Dozier 357254 v. Berry

• Court: District Court, W.D. Michigan
• Decided: March 26, 2025
• Docket: 2:24-cv-00219
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION ______

CARLTON DOZIER,

Plaintiff, Case No. 2:24-cv-219

v. Honorable Sally J. Berens

UNKNOWN BERRY et al.,

Defendants. ____________________________/ OPINION This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. The Court will grant Plaintiff leave to proceed in forma pauperis. (ECF No. 2.) 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.6.) 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., Inc. 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) (“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 from the defendants[; h]owever, because they had not been served, they were not parties to this 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 against Defendants Hubble and Naeyart. The Court will also dismiss, for failure to state a claim, Plaintiff’s official capacity claims and any personal capacity claims seeking declaratory relief against Defendants Berry and Carter. The following personal capacity claims for damages remain in the case: (1) Plaintiff’s First Amendment retaliation claim against Defendant Carter; (2) Plaintiff’s Eighth Amendment excessive force claim against Defendant Carter; and (3) Plaintiff’s Eighth

Amendment sexual assault/excessive force claims against Defendant Berry.

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”). Discussion I. Factual Allegations Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Saginaw Correctional Facility (SRF) in Freeland, Saginaw County, Michigan. The events about which he complains, however, occurred at the Alger Correctional Facility (LMF) in Munising, Alger County, Michigan. Plaintiff sues the following LMF personnel in their official

and personal capacities: Sergeant Unknown Hubble, Segregation Resident Unit Manager Unknown Naeyart, and Corrections Officers Unknown Berry and Unknown Carter. (Compl., ECF No. 1, PageID.2.) Plaintiff alleges that on April 24, 2024, Defendant Berry stated that he wanted Plaintiff to “f*** in the butt.” (Id., PageID.3 (asterisks added).) Defendant Berry then pulled his underwear out of the back of his pants and tried to force a finger into his anus, stating “just like this.” (Id.) Plaintiff asked to see a supervisor. (Id.) Later that day, during rounds, Defendant Berry stopped by Plaintiff’s cell and said, “Dozier show me your penis or you’ll get a ticket.” (Id.) Plaintiff immediately went to Defendant Naeyart, reported a Prison Rape Elimination Act (PREA) complaint, and requested a PREA grievance. (Id.)

Defendant Naeyart responded, “This is Alger max, [we are] riding with C/O Berry, you don’t have shit coming.” (Id.) On May 2, 2024, Plaintiff asked Defendant Hubble to escort him to the showers because Plaintiff did not feel comfortable with Defendant Berry escorting him to the showers in light of Plaintiff’s PREA complaint against Defendant Berry. (Id.) Defendant Hubble stated, “I’ll look into it.” (Id.) Shortly thereafter, Defendant Berry approached Plaintiff’s cell and said, “So you want a write a PREA you little bi***?” (Id.) Later that afternoon, Defendant Carter approached Plaintiff’s cell and said, “Why are you writing hoe ass PREAs on officers making my job harder?” (Id.) As Plaintiff turned around to be cuffed for his shower, Defendant Carter “jammed the pointed end of the handcuffs into [Plaintiff’s] butto[cks] and stated, ‘things can get worse for you, stop f***ing with C/O Berry.’” (Id.) Plaintiff also suggests that Defendant Carter threatened to rape him if he continued to submit grievances about Defendant Berry. (Id., PageID.5.) On May 9, 2024, Defendant Berry was handcuffing Plaintiff for a shower when Defendant

Berry reached into the back of Plaintiff’s shorts and forced a finger into Plaintiff’s buttocks. (Id., PageID.3.) Plaintiff alleges that Defendant Berry twisted his finger with force, causing Plaintiff to scream out in pain. (Id.) Plaintiff reported the assault to Defendant Hubble and asked why Defendant Berry had been allowed to escort him to the shower because of the pending PREA investigation. (Id., PageID.4.) Defendant Hubble stated, “I’ll look into it.” (Id.) Based upon the foregoing, Plaintiff asserts the following constitutional claims against Defendants: (1) Eighth Amendment excessive force/sexual assault claims against Defendant Berry; (2) Eighth and Fourteenth Amendment claims against Defendant Naeyart premised upon his alleged ignoring of Plaintiff’s complaints and failing to protect Plaintiff from Defendant

