Joyce #251901 v. Libby et al
OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
CEDRIC R. JOYCE,
Case No. 2:20-cv-159
Honorable Paul L. Maloney
UNKNOWN LIBBY et al.,
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.
Plaintiff is presently incarcerated with the Michigan Department of Corrections
(MDOC) at the Chippewa Correctional Facility (URF) in Kincheloe, Chippewa County, Michigan.
The events about which he complains occurred at that facility. Plaintiff sues the following URF
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officials: Correctional Officer Unknown Libby; Grievance Coordinator M. McLean; Resident
Unit Manager (RUM) T. Corey-Spiker; Assistant Deputy Wardens (ADWs) R. Batho and J.
Corrigan; and Warden Connie Horton.
Plaintiff alleges that, in late April to early May of 2019, he suffered asthma attacks
for several days. He was placed on mandatory breathing treatments three times each day. On
May 4, 2019, at approximately 6:30 p.m., while Plaintiff was receiving nebulizer treatments in
health services, he suffered a seizure. Plaintiff was taken to War Memorial Hospital for treatment.
When he returned from the hospital on May 5, 2019, Plaintiff was placed in Quarry Unit
(Segregation), cell 9.
Plaintiff complains that he was issued three misconduct tickets based on his medical
condition. Before Plaintiff was transported to the hospital, Defendant Libby issued the first
misconduct ticket for disobeying a direct order. When Plaintiff returned from the hospital, he
repeatedly asked Defendant Libby for his glasses, because he was blind in one eye and had only
partial vision in the other. Defendant Libby told Plaintiff to ask someone else.
After returning from the hospital, Plaintiff did not feel like eating his lunch.
However, he kept a cup of milk and the dessert from his lunch tray. He later ate the dessert. When
Defendant Libby discovered the cup and dessert container in Plaintiff’s cell, he demanded their
return. Plaintiff gave Defendant Libby the items, explaining that he did not know that he could
not have them. He again asked Libby for his glasses and “K.O.P.s,”1 but Libby ignored him.
Defendant Libby placed Plaintiff on food loaf2 for the infraction. Plaintiff complains that, because
Although Plaintiff does define “K.O.P.,” he appears to refer to his “Keep on Person” medications.
Food loaf is prepared according to standardized recipes for food loaves maintained by the Food Service Director. It
is served in a wrapper, without a tray. Food loaf must meet the nutritional standards for all prison meals. MDOC
Policy Directive 04.05.120 ¶ UU. A prisoner in segregation may be placed on food loaf if the prisoner is misusing
food, serving trays or utensils, or if he fails or refuses to return uneaten food, trays, or dishes through the food slot.
Id., ¶ RR. The placement on food loaf must be approved by the warden or his designee, for a period of time not to
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he had never been in Quarry Unit and did not have his glasses, he was unable to read the rules and
did not know that he was violating the rules by keeping his cup.
Plaintiff also complains that he was unable to eat the food loaf, which was served
to him for eight meals, because he had food allergies and did not know what was in the food loaf.
As a result of not eating, Plaintiff had another seizure. He was taken back to War Memorial
On May 5, 2019, while Petitioner was housed in Quarry Unit, Defendant Libby
opened Plaintiff’s sealed duffel bag, on the pretense of looking for Plaintiff’s glasses. Libby wrote
a Class-3 Misconduct against Plaintiff for possessing contraband (Misconduct Report, ECF No. 11, PageID.30.), and he issued a contraband removal form for several items: a set of headphones;
a law reference book; two whistles; two chalks and tips for pool cues; and two homemade books
or magazines depicting sexual penetration (Contraband Removal Record, ECF No. 1-1,
PageID.31). The contraband removal form indicated that the headphones were broken, the law
book had another inmate’s name on it, and the magazines were contraband. Correctional Officer
Baseus reviewed the misconduct with Plaintiff on May 6, 2019. Plaintiff asked to be heard on the
contraband misconduct charge, but he was given no indication as to when the hearing would be
held. Plaintiff spoke with Defendants RUM Corey-Spiker and ADW Corrigan about the lack of a
hearing, but neither took action.
exceed seven days. Id., ¶ SS. When notified that a prisoner is being placed on food loaf, the Food Service Director
or designee must contact appropriate health care staff to determine if the prisoner has food allergies that might be
affected by the food loaf, and, if so, a food loaf containing such allergens may not be given to the prisoner. Id., ¶ TT.
