Dallas #314685 v. Chippewa Correctional Facility et al

Filing 16

OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
______
LAWRENCE DALLAS,
Plaintiff,

Case No. 2:17-cv-198

v.

Honorable Paul L. Maloney

CHIPPEWA CORRECTIONAL FACILITY
et al.,
Defendants.

____________________________/
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983.
Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), the
Court is required to dismiss any prisoner action brought under federal law if the complaint is
frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary
relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C.
§ 1997e(c). The Court must read Plaintiff’s pro se complaint indulgently, see Haines v. Kerner,
404 U.S. 519, 520 (1972), and accept Plaintiff’s allegations as true, unless they are clearly
irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these
standards, the Court will dismiss Plaintiff’s complaint for failure to state a claim against
Defendants Chippewa Correctional Facility (URF), O’Brien, McLean, Meehan, Rosso, Pecock,
Watkins, Durant, Deputy Warden Unknown Party #1, Balbierz, and Greenleaf. The Court will
serve the complaint against Defendants Davidson, Conners, and Koshela.

Discussion
I.

Factual allegations

Plaintiff is presently incarcerated with the Michigan Department of Corrections
(MDOC) at the Oaks Correctional Facility (ECF) in Manistee, Manistee County, Michigan. The
events about which he complains, however, occurred at the Chippewa Correctional Facility (URF)
in Kincheloe, Chippewa County, Michigan. According to Plaintiff’s complaint and supplemental
pleadings (ECF Nos. 1, 9, and 11), Plaintiff sues the Chippewa Correctional Facility, Hearing
Officer Unknown O’Brien, Grievance Coordinator M. McLean, Corrections Officer Unknown
Meehan, Corrections Officer Unknown Rosso, Corrections Officer Unknown Pecock, Sergeant
Unknown Davidson, Corrections Officer Unknown Conners, Corrections Officer Unknown
Koshela, Lieutenant Unknown Watkins, and Hearings Investigator Unknown Durant. Plaintiff
also names Deputy Warden Unknown Party, Corrections Officer Balbierz, and Corrections Officer
Greenleaf as Defendants.
Plaintiff alleges that he suffers from dyslexia, depression, and OCD, so that writing
complaints and pleadings is difficult for him. Plaintiff states that he arrived at URF on September
14, 2016. While Plaintiff was eating a sandwich for dinner in the chowhall, he noticed that
corrections officers were clearing up the trays, so he decided to finish eating his sandwich while
walking back to his unit. One of the corrections officers told Plaintiff to throw the sandwich away,
and Plaintiff complied but concedes that he had a “little bit of an attitude.” Defendant Davidson
told Plaintiff to go to the control center. Plaintiff told Defendant Davidson that he was making a
big deal out of nothing and Defendant Davidson responded by having Plaintiff handcuffed and
taken to segregation. Plaintiff received a misconduct for threatening behavior, which falsely stated
that Plaintiff had threatened to make the situation a big deal and that his veins had been sticking

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out in his neck. Plaintiff later discovered that there was no video of the incident, which Plaintiff
claims requires dismissal of the misconduct. Plaintiff claims that this was the beginning of a
campaign of harassment against him and that he received 40 tickets in a period of 9 months.
Plaintiff states that he received tickets for behavior that might warrant a warning under normal
conditions, such as using the bathroom without permission at 3:00 a.m.
Following the sandwich incident, Plaintiff was denied use of the bathroom on more
than one occasion, telling Plaintiff to pee his pants. Defendant Watkins told Plaintiff that he would
be on level 4 or in segregation soon, and that he told new prison employees the same thing.
Plaintiff alleges that on November 18, 2016, he got a ticket for getting a tattoo and received a more
severe punishment than the prisoner who gave him the tattoo, despite the fact that the other prisoner
was already on non-bond status. Plaintiff claims that Defendant O’Brien is responsible for the
inequitable punishment. Plaintiff received out of place tickets on November 16, 18, 24, 25, and
30, and also on December 3, 6, and 8 of 2016. In addition, Plaintiff received a ticket for the
violation of a posted rule on November 25, 2016. On December 8, 2016, Plaintiff received a ticket
for insolence after he was prevented from using the phone to call his girlfriend. On one occasion,
while Defendant Rosso was searching his cell, Plaintiff saw trash in the hallway and threw it away
in order to be helpful. Defendant Rosso told Plaintiff that he had not had permission to throw the
trash away and gave him a ticket. Plaintiff also received an out of place ticket for sitting on his
bunk and having one foot on his chair during count. Plaintiff became depressed and frustrated and
began cutting himself.
At one point, Defendant Davidson came to the unit and told Plaintiff that he had
three tickets to review with him. Plaintiff told him that he could not take it any longer and to just
take him to the hole. Plaintiff states that he was disappointed and depressed, but not angry or

