Doest v. Kozel et al, No. 1:2022cv00264 - Document 7 (W.D. Mich. 2022)
Court Description: OPINION; signed by Magistrate Judge Phillip J. Green (jkw)
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Doest v. Kozel et al Doc. 7 Case 1:22-cv-00264-PJG ECF No. 7, PageID.22 Filed 08/15/22 Page 1 of 18 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______ AARON JAMES DOEST, Plaintiff, v. Case No. 1:22-cv-264 Honorable Phillip J. Green UNKNOWN KOZEL, et al., Defendants. ____________________________/ OPINION This is a civil rights action brought by a person who was, at some point, housed in the Van Buren County Jail. Plaintiff previously sought and was granted leave to proceed in forma pauperis. (ECF No. 4.) Pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure, Plaintiff consented to proceed in all matters in this action under the jurisdiction of a United States magistrate judge. (ECF No. 1, PageID.5.) This case is presently before the Court for preliminary review under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), pursuant to 28 U.S.C. § 1915A(b) and 42 U.S.C. § 1997e(c). The Court is required to conduct this initial review prior to the service of the complaint. See In re Prison Litigation Reform Act, 105 F.3d 1131, 1131, 1134 (6th Cir. 1997); McGore v. Wrigglesworth, 114 F.3d 601, 604–05 (6th Cir. 1997). Service of the complaint is of particular significance in defining a putative defendant’s relationship to the proceedings. Dockets.Justia.com Case 1:22-cv-00264-PJG ECF No. 7, PageID.23 Filed 08/15/22 Page 2 of 18 “An individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court’s authority, by formal process.” Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999). “Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.” Id. at 350. “[O]ne becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority-asserting measure stating the time within which the party served must appear and defend.” Id. (citations omitted). That is, “[u]nless a named defendant agrees to waive service, the summons continues to function as the sine qua non directing an individual or entity to participate in a civil action or forgo procedural or substantive rights.” Id. at 351. Therefore, the PLRA, by requiring courts to review and even resolve a plaintiff’s claims before service, creates a circumstance where there may only be one party to the proceeding—the plaintiff—at the district court level and on appeal. See, e.g., Conway v. Fayette Cnty. Gov’t, 212 F. App’x 418 (6th Cir. 2007) (stating that “[p]ursuant to 28 U.S.C. § 1915A, the district court screened the complaint and dismissed it without prejudice before service was made upon any of the defendants . . . [such that] . . . only [the plaintiff] [wa]s a party to this appeal”). Here, Plaintiff has consented to a United States magistrate judge conducting all proceedings in this case under 28 U.S.C. § 636(c). That statute provides that “[u]pon the consent of the parties, a full-time United States magistrate judge . . . may conduct any or all proceedings . . . and order the entry of judgment in the case . . . .” 28 U.S.C. § 636(c). Because the named Defendants have not yet been served, the 2 Case 1:22-cv-00264-PJG ECF No. 7, PageID.24 Filed 08/15/22 Page 3 of 18 undersigned concludes that they are not presently parties whose consent is required to permit the undersigned to conduct a preliminary review under the PLRA, in the same way that they are not parties who will be served with or given notice of this opinion. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (“The record does not contain a consent from the defendants[; h]owever, because they had not been served, they were not parties to the action at the time the magistrate entered judgment.”). 1 Under the 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 for failure to state a claim. But see Coleman v. Lab. & Indus. Rev. Comm’n of Wis., 860 F.3d 461, 471 (7th Cir. 2017) (concluding that, when determining which parties are required to consent to proceed before a United States magistrate judge under 28 U.S.C. § 636(c), “context matters” and the context the United States Supreme Court considered in Murphy Bros. was nothing like the context of a screening dismissal pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c)); Williams v. King, 875 F.3d 500, 503–04 (9th Cir. 2017) (relying on Black’s Law Dictionary for the definition of “parties” and not addressing Murphy Bros.); Burton v. Schamp, 25 F.4th 198, 207 n.26 (3d Cir. 2022) (premising its discussion of “the term ‘parties’ solely in relation to its meaning in Section 636(c)(1), and . . . not tak[ing] an opinion on the meaning of ‘parties’ in other contexts”). 