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Plaintiff complains that he subsequently explained to Defendant Corey-Spiker that,
even if he had received a rule book for Quarry Unit, he would not have been able to read it, since
he did not have his glasses. Defendant Corey-Spiker nevertheless took no action on the misconduct
Plaintiff subsequently sent a grievance to Defendant McLean, who returned the
grievance to Plaintiff to be rewritten, because it raised multiple unrelated issues. When Plaintiff
submitted a rewritten grievance, Defendant McLean rejected it as untimely.
Rejections, ECF No.1-1, PageID.15, 17.) Defendant Horton upheld the rejection at Step II.
Upon his release from Quarry Unit, Plaintiff spoke with Prisoner Counselor (PC)
Butler, who advised Plaintiff to kite Defendant Corey-Spiker about holding a hearing. Several
days later, Plaintiff again told PC Butler that he needed his possessions returned. Butler suggested
that Plaintiff send a kite to Defendant Libby. Plaintiff received no reply from either Defendant.
Plaintiff then sent two kites each to Defendants ADW Corrigan and Warden Horton. Plaintiff sent
a grievance to Defendant Grievance Coordinator McLean, who rejected it. Defendants Assistant
ADW Batho and Warden Horton affirmed the rejection at Step II. Plaintiff pursued the Grievance
to Step II, without success.
Plaintiff also asserts that Defendant Libby never placed the contraband in the unit
contraband locker. In addition, although Defendant Libby purportedly never found Plaintiff’s
glasses, the glasses were left on top of the duffel bag. Several days after Plaintiff’s property was
taken, he asked Correctional Officer Miller if he could give Plaintiff back his glasses. Miller found
the glasses on May 8, 2019, and returned them to Plaintiff.
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Plaintiff complains that he has never been heard on the misconduct charge and his
property has never been seen. Plaintiff requested a reimbursement form, but it was denied.
Plaintiff filed a grievance and wrote to the Attorney General.
Plaintiff alleges that Defendant Libby placed him on food loaf and denied him his
glasses for many days, in violation of the Eighth Amendment. He also alleges that Defendants
violated his right to due process when they deprived him of his property without a hearing,
deprived him of a hearing on the misconduct charge of possessing contraband, and failed to
properly process his grievances. In addition, he alleges that Defendant Libby deprived him of due
process by placing him on food loaf without a hearing.
Plaintiff seeks compensatory and punitive damages.
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
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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
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
Deprivation of Property Without Due Process
Plaintiff complains that Defendant Libby confiscated his property and failed to
store it properly, leading to Plaintiff’s permanent loss of the property without due process. Plaintiff
alleges that the remaining Defendants deprived him of due process by not holding a hearing on the
contraband removal and miconduct charge and by refusing to process his grievances. Further,
Plaintiff appears to suggest that Defendant Libby placed him on food loaf without due process.
A. Taking of property
Plaintiff complains that Defendants took and kept his personal property without due
process of law. 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
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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
deprivations 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 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 due-process
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 postdeprivation remedies for deprivation of property. See Copeland, 57 F.3d at 480.
Although Plaintiff alleges that he was denied one form for seeking reimbursement
from the State of Michigan, he does not allege that he was deprived of any remedy. Nor does he
provide any reason why a state-court action would not afford him complete relief for the
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deprivation, either negligent or intentional, of his personal property. Accordingly, Plaintiff’s due
process claim concerning the confiscated property will be dismissed.
B. Rejection or denial of grievances
Plaintiff appears to allege that he was denied due process by Defendants McLean,
Batho, Corrigan, and Horton when they either rejected his grievances at Step I or upheld the
grievance rejection on appeal at Step II of the grievance process.
The Fourteenth Amendment protects an individual from deprivation of life, liberty
or property, without due process of law.” Bazetta v. McGinnis, 430 F.3d 795, 801 (6th Cir. 2005).
To establish a Fourteenth Amendment procedural due process violation, a plaintiff must show that
one of these interests is at stake. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Analysis of a
procedural due process claim involves two steps: “[T]he first asks whether there exists a liberty or
property interest which has been interfered with by the State; the second examines whether the
procedures attendant upon that deprivation were constitutionally sufficient.” Ky. Dep’t of Corr. v.
Thompson, 490 U.S. 454, 460 (1989).
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 state-created right creates a federally cognizable liberty
interest protected by the Due Process Clause. According to that Court, a prisoner is entitled to the
protections of due process only when the sanction “will inevitably affect the duration of his
sentence” or when a deprivation 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).
