Tillie #636229 v. Michigan Department of Corrections et al
OPINION dismissing one defendant and dismissing all claims against remaining defendant except for First Amendment retaliation claim ; signed by District Judge Hala Y. Jarbou (aks)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
PHILLIP RANDALL TILLIE,
Case No. 2:20-cv-177
Honorable Hala Y. Jarbou
MICHIGAN DEPARTMENT OF
CORRECTIONS 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 against Defendant
Michigan Department of Corrections. The Court will also dismiss for failure to state a claim
Plaintiff’s Eighth Amendment claims against Defendant Golladay. Plaintiff’s First Amendment
retaliation claim against Defendant Golladay remains.
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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 MDOC and
Corrections Officer Unknown Golladay.1
Plaintiff alleges that on July 9, 2020, Defendant Golladay shook Plaintiff down
after a Notice of Intent Hearing. (Compl., ECF No. 1, PageID.3.) Plaintiff claims that during the
shakedown, Golladay touched Plaintiff inappropriately. Golladay then instructed Plaintiff to
retrieve his ID. When Plaintiff returned, he asked Golladay for a Prison Rape Elimination Act
(PREA) grievance form. Golladay told Plaintiff to “fuck off,” using a racial slur, and refused to
provide a grievance form. The next day, Golladay wrote a false misconduct report against Plaintiff.
Plaintiff was found guilty. Plaintiff kept requesting PREA grievance forms; he kept receiving
Plaintiff was found guilty of the first misconduct. Plaintiff does not report what
happened with the other tickets. Plaintiff was eventually able to submit a PREA grievance against
Golladay, but nothing was done.
Plaintiff contends that Golladay wrote the false misconduct report against Plaintiff
in retaliation for Plaintiff’s request for a PREA grievance form. Plaintiff seeks $500,000.00 in
damages and asks that Golladay be prosecuted for his actions.
The caption of Plaintiff’s complaint lists as defendants “Michigan Department of Corrections” and “Corrections
Officer Golladay.” (Compl., ECF No. 1, PageID.1.) It is also possible that Plaintiff intended to only name one
defendant: “Michigan Department of Corrections Corrections Officer Golladay.” (Id.) To ensure that Plaintiff is not
prevented from proceeding against a Defendant he intended to sue, the Court will proceed as if Plaintiff is suing two
Defendants rather than one.
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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
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
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identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271
Plaintiff may not maintain a § 1983 action against the MDOC. Regardless of the
form of relief requested, the states and their departments are immune under the Eleventh
Amendment from suit in the federal courts, unless the state has waived immunity or Congress has
expressly abrogated Eleventh Amendment immunity by statute. See Pennhurst State Sch. & Hosp.
v. Halderman, 465 U.S. 89, 98-101 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978); O’Hara
v. Wigginton, 24 F.3d 823, 826 (6th Cir. 1993). Congress has not expressly abrogated Eleventh
Amendment immunity by statute, Quern v. Jordan, 440 U.S. 332, 341 (1979), and the State of
Michigan has not consented to civil rights suits in federal court. Abick v. Michigan, 803 F.2d 874,
877 (6th Cir. 1986). In numerous opinions, the Sixth Circuit has specifically held that the MDOC
is absolutely immune from a § 1983 suit under the Eleventh Amendment. See, e.g., Harrison v.
Michigan, 722 F.3d 768, 771 (6th Cir. 2013); Diaz v. Mich. Dep’t of Corr., 703 F.3d 956, 962
(6th Cir. 2013); McCoy v. Michigan, 369 F. App’x 646, 653-54 (6th Cir. 2010). In addition, the
State of Michigan (acting through the MDOC) is not a “person” who may be sued under § 1983
for money damages. See Lapides v. Bd. of Regents, 535 U.S. 613, 617 (2002) (citing Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 66 (1989)); Harrison, 722 F.3d at 771. Therefore, the Court
dismisses the MDOC.
Plaintiff does not identify the specific constitutional right that Officer Golladay
infringed; however, his allegations implicate the protections of the Eighth Amendment and the
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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
punishment within the meaning of the Eighth Amendment.” Ivey, 832 F.2d at 954.
