Stroh #255802 v. Tylutki et al, No. 1:2023cv00599 - Document 8 (W.D. Mich. 2023)

Court Description: OPINION; signed by Magistrate Judge Sally J. Berens (jln)

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Stroh &#035;255802 v. Tylutki et al Doc. 8 Case 1:23-cv-00599-SJB ECF No. 8, PageID.27 Filed 07/31/23 Page 1 of 14 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______ EUGENE STROH, Plaintiff, v. Case No. 1:23-cv-599 Honorable Sally J. Berens UNKNOWN TYLUTKI et al., Defendants. ____________________________/ OPINION This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. 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.4.) 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. §§ 1915(e)(2) and 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 Litig. 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 on the named defendants is of particular significance in defining a putative defendant’s relationship to the proceedings. “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 Dockets.Justia.com Case 1:23-cv-00599-SJB ECF No. 8, PageID.28 Filed 07/31/23 Page 2 of 14 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) (“Pursuant 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 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 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 2 Case 1:23-cv-00599-SJB ECF No. 8, PageID.29 Filed 07/31/23 Page 3 of 14 from the defendants. However, because they had not been served, they were not parties to this action at the time the magistrate entered judgment.”).1 Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards, the Court will dismiss Plaintiff’s complaint for failure to state a claim. Discussion Factual allegations Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Richard A. Handlon Correctional Facility (MTU) in Ionia, Ionia County, Michigan. The events about which he complains, however, occurred at the Parnall Correctional Facility (SMT) in Jackson, Jackson County, Michigan. Plaintiff sues Corrections Officer Unknown Tylutki, Warden Melinda Braman, MDOC Director Heidi Washington, Governor Gretchen Whitmer, Transporting 1 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”). 3 Case 1:23-cv-00599-SJB ECF No. 8, PageID.30 Filed 07/31/23 Page 4 of 14 Officer Unknown Party, named as John Doe, Sergeant Unknown Party #1, and Unknown Inmate Parker, also known as “Baby Shaq.” Plaintiff alleges that Defendant Tylutki harassed Plaintiff. At some point, Plaintiff called Defendant Tylutki’s wife a “bitch.” (ECF No. 1, PageID.3.) Defendant Tylutki then handcuffed Plaintiff and took him from the CSC Unit to “the hole” in 10 Block. (Id.) Plaintiff was then placed in general population. Approximately three months later, Plaintiff was assaulted by Defendant Parker, another inmate, who falsely called Plaintiff a child molester. Plaintiff states that he suffered a broken jaw and lost a tooth. (Id.) Defendant Transporting Officer Unknown Party saw Plaintiff covered in blood and acknowledged that Plaintiff had been beaten up. Defendant Transporting Officer Unknown Party then handcuffed Plaintiff and walked him to the medical facility. Defendant Sergeant Unknown Party #1 took pictures of Plaintiff’s jaw and bloody mouth. Plaintiff was kept in 10 Block for three days with “very little medical attention.” (Id.) Plaintiff states that Defendant Braman “put up all the fences and gangs ruled.” (Id.) Based on the foregoing allegations, the Court construes Plaintiff’s complaint to raise Eighth Amendment claims against Defendants. Plaintiff states that he is seeking “justice” and a million dollars. 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 4 Case 1:23-cv-00599-SJB ECF No. 8, PageID.31 Filed 07/31/23 Page 5 of 14 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 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.” 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)). 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 Section 1983 is a method for vindicating federal rights, not a source of substantive rights itself, the first step in an action under Section 1983 is to identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994). A. Defendant Inmate Parker Initially, the Court notes that Defendant Parker was Plaintiff’s fellow inmate during the pertinent time-period. As noted above, 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, 487 U.S. at 48; Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009); Street, 102 F.3d at 814. In 5 Case 1:23-cv-00599-SJB ECF No. 8, PageID.32 Filed 07/31/23 Page 6 of 14 order for a private party’s conduct to be under color of state law, it must be “fairly attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982); Street, 102 F.3d at 814. There must be “a sufficiently close nexus between the State and the