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combative. Defendant Davidson told Defendants Conners and Koshela to cuff Plaintiff up and
take him to the hole. As they were walking toward segregation, Plaintiff stated that the cuffs were
too tight and asked to have them loosened. The officers told Plaintiff to stop resisting, and Plaintiff
stated, “I am not resisting. Loosen the cuffs.” Defendants Conners and Koshela then threw
Plaintiff face down onto the pavement, stating that Plaintiff should have stopped resisting. Plaintiff
claims that the use of force was completely unnecessary and that, as a result, he suffers from
permanent scarring around one eye and tinnitus. Plaintiff received a ticket for assault and resisting.
Since that incident, Plaintiff has tried to commit suicide twice and was placed in
inpatient treatment at a mental health facility for 30 days. After his release, Plaintiff was enrolled
in an outpatient program. Plaintiff got into a fight while in the mental health program and was
released from the program and returned to URF. Once Plaintiff arrived at URF, Defendant
Davidson immediately began talking about Plaintiff to other prison staff, including Defendants
Meehan, Balbierz, and Greenleaf, and Plaintiff began to receive misconduct tickets from these
individuals.
On June 10, 2017, Plaintiff received misconduct tickets for being in the “red box”
near the phone, for being on the phone, and for insolence. The ticket states that Plaintiff was
warned about the red box several times, but Plaintiff was only warned once. Plaintiff states that
he was on a break from sanctions when he attempted to phone his girlfriend. Defendant Balbierz
told Plaintiff he was going to give him a ticket and Plaintiff “lost it” and gave Defendant Balbierz
“the finger” and told him to “fuck off.” Plaintiff claims that according to MDOC policy, he should
have been able to use the phone while on a break from sanctions and on holidays, and that he is
able to do so at ECF. Plaintiff asserts that Defendant Balbierz turned off his phone access in
violation of his First, Eighth, and Fourteenth Amendment rights. Plaintiff claims that officers at

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URF engage in a practice of writing numerous misconduct tickets on prisoners, which results in
an increased security level, and that Defendant Deputy Warden has failed to take corrective action
on this issue. Plaintiff claims that he was unable to obtain relief through the grievance procedure,
which is the responsibility of Defendant McLean.
Plaintiff claims that Defendants violated his rights under the First, Eighth, and
Fourteenth Amendments, as well as under state law. Plaintiff seeks compensatory, punitive, and
nominal damages.
II.

Failure to state a claim

A complaint may be dismissed for failure to state a claim if it fails “‘to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While
a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include
more than labels and conclusions. 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.

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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
by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr.
Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating
federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to
identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271
(1994).
Plaintiff’s complaint seeks compensatory and punitive damages from URF. An
express requirement of 42 U.S.C. § 1983 is that the defendant be a “person.” See Monell v. Dep’t
of Social Servs., 436 U.S. 658 (1978). URF is an administrative unit of the Michigan Department
of Corrections. Neither a prison nor a state corrections department is a “person” within the
meaning of section 1983.

Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989).

Furthermore, Plaintiff’s claim against this Defendant is barred by the Eleventh Amendment.
Alabama v. Pugh, 438 U.S. 781, 782 (1978). That amendment prohibits suits in federal court
against the state or any of its agencies or departments. Pennhurst State School & Hosp. v.
Haldermann, 465 U.S. 89, 100 (1984). A state’s Eleventh Amendment immunity is in the nature
of a jurisdictional defense and may be raised on the court’s own motion. Estate of Ritter v.
University of Michigan, 851 F.2d 846, 851 (6th Cir. 1988). The Supreme Court has squarely held
that the Eleventh Amendment bars federal suits against state departments of corrections. Alabama

