United States District Court, W.D. Michigan, Southern Division
T. Neff, United States District Judge
a civil rights action brought by a state prisoner pursuant to
42 U.S.C. § 1983. The Court has granted Plaintiff leave
to proceed in forma pauperis. Under the Prison
Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321
(1996), 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) . T h e C o u r t m u s t r e a d P
l a i n t i f f ' 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, Plaintiff's action will be
dismissed for failure to state a claim. Plaintiff's
motion for preliminary injunction and temporary restraining
order (ECF No. 3) and motion for guidance (ECF No. 6) will be
Dwayne Anthony Johnson is presently incarcerated at the Oaks
Correctional Facility (ECF) in Manistee, Michigan. Plaintiff
was transferred to ECF on October 5, 2016, and placed in
administrative segregation for a major misconduct of
“incite to riot or strike.” (Compl., ECF No. 1,
PageID.3.) Plaintiff reports that the Security Classification
Committee has informed him that he will be confined in
administrative segregation for at least one year.
complains of two problems he has experienced at ECF. First,
he complains that he is allergic to the stick/gel deodorant
permitted in administrative segregation. Plaintiff wanted
a powder/talc deodorant, but possession of the talc
conflicted with custody rules for segregation prisoners.
(Id., PageID.8.) Second, Plaintiff complains that
one or more of the Defendants has failed to provide him more
than ten sheets of typing paper per month for legal work.
Plaintiff indicates he requires much more paper and that he
is forced to choose between writing letters to friends and
family or using the ten sheets of paper for legal work.
claims that Defendants' refusal to permit powder/talc
deodorant or to provide more than ten sheets of paper
violates Michigan Department of Corrections (MDOC) policies
as well as Plaintiff's constitutional rights. Plaintiff
asks the Court to declare that Defendants' actions or
failure to act violated Plaintiff's constitutional
rights, to issue preliminary and permanent injunctive relief
ordering Defendants to provide or permit Plaintiff to
purchase and possess powder/talc deodorant and more
Failure to state a claim
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)).
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);
Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549
(6th Cir. 2009). 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 does not identify the constitutional
protections abridged by Defendants; but, presumably he
contends that Defendants' failure to provide his
powder/talc deodorant violates the Eighth Amendment's
protection against cruel and unusual punishment and
Defendants' failure to provide adequate paper to permit
Plaintiff to prepare and submit pleadings violates the First
Amendment guarantee of access to the courts.
Eighth Amendment claim
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,
345-46 (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). 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)).
Eighth Amendment claim that he has been deprived of
powder/talc deodorant is frivolous. Plaintiff does not allege
that his ability to wash and keep himself clean was impaired
in any way. The use of deodorant does not improve or impair
cleanliness; its usefulness is merely cosmetic.
Defendants' denial of deodorant therefore did not result
in the denial of the “minimal civilized measure of
life's necessities.” Rhodes, 452 U.S. at
347; see also James v. O'Sullivan, 62
F.App'x 636, 639 (7th Cir. 2003) (holding that the denial
of a comb, deodorant and cleaning supplies cannot be said to
have jeopardized a prisoner's health); Harris v.
Horel, No. C 06-7761 SBA, 2009 WL 2761339, at *3-4 (N.D.
Cal. Aug. 31, 2009) (denial of shampoo, lotion, deodorant,
television and reading material for over one-and-one-half
years did not offend the Eighth Amendment); Jordan v.
Flowers, No. 06 C 6333, 2008 WL 5211552 (N.D. Ill.Dec.
9, 2008) (lack of deodorant does not state a sufficiently
serious condition that implicates a constitutional concern);
Crump v. Janz, No. 1:10-cv-583, 2010 WL 2854266, at
*4 (W.D. Mich. Jul. 19, 2010) (holding complaint failed to
plead an Eighth Amendment violation where inmate asserted
“lack of deodorant, toothbrushes, toothpaste, postage,
typing and carbon paper, and legal envelopes for 35
days”); Mitchell v. Kalamazoo Cnty. Sheriff's
Dept., No. 1:14-cv-824, 2014 WL 7330974 at *6 (W.D.
Mich. Dec. 19, 2014) (“The jail's failure to
provide additional free items, such as deodorant, body
lotion, wash cloths, underwear and socks does not constitute
the denial of the ‘minimal civilized measure of
life's necessities.'”). Accordingly, Plaintiff
has failed to state a claim for violation of the Eighth
Amendment based on denial of deodorant.