“[B]ecause the sexual harassment or abuse of an inmate by a corrections officer
can never serve a legitimate penological purpose and may well result in severe physical and
psychological harm, such abuse can, in certain circumstances, constitute the ‘unnecessary and
wanton infliction of pain’ forbidden by the Eighth Amendment.” Freitas v. Ault, 109 F.3d 1335,
1338 (8th Cir. 1997) (quoted cases omitted). But, not “every malevolent touch by a prison guard
gives rise to a[n Eighth Amendment] cause of action.” See Hudson v. McMillian, 503 U.S. 1, 9
Plaintiff provides no specific details about the shakedown search. Plaintiff states
only that Golladay touched Plaintiff “inappropriately.”2 (Compl., ECF No. 1, PageID.3.) But, the
A pat-down search is necessarily intrusive, even sexually intrusive. In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme
Court noted the following was an “apt description” of such a search: “‘(T)he officer must feel with sensitive fingers
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Court of Appeals has on several occasions found no Eighth Amendment violation for pat-down
searches and isolated incidents of sexual touching. See, e.g., Solomon v. Mich. Dep’t of Corrs.,
478 F. App’x 318, 320-21 (6th Cir. 2012) (two “brief” incidents of physical contact during patdown searches, including touching and squeezing the prisoner’s penis and pressing an erect penis
into the prisoner’s buttocks, do not rise to the level of a constitutional violation); Tuttle v. Carroll
Cty. Detention Ctr., 500 F. App’x 480, 482 (6th Cir. 2012) (allegation that officer grabbed the
detainee’s genitals and “squeezed them really hard” during a pat-down search is too “subjective
and vague” to state a claim); Jackson v. Madery, 158 F. App’x 656, 661 (6th Cir. 2005) (officer’s
conduct in allegedly rubbing and grabbing prisoner’s buttocks in degrading manner was “isolated,
brief, and not severe” and so failed to meet Eighth Amendment standards); Johnson v. Ward, No.
99-1596, 2000 WL 659354, at *1 (6th Cir. May 11, 2000) (prisoner’s claim that an officer placed
his hand on the prisoner’s buttock in a sexual manner and made an offensive sexual remark did
not state an Eighth Amendment claim); see also Berryhill v. Schriro, 137 F.3d 1073, 1075
(8th Cir. 1998) (where inmate failed to assert that he feared sexual abuse, two brief touches to his
buttocks could not be construed as sexual assault); accord Boxer X v. Harris, 437 F.3d 1107, 1111
(11th Cir. 2006); Boddie v. Schneider, 105 F.3d 857, 859-61 (2d Cir. 1997) (court dismissed as
inadequate prisoner’s claim that female corrections officer made a pass at him, squeezed his hand,
touched his penis, called him a “sexy black devil,” pressed her breasts against his chest, and
pressed against his private parts).
Although Plaintiff characterizes Defendant’s conduct as “inappropriate,” he alleges
no facts that would distinguish the facts in his case from those in the foregoing cases. Indeed,
every portion of the prisoner’s body. A thorough search must be made of the prisoner’s arms and armpits, waistline
and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’” Id. at 17 n.13.
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Plaintiff’s allegations are more “subjective and vague” than the allegations in Tuttle. See Tuttle,
500 F. App’x at 482. Accordingly, Plaintiff fails to state an Eighth Amendment claim against
Defendant Golladay based on inappropriate touching during the shakedown search.
Plaintiff’s allegations regarding Golladay’s use of a racial slur similarly fall short
of stating an Eighth Amendment claim. An allegation that a prison official used racial slurs,
although unprofessional and reprehensible, does not rise to constitutional dimensions. See Ivey,
832 F.2d at 954-55; Jones Bey v. Johnson, 248 F. App’x 675, 677-78 (6th Cir. 2007) (prison
guard’s use of racial slurs and other derogatory language against state prisoner did not rise to level
of a violation of the Eighth Amendment) (citing Torres v. Cty. of Oakland, 758 F.2d 147, 152
(6th Cir.1985)); Williams v. Gobles, No. 99-1701, 2000 WL 571936, at *1 (6th Cir. May 1, 2000)
(occasional or sporadic use of racial slurs does not rise to a level of constitutional magnitude; BellBey v. Mayer, No. 98-1425, 1999 WL 1021859, at *1 (6th Cir. Nov. 3, 1999) (same); 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); 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.”). In light of the
foregoing, Plaintiff fails to state a claim for a violation of the Eighth Amendment for Defendant
Golladay’s use of a racial slur.
