Evans #367619 v. Frias et al, No. 1:2020cv00803 - Document 11 (W.D. Mich. 2020)

Court Description: OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

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Evans &#035;367619 v. Frias et al Doc. 11 Case 1:20-cv-00803-PLM-RSK ECF No. 11 filed 10/23/20 PageID.439 Page 1 of 16 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______ ALRELIO EVANS, Plaintiff, v. Case No. 1:20-cv-803 Honorable Paul L. Maloney R. FRIAS et al., Defendants. ____________________________/ OPINION This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (RLUIPA), §§ 2000cc to 2000cc-5. Under Rule 21 of the Federal Rules of Civil Procedure, a court may at any time, with or without motion, add or drop a party for misjoinder or nonjoinder. Fed. R. Civ. P. 21. Further, 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 drop Defendants Frias, Wixson, Schneider, Miller, Dunigan, King, Reid, Finnerty, Southwick, Lemke, Pratt, Sanders, Jensen, Warren, Evans, Nixon, Gren, Washington, and Unknown Party Dockets.Justia.com Case 1:20-cv-00803-PLM-RSK ECF No. 11 filed 10/23/20 PageID.440 Page 2 of 16 under Rule 21 because they are misjoined. The Court will further dismiss Plaintiff’s complaint against the remaining Defendants, DeMayer and Verschure, for failure to state a claim. Discussion I. Factual allegations Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Macomb Correctional Facility (MRF) in New Haven, Macomb County, Michigan. The events about which he complains, however, occurred at the Michigan Reformatory (RMI) in Ionia, Ionia County, Michigan. following RMI staff: Plaintiff sues MDOC Director Heidi Washington and the Assistant Residential Unit Supervisors R. Frias, Todd Wixson, and S. Schneider; Deputy Warden James Miller; Assistant Deputy Wardens James Dunigan and Christopher King; Residental Unit Manager Unknown Reid; Transfer Coordinator Ruth C. Finnerty; Librarian Mary Southwick; Assistant Librarian Dee Lemke; and Corrections Officers Unknown Pratt, Unknown Sanders, Unknown Jensen, Unknown DeMayer, Unknown Verschure, Unknown Warren, Unknown Evans, Unknown Nixon, Unknown Gren, and Unknown Party. Plaintiff alleges a series of discrete events from November 2017 to July 2019 involving the 21 Defendants to varying degrees. In his earliest allegations, Plaintiff asserts that on November 30, 2017, and on December 6, 2017, DeMayer and Verschure refused to allow Plaintiff to shower. Plaintiff further alleges that Washington, Jenson, Nixon, and Verschure prevented Plaintiff from exercising for an hour on the yard on February 13, 14, and 17, 2018. On March 14, 2018, Verschure and Evans allegedly refused to open Plaintiff’s cell door so that he could shower. The remainder of the complaint alleges misconduct related to the following: Plaintiff’s access to legal supplies and legal records; his use of the law library; prison staff reading Plaintiff’s mail; impediments to Plaintiff practicing as a Jehovah’s Witness; denials of Plaintiff’s gym time, yard time, work detail, and showers; removal of papers from Plaintiff’s hands; prison 2 Case 1:20-cv-00803-PLM-RSK ECF No. 11 filed 10/23/20 PageID.441 Page 3 of 16 staff’s failure to record that Plaintiff had engaged in a hunger strike; Plaintiff’s transfer to another prison; the filing of false misconduct reports against Plaintiff; and sexual harassment because, as Plaintiff alleges, a corrections officer reported Plaintiff for misconduct after Plaintiff put up a sheet in his cell blocking the prison staff’s view of the toilet area. Plaintiff seeks declaratory and injunctive relief as well as nominal, compensatory, and punitive damages. II. Misjoinder At this juncture, the Court must review whether Plaintiff’s claims are properly joined. Plaintiff has joined 21 Defendants in this action connecting a series of discrete events over nearly two years from November 2017 to July 2019. A. Improper Joinder Federal Rule of Civil Procedure 20(a) limits the joinder of parties in single lawsuit, whereas Federal Rule