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Plaintiff has no due process right to file a prison grievance or to have it resolved in
his favor. 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. 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, Defendants’ conduct did
not deprive him of due process.
C. Misconduct hearing
Plaintiff complains that he never received a hearing on the Class-III misconduct
charge of possessing contraband. See MDOC Policy Directive 03.03.105, Attach. C (eff. July 1,
2018). He contends that the failure to conduct a hearing deprived him of due process.
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 id., ¶ AAAA. The Sixth
Circuit routinely has held that misconduct convictions that do not result in the loss of good time
are not atypical and significant deprivations and therefore do not implicate due process. See, e.g.,
Ingram v. Jewell, 94 F. App’x 271, 273 (6th Cir. 2004); Carter v. Tucker, 69 F. App’x 678, 680
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(6th Cir. 2003); Green v. Waldren, No. 99-1561, 2000 WL 876765, at *2 (6th Cir. June 23, 2000);
Staffney v. Allen, No. 98-1880, 1999 WL 617967, at *2 (6th Cir. Aug. 12, 1999). Plaintiff,
therefore, fails to state a due process claim arising from his Class-III misconduct conviction for
possession of contraband.
D. Food loaf
Plaintiff also cannot state a due process claim arising from his placement on food
loaf. Plaintiff enjoys no constitutional or state-created right to be free from a temporary diet of
food loaf. As earlier discussed, the Supreme Court has held that state created liberty interests “will
generally be limited to freedom from restraint which . . . imposes atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 483; see also
Rimmer-Bey, 62 F.3d at 789-91. A temporary food-loaf diet is not an atypical and significant
hardship for segregation prisoners who have engaged in misconduct in the handling of their food
and food containers. See Griffis v. Gundy, 47 F. App’x 327, 328 (6th Cir. 2002); Turnboe v.
Gundy, 25 F. App’x 292, 293 (6th Cir. 2001); Hartsfield v. Mayer, No. 95-1411, 1996 WL 43541
(6th Cir. Feb. 1, 1996); Johnson v. Gummerson, No. 99-0071, 1999 WL 822523, at *1 (2d Cir.
Sept. 24, 1999). Plaintiff therefore fails to state a claim for violation of his due process rights.
Plaintiff alleges that Defendant Libby violated his rights under the Eighth
Amendment by depriving him of his glasses for three or four days. Plaintiff also alleges that, by
placing Plaintiff on food loaf for three days, Defendant Libby subjected him to cruel and unusual
punishment under the Eighth Amendment.
The Eighth Amendment imposes a constitutional limitation on the power of the
states to punish those convicted of crimes. Punishment may not be “barbarous” nor may it
contravene society’s “evolving standards of decency.” Rhodes v. Chapman, 452 U.S. 337, 34510
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46 (1981). The Amendment, therefore, prohibits conduct by prison officials that involves the
“unnecessary and wanton infliction of pain.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987)
(per curiam) (quoting Rhodes, 452 U.S. at 346). The deprivation alleged must result in the denial
of the “minimal civilized measure of life’s necessities.” Rhodes, 452 U.S. at 347; see also Wilson
v. Yaklich, 148 F.3d 596, 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
punishment within the meaning of the Eighth Amendment.” Ivey, 832 F.2d at 954. “Routine
discomfort 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. at 347). As a consequence,
“extreme deprivations are required to make out a conditions-of-confinement claim.” Id.
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)). The deliberateindifference standard includes both objective and subjective components. Farmer, 511 U.S. at 834;
Helling, 509 U.S. at 35-37. To satisfy the objective prong, an inmate must show “that he is
incarcerated under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834.
Under the subjective prong, an official must “know of and disregard an excessive risk to inmate
health or safety.” Id. at 837. “[I]t is enough that the official acted or failed to act despite his
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knowledge of a substantial risk of serious harm.” Id. at 842. “It is, indeed, fair to say that acting
or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is
the equivalent of recklessly disregarding that risk.” Id. at 836. “[P]rison officials who actually
knew of a substantial risk to inmate health or safety may be found free from liability if they
responded reasonably to the risk, even if the harm ultimately was not averted.” Id. at 844.
A. Food loaf
Plaintiff suggests that Defendant Libby demonstrated deliberate indifference to
Plaintiff’s serious physical needs when Libby placed Plaintiff on food loaf. Plaintiff asserts that,
because he was afraid of the presence of potential allergens in the food loaf, he did not eat for eight
meals. Not eating, Plaintiff alleges, triggered a second seizure.