challenged action of [the defendant] so that the action of the latter may be fairly treated as that of the State itself.” Skelton v. Pri-Cor, Inc., 963 F.2d 100, 102 (6th Cir. 1991) (citing Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). Where the defendants are not state officials, their conduct will be deemed to constitute state action only if it meets one of three narrow tests. The first is the symbiotic relationship test, or nexus test, in which the inquiry focuses on whether “the State had so far insinuated itself into a position of interdependence with the [private party] that it was a joint participant in the enterprise.” Jackson, 419 U.S. at 357–58. Second, the state compulsion test describes situations “in which the government has coerced or at least significantly encouraged the action alleged to violate the Constitution.” National Broadcasting Co. v. Commc’ns Workers of Am., 860 F.2d 1022, 1026 (11th Cir. 1988); accord Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); Adickes v. S. H. Kress & Co., 398 U.S. 144, 170 (1970). Finally, the public function test covers private actors performing functions “traditionally the exclusive prerogative of the State.” Jackson, 419 U.S. at 353; accord West, 487 U.S. at 49–50. See generally, Lugar, 457 U.S. at 936–39 (discussing three tests). Plaintiff has not presented any allegations by which the conduct Defendant Inmate Parker could be fairly attributed to the State. Accordingly, he fails to state a Section 1983 claim against him. B. Defendants Whitmer and Washington Plaintiff’s claims against Defendants Whitmer and Washington appear to be based solely on their positions as Governor and Director of the MDOC. Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior 6 Case 1:23-cv-00599-SJB ECF No. 8, PageID.33 Filed 07/31/23 Page 7 of 14 or vicarious liability. Iqbal, 556 U.S. at 676; Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691(1978); Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). A claimed constitutional violation must be based upon active unconstitutional behavior. Grinter v. Knight, 532 F.3d 567, 575–76 (6th Cir. 2008); Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002). The acts of one’s subordinates are not enough, nor can supervisory liability be based upon the mere failure to act. Grinter, 532 F.3d at 576; Greene, 310 F.3d at 899; Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004). Moreover, Section 1983 liability may not be imposed simply because a supervisor denied an administrative grievance or failed to act based upon information contained in a grievance. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). “[A] plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. The Sixth Circuit repeatedly has summarized the minimum required to constitute active conduct by a supervisory official: “[A] supervisory official’s failure to supervise, control or train the offending individual is not actionable unless the supervisor either encouraged the specific incident of misconduct or in some other way directly participated in it.” Shehee, 199 F.3d at 300 (emphasis added) (internal quotation marks omitted). We have interpreted this standard to mean that “at a minimum,” the plaintiff must show that the defendant “at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers.” Peatross v. City of Memphis, 818 F.3d 233, 242 (6th Cir. 2016) (quoting Shehee, 199 F.3d at 300, and citing Phillips v. Roane Cnty., 534 F.3d 531, 543 (6th Cir. 2008)); see also Copeland v. Machulis, 57 F.3d 476, 481 (6th Cir. 1995) (citing Rizzo v. Goode, 423 U.S. 362, 375–76 (1976), and Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984)); Walton v. City of Southfield, 995 F.2d 1331, 1340 (6th Cir. 1993); Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989). Plaintiff fails to allege any facts showing that Defendants Whitmer or Washington encouraged or condoned the conduct of their subordinates, or authorized, approved or knowingly 7 Case 1:23-cv-00599-SJB ECF No. 8, PageID.34 Filed 07/31/23 Page 8 of 14 acquiesced in the conduct. Indeed, he fails to allege any facts at all about their conduct. His vague and conclusory allegations of supervisory responsibility are insufficient to demonstrate that Defendants were personally involved in the events surrounding Plaintiff’s reclassification to administrative segregation. Conclusory allegations of unconstitutional conduct without specific factual allegations fail to state a claim under Section 1983. See Iqbal, 556 U.S. at 678–79; Twombly, 550 U.S. at 555. Because Plaintiff’s Section 1983 action is premised on nothing more than respondeat superior liability, his action fails to state a claim against Defendants Whitmer and Washington. 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. “[R]outine 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. 