of Civil Procedure 18(a) limits the joinder of claims. Rule 20(a)(2) governs when multiple defendants may be joined in one action: “[p]ersons . . . may be joined in one action as defendants if: (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action.” Rule 18(a) states: “A party asserting a claim . . . may join, as independent or alternative claims, as many claims as it has against an opposing party.” Courts have recognized that, where multiple parties are named, as in this case, the analysis under Rule 20 precedes that under Rule 18: Rule 20 deals solely with joinder of parties and becomes relevant only when there is more than one party on one or both sides of the action. It is not concerned with joinder of claims, which is governed by Rule 18. Therefore, in actions involving multiple defendants Rule 20 operates independently of Rule 18. . . . 3 Case 1:20-cv-00803-PLM-RSK ECF No. 11 filed 10/23/20 PageID.442 Page 4 of 16 Despite the broad language of Rule 18(a), plaintiff may join multiple defendants in a single action only if plaintiff asserts at least one claim to relief against each of them that arises out of the same transaction or occurrence and presents questions of law or fact common to all. 7 Charles Allen Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice & Procedure Civil § 1655 (3d ed. 2001), quoted in Proctor v. Applegate, 661 F. Supp. 2d 743, 778 (E.D. Mich. 2009), and Garcia v. Munoz, No. 08-1648, 2007 WL 2064476, at *3 (D.N.J. May 14, 2008); see also Neitzke v. Williams, 490 U.S. 319, 328 (1989) (joinder of defendants is not permitted by Rule 20 unless both commonality and same transaction requirements are satisfied). Therefore, “a civil plaintiff may not name more than one defendant in his original or amended complaint unless one claim against each additional defendant is transactionally related to the claim against the first defendant and involves a common question of law or fact.” Proctor, 661 F. Supp. 2d at 778. When determining if civil rights claims arise from the same transaction or occurrence, a court may consider a variety of factors, including, “the time period during which the alleged acts occurred; whether the acts . . . are related; whether more than one act . . . is alleged; whether the same supervisors were involved, [sic] and whether the defendants were at different geographical locations.” Id. (quoting Nali v. Mich. Dep’t of Corr., No. 07-10831, 2007 WL 4465247, at *3 (E.D. Mich. Dec. 18, 2007)). Permitting the improper joinder in a prisoner civil rights action also undermines the purpose of the PLRA, which was to reduce the large number of frivolous prisoner lawsuits that were being filed in the federal courts. See Riley v. Kurtz, 361 F.3d 906, 917 (6th Cir. 2004) (discussing purpose of PLRA). Under the PLRA, a prisoner may not commence an action without prepayment of the filing fee in some form. See 28 U.S.C. § 1915(b)(1). These “new fee provisions of the PLRA were designed to deter frivolous prisoner litigation by making all prisoner litigants feel the deterrent effect created by liability for filing fees.” Williams v. Roberts, 116 F.3d 1126, 4 Case 1:20-cv-00803-PLM-RSK ECF No. 11 filed 10/23/20 PageID.443 Page 5 of 16 1127-28 (5th Cir. 1997). The PLRA also contains a “three-strikes” provision requiring the collection of the entire filing fee after the dismissal for frivolousness, etc., of three actions or appeals brought by a prisoner proceeding in forma pauperis, unless the statutory exception is satisfied. 28 U.S.C. § 1915(g). The “three strikes” provision was also an attempt by Congress to curb frivolous prisoner litigation. See Wilson v. Yaklich, 148 F.3d 596, 603 (6th Cir. 1998). The Seventh Circuit has explained that a prisoner like Plaintiff may not join in one complaint all of the defendants against whom he may have a claim, unless the prisoner satisfies the dual requirements of Rule 20(a)(2): Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against different defendants belong in different suits, not only to prevent the sort of morass that [a multi]-claim, [multi]-defendant suit produce[s] but also to ensure that prisoners pay the required filing fees--for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g) . . . . A buckshot complaint that would be rejected if filed by a free person—say, a suit complaining that A defrauded the plaintiff, B defamed him, C punched him, D failed to pay a debt, and E infringed his copyright, all in different transactions— should be rejected if filed by a prisoner. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); see also Brown v. Blaine, 185 F. App’x 166, 168-69 (3d Cir. 2006) (allowing an inmate to assert unrelated claims against new defendants based on actions taken after the filing of his original complaint would have defeated the purpose of the three strikes provision of PLRA); Patton v. Jefferson Corr. Ctr., 136 F.3d 458, 464 (5th Cir. 1998) (discouraging “creative joinder of actions” by prisoners attempting to circumvent the PLRA’s three-strikes provision); Shephard v. Edwards, No. C2-01-563, 2001 WL 1681145, at *1 (S.D. Ohio Aug. 30, 2001) (declining to consolidate prisoner’s unrelated various actions so as to allow him to pay one filing fee, because it “would improperly circumvent the express language and clear intent of the ‘three strikes’ provision”); Scott v. Kelly, 107 F. Supp. 2d 706, 711 (E.D. Va. 2000) 5 Case 1:20-cv-00803-PLM-RSK ECF No. 11 filed 10/23/20 PageID.444 Page 6 of 16 (denying prisoner’s request to add new, unrelated claims to an ongoing civil rights action as an improper attempt to circumvent the PLRA’s filing fee requirements and an attempt to escape the possibility of obtaining a “strike” under the “three strikes” rule). Thus, to allow Plaintiff to proceed with these improperly joined claims and Defendants in a single action would permit him to circumvent the PLRA’s filing fee provisions and allow him to avoid having to incur a “strike” for purposes of by § 1915(g), should any of his claims turn out to be frivolous, malicious, or fail to state a claim. Plaintiff’s earliest allegations are those from November and December 2017 describing the conduct of DeMayer and Verschure. DeMayer and Verschure are the only Defendants identified in those earliest events. As a result, no claim against any of the other 19 Defendants is transactionally related to his earliest claims against Defendants DeMayer and Verschure. Moreover, it is clear that no question of law or fact is common to all Defendants. See Fed. R. Civ. P. 20(a)(2)(B). B. Remedy Under Rule 21 of the Federal Rules of Civil Procedure, “[m]isjoinder of parties is not a ground for dismissing an action.” Instead, Rule 21 provides two remedial options: (1) misjoined parties may be dropped on such terms as are just; or (2) any claims against misjoined parties may be severed and proceeded with separately. See Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 572-73 (2004) (“By now, ‘it is well settled that Rule 21 invests district courts with authority to allow a dispensable nondiverse party to be dropped at any time . . . .’”); DirecTV, Inc. v. Leto, 467 F.3d 842, 845 (3d Cir. 2006); Carney v. Treadeau, No. 2:07-cv-83, 2008 WL 485204, at *2 (W.D. Mich. Feb. 19, 2008); Coal. to Defend Affirmative Action v. Regents of Univ. of Mich., 539 F. Supp. 2d 924, 940 (E.D. Mich. 2008); see also Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674, 682 (6th Cir. 1988) (“[D]ismissal of claims against misjoined parties is 6 Case 1:20-cv-00803-PLM-RSK ECF No. 11 filed 10/23/20 PageID.445 Page 7 of 16 appropriate.”). “Because a district court’s decision to remedy misjoinder by dropping and dismissing a party, rather than severing the relevant claim, may have important and potentially adverse statute-of-limitations consequences, the discretion delegated to the trial judge to dismiss under Rule 21 is restricted to what is ‘just.’” DirecTV, 467 F.3d at 845. At least three judicial circuits have interpreted “on such terms as are just” to mean without “gratuitous harm to the