As discussed, the Eighth Amendment is only concerned with “deprivations of
essential food, medical care, or sanitation” or “other conditions intolerable for prison
confinement.” Id. at 348. With regard to food, prisoners must receive adequate nutrition to
maintain normal health; the food need not be tasty or aesthetically pleasing. See Cunningham v.
Jones, 567 F.2d 653, 659-60 (6th Cir. 1977). The Sixth Circuit repeatedly has held that a diet of
food loaf does not violate the Eighth Amendment because nutritional and caloric requirements are
met. See, e.g., Griffis v. Gundy, 47 F. App’x 327, 328 (6th Cir. 2002); Payton-Bey v. Vidor, No.
94-2472, 1995 WL 603241, at *1 (6th Cir. Oct. 12, 1995); Hinton v. Doney, No. 93-2050, 1994
WL 20225, at *2 (6th Cir. Jan. 26, 1994); Boswell v. Meyers, No. 89-2144, 1990 WL 109230, at
*1 (6th Cir. Aug. 2, 1990).
Although Plaintiff suffered physical symptoms from refusing to eat, his suffering
was self-imposed. Adequate food was available and he chose not to eat it. Plaintiff complains
that he was afraid of experiencing an allergic reaction to the food loaf, but he alleges no facts
suggesting that he actually was allergic to the food loaf, particularly when policy expressly requires
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the Food Service Director to confirm with health care staff that any prisoner receiving food loaf is
not allergic to anything in the loaf. MDOC Policy Directive 04.05.120, ¶ TT. More importantly,
Plaintiff fails to allege facts suggesting that Defendant Libby or any other Defendant was aware
of a risk to Plaintiff from allergens in the food loaf and was deliberately indifferent to that risk.
Therefore, Plaintiff fails to state an Eighth Amendment claim based on his placement on food loaf.
Plaintiff alleges that Defendant Libby failed to return his glasses to him for three
or four days, ostensibly in violation of the Eighth Amendment.
Allegations about temporary inconveniences, e.g., being deprived of a lower bunk,
subjected to a flooded cell, or deprived of a working toilet, do not demonstrate that the conditions
fell beneath the minimal civilized measure of life’s necessities as measured by a contemporary
standard of decency. Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001); see also
J.P. v. Taft, 439 F. Supp. 2d 793, 811 (S.D. Ohio 2006) (“[M]inor inconveniences resulting from
the difficulties in administering a large detention facility do not give rise to a constitutional claim.”
(internal citation omitted)).
Although Plaintiff alleges that he needs glasses to read, due to his blindness in one
eye and reduced vision in the other, the allegation that he was deprived of his glasses for three or
four days supports a conclusion that he suffered mere temporary inconvenience, as opposed to the
serious risk of harm required by the Eighth Amendment. See, e.g., Malone v. Mecrosvy, No. 1:16cv-833, 2016 WL 7015832, at *3 (S.D. Ohio Oct. 19, 2016) (holding that deprivation of prisoner’s
glasses for eight days fails to state Eighth Amendment claim); Pendermon v. Jones, No. 5:20-32WOB, 2020 WL 495512, at *1 (E.D. Ky. Jan. 30, 2020) (holding that, while an extended delay in
receiving glasses might support an Eighth Amendment claim, a 30-day delay did not reach the
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constitutional level). Because Plaintiff alleges merely a temporary deprivation of his glasses, he
fails to state an Eighth Amendment claim.
Plaintiff’s claims against Defendants McLean, Batho, Corrigan, and Horton fail to
state a claim for an additional reason. Plaintiff’s only allegations against these Defendants are that
they failed to adequately respond to his grievances and kites or failed to supervise their
subordinates. 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 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 McLean, Batho, Corrigan, and Horton engaged in any active
unconstitutional behavior. Accordingly, he fails to state a claim against them for this additional
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that Plaintiff’s complaint will be dismissed for failure to state a claim, under 28
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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). Although the
Court concludes that Plaintiff’s claims are properly dismissed, the Court does not conclude that
any issue Plaintiff might raise on appeal would be frivolous. Coppedge v. United States, 369 U.S.
438, 445 (1962). Accordingly, the Court does not certify that an appeal would not be taken in
good faith. Should Plaintiff appeal this decision, the Court will assess the $505.00 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 $505.00 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.
October 13, 2020
/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge
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