Berry’s sexual assault; (3) a First Amendment retaliation claim against Defendant Carter; and (4) First, Eighth, and Fourteenth Amendment claims against Defendant Hubble premised upon ignoring Plaintiff’s complaints regarding Defendant Berry. (Id., PageID.4–5.) Plaintiff’s complaint can also be construed to assert an Eighth Amendment excessive force claim against Defendant Carter. As relief, Plaintiff seeks a declaratory judgment, as well as compensatory and punitive damages. (Id., PageID.6.) II. Failure to State a Claim A complaint may be dismissed for failure to state a claim if it fails “to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell 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 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. Official Capacity Claims Plaintiff sues Defendants in their official and personal capacities. (Compl., ECF No. 1, PageID.2.) A suit against an individual in his or her official capacity is equivalent to a suit against the governmental entity; in this case, the MDOC. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). The states and their departments are immune under the Eleventh Amendment from suit in the federal courts, unless the state has waived immunity, or Congress has expressly abrogated Eleventh Amendment immunity by statute. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98–101 (1984); Alabama

v. Pugh, 438 U.S. 781, 782 (1978); O’Hara v. Wigginton, 24 F.3d 823, 826 (6th Cir. 1994). Congress has not expressly abrogated Eleventh Amendment immunity by statute, Quern v. Jordan, 440 U.S. 332, 341 (1979), and the State of Michigan has not consented to civil rights suits in federal court. Abick v. Michigan, 803 F.2d 874, 877 (6th Cir. 1986). Moreover, the State of Michigan (acting through the MDOC) is not a “person” who may be sued under Section 1983 for money damages. See Lapides v. Bd. of Regents, 535 U.S. 613, 617 (2002) (citing Will, 491 U.S. at 66); Harrison v. Michigan, 722 F.3d 768, 771 (6th Cir. 2013). Here, Plaintiff seeks declaratory relief as well as damages. (Compl., ECF No. 1, PageID.6.) However, an official capacity defendant is absolutely immune from monetary damages. See Will,

491 U.S. at 71; Turker v. Ohio Dep’t of Rehab. & Corr., 157 F.3d 453, 456 (6th Cir. 1998). Therefore, Plaintiff may not seek monetary damages against Defendants in their official capacities, and he fails to state a claim against Defendants in their official capacities upon which relief can be granted. Although damages claims against official capacity defendants are properly dismissed, an official capacity action seeking injunctive or declaratory relief constitutes an exception to sovereign immunity. See Ex parte Young, 209 U.S. 123, 159–60 (1908) (holding that the Eleventh Amendment immunity does not bar prospective injunctive relief against a state official). The United States Supreme Court has determined that a suit under Ex Parte Young for prospective injunctive relief should not be treated as an action against the state. Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985). Instead, the doctrine is a fiction recognizing that unconstitutional acts cannot have been authorized by the state and therefore cannot be considered done under the state’s authority. Id. Nonetheless, the Supreme Court has cautioned that, “Ex parte Young can only be used to

avoid a state’s sovereign immunity when a ‘complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’” Ladd v. Marchbanks, 971 F.3d 574, 581 (6th Cir. 2020) (quoting Verizon Md. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002)). Past exposure to an isolated incident of illegal conduct does not, by itself, sufficiently prove that the plaintiff will be subjected to the illegal conduct again. See, e.g., Los Angeles v. Lyons, 461 U.S. 95 (1983) (addressing injunctive relief); MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (addressing declaratory relief). The Sixth Circuit has held that transfer to another correctional facility moots a prisoner’s injunctive and declaratory claims. See Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996) (holding

that a prisoner-plaintiff’s claims for injunctive and declaratory relief became moot when the prisoner was transferred from the prison about which he complained); Mowatt v. Brown, No. 89- 1955, 1990 WL 59896 (6th Cir. May 9, 1990); Tate v. Brown, No. 89-1944, 1990 WL 58403 (6th Cir. May 3, 1990); Williams v. Ellington, 936 F.2d 881 (6th Cir. 1991). Here, Plaintiff is no longer confined at LMF, which is where he avers that Defendants are employed. Plaintiff’s request for declaratory relief does not relate to an ongoing violation and is not prospective. Thus, he cannot maintain his claims for declaratory relief against Defendants in their official capacity.2

2 To the extent that Plaintiff seeks declaratory relief against Defendants in their personal capacities, those claims are subject to dismissal for the same reason. Plaintiff has not stated a claim against Defendants in their official capacities upon which relief can be granted. Accordingly, Plaintiff’s official capacity claims against Defendants will be dismissed for failure to state a claim. B. Personal Capacity Claims 1. First Amendment Claims Plaintiff contends that Defendant Carter retaliated against him, in violation of his First