1 3 Case 1:22-cv-00264-PJG ECF No. 7, PageID.25 Filed 08/15/22 Page 4 of 18 Discussion Factual allegations Plaintiff is presently in custody at the Gibson County Jail in Trenton, Tennessee. At the time he filed his complaint, however, he was detained at the Van Buren County Jail in Paw Paw, Michigan. The events about which Plaintiff complains occurred at the Van Buren County Jail. Plaintiff sues Corrections Officers Unknown Kozel and Unknown Houts; and Sergeants Unknown Johnson and Unknown Shannon. Plaintiff sues Kozel in his personal and official capacities. Plaintiff sues the remaining defendants in their official capacities only. Plaintiff alleges that on February 27, 2022, Defendant Kozel was harassing Plaintiff by leaving him locked in his cell after a meal. Plaintiff contends that Kozel took that action because Plaintiff had attempted to grieve Kozel regarding an incident where Kozel stole Plaintiff’s clothing. Plaintiff told Kozel that he was “being petty.” (Compl., ECF No. 1, PageID.3.) That comment prompted an exchange where Kozel pointed out that he could return back to his family that night while Plaintiff would remain in his cell. Plaintiff responded that Kozel only said that because there were bars between Plaintiff and Kozel. Then Kozel walked to Plaintiff’s cell door, opened it, and invited Plaintiff into the hallway. Plaintiff declined. Kozel shut the door. Shortly thereafter, Defendant Houts and a nurse entered the hallway. Plaintiff informed Houts that Plaintiff wanted to speak with Defendant Shannon. Houts stated “he would ‘get him.’” (Id.) That did not satisfy Plaintiff, so he pushed 4 Case 1:22-cv-00264-PJG ECF No. 7, PageID.26 Filed 08/15/22 Page 5 of 18 the emergency button. The responding officer simply hung up. Defendant Shannon did not speak with Plaintiff. After the shift change, Plaintiff asked to speak with the second shift sergeant, Defendant Johnson. Plaintiff informed Johnson of the situation. Johnson indicated he would investigate. Johnson never spoke with Plaintiff about his findings. On February 28, Plaintiff attempted to file a grievance. The grievance was never reviewed with Plaintiff and, apparently, disappeared from the system. After the February 27 incident, Kozel continued to harass Plaintiff by “leaving [him] locked in [his] cell when [he was] sup[p]osed to be allowed out, opening the door to cell-11, or walking through the catwalk smiling at [him] in a menacing manner, making inappropriate comments, asking how [his] grievance was resolved, and making threats to [him].” (Id., PageID.4.) Plaintiff asks the Court to enter an order firing Kozel or suspending him without pay until completion of ethics training and anger management classes. He asks that all other officers be suspended without pay. And Plaintiff seeks monetary compensation from Kozel for mental anguish due to “threats of violence and continued harassment.” (Id., PageID.5.) Plaintiff filed another action against Defendants Kozel and Shannon and others complaining that there was no adequate grievance system at the Van Buren County Jail. That action was dismissed for failure to state a claim. See Doest v. Van Buren Cnty. Sheriff’s Dep’t, No. 1:22-cv-239 (W.D. Mich. June 30, 2022). 5 Case 1:22-cv-00264-PJG ECF No. 7, PageID.27 Filed 08/15/22 Page 6 of 18 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. Id.; 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.” Id. at 678 (quoting Twombly, 550 U.S. at 556). “[W]here the wellpleaded 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.” Id. 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)(ii)). 6 Case 1:22-cv-00264-PJG ECF No. 7, PageID.28 Filed 08/15/22 Page 7 of 18 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). Plaintiff does not identify the constitutional rights that Defendants infringed. The Court, construing Plaintiff’s allegations liberally, concludes that they implicate First Amendment and Eighth Amendment protections. Official capacity defendants Plaintiff sues all four defendants in their respective official capacities. Officialcapacity lawsuits “generally represent only another way of pleading an action against an entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165 (1985) (citing Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55 (1978)). An official-capacity suit is to be treated as a suit against the entity itself. Id. at 166 (citing Brandon v. Holt, 469 U.S. 464, 471–72 (1985)); see also Matthew v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). “Individuals sued in their official capacities stand in the shoes of the entity they represent,” and the suit is not against the official personally. Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003); Graham, 473 U.S. at 165–66. 