Opinion
Case No. 2:10-cv-261.
January 14, 2011
OPINION
This is 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, and Plaintiff has paid the initial partial filing fee. 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). 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, Plaintiff's action will be dismissed for failure to state a claim.
Discussion
I. Factual allegationsPlaintiff Anthony VanZant #646251, an inmate at the Oaks Correctional Facility, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Warden Greg McQuiggin, Resident Unit Manager M. LaCrosse, MDOC Director Patricia Caruso, Corrections Officer C. Golladay, Grievance Specialist R.D. Russell, and Corrections Officer K. Volz. Plaintiff alleges that Defendant Volz stared at his penis while he was urinating. Plaintiff filed a grievance and appealed the denial to step III, to no avail. In the Step III grievance response, Defendant Russell stated:
The grievant alleges that he was sexually harassed by an officer. He stated the officer opened his door and looked directly at his penis and smiled. The grievant did not indicate any requests as relief for filing this grievance. This grievance was reviewed and responded to at the local level in accordance with the provisions of Policy Directive and Operating Procedure 03.02.130 "Prisoner/Parole Grievances." The Step I response indicated the officer stated the grievant had his window completely covered. The officer also stated if prisoners just cover the bottom half so he can see it, he does not say anything, but if they have it completely covered, he tells them to take it down. The officer stated when he told the grievant to take it down, he became insolent and as such received a misconduct. The officer stated at no time did he make any unprofessional comments or act in an unprofessional manner. The grievant was interviewed and failed to provide any information to support his claims. His cellmate indicated the window was only half covered. No violation of policy was established or existed.
At step II, the grievant reiterated his complaint. The Step II response stated the Step I respondent adequately addressed the grievant's issue. The grievant reported sitting on the toilet while alleging the officer looked at his penis and smiled. This version of events makes little sense. The officer on the other hand reported the window was completely covered, while the grievant reported it was partially covered. Either way, the officer confronted the grievant regarding a rule violation. There appears to be no violation of PD 03.03.130. The Step II appeal was denied.
The record presented was reviewed with the appeal to Step III. All relevant information was considered. Based on the review, it was found that staff members properly responded to the grievance and addressed the merits of the main issue grieved. No additional information was provided to negate the Step I and Step II responses. This grievance appeal is denied.
(Docket #1-1, p. 6.)
Plaintiff claims that on December 6, 2009, Defendant Golladay taunted and ignored him when he asked for his loss of privileges break. Plaintiff filed a grievance and appealed the denial to step III, to no avail. In the Step II grievance response, Defendant McQuiggin stated:
The Step I respondent, [Resident Unit Manager] LaCrosse interviewed all [parties] and found that [Resident Unit Officer] Golladay stated that he was not approached by Mr. Vanzant regarding a sanction break and adds that all of his encounters with this prisoner have been professional. [Resident Unit Officer] Mattson denies knowledge of the incident or telling [Plaintiff] to write a grievance. [Plaintiff] was instructed by the facility's LOP break procedure. Investigation found no policy violation or inappropriate behavior by staff.
The grievant's Step II appeal reiterates the Step I complaint and indicates that to date (12/30/09) he has yet to receive a sanction break.
P.D. 03.03.130 Humane Treatment and Living Conditions for Prisoners states, "Staff shall not use or engage in, and shall discourage through appropriate means any person's use of, derogatory, demeaning, humiliating, or degrading actions or language toward others."
P.D. 03.03.105 Prisoner Discipline states, "A prisoner serving a sanction of detention, toplock, loss of privileges, or any combination of these sanctions, whether for major or minor misconduct, shall not be deprived of yard for more than 30 consecutive days without being provided a seven day break during which the prisoner shall be given the opportunity for yard consistent with his/her status (e.g., toplock — one hour per day, segregation — one hour per day, five days per week). However, yard privileges for all segregation prisoners are subject to restriction by written order of the Warden or Deputy Warden as set forth in PD 04.05.120 "Segregation Standards."
The allegation of harassment by [Defendant] Golladay was investigated at Step I and found to be without merit. No additional information has been provided here at Step II that changes the outcome of the investigation.
According to [Defendant] LaCross, a sanction break was scheduled for [Plaintiff] from 1/1/10 to 1/8/10. [Plaintiff] is currently on sanctions through 4/6/10, and his next break is scheduled from 2/9/10 to 2/16/10. There is no intentional violation of policy found in this complaint. The issue of sanction break has now been resolved. Involved staff will be reminded of the importance of scheduling breaks for prisoners serving more than 30 consecutive days.
(Docket #1-2, p. 5.)
Plaintiff asserts that Defendants' conduct violated his constitutional rights. Plaintiff fails to specify the relief he is seeking in this case.
II. Failure to state a claim
A 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (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, 129 S. Ct. 1937, 1949 (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." Ashcroft, 129 S. Ct. at 1949. 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." Ashcroft, 129 S. Ct. at 1949 (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." Ashcroft, 129 S. Ct. at 1950 (quoting FED. R. CIV. P. 8(a)(2)); see also Hill v. Lappin, ___ F.3d ___, 2010 WL 5288892, at *2 (6th Cir. Dec. 28, 2010 (holding that the Twombley/Ashcroft 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)).
To 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).
"[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 countyjailer 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 byprison 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).
If true, Defendant Volz' conduct toward Plaintiff was reprehensible, but it does not rise to the level of an Eighth Amendment violation. Plaintiff does not allege that Defendant Volz ever touched him or had form of physical contact with him. Acts of verbal sexual harassment, standing alone, are insufficient to state a claim under the Eighth Amendment. See Morales, 278 F.3d at 132; Zander, 1998 WL 384625, at *2. Therefore, Plaintiff's allegation fails to state an Eighth Amendment claim against Defendant Volz.
