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Kirschke v. Daley

United States District Court, W.D. Michigan, Northern Division

September 30, 2019

MOSES R. KIRSCHKE #384285, Plaintiff,
v.
CECIL DALEY, et al., Defendants.

          OPINION AND ORDER ADOPTING THE REPORT AND RECOMMENDATION

          GORDON J. QUIST UNITED STATES DISTRICT JUDGE

         Plaintiff, Moses R. Kirschke, a state prisoner at a Michigan Department of Corrections (MDOC) facility, brought this pro se civil rights action pursuant to 42 U.S.C. § 1983, claiming violations of his Eighth and Fourteenth Amendment rights based on the allegation that Defendants denied his requests for additional rolls of toilet paper between April 25 and May 24, 2016. Additionally, Plaintiff claims that Defendants McKechnie and Nault issued Plaintiff minor misconduct tickets that singled out Plaintiff in violation of the Fourteenth Amendment Equal Protection Clause and retaliated against Plaintiff for writing grievances in violation of the First Amendment. Defendants moved for summary judgment, and Plaintiff responded. (ECF Nos. 129, 142.) On August 22, 2019, Magistrate Judge Maarten Vermaat submitted a Report and Recommendation (R & R) recommending that this Court (1) grant Defendants’ motion for summary judgment with respect to Plaintiff’s Eighth, Fourteenth Amendment, and First Amendment claims that he was denied toilet paper, and (2) deny Defendants’ motion for summary judgment with respect to Plaintiff’s Fourteenth Amendment Equal Protection Claim and First Amendment retaliation claims against Defendants McKechnie and Nault that he was issued minor misconduct tickets. (ECF No. 145.)

         Defendants filed Objections to the portions of the R & R recommending denial of their motion for summary judgment. (ECF No. 148.) Plaintiff filed a response to Defendants’ objections. (ECF No. 150.) Plaintiff also filed Objections to the portions of the R & R which recommending granting Defendants’ motion for summary judgment. (ECF No. 152.) Upon receiving objections to an R & R, the district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). This Court may accept, reject, or modify any or all of the magistrate judge’s findings or recommendations. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).

         After conducting a de novo review of the R & R, the Objections, Plaintiff’s response, and the pertinent portions of the record, the Court concludes that the R & R should be adopted as the Opinion of the Court.

         I. Background

         Plaintiff alleges that he repeatedly requested additional rolls of toilet paper during April and May 2016 but was consistently denied additional rolls. Plaintiff testified in his deposition that every prisoner was given three rolls of toilet paper every two weeks but claimed that the three rolls were not enough for bathroom use, though he did not claim that he had any medical condition that rendered three rolls inadequate. (ECF No. 142-2 at PageID.1609-11.) Plaintiff filed grievances against the officers who did not fulfill his requests for additional toilet paper. According to Plaintiff, the officers involved retaliated against him for filing grievances by further denying him additional toilet paper.

         Plaintiff also claims that he was issued minor misconduct tickets in retaliation for filing his grievances. Specifically, Plaintiff alleges that on May 6, 2016, Defendant McKechnie wrote a misconduct ticket against Plaintiff for having a roll of toilet paper on top of his locker in violation of prison rules. Plaintiff admits that he violated the rule but emphasizes that another cellmate had a bowl on top of his locker, and that cellmate did not receive a misconduct ticket. Plaintiff also alleges that on May 12, 2016, Defendant Nault wrote a misconduct ticket against Plaintiff for being in the hallway when he was not permitted to be. Plaintiff maintains that this ticket was false because Plaintiff was not on “Toplock, ” which requires permission to leave the cell, at the time he received the ticket. Plaintiff also states that he was walking with another inmate at the time who was on Toplock but did not receive a misconduct ticket.

         II. Plaintiff’s Objections

         Many of Plaintiff’s Objections are spent complaining that the magistrate judge did not include every fact that Plaintiff included in his response to the motion for summary judgment. The Court has reviewed the R & R and finds that it includes all the pertinent facts for the purpose of resolving Defendants’ summary judgment motion. The Court will, however, address Plaintiff’s Objections to the portions of the R & R that recommended granting Defendants’ motion for summary judgment.

         Eighth Amendment

         Plaintiff argues that denial of toilet paper constitutes deliberate indifference because the Sixth Circuit has held that toilet paper is “a basic element[] of hygiene, ” such that denial of toilet paper would entitle Plaintiff to relief under the Eighth Amendment. Carver v. Bunch, 946 F.2d 451, 452 (6th Cir. 1991). However, Plaintiff fails to recognize the distinction between Carver and this case. In Carver, the prisoner was not given any toilet paper for the course of two weeks. Id. Here, Plaintiff was given three rolls of toilet paper for each two-week period; he was simply denied additional toilet paper. Thus, Plaintiff’s situation more closely resembles the facts of Cusamano v. Sobek, 604 F.Supp.2d 416, 488–89 (N.D.N.Y. 2009), in which the district court found that the prisoner could not make out an Eighth Amendment claim because, although the prisoner was denied toilet paper on several occasions, he did not allege that he was not given any toilet paper. Thus, the Court agrees with the magistrate judge that Plaintiff has failed to allege anything more than a temporary inconvenience, and Defendants are entitled to summary judgment on Plaintiff’s Eighth Amendment claim.

         Fourteenth Amendment Due Process

         Plaintiff also objects to the magistrate judge’s conclusion that Defendants are entitled to summary judgment on Plaintiff’s Fourteenth Amendment due process claim. But the Court agrees with the magistrate judge that Plaintiff did not have a liberty interest in obtaining additional rolls of toilet paper. The relevant prison policy states: “Prisoners shall be provided or permitted to purchase personal hygiene items, including . . . toilet paper . . . .” (ECF No. 142-8 at PageID.1724 (emphasis added).) Plaintiff was provided toilet paper, as per policy, and he has failed to allege that he was prohibited from obtaining additional rolls through purchase.[1] Because the policy does not mandate provision of unlimited rolls of toilet paper, Plaintiff does not have a liberty interest sufficient to maintain a Fourteenth Amendment due process claim.

         First ...


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