7 Case 1:22-cv-00264-PJG ECF No. 7, PageID.29 Filed 08/15/22 Page 8 of 18 Here, because defendants represent Van Buren County, Plaintiff’s suit against the defendants in their official capacities necessarily intends to impose liability on the county. Van Buren County may not be held vicariously liable for the actions of its employees under § 1983. See Connick v. Thompson, 563 U.S. 51, 60 (2011); City of Canton v. Harris, 489 U.S. 378, 392 (1989); Monell, 436 U.S. at 694. Instead, a county is liable only when its official policy or custom causes the injury. Connick, 563 U.S. at 60. This policy or custom must be the moving force behind the alleged constitutional injury, and the plaintiff must identify the policy or custom, connect it to the governmental entity, and show that his injury was incurred because of the policy or custom. See Turner v. City of Taylor, 412 F.3d 629, 639 (6th Cir. 2005); Alkire, 330 F.3d at 815 (6th Cir. 2003). “Governmental entities cannot be held responsible for a constitutional deprivation unless there is a direct causal link between a municipal policy or custom and the alleged violation of constitutional rights.” Watson v. Gill, 40 F. App’x 88, 89 (6th Cir. 2002) (citing Monell, 436 U.S. at 692). A policy includes a “policy statement, ordinance, regulation, or decision officially adopted and promulgated” by the sheriff’s department. See Monell, 436 U.S. at 690. Moreover, the Sixth Circuit has explained that a custom “for the purposes of Monell liability must be so permanent and well settled as to constitute a custom or usage with the force of law.” Doe v. Claiborne Cnty., 103 F.3d 495, 507 (6th Cir. 1996). “In short, a ‘custom’ is a ‘legal institution’ not memorialized by written law.” Id. Here, Plaintiff’s complaint is devoid of any allegations suggesting that his alleged constitutional injury was the result of an official policy or custom employed by Van 8 Case 1:22-cv-00264-PJG ECF No. 7, PageID.30 Filed 08/15/22 Page 9 of 18 Buren County. Thus, the Court will dismiss Plaintiff’s official capacity claims against Defendants. That leaves only Plaintiff’s personal liability claims against Defendant Kozel. Claims for injunctive relief Plaintiff asks the Court to order specific injunctive relief against each Defendant. The Sixth Circuit has held that transfer to another prison facility moots prisoner injunctive and declaratory claims. Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996). Underlying the rule is the premise that injunctive relief is appropriate only where plaintiff can show a reasonable expectation or demonstrated probability that he is in immediate danger of sustaining direct future injury as the result of the challenged official conduct. Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). Where the plaintiff has been transferred, “[n]othing remains to be enjoined or declared improper.” Jones v. Caruso, 421 F. App’x 550, 551 (6th Cir. 2011) (internal quotation marks omitted) (quoting Berger v. Cuyahoga Cnty. Bar Ass’n, 983 F.2d 718, 724 (6th Cir. 1993)). Plaintiff’s claims for injunctive relief, therefore, are properly dismissed. Claims for damages Plaintiff seeks damages from Officer Kozel “for mental anguish due to threats of violence and continued harassment.” (Compl., ECF No. 1, PageID.5.) The “threats” and “harassment” might form the foundation for a retaliation claim in violation of the First Amendment or an Eighth Amendment claim. No matter what constitutional right was purportedly violated, however, Plaintiff may not recover mental anguish damages based on his allegations. 9 Case 1:22-cv-00264-PJG ECF No. 7, PageID.31 Filed 08/15/22 Page 10 of 18 A. Mental or emotional injury Plaintiff does not allege any compensable damage other than “mental anguish.” Section 1997e, of Title 42 United States Code states: No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of title 18). 42 U.S.C. § 1997e(e). “[A] claim cannot rely solely on emotional or mental damages but must allege a physical injury.” Dallas v. Chippewa Corr. Facility, No. 20-1941, 2022 WL 905857, at *3 (6th Cir. Mar. 1, 2022). That does not foreclose a claim “for nominal damages [or] injunctive or declaratory relief,” or perhaps even “punitive damages.” Small v. Brock, 963 F.3d 539, 543 (6th Cir. 2020). But whatever damage remedies might be available for properly pleaded claims, Plaintiff cannot recover for “mental anguish”—the only element of damage he has alleged—because he has not alleged physical injury. Plaintiff’s claim for mental anguish damages, therefore, is properly dismissed. B. First Amendment retaliation 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 three elements: (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 prove that 10 Case 1:22-cv-00264-PJG ECF No. 7, PageID.32 Filed 08/15/22 Page 11 of 18 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)). 1. Protected conduct The filing of a nonfrivolous prison grievance is constitutionally protected conduct for which a prisoner cannot be subjected to retaliation. