Young v. Ice et al

Filing 4

Memorandum of Opinion and Order: Accordingly, this action is dismissed pursuant to 28 U.S.C. §1915(e). The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Patricia A. Gaughan on 2/4/15. (LC,S)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

Aaron Young,
Plaintiff,
v.
Jeremy Ice, et al.,
Defendants.

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CASE NO. 1:14 CV 1475
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

INTRODUCTION
Pro se Plaintiff Aaron Young filed this action under 42 U.S.C. § 1983 against Lorain
Correctional Institution (“LORCI”) Correctional Officer Jeremy Ice, LORCI Director of Food
Service Corrine Schonebeck, and LORCI Assistant Director of Food Service Raymond Natal.
He filed an Amended Complaint on September 22, 2014. In his pleadings, Plaintiff claims the
Defendants harassed him for wearing his kufi without a hairnet while working in the food
service area. He seeks compensatory and punitive damages.

BACKGROUND
Plaintiff was an inmate at LORCI, assigned to work in the food service area. The Ohio
Department of Rehabilitation and Correction (“ODRC”) Food Service Manual requires workers
to wear hair covers but restricts those authorized covers to the ODRC issued ball caps, white

paper caps, bouffant caps and hairnets. (ECF No. 1-1 at 4). Plaintiff alleges that while he was
at work during the week of September 10, 2013, Schonebeck stopped him and instructed him to
cover his religious headgear (kufi) with a hairnet. He indicated to Schonebeck that he had
received permission from the prison’s administration in 2011 to wear his kufi without covering
it with a hairnet. At that point, Lieutenant Lloyd walked by and the question was posed to him.
Plaintiff claims Lloyd confirmed he was permitted to wear the kufi and was not required to
cover it with a hairnet.
Plaintiff alleges that three months later, on December 11, 2013, Schonebeck asked
another food service employee to instruct Plaintiff to cover his kufi with a hairnet while he was
in the food service area. Plaintiff went to Schonebeck and reminded her of Lieutenant Lloyd’s
statements. Plaintiff asked Schonebeck why she chose to ask him to remove his headgear when
she did not make similar requests to other inmates wearing ball caps or skull caps. Plaintiff
claims he was told to worry about himself, not other inmates.
Later that day, Officer Ice called Plaintiff into the staff office and told him to cover his
kufi with a hairnet or go to segregation for refusing a direct order to work. Plaintiff told Ice he
arrived fifteen minutes early for work, and because his shift had not started, he could not be
charged with refusing to work. He threatened to report Ice to Captain Wright. Ice handcuffed
him and took him to Captain Wright’s office. Captain Wright reported to Ice that Plaintiff was
permitted to wear his kufi to work as a head covering and was not required to wear a hairnet.
Plaintiff claims he reported to his food service assignment the next day, December 12,
2013, and was confronted by Natal who told him to cover his kufi with a hairnet. He told Natal
that Captain Wright approved his wearing of his kufi as a head covering. He also pointed to

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employees with facial hair who were not wearing beard guards, and employees whose bangs
and longer hair were sticking out of their hairnets. He questioned why they were not being
disciplined. Natal escorted Plaintiff to the staff office where Schonebeck informed Natal of
Captain Wright’s decision. Plaintiff was permitted to wear his kufi without covering it with a
hairnet.
Although Plaintiff obtained the relief he requested, he continued to argue his point with
Natal. Later that day, Plaintiff witnessed dock workers walking between the back docks and the
food preparation area wearing skull caps without hairnets. Plaintiff approached Natal in the
food service area, pointed out the offending inmate workers and asked Natal why he was not
insisting the dock workers cover their skull caps with hairnets. Natal told him to “leave it
alone.” (ECF No. 1-1 at 3).
Plaintiff did not heed this advice. A little while later, Plaintiff again approached Natal to
complain about hairnet infractions of other inmates. This time, Natal was talking to the cook
when Plaintiff approached. In the presence of the cook, Plaintiff pointed out that the cook had
prepared the entire meal with his hairnet only partially covering his hair. Natal repeated his
request for Plaintiff to “leave it alone,” and asked Plaintiff, “What do you want me to do? Write
him a ticket and say that I told him five times to put on a hairnet and he didn’t?” (ECF No. 1-1
at 3).
The next day, Plaintiff contends he was approached by other inmates who told him Natal
had passed out beard guards to all employees with facial hair. They reported that when the
inmates complained about wearing the beard guards, Natal informed them that if they were
unhappy they could blame Plaintiff because if Plaintiff saw them without the proper hair