parties.” Strandlund v. Hawley, 532 F.3d 741, 745 (8th Cir. 2008) (quoting Elmore v. Henderson, 227 F.3d 1009, 1012 (7th Cir. 2000)); see also DirecTV, 467 F.3d at 845. Such gratuitous harm exists if the dismissed parties lose the ability to prosecute an otherwise timely claim, such as where the applicable statute of limitations has lapsed, or the dismissal is with prejudice. Strandlund, 532 F.3d at 746; DirecTV, 467 F.3d at 846-47; Michaels Bldg. Co., 848 F.2d at 682. In this case, Plaintiff brings causes of action under 42 U.S.C. § 1983. For civil rights suits filed in Michigan under § 1983, the statute of limitations is three years. See Mich. Comp. Laws § 600.5805(10); Carroll v. Wilkerson, 782 F.2d 44 (6th Cir. 1986) (per curiam); Stafford v. Vaughn, No. 97-2239, 1999 WL 96990, at *1 (6th Cir. Feb. 2, 1999). Furthermore, “Michigan law provides for tolling of the limitations period while an earlier action was pending which was later dismissed without prejudice.” Kalasho v. City of Eastpointe, 66 F. App’x 610, 611 (6th Cir. 2003). All of Plaintiff’s allegations, other than those against Defendants DeMayer and Verschure, occurred January 31, 2018, or later. Those claims are well within the three-year period of limitations, and therefore not at risk of being time-barred. Plaintiff therefore will not suffer gratuitous harm if Defendants other than DeMayer and Verschure are dismissed. Accordingly, the Court will exercise its discretion under Rule 21 and dismiss all Defendants except DeMayer and 7 Case 1:20-cv-00803-PLM-RSK ECF No. 11 filed 10/23/20 PageID.446 Page 8 of 16 Verschure from the action, without prejudice to the institution of a new, separate lawsuit or lawsuits by Plaintiff.1 See Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997); Carney, 2008 WL 485204, at *3. III. 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 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. 1 As fully discussed in this opinion, Plaintiff is cautioned that not all of the dismissed claims and Defendants would be properly brought in a single new action. Additionally, the Court notes that Plaintiff has previously been warned about the consequences of improperly joining parties and claims in a single action. See Evans v. Brege, No. 1:19-cv1083, 2020 WL 358721, at *5 n.1 (W.D. Mich. Jan. 22, 2020). At that time, Plaintiff was cautioned and instructed that he must limit all future actions to Defendants and claims that are transactionally related to one another. Plaintiff is now cautioned that the Court, in its discretion, may reject without further review any future complaint he files that fails to comply with these directions. 8 Case 1:20-cv-00803-PLM-RSK ECF No. 11 filed 10/23/20 PageID.447 Page 9 of 16 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)). 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); 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). IV. First Amendment Plaintiff alleges three series of retaliatory conduct. Plaintiff alleges that DeMayer and Verschure refused to let Plaintiff shower on two occasions in late 2017 “in retaliation for law library and yard attendance . . . .” (Compl., ECF No. 1, PageID.16.) Verschure and another individual allegedly again refused to allow Plaintiff to shower on March 14, 2018 “as retaliation for filing grievances . . . .” (Id., PageID.18.) Plaintiff further alleges that Verschure and others denied him an hour of exercise on three occasions in February 2018 “as retaliation for filing grievances and lawsuits.” (Id., PageID.15.) Retaliation based upon a prisoner’s exercise of his or her constitutional rights violates the Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). In order to set forth a First Amendment retaliation claim, a plaintiff must establish that: (1) he was engaged in protected conduct; (2) an adverse action was taken against him that would deter a person of ordinary firmness from engaging in that conduct; and (3) the adverse action was motivated, at least in part, by the protected conduct. Id. Moreover, a plaintiff must be able to 9 Case 1:20-cv-00803-PLM-RSK ECF No. 11 filed 10/23/20 PageID.448 Page 10 of 16 prove that the exercise of the protected right was a substantial or motivating factor in the defendant’s alleged retaliatory conduct. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). It is well recognized that “retaliation” is easy to allege and that it can seldom be demonstrated by direct evidence. See Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005); Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987). “[A]lleging merely the ultimate fact of retaliation is insufficient.” Murphy, 833 F.2d at 108. “[C]onclusory allegations of retaliatory motive ‘unsupported by material facts will not be sufficient to state . . . a claim under § 1983.’” Harbin-Bey, 420 F.3d at 580 (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987)); see also Murray v. Unknown Evert, 84 F. App’x 553, 556 (6th Cir. 2003) (in complaints screened pursuant to 28 U.S.C. § 1915A, “[c]onclusory allegations of retaliatory motive with no concrete and relevant particulars fail to raise a genuine issue of fact for trial”) (internal quotations omitted); Lewis v. Jarvie, 20 F. App’x 457, 459 (6th Cir. 2001) (“bare allegations of malice on the defendants’ parts are not enough to establish retaliation claims” that will survive § 1915A screening). In some circumstances, temporal proximity “may be ‘significant enough to constitute indirect evidence of a causal connection so as to create an inference of retaliatory motive.’” Muhammad v. Close, 379 F.3d 413, 417-18 (6th Cir. 2004) (quoting DiCarlo v. Potter, 358 F.3d 408, 422 (6th Cir. 2004)). However, “[c]onclusory allegations of temporal proximity are not sufficient to show a retaliatory motive.” Skinner v. Bolden, 89 F. App’x 579, 580 (6th Cir. 2004). Plaintiff merely alleges the ultimate fact of retaliation. He alleges no facts from which to reasonably infer that Defendants’ actions were motivated by protected conduct. More specifically, Plaintiff fails to provide any details capable of demonstrating temporal proximity between his purported protected conduct and the conduct of Defendants, much less the “concrete 10 Case 1:20-cv-00803-PLM-RSK ECF No. 11 filed 10/23/20 PageID.449 Page 11 of 16 and relevant particulars” necessary to raise a genuine question of fact. Murray, 84 F. App’x at 556. Instead, his allegations are wholly conclusory. Plaintiff merely concludes that because he filed grievances and lawsuits within a few days, weeks or perhaps months before Defendants’ actions, their actions must have been motivated by his grievances and lawsuits. The Sixth Circuit, however, has been reluctant to find that temporal proximity between the filing of a grievance and an official’s adverse conduct, standing alone, is sufficient to establish a retaliation claim. Hill v. Lappin, 630 F.3d 468, 476 (6th Cir. 2010). This is especially true where, as here, the plaintiff is a prolific filer of grievances.2 Coleman v. Bowerman, 474 F. App’x 435, 437 (6th Cir. 2012) (holding that temporal proximity to the filing of a grievance is insufficient because any adverse action “would likely be in ‘close temporal proximity’ to one of [the plaintiff’s] many grievances or grievance interviews”). Here, Plaintiff has alleged even less than temporal proximity. Plaintiff merely alleges that he engaged in protected conduct, and Defendants’ conduct at some time afterward. Such allegations are insufficient to state a retaliation claim. V. Eighth Amendment Plaintiff further alleges that the denial of exercise time in the yard on three occasions in February 2018 violated rights provided to him by the Eighth Amendment. Arguably, Plaintiff also alleges that he was denied a shower on three occasions between November 2017 and March 2018 in violation of his Eighth Amendment rights. 