8 Case 1:23-cv-00599-SJB ECF No. 8, PageID.35 Filed 07/31/23 Page 9 of 14 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 deliberate-indifference 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 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. 1. Failure to protect Inmates have a constitutionally protected right to personal safety grounded in the Eighth Amendment. Id. at 833. Thus, prison staff are obliged “to take reasonable measures to guarantee the safety of the inmates” in their care. Hudson v. Palmer, 468 U.S. 517, 526–27 (1984). Because officials have “stripped [prisoners] of virtually every means of self-protection[,]” “‘officials have a duty . . . to protect prisoners from violence at the hands of other prisoners.’” Farmer, 511 U.S. at 833. To establish a violation of this right, a plaintiff must show that a defendant was deliberately indifferent to the plaintiff’s risk of injury. Walker v. Norris, 917 F.2d 1449, 1453 (6th Cir. 1990); 9 Case 1:23-cv-00599-SJB ECF No. 8, PageID.36 Filed 07/31/23 Page 10 of 14 McGhee v. Foltz, 852 F.2d 876, 880–81 (6th Cir. 1988). While a prisoner does not need to prove that he has been the victim of an actual attack to bring a personal safety claim, he must at least establish that he reasonably fears such an attack. Thompson v. Cnty. of Medina, 29 F.3d 238, 242– 43 (6th Cir. 1994) (holding that plaintiff has the minimal burden of “showing a sufficient inferential connection” between the alleged violation and inmate violence to “justify a reasonable fear for personal safety”). Plaintiff fails to allege any facts in this case which show that any prison official was aware of a risk of harm to Plaintiff in general population, let alone a risk of harm from attack by Defendant Inmate Parker. Plaintiff alleges in a conclusory and vague manner that Defendant Warden Braman “put up all fences and gangs ruled.” (ECF No. 1, PageID.3.) However, Plaintiff fails to allege any facts to support this conclusory assertion, and he fails to allege any facts to suggest that Defendant Braman was aware of a risk of harm to Plaintiff and disregarded that risk. Moreover, although Plaintiff alleges that unnamed non-party correctional officers “were not making rounds” and that then Inmate Parker “entered [Plaintiff’s] cube area and beat [Plaintiff] up,” Plaintiff fails to allege any facts to suggest that any of the named Defendants were the individuals who failed to make rounds in the unit or that any of the named Defendants knew that the unnamed non-party correctional officers were not making rounds in the unit. See Gilmore v. Corr. Corp. of Am., 92 F. App’x 188, 190 (6th Cir. 2004) (dismissing complaint where plaintiff failed to allege how any named defendant was involved in the violation of his rights); Frazier v. Michigan, 41 F. App’x 762, 764 (6th Cir. 2002) (dismissing plaintiff’s claims where the complaint did not allege with any degree of specificity which of the named defendants were personally involved in or responsible for each alleged violation of rights). 10 Case 1:23-cv-00599-SJB ECF No. 8, PageID.37 Filed 07/31/23 Page 11 of 14 Therefore, for these reasons, any Eighth Amendment claim Plaintiff may be seeking to assert regarding a failure to protect him lacks merit. 2. Medical care Plaintiff next alleges that following the assault by Inmate Parker, Defendant Transporting Officer Unknown Party saw Plaintiff covered in blood and acknowledged that Plaintiff had been beaten up. (ECF No. 1, PageID.3.) Thereafter, Defendant Transporting Officer Unknown Party handcuffed Plaintiff and walked him to the medical facility. (Id.) Additionally, Defendant Sergeant Unknown Party #1 took pictures of Plaintiff’s jaw and bloody mouth. (Id.) Plaintiff alleges that he was subsequently housed in 10 Block for three days with “very little medical attention.” (Id.) The Eighth Amendment is violated when a prison official is deliberately indifferent to the serious medical needs of a prisoner. Id. at 104–05; Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001). As explained below, Plaintiff fails to state an Eighth Amendment claim for failure to provide medical treatment against Defendants. With respect to Defendant Transporting Officer Unknown Party, rather than alleging that this Defendant failed to provide him medical treatment, Plaintiff alleges that upon seeing Plaintiff “cover in blood” after the assault by Inmate Parker, Defendant Transporting Officer Unknown Party, a custody official, facilitated Plaintiff’s receipt of medical care by taking Plaintiff to the prison’s medical facility. (See ECF No. 1, PageID.3.) Plaintiff does not indicate what treatment he did or did not receive upon his arrival at the prison’s medical facility. Regardless, Defendant Transporting Officer