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001); Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000). At some unidentified time before the February 27, 2022, incident with Defendant Kozel, Plaintiff notes that he attempted to grieve Defendant Kozel. Plaintiff states that his attempt was prompted by Kozel’s theft of Plaintiff’s personal clothing. Plaintiff does not describe his attempt to grieve Kozel in any way. Plaintiff describes a second “attempt[] to file a grievance after the incident with Kozel. It is not clear from Plaintiff’s description whether he intended to grieve Kozel or one of the other Defendants for their alleged failure to respond to Plaintiff’s attempt to communicate his dissatisfaction with Kozel. Plaintiff’s allegations are so scant that it is not at all clear that Plaintiff engaged in protected activity when he attempted to grieve Kozel (or someone else). Nonetheless, at this preliminary stage of the proceedings, the Court will presume that Plaintiff’s attempts to complain rise to the level of protected activity. The Court will not extend that presumption with regard to Plaintiff calling Kozel “petty” or Plaintiff suggesting to Kozel that he would not speak so boldly if Plaintiff and Kozel were not separated by bars. Plaintiff’s name calling was, at a 11 Case 1:22-cv-00264-PJG ECF No. 7, PageID.33 Filed 08/15/22 Page 12 of 18 minimum, insolent and such insolence and Plaintiff’s subsequent implicit threat of violence are not protected conduct. See Lockett v. Suardini, 526 F.3d 866, 874 (6th Cir. 2008); see also Caffey v. Maue, 679 F. App’x 487 (7th Cir. Feb. 15, 2017) (holding that an inmate’s name-calling of guards (calling them unprofessional) was a challenge to the guards’ authority that was not protected by the First Amendment); Felton v. Huibregtse, 525 F. App’x 484, 487 (7th Cir. 2013) (holding that the use of disrespectful language was not protected conduct) (citing cases); Freeman v. Tex. Dep’t of Crim. Justice, 369 F.3d 854, 858, 864 (5th Cir. 2004) (concluding that an inmate who accused a chaplain of theological errors during a religious service had engaged in an unprotected challenge to institutional authority); Wisconsin v. Mitchell, 508 U.S. 476, 484 (1993) (summarizing Supreme Court cases holding that, although “an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea[,”] “a physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment” (internal citations and quotations omitted)); see also Roberts v. U.S. Jaycees, 468 U.S. 609, 628 (1984) (“[V]iolence or other types of potentially expressive activities that produce special harms distinct from their communicative impact . . . are entitled to no constitutional protection.”); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982) (“The First Amendment does not protect violence.”). 12 Case 1:22-cv-00264-PJG ECF No. 7, PageID.34 Filed 08/15/22 Page 13 of 18 2. Adverse action To establish the second element of a retaliation claim, a prisoner-plaintiff must show adverse action by a prison official sufficient to deter a person of ordinary firmness from exercising his constitutional rights. Thaddeus-X, 175 F.3d at 396. The adverseness inquiry is an objective one and does not depend on how a particular plaintiff reacted. The relevant question is whether the defendants’ conduct is “capable of deterring a person of ordinary firmness”; the plaintiff need not show actual deterrence. Bell v. Johnson, 308 F.3d 594, 606 (6th Cir. 2002) (emphasis in original). Plaintiff notes a couple of actions by Kozel that might rise to the level of “adverse action.” First, Plaintiff claims he was kept in his cell after a meal when he felt he should have been allowed out. Plaintiff claims that, after his second attempted grievance, Kozel continued to leave Plaintiff in his cell when Plaintiff felt he should have been allowed out. Although being locked in a cell is hardly unexpected while a prisoner is in custody, for purposes of this preliminary review, the Court will presume that this action represented the loss of a privilege to which Plaintiff was entitled. Maben v. Thelen, 887 F.3d 252, 267 (6th Cir. 2018) (“In all, the deprivation of privileges is hardly ‘inconsequential’—indeed, they are all that prisoners really have.”). Moreover, a specific threat of harm may satisfy the adverse-action requirement if it would deter a person of ordinary firmness from exercising his or her First Amendment rights, see, e.g., Thaddeus-X, 175 F.3d at 396, 398 (threat of physical harm); Smith v. Yarrow, 78 F. App’x 529, 542 (6th Cir. 2003) (threat to change drug 13 Case 1:22-cv-00264-PJG ECF No. 7, PageID.35 Filed 08/15/22 Page 14 of 18 test results). However, a vague threat would be unlikely to have the same deterrent effect. See, e.g., Hardy v. Adams, No. 16-2055, 2018 WL 