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 2 In the complaint, Plaintiff alleges that he filed 31 grievances related to this action. (See Compl., ECF No. 1, PageID.3.) Plaintiff presumably filed additional grievances before he filed the four other lawsuits he has filed in the Western District of Michigan since November 2019. See Evans v. Horton, No. 2:20-cv-134 (W.D. Mich.); Evans v. Brege, No. 1:20-cv-833 (W.D. Mich.); Evans v. Brege, No. 1:19-cv-1083 (W.D. Mich.); Evans v. Washington, No. 1:19-cv-953 (W.D. Mich.). At least one of these, Evans v. Washington, included defendants at RMI. 11 Case 1:20-cv-00803-PLM-RSK ECF No. 11 filed 10/23/20 PageID.450 Page 12 of 16 contravene society’s “evolving standards of decency.” Rhodes v. Chapman, 452 U.S. 337, 34546 (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. 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)). The deliberateindifference standard includes both objective and subjective components. Farmer, 511 U.S. at 834; Helling, 509 U.S. at 35-37. To satisfy the objective prong, an inmate must show “that he is incarcerated under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834. Under the subjective prong, an official must “know[] of and disregard[] an excessive risk to inmate health or safety.” Id. at 837. “[I]t is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id. at 842. “It is, indeed, fair to say that acting or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is 12 Case 1:20-cv-00803-PLM-RSK ECF No. 11 filed 10/23/20 PageID.451 Page 13 of 16 the equivalent of recklessly disregarding that risk.” Id. at 836. “[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” Id. at 844. A. Outdoor Exercise Plaintiff suggests that he was denied outdoor exercise three times during a five-day span in February 2018. It unquestionably is well established that “‘total or near-total deprivation of exercise or recreational opportunity, without penological justification, violates Eighth Amendment guarantees.’” Rodgers v. Jabe, 43 F.3d 1082, 1086 (6th Cir. 1995) (quoting Patterson v. Mintzes, 717 F.2d 284, 289 (6th Cir. 1983)); see also Argue v. Hofmeyer, 80 F. App’x 427 (6th Cir. 2003). Nevertheless, it is equally well established that allegations about temporary inconveniences do not demonstrate that the conditions fell beneath the minimal civilized measure of life’s necessities as measured by a contemporary standard of decency. Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001); see also J.P. v. Taft, 439 F. Supp. 2d 793, 811 (S.D. Ohio 2006) (“[M]inor inconveniences resulting from the difficulties in administering a large detention facility do not give rise to a constitutional claim.” (internal citation omitted)). Here, even if the Court were to presume that Plaintiff received no out-of-cell exercise during the week he was denied time in the yard on three occasions, his allegations describe a mere temporary inconvenience. Plaintiff alleges only that he was kept in his cell on three days, without access to outdoor exercise. However, Plaintiff does not allege that his cell was too small to permit any exercise or that he suffered any ill effects from the temporary limitation on his yard privileges. See, e.g., May v. Baldwin, 109 F.3d 557, 565-66 (9th Cir. 1997) (denial of out-of-cell exercise for 21 days did not rise to Eighth amendment violation); Knight v. Armontrout, 878 F.2d 1093, 1096 (8th Cir. 1989) (“Denial of recreation for a short period, per se, is not a constitutional violation.”); Davenport v. DeRobertis, 844 F.2d 1310 (8th Cir. 1988) (upholding a 90-day 13 Case 1:20-cv-00803-PLM-RSK ECF No. 11 filed 10/23/20 PageID.452 Page 14 of 16 segregation threshold before five hours of weekly out-of-cell exercise is required), cited with approval in Pearson v. Ramos, 237 F.3d 881, 884-85 (7th Cir. 2001); Harris v. Fleming, 839 F.2d 1232, 1236 (7th Cir. 1988) (no Eighth Amendment violation when plaintiff was held in segregation without outdoor exercise for 28 days). Therefore, Plaintiff’s allegations about keeping kept from exercising in the yard are insufficient to state an Eighth Amendment claim. B. Showers Plaintiff’s allegations that he was denied a shower on three occasions