In addition, use of harassing or degrading language by a prison official, although unprofessional and deplorable, does not rise to constitutional dimensions. 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. 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. United States 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."); Brown v. Toombs, No. 92-1756, 1993 WL 11882 (6th Cir. Jan. 21, 1993) ("Brown's allegation that a corrections officer used derogatory language and insulting racial epithets is insufficient to support his claim under the Eighth Amendment."). Accordingly, Plaintiff fails to state an Eighth Amendment claim against Defendant Golladay arising from his alleged verbal abuse.
Plaintiff also fails to state a claim against arising from his placement on "loss of privileges." Generally courts will consider the nature and duration of a such a placement in determining whether it imposes an "atypical and significant hardship." Harden-Bey, 524 F.3d at 793. In Sandin, the Supreme Court concluded that disciplinary segregation for thirty days "did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest." 515 U.S. at 486. Likewise, the Sixth Circuit has often held that administrative segregation alone does not involve an "atypical and significant" hardship implicating a protected liberty interest. See e.g., Jones v. Baker, 155 F.3d 810, 812-13 (6th Cir. 1998); Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir. 1995) (holding a Michigan prisoner's complaint about his placement in administrative segregation without a hearing did not rise to the level of an "atypical and significant hardship"). The Sixth Circuit has held that a prisoner may present a § 1983 claim alleging that a restrictive placement is "atypical and significant in relation to the ordinary incidents of prison life" only in extreme circumstances. See Harden-Bey, 524 F.3d at 795.
Finally, liability under Section 1983 must be based on more than merely the right to control employees. Polk Co. v. Dodson, 454 U.S. 312, 325-26 (1981); Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658 (1978). Thus, Section 1983 liability cannot be premised upon mere allegations of respondeat superior. Monell, 436 U.S. at 691; Polk, 454 U.S. at 325. A party cannot be held liable under Section 1983 absent a showing that the party personally participated in, or otherwise authorized, approved or knowingly acquiesced in, the allegedly unconstitutional conduct. See e.g., Leach v. Shelby Co. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989), cert. denied, 495 U.S. 932 (1990); Hays v. Jefferson, 668 F.2d 869, 874 (6th Cir.), cert. denied, 459 U.S. 833 (1982). See also Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.), cert. denied 469 U.S. 845 (1984).
Supervisory officials can be held liable for the acts of their subordinates only if plaintiff establishes that the supervisor failed to appropriately discharge his supervisory duties, and that this failure resulted in a denial or deprivation of plaintiff's federal rights. See e.g. Leach, 891 F.2d at 1246; Hayes v. Vessey, 777 F.2d 1149, 1154 (6th Cir. 1985). However, the failure of a supervisor to supervise, control or train the offending employee is not actionable absent a showing that the official implicitly encouraged, authorized, approved or knowingly acquiesced in, or in some other way directly participated in, the offensive conduct. Leach, 891 F.2d at 1246. Such a claim requires, at a minimum, that the official had knowledge of the offending employee's conduct at a time when the conduct could be prevented, or that such conduct was otherwise foreseeable or predictable. See e.g. Gibson v. Foltz, 963 F.2d 851, 854 (6th Cir. 1992). In addition, plaintiff must show that defendant had some duty or authority to act. See e.g., Birrell v. Brown, 867 F.2d 956, 959 (6th Cir. 1989) (lower level official not liable for shortcomings of building); Ghandi v. Police Dep't of City of Detroit, 747 F.2d 338, 351 (6th Cir. 1984) (mere presence at the scene is insufficient grounds to impose Section 1983 liability in the absence of a duty to act); accord Hall v. Shipley, 932 F.2d 1147 (6th Cir. 1991). In addition, merely bringing a problem to the attention of a supervisory official is not sufficient to impose such liability. See Shelly v. Johnson, 684 F. Supp. 941, 946 (W.D. Mich. 1987) (Hillman, C.J.), aff'd 849 F.2d 228 (6th Cir. 1988). Finally, supervisory liability claims cannot be based on simple negligence. Leach, 891 F.2d at 1246; Weaver v. Toombs, 756 F. Supp. 335, 337 (W.D. Mich. 1989), aff'd 915 F.2d 1574 (6th Cir. 1990).
Plaintiff has not alleged facts establishing that Defendants McQuiggin, LaCrosse, Caruso, and Russell were personally involved in the activity which forms the basis of his claim. The only roles that Defendants McQuiggin, LaCrosse, Caruso, and Russell had in this action involve the denial of administrative grievances or the failure to act. Defendants McQuiggin, LaCrosse, Caruso, and Russell cannot be liable for such conduct under § 1983. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999), cert. denied, 530 U.S. 1264 (2000). Accordingly, the Court concludes that Plaintiff's claims against Defendants McQuiggin, LaCrosse, Caruso, and Russell are properly dismissed for lack of personal involvement.
Conclusion
Having conducted the review now required by the Prison Litigation Reform Act, the Court determines that Plaintiff's action will be dismissed for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c).
The Court must next decide whether an appeal of this action would be in good faith within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the $455.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless Plaintiff is barred from proceeding in forma pauperis, e.g., by the "three-strikes" rule of § 1915(g). If he is barred, he will be required to pay the $455.00 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A Judgment consistent with this Opinion will be entered.
Dated: January 14, 2011