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coverings he would report them. (ECF No. 1-1 at 3). Plaintiff brought this information to the
attention of Lieutenant Binion, who indicated to Plaintiff he would talk with Natal. Plaintiff
filed grievances pointing out that other inmates were wearing partial hairnets, failed to wear
beard guards, or wore non-conforming head coverings and were not disciplined. He was told he
was permitted to wear his kufi without a hairnet, and there was no need for him to continue to
point out issues with other inmates. Plaintiff contends he was involved in two physical
altercations with two inmates who were dissatisfied that he complained about their improper
hair or beard coverings.
Plaintiff asserts three causes of action. First, he claims Schoneback and Natal denied
him equal protection in violation of the Fourteenth Amendment when they asked him to cover
his kufi with a hairnet, but did not ask other inmates with ball caps or skull caps to do the same.
Second, he asserts two claims for retaliation in violation of the First Amendment. He asserts he
argued back to Ice and Ice retaliated against him by placing him in handcuffs and taking him to
Captain Wright. He also asserts he confronted Natal about singling him out to remove his cap
and Natal retaliated against him by labeling him as a “snitch.” Finally, Plaintiff claims Natal
violated his Eighth Amendment rights by labeling him as a “snitch.”
STANDARD OF REVIEW
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364,
365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court is
required to dismiss an in forma pauperis action under 28 U.S.C. §1915(e) if it fails to state a
claim upon which relief can be granted, or if it lacks an arguable basis in law or fact. Neitzke v.
Williams, 490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v.

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City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). A claim lacks an arguable basis in law or
fact when it is premised on an indisputably meritless legal theory or when the factual
contentions are clearly baseless. Neitzke, 490 U.S. at 327. A cause of action fails to state a
claim upon which relief may be granted when it lacks “plausibility in the complaint.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 564 (2007). A pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S.
662, 677-78 (2009). The factual allegations in the pleading must be sufficient to raise the right
to relief above the speculative level on the assumption that all the allegations in the Complaint
are true. Twombly, 550 U.S. at 555. The Plaintiff is not required to include detailed factual
allegations, but must provide more than “an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678. A pleading that offers legal conclusions or a simple
recitation of the elements of a cause of action will not meet this pleading standard. Id. In
reviewing a Complaint, the Court must construe the pleading in the light most favorable to the
Plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir.1998).
DISCUSSION
I.

Equal Protection
Plaintiff first asserts Schoneback and Natal denied him equal protection in violation of

the Fourteenth Amendment when they asked him to remove or cover his kufi, but did not ask
other inmates with skull caps or baseball caps to do the same. The Equal Protection Clause
prohibits discrimination by government actors which either burdens a fundamental right, targets
a suspect class, or intentionally treats one differently than others similarly situated without any
rational basis for the difference. Rondigo, L.L.C. v. Township of Richmond, 641 F.3d 673, 681

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-82 (6th Cir. 2011); Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005). The
threshold element of an equal protection claim is disparate treatment. Scarbrough v. Morgan
Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006). When disparate treatment is shown, the
equal protection analysis is determined by the classification used by government
decision-makers.
Plaintiff has not alleged facts to demonstrate disparate treatment. He claims he was told
to cover his kufi with a hairnet while other inmates were not told to cover their ball caps or their
skull caps. Plaintiff, however, was not required to wear a hairnet over his kufi. He presented
his argument to the prison administration and the administration ruled in his favor. He was
treated the same as the other inmates with ball caps or skull caps. To the extent his claim is
based on the fact that he was asked to use a hairnet when other inmates were not asked, his
claim is without merit. Where the conduct at issue consists solely of speech, there is no equal
protection violation. Williams v. Bramer, 180 F.3d 699, 706 (5th Cir. 1999).
II.