6

v. Pugh, 438 U.S. 781, 782 (1978) (per curiam). URF is therefore not subject to a section 1983
action.
The Court notes that Defendant O’Brien is a hearing officer whose duties are set
forth at Mich. Comp. Laws § 791.251 through § 791.255. Hearing officers are required to be
attorneys and are under the direction and supervision of a special hearing division in the Michigan
Department of Corrections. See Mich. Comp. Laws § 791.251(e)(6). Their adjudicatory functions
are set out in the statute, and their decisions must be in writing and must include findings of facts
and, where appropriate, the sanction imposed. See Mich. Comp. Laws § 791.252(k). There are
provisions for rehearings, see Mich. Comp. Laws § 791.254, as well as for judicial review in the
Michigan courts. See Mich. Comp. Laws § 791.255(2). Accordingly, the Sixth Circuit has held
that Michigan hearing officers are professionals in the nature of administrative law judges. See
Shelly v. Johnson, 849 F.2d 228, 230 (6th Cir. 1988). As such, they are entitled to absolute judicial
immunity from inmates’ § 1983 suits for actions taken in their capacities as hearing officers. Id.;
and see Barber v. Overton, 496 F.3d 449, 452 (6th Cir. 2007); Dixon v. Clem, 492 F.3d 665, 674
(6th Cir. 2007); cf. Pierson v. Ray, 386 U.S. 547, 554-55 (1967) (judicial immunity applies to
actions under § 1983 to recover for alleged deprivation of civil rights). Therefore, Plaintiff’s
claims against Defendant O’Brien are properly dismissed.
Plaintiff claims that Defendants McLean prevented him from getting meaningful
relief through the grievance process. Plaintiff has no due process right to file a prison grievance.
The courts repeatedly have held that there exists no constitutionally protected due process right to
an effective prison grievance procedure. See Hewitt v. Helms, 459 U.S. 460, 467 (1983); 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.

7

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)
(collecting cases). 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 McLean’s conduct
did not deprive him of due process.
The Court notes that Plaintiff fails to mention Defendants Pecock and Durant in the
body of his complaint. Conclusory allegations of unconstitutional conduct without specific factual
allegations fail to state a claim under § 1983. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Therefore, Defendants Pecock and Durant
are properly dismissed.
Plaintiff claims that Defendant Deputy Warden Unknown Party #1 is responsible
for the conduct of officers at URF because he has failed to take corrective action to prevent them
from writing excessive misconduct tickets in order to harass prisoners. 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, 575-76 (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 576; 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

8

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 Defendant
Deputy Warden Unknown Party #1 engaged in any active unconstitutional behavior. Accordingly,
he fails to state a claim against him.
Plaintiff claims that Defendants Meehan, Rosso, Davidson, Balbierz, and Greenleaf
were among prison employees who wrote excessive misconduct tickets on Plaintiff, some of which
were false or unwarranted. Plaintiff claims that these tickets resulted emotional distress and
psychological trauma, an increase in his security level, and the imposition of sanctions, including
the loss of phone privileges. Plaintiff claims that these misconducts violated his rights under the
First, Eighth, and Fourteenth Amendments.
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, 34546 (1981). The Amendment, therefore, prohibits conduct by prison officials that involves the
“unnecessary and wanton infliction of pain.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987)
(per curiam) (quoting Rhodes, 452 U.S. at 346). The deprivation alleged must result in the denial
of the “minimal civilized measure of life’s necessities.” Rhodes, 452 U.S. at 347; see also Wilson
v. Yaklich, 148 F.3d 596, 600-01 (6th Cir. 1998). The Eighth Amendment is only concerned with
“deprivations of essential food, medical care, or sanitation” or “other conditions intolerable for
prison confinement.” Rhodes, 452 U.S. at 348 (citation omitted). Moreover, “[n]ot every
unpleasant experience a prisoner might endure while incarcerated constitutes cruel and unusual

9

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 [his] 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 claims that the conditions and restrictions imposed upon him as a
segregated prisoner have caused him mental distress in violation of his Eighth Amendment rights.
Plaintiff specifically cites limited phone use as a hardship. The Eighth Amendment prohibits
punishments that are not only physically barbaric, but also those which are incompatible with “the
evolving standards of decency that mark the progress of a maturing society,” or which “involve
the unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 102-103(1976).
To establish an Eighth Amendment claim, the prisoner must show that he was deprived of the
“minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
Restrictions that are restrictive or even harsh, but are not cruel and unusual under contemporary
standards, are not unconstitutional. Id. Thus, federal courts may not intervene to remedy
conditions that are merely unpleasant or undesirable.
Placement in segregation is a routine discomfort that is “‘part of the penalty that
criminal offenders pay for their offenses against society.’” Hudson v. McMillian, 503 U.S. 1, 9
(1992) (quoting Rhodes, 452 U.S. 337, 347 (1981); see also Jones v. Waller, No. 98-5739, 1999
WL 313893, at *2 (6th Cir. May 4, 1999). Although it is clear that Plaintiff was denied certain
privileges as a result of his administrative segregation, he does not allege or show that he was

