The opinion of the court was delivered by: Hon. R. Allan Edgar
Plaintiff Serell Butts, an inmate currently confined at the Alger Maximum Correctional Facility, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against several employees of the Michigan Department of Corrections. Specifically, Defendants include Chaplain Riley, Resident Unit Officer Stasewich, Special Acts Coordinator Michael Martin, Patricia Caruso, Dave Bergh and Inspector Contreras.
Plaintiff's complaint alleges that he was denied a kosher diet. Plaintiff alleges that while he was confined at Baraga Maximum Correctional Facility he was approved by Chaplain Snyder for a kosher diet. Plaintiff was transferred to Alger Maximum Correctional Facility for the sole purpose of obtaining a kosher diet which is offered at that facility. Plaintiff alleges that on September 5, 2007, he was forced to sign off the kosher diet program by Sergeant Beluser. Sergeant Beluser witnessed plaintiff eating non-kosher foods. Plaintiff asserts that he signed off the kosher diet out of fear.
Plaintiff filed a number of grievances against defendant Stasewich for sexual harassment. On May 2, 2008, Chaplain Riley denied plaintiff's kosher diet request. Plaintiff sent letters to defendant Special Acts Coordinator Michael Martin, Director Caruso, and Inspector Contreras. Plaintiff claims that his Eighth Amendment rights were violated by defendant Stasewich and that his First Amendment freedom of religion rights were violated by defendants.
On September 21, 2009, the court dismissed Plaintiff's claims against Defendant Contreras without prejudice for lack of exhaustion (docket #61). Presently before the Court is the Defendants' Motion for Summary Judgment, pursuant to Fed. R. Civ. P. 56. Plaintiff has filed a response and the matter is ready for decision. Because both sides have asked that the Court consider evidentiary materials beyond the pleadings, the standards applicable to summary judgment apply. See Fed. R. Civ. P. 12(b).
Summary judgment is appropriate only if the moving party establishes that there is no genuine issue of material fact for trial and that he is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). If the movant carries the burden of showing there is an absence of evidence to support a claim or defense, then the party opposing the motion must demonstrate by affidavits, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue of material fact for trial. Id. at 324-25. The nonmoving party cannot rest on its pleadings but must present "specific facts showing that there is a genuine issue for trial." Id. at 324 (quoting Fed. R. Civ. P. 56(e)). The evidence must be viewed in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Thus, any direct evidence offered by the plaintiff in response to a summary judgment motion must be accepted as true. Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004) (citing Adams v. Metiva, 31 F.3d 375, 382 (6th Cir. 1994)). However, a mere scintilla of evidence in support of the non-movant's position will be insufficient. Anderson, 477 U.S. at 251-52. Ultimately, the court must determine whether there is sufficient "evidence on which the jury could reasonably find for the plaintiff." Id. at 252. See also Leahy v. Trans Jones, Inc., 996 F.2d 136, 139 (6th Cir. 1993) (single affidavit, in presence of other evidence to the contrary, failed to present genuine issue of fact); cf. Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1448 (6th Cir. 1993) (single affidavit concerning state of mind created factual issue).
Defendants state that they are entitled to summary judgment on Plaintiff's Eighth Amendment claims because the alleged misconduct by Defendants does not rise to the level of an Eighth Amendment violation. Plaintiff claims that Defendant Stasewich made sexual comments towards Plaintiff and touched him inappropriately on a single occasion. Plaintiff also claims that other Defendants failed to take corrective action against Defendant Stasewich.
"[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). "To prevail on a constitutional claim of sexual harassment, an inmate must therefore prove, as an objective matter, that the alleged abuse or harassment caused 'pain' and, as a subjective matter, that the officer in question acted with a sufficiently culpable state of mind." Freitas, 109 F.3d at 1338 (citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)).
Circuit courts consistently have held that sexual harassment, absent contact or touching, does not satisfy the objective requirement because such conduct does not constitute the unnecessary and wanton infliction of pain. See Morales v. Mackalm, 278 F.3d 126, 132 (2d Cir. 2002) (allegations that prison guard asked prisoner to have sex with her and to masturbate in front of her and other female staffers did not rise to level of Eighth Amendment violation); Barney v. Pulsipher, 143 F.3d 1299, 1311 n.11 (10th Cir. 1998) (allegations that county jailer subjected female prisoners to severe verbal sexual harassment and intimidation was not sufficient to state a claim under the Eighth Amendment); Howard v. Everett, No. 99-1277EA, 2000 WL 268493, at *1 (8th Cir. March 10, 2000) (sexual comments and gestures by prison guards did not constitute unnecessary and wanton infliction of pain); cf. Seltzer-Bey v. Delo, 66 F.3d 961, 962-63 (8th Cir. 1995) (allegations that prison guard conducted daily strip searches, made sexual comments about prisoner's penis and buttocks, and rubbed prisoner's buttocks with nightstick were sufficient to withstand motion for summary judgment); Zander v. McGinnis, No. 97-1484, 1998 WL 384625, at *2 (6th Cir. June 19, 1998) (verbal abuse of mouthing "pet names" at prisoner for ten months failed to state an Eighth Amendment claim); Murray v. United States Bureau of Prisons, No. 95-5204, 1997 WL 34677, at *3 (6th Cir. Jan. 28, 1997) (magistrate judge correctly held that verbal abuse in the form of offensive remarks regarding a transsexual prisoner's bodily appearance, transsexualism, and presumed sexual preference cannot state an Eighth Amendment claim). Other courts have held that even minor, isolated incidents of sexual touching coupled with occasional offensive sexual remarks do not rise to the level of an Eighth Amendment violation. See, e.g., Jackson v. Madery, 158 F. App'x 656, 661 (6th Cir. 2005) (correction 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) (male prisoner's claim that a male officer placed his hand on the prisoner's buttock in a sexual manner and made an offensive sexual remark did not meet the objective component of the Eighth Amendment); 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).
On March 6, 2008, and March 21, 2008, Plaintiff filed grievances against Defendant Stasewich for sexual harassment. In the first grievance, Plaintiff contends that Defendant Stasewich told him that if he wanted to eat or go to the general population, he had "betta jack off on [Defendant Stasewich] like [he did] on female staff and that old psych" that had just closed Plaintiff's window. Plaintiff also asserted that Defendant Stasewich tried to play peek-a-boo while asking, "is it hard yet?" (Plaintiff's Exhibit A, p. 1, docket #1.) In the second grievance, Plaintiff states that while taking him to health services, Defendant Stasewich jabbed his fingers into Plaintiff, just above his buttocks. Plaintiff ceased walking and asked Defendant Stasewich to stop touching him in that manner. Defendant Stasewich then stated that Plaintiff had snitched on him in the earlier grievance and that Plaintiff was lucky that Defendant Stasewich did not rape him. (Plaintiff's Exhibit B, p. 1, docket #1.)
On April 15, 2008, Plaintiff filed another grievance on Defendant Stasewich, stating that after Plaintiff had taken the test to be approved for a kosher diet, Defendant Stasewich told him that he would not be approved for the diet "thanks to [Defendant Stasewich]." (Plaintiff's Exhibit C, p. 1, docket #1.) Defendant Riley ...