Retaliation
Plaintiff next asserts claims for retaliation in violation of the First Amendment against

Ice and Natal. Retaliation, though it is not expressly referred to in the Constitution, is
actionable because retaliatory actions may tend to chill an individual’s exercise of First
Amendment rights. Perry v. Sindermann, 408 U.S. 593, 597 (1972). To state a prima facie case
for retaliation prohibited by the First Amendment, Plaintiff must establish: 1) he engaged in
protected conduct; 2) an adverse action was taken against him that would deter a person of
ordinary firmness from continuing to engage in that protected conduct; and 3) that a causal
connection exists between the first two elements. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th

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Cir. 1999).
Both of Plaintiff’s retaliation claims fail to establish he was engaged in conduct
protected by the First Amendment. Id. at 394-95. Plaintiff first claims Ice retaliated against
him because Plaintiff argued with Ice and threatened to report him to Captain Wright. He
claims Natal retaliated against him after Plaintiff verbally confronted Natal and argued with him
about the appearance of other inmates. While prisoners have a clear right protected by the First
Amendment to file formal grievances against prison officials, Hill v. Lappin, 630 F.3d 468, 472
(6th Cir. 2010), arguing with corrections officers, or being insolent or disrespectful toward
corrections officers is not conduct protected by the First Amendment. See, e.g., Goddard v.
Kentucky Department of Corrections, Nos. 99–5348 and 99–5971, 2000 WL 191758 at *2 (6th
Cir. Feb.7, 2000) (“[plaintiff prisoner’s] cursing to correctional officials and complaining about
treatment he received ... is not an activity protected under the First Amendment”); Ustrak v.
Fairman, 781 F.2d 573, 580 (7th Cir. 1986) (prison regulation prohibiting inmates from “being
disrespectful to any employee” and from using “vulgar, abusive, insolent, threatening, or
improper language toward any other resident [i.e., inmate] or employee” did not violate the First
Amendment, in light of paramount need for prison discipline and control of violence); Thomson
v. Spitter, No. 1:12cv534, 2014 WL 235485, at *11 (W.D. Mich. Jan. 22, 2014). Plaintiff did
not have a constitutionally protected right to argue with Ice or to seek out Natal on two
occasions to confront him about the appearance of other inmates, particularly after his own issue
with his kufi was settled. Without protected conduct, there can be no First Amendment
violation.
Moreover, even if Plaintiff had met the first criteria, he has not alleged facts to suggest

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that he suffered an adverse action. An adverse action is one that is “ capable of deterring a
person of ordinary firmness” from exercising the constitutional right in question. Bell v.
Johnson, 308 F.3d 594, 606 (6th Cir. 2002). Plaintiff does not have to show actual deterrence.
Harbin–Bey v. Rutter, 420 F.3d 571, 579 (6th Cir. 2005). Even the threat of an adverse action
can satisfy this element if the threat is capable of deterring a person of ordinary firmness from
engaging in the protected conduct. Hill, 630 F.3d at 472; Thaddeus–X, 175 F.3d at 398. Certain
threats or deprivations, however, may be so de minimis that they do not rise to the level of being
constitutional violations. Id.
Plaintiff alleges Ice handcuffed him and took him Captain Wright’s office. This is not
an adverse action capable of deterring a person of ordinary fitness from engaging in protected
conduct. Plaintiff indicated to Ice that he would report Ice to Captain Wright and Ice escorted
him to Captain Wright’s office. Captain Wright told Ice Plaintiff did not have to cover his kufi
and released him. No adverse action was taken against the Plaintiff and he obtained the relief
he was seeking.
Plaintiff contends Natal called him a “snitch.” Plaintiff, however, on several occasions
approached Natal in the presence of other inmates, complained publically that those inmates
were not wearing proper head covering, and inquired why Natal was not disciplining them.
Although Natal may have handed out beard guards and hairnets as a result of his confrontations
with Plaintiff and may have told the complaining inmates to thank Plaintiff for the stricter
enforcement of the rules, Plaintiff’s own actions in the presence of other inmates already
enlightened them to probable source of the improper hair covering complaints. The adverse
affect of Natal’s statement was de minimis as Plaintiff openly engaged in his “informant”

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activities.
III. Eighth Amendment
Finally, Plaintiff claims Natal violated his Eighth Amendment rights by labeling him as
a “snitch.” 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, 346
(1981). The Eighth Amendment protects inmates by requiring that “prison officials ... ensure
that inmates receive adequate food, clothing, shelter, and medical care, and ... ‘take reasonable
measures to guarantee the safety of the inmates.’” Id. at 832 (quoting Hudson v. Palmer, 468
U.S. 517, 526-27 (1984)). This, however, does not mandate that a prisoner be free from
discomfort or inconvenience during his or her incarceration. Ivey v. Wilson, 832 F.2d 950, 954
(6th Cir. 1987) (per curiam) (quoting Rhodes, 452 U.S. at 346). Prisoners are not entitled to
unfettered access to the medical treatment of their choice, see Hudson v. McMillian, 503 U.S. 1,
9 (1992), nor can they “expect the amenities, conveniences and services of a good hotel.”
Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir.1988); see Thaddeus-X v. Blatter,175 F.3d 378,
405 (6th Cir. 1999). In sum, the Eighth Amendment affords the constitutional minimum
protection against conditions of confinement which constitute serious health threats, but does
address those conditions which cause the prisoner to feel merely uncomfortable or which cause
aggravation or annoyance. Hudson, 503 U.S. at 9-10 (requiring extreme or grave deprivation).
The Supreme Court in Wilson v. Seiter, 501 U.S. 294, 298 (1991), set forth a framework
for courts to use when deciding whether certain conditions of confinement constitute cruel and
unusual punishment prohibited by the Eighth Amendment. A Plaintiff must first plead facts

