United States District Court, W.D. Michigan, Southern Division
J. Jonker, Chief United States District Judge.
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 against Defendants Palmer, Hall,
Breedlove, Bonn, and Russell for failure to state a claim.
is presently incarcerated with the Michigan Department of
Corrections (MDOC) at the Muskegon Correctional Facility
(MCF) in Muskegon, Michigan. The events about which he
complains, however, occurred at the Michigan Reformatory
(RMI) in Ionia, Michigan. Plaintiff sues RMI Warden Carmen
Palmer; RMI Corrections Officers Unknown Hall, Unknown
Breedlove, and Unknown Bonn; and MDOC Grievance Section
Manager Richard D. Russell. In Plaintiff's complaint and
the grievances he attached to his complaint, Plaintiff
alleges on August 18, 2017, right before lunch, Defendant
Hall told Plaintiff he could use the JPay kiosk upon his
return from lunch. When he returned and connected, however,
Defendant Hall told him he was not to be on JPay. When
Defendant protested, Defendant Hall informed him: “I
love taking you black bastards to segregation.” (Aug.
23, 2017 Grievance, ECF No. 1-1, PageID.8.) Defendant Hall
ordered Plaintiff to give her his ID and then ordered
Plaintiff to return to his cell. Defendant Hall wrote a Class
III misconduct ticket against Plaintiff for being out of
place. Plaintiff lost privileges for five days as a result.
Plaintiff claims Defendant Hall's words indicate racial
discrimination. He argues that her actions violate the First,
Eighth, and Fourteenth Amendments.
remaining Defendants are named because they allegedly
“allowed” Defendant Hall's misconduct by
their respective responses to Plaintiff's grievances and
appeals regarding the matter.
seeks a declaration that Defendants have violated
Plaintiff's rights under the First, Eighth, and
Fourteenth Amendments, removal of the misconduct ticket from
Plaintiff's file, an injunction against transferring
Plaintiff to a facility where Defendants are employed, and
damages in the amount of $4, 000.00.
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); 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 (1994). As
noted above, Plaintiff alleges that Defendants' conduct
violated his First, Eighth, and Fourteenth Amendment rights.
fails to make specific factual allegations against Defendants
Breedlove, Bonn, Palmer, and Russell, other than his claim
that they failed to remedy Defendant Hall's alleged
misconduct in response to his grievances. 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
Breedlove, Bonn, Palmer, and Russell engaged in any active
unconstitutional behavior. Accordingly, he fails to state a
claim against them.
allegations against Defendant Hall at least attribute actions
to her beyond responding to grievances; but, he fails to
state a claim against her as well. Plaintiff's principal
complaint against Defendant Hall is her statement that she
enjoys putting “black bastards” in segregation.
There is nothing in Plaintiff's complaint that indicates
that Defendant Hall put Plaintiff in segregation in
connection with the events described in the complaint.
conduct described does not rise to the level of an Eighth
Amendment violation. 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, 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
of harassing or degrading language by a prison official,
although unprofessional and deplorable, does not create
intolerable prison confinement. See Ivey v. Wilson,
832 F.2d 950, 954-55 (6th Cir. 1987); see also Johnson v.
Dellatifa, 357 F.3d 539, 546 (6th Cir. 2004) (harassment
and verbal abuse do not constitute the type of infliction of
pain that the Eighth Amendment prohibits); Violett v.
Reynolds, No. 02-6366, 2003 WL 22097827, at *3 (6th Cir.
Sept. 5, 2003) (verbal abuse and harassment do not constitute
punishment that would support an Eighth Amendment claim);
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); Murray v. U.S. Bureau of
Prisons, No. 95-5204, 1997 WL 34677, at *3 (6th Cir.
Jan. 28, 1997) (“Although we do not condone the alleged
statements, the Eighth Amendment does not afford us the power
to correct every action, statement or attitude of a prison
official with which we might disagree.”); Clark v.
Turner, No. 96-3265, 1996 WL 721798, at *2 (6th Cir.
Dec. 13, 1996) (“Verbal harassment and idle threats are
generally not sufficient to constitute an invasion of an
inmate's constitutional rights.”); 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.
County 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); Bell-Bey v. Mayer, No. 98-1425, 1999 WL
1021859, at *1 (6th Cir. Nov. 3, 1999) (same); Thaddeus-X
v. Langley, No. 96-1282, ...