against Defendants Taskila and Rutter. Consequently,
Defendants Taskila and Rutter also will be dismissed from this action.
D.
Defendants Crumell and Contreras
Plaintiff suggests that Defendants Contreras and Crumell were involved in a plot to
falsely charge and convict him of a Class I misconduct for theft in order to keep him in segregation.
A prisoner’s ability to challenge a prison misconduct conviction depends on whether the conviction
implicated any liberty interest. In the seminal case in this area, Wolff v. McDonnell, 418 U.S. 539
(1974), the Court prescribed certain minimal procedural safeguards that prison officials must follow
before depriving a prisoner of good-time credits on account of alleged misbehavior. The Wolff
Court did not create a free-floating right to process that attaches to all prison disciplinary
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proceedings; rather the right to process arises only when the prisoner faces a loss of liberty, in the
form of a longer prison sentence caused by forfeiture of good-time credits:
It is true that the Constitution itself does not guarantee good-time credit for
satisfactory behavior while in prison. But here the State itself has not only provided
a statutory right to good time but also specifies that it is to be forfeited only for
serious misbehavior. Nebraska may have the authority to create, or not, a right to a
shortened prison sentence through the accumulation of credits for good behavior, and
it is true that the Due Process Clause does not require a hearing “in every
conceivable case of government impairment of private interest.” But the State
having created the right to good time and itself recognizing that its deprivation is a
sanction authorized for major misconduct, the prisoner’s interest has real substance
and is sufficiently embraced within Fourteenth Amendment “liberty” to entitle him
to those minimum procedures appropriate under the circumstances and required by
the Due Process Clause to insure that the state-created right is not arbitrarily
abrogated.
Wolff, 418 U.S. at 557 (citations omitted).
Plaintiff does not allege that his major misconduct convictions resulted in any loss
of good-time credits, nor could he. The Sixth Circuit has examined Michigan statutory law, as it
relates to the creation and forfeiture of disciplinary credits3 for prisoners convicted of crimes
occurring after April 1, 1987. In Thomas v. Eby, 481 F.3d 434 (6th Cir. 2007), the court determined
that loss of disciplinary credits does not necessarily affect the duration of a prisoner’s sentence.
Rather, it merely affects parole eligibility, which remains discretionary with the parole board. Id.
at 440. Building on this ruling, in Nali v. Ekman, 355 F. App’x 909 (6th Cir. 2009), the court held
that a misconduct citation in the Michigan prison system does not affect a prisoner’s constitutionally
protected liberty interests, because it does not necessarily affect the length of confinement. 355 F.
App’x at 912; accord, Taylor v. Lantagne, 418 F. App’x 408, 412 (6th Cir. 2011); Wilson v.
Rapelje, No. 09-13030, 2010 WL 5491196, at *4 (E.D. Mich. Nov. 24, 2010) (Report &
Recommendation) (holding that “plaintiff’s disciplinary hearing and major misconduct sanction
3
For crimes committed after April 1, 1987, Michigan prisoners earn “disciplinary credits” under a statute that abolished
the former good-time system. M IC H . C O M P . L AW S § 800.33(5).
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does not implicate the Fourteenth Amendment Due Process Clause”), adopted as judgment of court,
2011 WL 5491196 (Jan. 4, 2011). In the absence of a demonstrated liberty interest, Plaintiff has no
due-process claim based on the loss of disciplinary credits. See Bell v. Anderson, 301 F. App’x 459,
461-62 (6th Cir. 2008).
Even in the absence of a protectible liberty interest in disciplinary credits, a prisoner
may be able to raise a due-process challenge to prison misconduct convictions that result in a
significant, atypical deprivation. See Sandin, 515 U.S. at 484. Plaintiff has not identified any
significant deprivation arising from his convictions. As previously discussed, Plaintiff’s placement
in segregation as a result of the misconduct convictions does not impose an atypical and significant
hardship. Id. Unless a prison misconduct conviction results in an extension of the duration of a
prisoner’s sentence or some other atypical hardship, a due-process claim fails. See Ingram v. Jewell,
94 F. App’x 271, 273 (6th Cir. 2004). Because Plaintiff fails to state a due process claim arising
from the misconduct conviction, Defendants Crumell and Contreras must be dismissed.
E.
Defendants Mansfield, Horton, Bailey & Thompson
Plaintiff claims that in November 2011, after he was returned to the general
population, he made several requests for protection because he feared being assaulted by other
prisoners in the general population, but his requests were denied by Defendants Mansfield, Horton,
Bailey and Thompson. Plaintiff refused the orders because he did not want to risk being assaulted
in the general population. As a result, he received three Class I misconduct tickets for disobeying
a direct order. Plaintiff further claims that Defendant Mansfield failed to take corrective action after
Plaintiff complained about the conduct of Defendants Pawley, Williams and McDonald.