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which, if true, establish that a sufficiently serious deprivation has occurred. Id. Seriousness is
measured in response to “contemporary standards of decency.” Hudson v. McMillian, 503 U.S.
1,8 (1992). Routine discomforts of prison life do not suffice. Id. Only deliberate indifference
to serious medical needs or extreme deprivations regarding the conditions of confinement will
implicate the protections of the Eighth Amendment. Id. at 9. A Plaintiff must also establish a
subjective element showing the prison officials acted with a sufficiently culpable state of mind.
Id. Deliberate indifference is characterized by obduracy or wantonness, not inadvertence or
good faith error. Whitley v. Albers, 475 U.S. 312, 319 (1986). Liability cannot be predicated
solely on negligence. Id. A prison official violates the Eighth Amendment only when both the
objective and subjective requirements are met. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Prison officials have an affirmative duty under the Eighth Amendment to protect inmates
from violence perpetrated by other prisoners, and labeling an inmate as an informant may place
an inmate in danger of assault from other inmates. Benefield v. McDowall, 241 F.3d 1267, 1271
(10th Cir.2001); Comstock v. McCrary, 273 F.3d 693, 699, n. 2 (6th Cir. 2001). However, in
this case, Plaintiff publically pointed out other inmates with hair covering infractions, in the
presence of those inmates, and inquired of Natal why they were not being disciplined.
Plaintiff’s identity as the informant was never concealed. Any additional indication the inmates
received from Natal that Plaintiff was the source of the complaints about their noncompliance
with hair covering regulations was cumulative, at best. Natal’s actions do not rise to the level of
an Eighth Amendment violation.
Moreover, the subjective component requires a showing that prison officials knew of,
and acted with deliberate indifference to, an inmate’s health or safety. Wilson, 501 U.S. at

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302-03. Deliberate indifference “entails something more than mere negligence.” Farmer, 511
U.S. at 835. An official acts with deliberate indifference when “he acts with criminal
recklessness,” a state of mind that requires that the official act with conscious disregard of a
substantial risk of serious harm. Farmer, 511 U.S. at 837. This standard is met if “the official
knows of and disregards an excessive risk to inmate health or safety; the official must both be
aware of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Id. In this case, there are no facts which plausibly
suggest Natal was aware that his comments could place Plaintiff in more danger than he was
already in given Plaintiff’s own comments in the presence of other inmates. He fails to satisfy
the subjective element of his claim.
Finally, to state a claim for deliberate indifference under the Eighth Amendment in the
Sixth Circuit, there must be some resulting harm stemming from the Defendant labeling
Plaintiff as a “snitch” or an informant. See Thompson v. Mich. Dep’t of Corrections, No. 011943, 2002 WL 22011 (6th Cir. Jan. 2, 2002)(affirming district court’s dismissal where
“[plaintiff’s] claim that he was endangered by being labeled a snitch was unsupported by any
allegation of resultant harm”). In this case, Plaintiff does not allege any resulting harm. He
contends he was in two different physical altercations with two different inmates as a result of
this incident. He provides no factual allegations regarding these altercations. There is no
indication of when they occurred, how they occurred, who was the initial aggressor, or how they
were resolved. Aside from saying that the altercations were prompted by the inmates’
perception of Plaintiff as a “snitch,” he does not allege facts to suggest Natal’s actions, not his
own, motivated the altercations and does not indicate whether he was injured. He fails to state a

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claim for relief under the Eighth Amendment.
CONCLUSION
Accordingly, this action is dismissed pursuant to 28 U.S.C. §1915(e). The Court
certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be
taken in good faith.
IT IS SO ORDERED.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 2/4/15

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