10

denied basic human needs and requirements. The Sixth Circuit has held that without a showing
that basic human needs were not met, the denial of privileges as a result of administrative
segregation cannot establish an Eighth Amendment violation. See Evans v. Vinson, 427 F. App’x
437, 443 (6th Cir. 2011); Harden-Bey v. Rutter, 524 F.3d 789, 795 (6th Cir. 2008). Moreover,
Plaintiff cannot bring an Eighth Amendment claim for emotional or mental damages because he
does not allege a physical injury as a result of mere placement in segregation or the denial of phone
usage. See 42 U. S.C. §1997e(e); see also Hudson, 503 U.S. at 5; Harden-Bey, 524 F.3d at 795.
As a result, Plaintiff fails to state an Eighth Amendment claim against Defendants for the allegedly
excessive issuance of misconducts against him.
Nor do the misconduct tickets receive by Plaintiff constitute a violation of his due
process rights. A prisoner’s ability to challenge a prison misconduct conviction depends on
whether the convictions 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 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

11

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 credits1 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 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 v. Connor, 515 U.S. 472 (1995). As noted above,

1

For crimes committed after April 1, 1987, Michigan prisoners earn “disciplinary credits” under a statute that
abolished the former good-time system. Mich. Comp. Laws § 800.33(5).

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Plaintiff claims that the imposition of a phone restriction violated his due process rights. However,
Plaintiff’s claim that the phone restriction violated his Fourteenth Amendment right to procedural
due process lacks merit. See Allen v. Alexsander, No. 2:16-CV-245, 2017 WL 2952929, at *5
(W.D. Mich. July 11, 2017) (a 90 day phone restriction does not implicate a liberty interest). See
also Johnson v. Vroman, No. 1:06-cv-145, 2006 WL 1050497, at *2 (W.D. Mich. Apr. 19, 2006)
(a 6 month restriction on telephone privileges does not amount to an atypical or significant
hardship in relation to the ordinary incidents of prison life that would trigger the protection of the
Due Process Clause). Because Plaintiff’s allegations do not constitute an atypical and significant
hardship, Plaintiff’s due process claims regarding his lack of telephone usage while on sanctions
at URF are properly dismissed.
As noted above, Plaintiff claims that the refusal to allow him to use a phone every
thirty days while on a break from sanctions violated his rights under the First Amendment. While
access to the outside world via telephone and writing materials may, under certain circumstances,
implicate a prisoner’s rights under the First Amendment, see Washington v. Reno, 35 F.3d 1093,
1100 (6th Cir.1994) (prisoners have right to “reasonable” access to telephone), the temporary
deprivations of which Plaintiff complains under the circumstances presented and in light of the
fact that he was in segregation, did not violate the First Amendment. Cf. Almahdi v. Ashcroft, 310
F. App’x 519 (3d Cir.2009) (holding that prison’s restriction of prisoner’s telephone access to one
phone call per month did not violate the First Amendment where the restriction was reasonably
related to the prison’s legitimate security concerns and the prisoner had already committed two
telephone-related rule infractions). In this case, Plaintiff was not deprived of the ability to
communicate with his girlfriend and members of his family by letter. Plaintiff does not allege that
his access to the courts was hampered or that he was prejudiced in any ongoing legal proceedings.

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Plaintiff claims that Defendant Watkins violated his Eighth Amendment rights by
verbally harassing him, telling him that he would be on segregation soon, and by talking about
Plaintiff with other prison staff. 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 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.”). Accordingly, Plaintiff fails to
state an Eighth Amendment claim against Defendant Watkins arising from his alleged verbal
abuse.
The Court concludes that Plaintiff’s Eighth Amendment excessive force claims
against Defendants Davidson, Conners, and Koshela are not clearly frivolous and may not be
dismissed on initial review.

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III.