3559190, at *3 (6th Cir. Apr. 13, 2018) (“The alleged threat by Adams that she would make Hardy’s life ‘hell’ is simply too vague to pass this threshold.”); Shisler v. Golladay, No. 2:19-cv-80, 2019 WL 2590693, at *4 (W.D. Mich. June 25, 2019) (concluding that Golladay’s threat that the ticket would be the least of the plaintiff’s worries was “simply too vague” to support a First Amendment retaliation claim); Dahlstrom v. Butler, No. 2:18-cv-101, 2019 WL 91999, at *11 (W.D. Mich. Jan. 3, 2019) (“Krause’s threat[--to ‘get’ a prisoner who files a grievance on Krause and ‘steps out of line’--] is too vague and non-specific to deter a person of ordinary firmness from engaging in protected conduct.”); Yates v. Rogers, No. 2:18-cv-180, 2018 WL 6629366, at *7 (W.D. Mich. Dec. 19, 2018) (“Defendant’s vague threat to ‘get’ Plaintiff does not carry the same seriousness . . . .”); Johnson v. Govern, No. 2:17-cv-125, 2018 WL 6321548, at *2 (W.D. Mich. Dec. 4, 2018) (“Govern’s alleged threat to ‘put a case’ on Johnson . . . was too vague to constitute adverse action.”); Hunter v. Palmer, No. 1:17-cv-109, 2017 WL 1276762, at *11 (W.D. Mich. Apr. 6, 2017) (“Defendant DeMaeyer told Plaintiff that complaining would get him into a lot of trouble . . . . Such a vague threat of unspecified harm falls short of adverse action.”). Plaintiff has not alleged any specific threats of harm; Plaintiff’s conclusory statements that threats were made is simply insufficient to support the inference that the threats rise to the level of adverse action. 14 Case 1:22-cv-00264-PJG ECF No. 7, PageID.36 Filed 08/15/22 Page 15 of 18 3. Retaliatory motive Although the Court can liberally construe Plaintiff’s allegations to reach minimal sufficiency with regard to parts of the first two “retaliation” elements, his claim falls apart at the third element. Plaintiff has failed to allege facts that support the inference that Kozel took any adverse actions because of Plaintiff’s attempts to grieve Kozel. Indeed, it appears that the adverse actions of which Plaintiff complains may well have been motivated by Plaintiff’s insolence or implicit threats of violence. 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) (discussing that 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 quotation marks omitted)); Lewis v. Jarvie, 20 F. App’x 457, 459 (6th Cir. 2001) (“[B]are allegations of malice on the defendants’ parts are not enough to establish retaliation claims [that will survive § 1915A screening].” (citing Crawford-El v. Britton, 523 U.S. 574, 588 (1998))). Plaintiff merely alleges the ultimate fact of retaliation in this action. He has not presented any facts to support his conclusion 15 Case 1:22-cv-00264-PJG ECF No. 7, PageID.37 Filed 08/15/22 Page 16 of 18 that Kozel retaliated against Plaintiff because he attempted to grieve Kozel. Therefore, Plaintiff’s retaliation claim is properly dismissed. C. Eighth Amendment 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 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). As a consequence, “extreme deprivations are required to make out a conditions-of-confinement claim.” Id. None of Plaintiff’s allegations against Kozel evidence the sort of extreme deprivations that rise to the level of intolerable conditions of confinement. “Routine discomfort is ‘part of the penalty that criminal offenders pay for their offenses against 16 Case 1:22-cv-00264-PJG ECF No. 7, PageID.38 Filed 08/15/22 Page 17 of 18 society.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (quoting Rhodes, 452 U.S. at 347). Plaintiff’s allegation that Kozel kept Plaintiff locked in his cell after meals is the sort of routine discomfort that criminal offenders typically and appropriately endure. Certainly “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). Plaintiff alleges nothing more than a temporary inconvenience. Similarly, allegations of verbal harassment or threats by prison officials toward an inmate do not constitute punishment within the meaning of the Eighth Amendment. Ivey, 832 F.2d at 955. Nor do allegations of verbal harassment rise to the level of unnecessary and wanton infliction of pain proscribed by the Eighth Amendment. Id. Therefore, Plaintiff has failed to state a claim against Kozel for violation of Plaintiff’s Eighth Amendment rights. Conclusion Having conducted the review required by the Prison Litigation Reform Act, the Court determines that Plaintiff’s complaint 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 17 Case 1:22-cv-00264-PJG ECF No. 7, PageID.39 Filed 08/15/22 Page 18 of 18 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 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: August 15, 2022 /s/ Phillip J. Green PHILLIP J. GREEN United States Magistrate Judge 18
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