For these reasons, the Court will dismiss Plaintiff’s Eighth Amendment claims
against Defendant Golladay.
First Amendment retaliation
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
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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 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)).
In Maben v. Thelen, 887 F.3d 252, 265 (6th Cir. 2018), the Sixth Circuit Court of
Appeals considered whether “oral” grievances were conduct protected by the First Amendment:
An inmate has a right to file “non-frivolous” grievances against prison officials on
his own behalf, whether written or oral. Mack v. Warden Loretto FCI, 839 F.3d
286, 299 (3d Cir. 2016) (“[The prisoner’s] oral grievance to [the prison officer]
regarding the anti-Muslim harassment he endured at work constitutes protected
activity under the First Amendment.”); Pearson v. Welborn, 471 F.3d 732, 741
(7th Cir. 2006) (“[W]e decline to hold that legitimate complaints lose their
protected status simply because they are spoken.”); see also Pasley v. Conerly, 345
F. App’x 981, 985 (6th Cir. 2009) (finding that a prisoner engaged in protected
conduct by threatening to file a grievance). “Nothing in the First Amendment itself
suggests that the right to petition for redress of grievances only attaches when the
petitioning takes a specific form.” Holzemer v. City of Memphis, 621 F.3d 512, 521
(6th Cir. 2010) (finding that a conversation constituted protected petitioning
activity) (quoting Pearson, 471 F.3d at 741).
Maben, 887 F.3d at 265. Accordingly, the Court concludes that Plaintiff has adequately alleged
protected conduct when he asked Golladay for the PREA grievance form following Golladay’s
shakedown of Plaintiff.
The second requirement—adverse action—involves an objective inquiry and does
not depend on how a particular plaintiff reacted. The relevant question is whether the defendants’
conduct is “capable of deterring a person of ordinary firmness”; the plaintiff need not show actual
deterrence. Bell v. Johnson, 308 F.3d 594, 606 (6th Cir. 2002) (emphasis in original). “When
deciding whether the issuance of a misconduct ticket rises to the level of an adverse action, we
look to both the punishment [the plaintiff] could have faced and the punishment he ultimately did
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face.” Maben, 887 F.3d at 266. In Maben, the court concluded that the possible punishments that
are attendant to a minor misconduct sufficed to establish adverse action. Id.; see also Hill v. Lapin,
630 F3d 468, 474 (6th Cir. 2010) (holding that “actions that result in more restrictions and fewer
privileges for prisoners are considered adverse”); Scott v. Churchill, 377 F.3d 565, 572 (6th Cir.
2004) (“[T]he mere potential threat of disciplinary sanctions is sufficiently adverse action to
support a claim of retaliation.”). Accordingly, the Court concludes that Plaintiff has adequately
alleged adverse action.
Finally, the Court concludes that Plaintiff has adequately alleged a causal
connection between the protected conduct and the adverse action. Plaintiff states that Golladay’s
“false” misconduct charges followed his request for a grievance form by a day. Temporal
proximity “may be ‘significant enough to constitute indirect evidence of a causal connection so as
to create an inference of retaliatory motive.’” Muhammad v. Close, 379 F.3d 413, 417-18 (6th Cir.
2004) (quoting DiCarlo v. Potter, 358 F.3d 408, 422 (6th Cir. 2004)); see also Briggs v. Westcomb,
No. 19-1837 (6th Cir. Mar. 10, 2020) (unpublished) (holding that allegations of temporal proximity
were sufficient where the filing of retaliatory misconduct by correctional officers occurred six days
after Plaintiff filed a grievance against a medical provider, but only one day after the provider
learned of the grievance).
As a consequence, the Court concludes that Plaintiff’s allegations against
Defendant Golladay are sufficient to state a retaliation claim.
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that Defendant Michigan Department of Corrections 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 also dismiss, for failure to state a claim, Plaintiff’s Eighth Amendment claims against
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Defendant Golladay. Plaintiff’s First Amendment retaliation claim against Defendant Golladay
remains in the case.
An order consistent with this opinion will be entered.
October 14, 2020
/s/ HALA Y. JARBOU
Hala Y. Jarbou
United States District Judge
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