In order to establish liability under the Eighth Amendment for a prison official’s
failure to protect her, an inmate must demonstrate that the official was deliberately indifferent “to
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a substantial risk of serious harm” to the inmate. Farmer v. Brennan, 511 U.S. 825, 834 (1994);
Helling v. McKinney, 509 U.S. 25, 32 (1993); see also Greene v. Bowles, 361 F.3d 290, 294 (6th Cir.
2004); Curry v. Scott, 249 F.3d 493, 506 (6th Cir. 2001); Woods v. Lecureux, 110 F.3d 1215, 1222
(6th Cir. 1997). To demonstrate deliberate indifference, an inmate must present evidence from
which a trier of fact could conclude “that the official was subjectively aware of the risk” and
“disregard [ed] that risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at
829. While Plaintiff generally asserts that he sought placement in protective custody because he
feared assault by other prisoners, he does not make any allegations about a specific threat of assault
that he disclosed to Defendants Mansfield, Horton, Bailey and Thompson. In the absence of specific
factual allegations regarding the alleged danger that Plaintiff faced in the general population, this
Court cannot find that Defendants were deliberately indifferent to a substantial risk of serious harm.
See Thompson v. Cnty. of Medina, Ohio, 29 F.3d 238, 242-43 (6th Cir. 1994) (holding that the
plaintiff has the minimal burden of “showing a sufficient inferential connection” between the alleged
violation and inmate violence to “justify a reasonable fear for personal safety.”) Plaintiff, therefore,
fails to state a claim against Defendants for denying his requests for placement in protective custody.
Plaintiff’s allegations further suggest that Defendants violated his due process rights
by bringing three Class I misconduct charges against Plaintiff for disobeying their orders to return
to the general population. As previously discussed, Plaintiff does not have a liberty interest in the
misconduct proceedings because the conviction(s) did not result in the loss of good-time credits.
See Thomas, 481 U.S. at 434. Moreover, Plaintiff has not identified any significant deprivation
arising from his conviction(s). See Sandin, 515 U.S. at 472; Ingraham, 94 F. App’x 273. Plaintiff,
therefore, fails to state a due process claim arising from the misconduct convictions.
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Plaintiff also contends that Defendant Mansfield failed to take corrective action after
Plaintiff complained about the conduct of his subordinates. As the Court held above, a supervisor
may not be held liable for the unconstitutional conduct of his subordinates under a theory of
respondeat superior or vicarious liability. Iqbal, 556 U.S. at 676. The acts of one’s subordinates
are not enough, nor can supervisory liability be based upon the mere failure to act. Grinter, 532
F.3d at 575; Greene, 310 F.3d at 899. Plaintiff has failed to allege that Defendant Mansfield
engaged in any active unconstitutional behavior. Consequently, he fails to state a claim against
Defendant Mansfield.
In summary, Plaintiff fails to state a claim against Defendants Mansfield, Horton,
Bailey and Thompson. Thus, they must be dismissed from this action.
F.
Defendant Pawley
Plaintiff alleges that Defendant Pawley repeatedly harassed him and treated him in
a degrading manner, including an incident when he told nurse Amy that Plaintiff wanted Pawley to
see his (Plaintiff’s) penis. 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. 96-1282, 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
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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 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.”)
Moreover, circuit courts consistently have held that sexual harassment, absent contact
or touching, does not satisfy the objective requirement for an Eighth Amendment claim 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. 991277EA, 2000 WL 268493, at *1 (8th Cir. Mar. 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
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appearance, transsexualism, and presumed sexual preference cannot state an Eighth Amendment
claim). Some courts have held that even minor, isolated incidents of sexual touching coupled with
offensive sexual remarks 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) (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). Consequently,
Pawley’s alleged verbal harassment fails to state an Eighth Amendment claim.
Plaintiff also suggests that Defendant Pawley put him in danger by referring to
Plaintiff’s CSC convictions in the housing unit where other prisoners could hear him. The Eighth
Amendment protects an inmate from prison officials’ deliberate indifference to a substantial risk of
serious harm to that inmate. Farmer, 511 U.S. at 834; Helling v. McKinney, 509 U.S. 25, 32 (1993);
Woods, 110 F.3d at 1222. Plaintiff does not allege that he was threatened, attacked or subjected to
any risk of harm as a result of Pawley’s alleged conduct. Thus, Plaintiff’s allegation is insufficient
to state an Eighth Amendment claim.
Plaintiff further claims that Defendant Pawley made the following threat in retaliation
for Plaintiff’s grievances against him, “keep kiting cup cake its not gone help you, just like nobody
gone be able to help you if you ever go to Round Unit I will be waiting.” (Compl. Page ID#9.)
Retaliation based upon a prisoner’s exercise of his or her constitutional rights violates the
Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). In order to
set forth a First Amendment retaliation claim, a plaintiff must establish that: (1) he was engaged
in protected conduct; (2) an adverse action was taken against him that would deter a person of
ordinary firmness from engaging in that conduct; and (3) the adverse action was motivated, at least
in part, by the protected conduct. Id. Moreover, a plaintiff must be able to prove that the exercise
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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)).