likewise fail to state an Eighth Amendment claim. The constitution does not mandate showers; it requires only that prisoners be allowed to maintain hygiene. As described above, allegations about temporary inconveniences do not demonstrate that the conditions fell beneath the minimal civilized measure of life’s necessities as measured by a contemporary standard of decency. See Dellis, 257 F.3d at 511 (discussing temporary inconveniences generally); see also Ziegler v. Michigan, 59 F. App’x 622, 624 (6th Cir. 2003) (allegations of overcrowded cells and denials of daily showers and outof-cell exercise do not rise to constitutional magnitude, where a prisoner is subjected to the purportedly wrongful conditions for six days one year and ten days the next year); Siller v. Dean, No. 99-5323, 2000 WL 145167, at *2 (6th Cir. Feb. 1, 2000) (denial of shower and other personal hygiene items for six days was not actionable under the Eighth Amendment); Metcalf v. Veita, No. 97B1691, 1998 WL 476254, at *2 (6th Cir. Aug. 3, 1998) (finding that an eight-day denial of showers, trash removal, cleaning, and laundry did not result in serious pain or offend contemporary standards of decency under the Eighth Amendment); White v. Nix, 7 F.3d 120, 121 (8th Cir. 1993) (eleven-day stay in unsanitary cell not unconstitutional because of relative brevity of stay and availability of cleaning supplies); see also J.P., 439 F. Supp. 2d at 811. The refusal to allow the occasional shower constitutes a mere temporary inconvenience. See Siller, 2000 WL 145167, at *2; Metcalf 1998 WL 476254, at *2; Evans v. 14 Case 1:20-cv-00803-PLM-RSK ECF No. 11 filed 10/23/20 PageID.453 Page 15 of 16 Bruge, No. 1:20-cv-833, 2020 WL 5742748, at *5 (W.D. Mich. Sept. 20, 2020) (denial of two showers, one week apart, is a mere temporary inconvenience that does not violate the Eighth Amendment); Rogers v. Mackie, No. 1:20-cv-394, 2020 WL 3989432, at *8 (W.D. Mich. July 15, 2020) (denial of soap and a shower for two days did not violate the Eighth Amendment); Lewis v. Guinn, No. 2:05-cv-287, 2006 WL 560648, at *4 (W.D. Mich. Mar. 3, 2006) (discussing deprivation of single shower); see also Barnett v. Fitz, No. 1:19-cv-987, 2020 WL 205288, at *4 (W.D. Mich. Jan. 14, 2020) (holding that an allegation that the defendant “would skip [Plaintiff] for showers and gym time because [Plaintiff] was not at the door” did not permit a determination that the defendant deprived the plaintiff of hygiene and exercise within the meaning of the Eighth Amendment). Therefore, Plaintiff’s allegations fail to state an Eighth Amendment claim. Conclusion Having reviewed the complaint under Rule 21 of the Federal Rules of Civil Procedure, the Court will drop Defendants Frias, Wixson, Schneider, Miller, Dunigan, King, Reid, Finnerty, Southwick, Lemke, Pratt, Sanders, Jensen, Warren, Evans, Nixon, Gren, Washington, and Unknown Party from this action because they are misjoined. Plaintiff’s claims against these Defendants will be dismissed without prejudice. Further, having conducted the review required by the Prison Litigation Reform Act, the Court determines that Plaintiff’s complaint against remaining Defendants DeMayer and Verschure will be dismissed for failure to state a claim, under 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). Although the Court concludes that Plaintiff’s claims are properly dismissed, the Court does not conclude that any issue Plaintiff might raise on appeal would be frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962). Accordingly, the Court does not certify that 15 Case 1:20-cv-00803-PLM-RSK ECF No. 11 filed 10/23/20 PageID.454 Page 16 of 16 an appeal would not be taken in good faith. Should Plaintiff appeal this decision, the Court will assess the $505.00 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 $505.00 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: October 23, 2020 /s/ Paul L. Maloney Paul L. Maloney United States District Judge 16

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