Unknown Party, a custody official, cannot be held liable for medical personnel’s inadequate care. See Winkler v. Madison Cnty., 893 F.3d 877, 895 (6th Cir. 2018) (holding that a custody officer was entitled to rely on a medical provider’s judgment); Smith v. Cnty. of Lenawee, 505 F. App’x 526, 532 (6th Cir. 2012) (“[I]f a prisoner is under the care of medical experts . . . a non-medical prison official will generally be justified in believing that the 11 Case 1:23-cv-00599-SJB ECF No. 8, PageID.38 Filed 07/31/23 Page 12 of 14 prisoner is in capable hands.” (quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004))); see also Newberry v. Melton, 726 F. App’x 290, 296–97 (6th Cir. 2018) (same). As to Defendant Sergeant Unknown Party #1, Plaintiff fails to allege any facts to suggest that Defendant Sergeant Unknown Party #1, another custody official, had any involvement in Plaintiff’s receipt of medical care. Iqbal, 556 U.S. at 676 (“[A] plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”) Instead, Plaintiff’s allegations suggest that Defendant Sergeant Unknown Party #1’s only involvement was to document Plaintiff’s injuries. Furthermore, although Plaintiff alleges that he was housed in 10 Block for three days with “very little medical attention,” Plaintiff fails to allege any facts to suggest that any of the named Defendants were involved in Plaintiff’s continued placement in that unit or involved in decisions regarding the medical care provided to Plaintiff during those three days. (ECF No. 1, PageID.3.) Under these circumstances, Plaintiff has failed show that Defendants denied him medical care or were involved in any inadequate medical care that he received. Moreover, even setting aside the issue of Defendants’ lack of involvement in Plaintiff’s receipt of medical care, Plaintiff’s Eighth Amendment claim for failure to provide medical treatment is entirely conclusory. Plaintiff fails to specifically allege what treatment he received, the nature of any treatment he required that he did not receive, and whether he suffered needlessly as a result of the lack of treatment. As noted above, conclusory allegations of unconstitutional conduct without specific factual allegations fail to state a claim under Section 1983. See Iqbal, 556 U.S. at 678–79; Twombly, 550 U.S. at 555. Accordingly, for all of the reasons set forth above, Plaintiff’s Eighth Amendment claims are properly dismissed. 12 Case 1:23-cv-00599-SJB ECF No. 8, PageID.39 Filed 07/31/23 Page 13 of 14 3. Harassment and placement in segregation Without providing any additional facts or explanation, Plaintiff also alleges that “[he] was harassed by [Defendant] Tylutki.” (ECF No. 1, PageID.3.) To the extent that Plaintiff intended to assert an Eighth Amendment claim regarding this unspecified “harassment,” Plaintiff’s reference to harassment without any supporting facts fails to state a claim. See Iqbal, 556 U.S. at 678 (holding that a court need not accept “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements ”). Plaintiff also alleges that Defendant Tylutki handcuffed Plaintiff and took Plaintiff to “the hole,” i.e., segregation, after Plaintiff called Defendant Tylutki’s wife a “bitch.” (ECF No. 1, PageID.3.) To establish an Eighth Amendment claim, the prisoner must show that he was deprived of the “minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Placement in segregation is a routine discomfort that 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). Plaintiff may have been denied certain privileges as a result of his placement in segregation, but he does not allege or show that he was denied basic human needs and requirements.2 See Evans v. Vinson, 427 F. App’x 437, 443 (6th Cir. 2011); Harden-Bey v. Rutter, 524 F.3d 789, 795 (6th Cir. 2008). Accordingly, for these reasons, Plaintiff fails to state an Eighth Amendment claim regarding “harassment” and his placement in segregation. 2 To the extent that Plaintiff intended to raise a Fourteenth Amendment due process claim regarding his placement in segregation, he likewise fails to state a claim. Plaintiff does not allege that his placement in segregation affected the duration of his sentence, and, he fails to allege any facts to suggest that his placement in segregation constituted an “atypical” and “significant deprivation.” Sandin v. Conner, 515 U.S. 472, 484 (1995). 13 Case 1:23-cv-00599-SJB ECF No. 8, PageID.40 Filed 07/31/23 Page 14 of 14 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 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 Section 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 Section 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: July 31, 2023 /s/ Sally J. Berens SALLY J. BERENS United States Magistrate Judge 14

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