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). With regard to the second requirement, a specific threat of harm may satisfy the adverseaction requirement if it would deter a person of ordinary firmness from exercising his or her First
Amendment rights, see, e.g., Thaddeus-X, 175 F.3d at 396, 398 (threat of physical harm); Smith v.
Yarrow, 78 F. App’x 529, 542 (6th Cir. 2003) (threat to change drug test results). However, certain
threats or deprivations are so vague or de minimis that they do not rise to the level of being
constitutional violations. Thaddeus-X, 175 F.3d at 398; Smith, 78 F. App’x at 542. In this case,
Defendant Pawley’s threat was vague and contingent on Plaintiff’s transfer to Round Unit, which
never occurred. In the absence of a more specific threat, Plaintiff fails to allege the sort of adverse
action that would support a retaliation claim against Pawley.
Plaintiff also contends that Pawley improperly seized and disposed of his personal
property, which implicates the Due Process Clause. However, Plaintiff’s due process claim is barred
by the doctrine of Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part by Daniels v. Williams,
474 U.S. 327 (1986). Under Parratt, a person deprived of property by a “random and unauthorized
act” of a state employee has no federal due process claim unless the state fails to afford an adequate
post-deprivation remedy. If an adequate post-deprivation remedy exists, the deprivation, although
real, is not “without due process of law.” Parratt, 451 U.S. at 537. This rule applies to both
negligent and intentional deprivation of property, as long as the deprivation was not done pursuant
to an established state procedure. See Hudson v. Palmer, 468 U.S. 517, 530-36 (1984). Because
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Plaintiff’s claim is premised upon allegedly unauthorized acts of a state official, he must plead and
prove the inadequacy of state post-deprivation remedies. See Copeland v. Machulis, 57 F.3d 476,
479-80 (6th Cir. 1995); Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir. 1993). Under settled Sixth
Circuit authority, a prisoner’s failure to sustain this burden requires dismissal of his § 1983 dueprocess action. See Brooks v. Dutton, 751 F.2d 197 (6th Cir. 1985).
Plaintiff has not sustained his burden in this case. Plaintiff has not alleged that state
post-deprivation remedies are inadequate. Moreover, numerous state post-deprivation remedies are
available to him. First, a prisoner who incurs a loss through no fault of his own may petition the
institution’s Prisoner Benefit Fund for compensation. MICH . DEP ’T
OF
CORR., Policy Directive
04.07.112, ¶ B (effective Dec. 12, 2013). Aggrieved prisoners may also submit claims for property
loss of less than $1,000 to the State Administrative Board. MICH . COMP . LAWS § 600.6419; MDOC
Policy Directive 03.02.131 (effective Oct. 21, 2013). Alternatively, Michigan law authorizes actions
in the Court of Claims asserting tort or contract claims “against the state and any of its departments,
commissions, boards, institutions, arms, or agencies.” MICH . COMP. LAWS § 600.6419(1)(a). The
Sixth Circuit specifically has held that Michigan provides adequate post-deprivation remedies for
deprivation of property. See Copeland, 57 F.3d at 480. Plaintiff does not allege any reason why a
state-court action would not afford him complete relief for the deprivation, either negligent or
intentional, of his personal property. Accordingly, Defendant Pawley will be dismissed from this
action for failure to state a claim.
G.
Defendants Williams, McDonald and John Doe Hearings Investigator
Plaintiff maintains that Defendants Williams and McDonald repeatedly harassed him
and took various actions against him in retaliation for Plaintiff’s grievances against them, including
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a false misconduct charge for possession of a weapon. In addition, Plaintiff alleges that the John
Doe Hearing Investigator failed to properly investigate the charge.
As discussed above, verbal harassment does not rise to the level of an Eighth
Amendment violation. See Ivey, 832 F.2d at 954-55; Johnson, 357 F.3d at 546. Moreover, Plaintiff
cannot sustain a due process clause against Defendants Williams, McDonald or the John Doe
Hearings Investigator with regard to the misconduct charge for possession of a weapon because he
does not have a liberty interest in the misconduct proceedings. See Thomas, 481 U.S. at 434.
Moreover, Plaintiff has not identified any significant deprivation arising from his convictions. See
Sandin, 515 U.S. at 472; Ingraham, 94 F. App’x 273. Because Plaintiff does not make any further
allegations against the John Doe Hearings Investigator, he will be dismissed from this action for
failure to state a claim. However, the Court finds that Plaintiff states one or more retaliation claims
against Defendants Williams and McDonald.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s claims against all of the Defendants 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), except for
Plaintiff’s retaliation claims against Defendants Williams and McDonald. Consequently, the Court
will serve the complaint against Defendants Williams and McDonald.
An Order consistent with this Opinion will be entered.
Dated: November 18, 2014
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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