Pending motions

Plaintiff has filed a motion for a preliminary injunction (ECF No. 12) seeking an
order “to restore his right to photocopy and access court” against library staff at ECF. Plaintiff
also seeks paper, envelopes, and postage as needed to litigate this action. The issuance of
preliminary injunctive relief is committed to the discretion of the district court.

Planned

Parenthood Association v. City of Cincinnati, 822 F.2d 1390, 1393 (6th Cir. 1987). In exercising
that discretion, the court must consider and balance four factors:
1. Whether the movant has shown a strong or substantial likelihood or probability
of success on the merits.
2. Whether the movant has shown irreparable injury.
3. Whether the preliminary injunction could harm third parties.
4. Whether the public interest would be served by issuing a preliminary injunction.
Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994). These factors are not prerequisites to the grant
or denial of injunctive relief, but factors that must be carefully balanced by the district court in
exercising its equitable powers. Id.
Moreover, where a prison inmate seeks an order enjoining state prison officials,
this Court is required to proceed with the utmost care and must recognize the unique nature of the
prison setting. See Kendrick v. Bland, 740 F.2d 432 at 438, n.3, (6th Cir. 1984). See also Harris
v. Wilters, 596 F.2d 678 (5th Cir. 1979). It has also been remarked that a party seeking injunctive
relief bears a heavy burden of establishing that the extraordinary and drastic remedy sought is
appropriate under the circumstances. See Checker Motors Corp. v. Chrysler Corp., 405 F.2d 319
(2d Cir. 1969), cert. denied, 394 U.S. 999 (1969). See also O’Lone v. Estate of Shabazz, 482 U.S.
342 (1986).

15

Plaintiff’s “initial burden” in demonstrating entitlement to preliminary injunctive
relief is a showing of a strong or substantial likelihood of success on the merits of his Section 1983
action. NAACP v. City of Mansfield, Ohio, 866 F.2d 162, 167 (6th Cir. 1989). A review of the
materials of record fails to establish a substantial likelihood of success with respect to Plaintiff’s
claim that Defendants have violated his federal rights. Furthermore, Plaintiff has failed to establish
that he will suffer irreparable harm absent injunctive relief.
Finally, in the context of a motion impacting on matters of prison administration,
the interests of identifiable third parties and the public at large weigh against the granting of an
injunction. Any interference by the federal courts in the administration of state prison matters is
necessarily disruptive. The public welfare therefore militates against the issuance of extraordinary
relief in the prison context, absent a sufficient showing of a violation of constitutional rights. See
Glover v. Johnson, 855 F.2d 277, 286-87 (6th Cir. 1988). That showing has not been made here.
Plaintiff’s claims that he is being denied photocopies, postage, and writing materials are
conclusory and unsupported by any specific factual allegations. Plaintiff fails to specifically state
which documents he needs copied or the reason for the copies. The grievance response attached
to Plaintiff’s motion indicates that Plaintiff was denied copies because he did not specify that they
related to an ongoing lawsuit. (ECF No. 12-3, PageID.149.) In addition, Plaintiff attaches exhibits
showing that he grieved the denial of postage to send an initial filing fee, but he fails to specify a
case name or number. However, this denial appears to be unrelated to the current lawsuit. (ECF
No. 12-2.) De Beers Consol. Mines Ltd. v. United States, 325 U.S. 212, 220 (1945) (preliminary
injunction appropriate to grant relief of “the same character as that which may be granted finally,”
but inappropriate where the injunction “deals with a matter lying wholly outside of the issues in
the suit.”) Therefore, the Court will deny Plaintiff’s motion for a preliminary injunction.

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Plaintiff has also filed a motion seeking the return of $21.00 that he apparently paid
to the prison for copies. (ECF No. 14.) Plaintiff fails to allege any facts or law in support of this
request. Therefore, it is properly denied.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that Defendants Chippewa Correctional Facility (URF), O’Brien, McLean,
Meehan, Rosso, Pecock, Watkins, Durant, Deputy Warden Unknown Party #1, Balbierz, and
Greenleaf will be dismissed for failure to state a claim, under 28 U.S.C. §§ 1915(e)(2) and
1915A(b), and 42 U.S.C. § 1997e(c). The Court will serve the complaint against Defendants
Davidson, Conners, and Koshela with regard to Plaintiff’s excessive force claims.
Plaintiff’s pending motions (ECF Nos. 12 and 14) are DENIED.
An Order consistent with this Opinion will be entered.

Dated:

August 13, 2018

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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