Amendment rights, by threatening to rape Plaintiff if Plaintiff continued to grieve Defendant Berry. (Compl., ECF No. 1, PageID.5.) Plaintiff also suggests that Defendant Hubble violated his First Amendment rights by ignoring Plaintiff’s complaints regarding Defendant Berry. a. 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). 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 show 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)). With respect to the first element of a First Amendment retaliation claim, an inmate has a right to file “non-frivolous” grievances against prison officials on his own behalf, whether written or oral. Maben v. Thelen, 887 F.3d 252, 265 (6th Cir. 2018); Mack v. Warden Loretto FCI, 839 F.3d 286, 298–99 (3d Cir. 2016) (“[The prisoner’s] oral grievance to [the prison officer] regarding the anti-Muslim harassment he endured at work constitutes protected activity under the First Amendment.”). Here, Plaintiff both orally reported a PREA complaint and submitted a written PREA complaint. (Compl., ECF No. 1, PageID.3.) At this stage of the proceedings, Plaintiff has alleged sufficient facts to suggest that he engaged in protected conduct for purposes of his First Amendment claim. 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 defendant’s 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). Finally, to satisfy the third element of a retaliation claim, Plaintiff must allege facts that support an inference that the alleged adverse action was motivated by the protected conduct. Here, Plaintiff alleges that Defendant Carter threatened him after Plaintiff submitted his PREA complaint, telling Plaintiff that “things can get worse for you, stop f***ing with C/O Berry.”

(Compl., ECF No. 1, PageID.3 (asterisks added).) Plaintiff contends further that Defendant Carter threatened to rape Plaintiff if he continued to submit grievances about Defendant Berry. (Id., PageID.5.) Plaintiff also contends that Defendant Carter made these threats after stating, “Why are you writing hoe ass PREAs on officers making my job harder.” (Id., PageID.3.) Given these allegations, the Court will not dismiss Plaintiff’s First Amendment retaliation claim against Defendant Carter on initial review. 2. Ignoring Plaintiff’s Complaints Plaintiff also suggests that Defendant Hubble violated his First Amendment rights by ignoring Plaintiff’s complaints regarding Defendant Berry. (Compl., ECF No. 1, PageID.5.) To the extent Plaintiff seeks to bring a First Amendment claim regarding Defendant Hubble’s handling of his complaints, Plaintiff cannot. Plaintiff’s First Amendment right to petition the government was not violated by Defendant Hubble’s responses to Plaintiff’s complaints. The First Amendment “right to petition the government does not guarantee a response to the petition or the right to compel government officials to act on or adopt a citizen’s views.” Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999); see also Minnesota State Bd. for Cmty. Colls. v. Knight, 465 U.S.

271, 285 (1984) (holding the right to petition protects only the right to address government; the government may refuse to listen or respond). Likewise, any failure to respond to Plaintiff’s complaints has not barred Plaintiff from seeking a remedy for his complaints. See Cruz v. Beto, 405 U.S. 319, 321 (1972). Indeed, Plaintiff’s ability to seek redress is underscored by his pro se invocation of the judicial process. See Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982). Even if Plaintiff had been prevented improperly from filing a grievance, his right of access to the courts to petition for redress of his grievances (i.e., by filing a lawsuit) cannot be compromised by his inability to file institutional grievances, and, therefore, he cannot demonstrate the actual injury required for an access-to-the-courts claim.

See, e.g., Lewis v. Casey, 518 U.S. 343, 355 (1996) (requiring actual injury); Bounds v. Smith, 430 U.S. 817, 821–24 (1977). The exhaustion requirement only mandates exhaustion of available administrative remedies. See 42 U.S.C. § 1997e(a). If Plaintiff were improperly denied access to the grievance process, the process would be rendered unavailable, and exhaustion would not be a prerequisite for initiation of a civil rights action. See Ross v. Blake, 578 U.S. 632, 640–44 (2016) (reiterating that, if the prisoner is barred from pursuing a remedy by policy or by the interference of officials, the grievance process is not available, and exhaustion is not required); Kennedy v. Tallio, 20 F. App’x 469, 470–71 (6th Cir. 2001). Considering the foregoing, Plaintiff has failed to state a cognizable First Amendment claim against Defendant Hubble. Accordingly, Plaintiff’s First Amendment claim against Defendant Hubble will be dismissed. C. Eighth Amendment Claims Plaintiff next asserts Eighth Amendment excessive force/sexual assault claims against

Defendant Berry, as well as Eighth Amendment failure to protect claims against Defendants Naeyart and Hubble. The Court has also construed Plaintiff’s complaint to assert an Eighth Amendment excessive force claim against Defendant Carter. 1. Standards a. General Standard for Eighth Amendment Claims 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). Consequently, “extreme deprivations are required to make out a conditions-of-confinement claim.” Id. 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. b. Excessive Force Standard The Eighth Amendment prohibits conditions of confinement which, although not physically barbarous, “involve the unnecessary and wanton infliction of pain.” Rhodes, 452 U.S. at 346 (quoting Gregg v. Georgia, 428 U.S. 153, 183 (1976)). Among unnecessary and wanton inflictions of pain are those that are “‘totally without penological justification.’” Id. However, not every shove or restraint gives rise to a constitutional violation. Parrish v. Johnson, 800 F.2d 600, 604 (6th Cir. 1986); see also Hudson v. McMillian, 503 U.S. 1, 9 (1992) (holding that “[n]ot every push or shove . . . violates a prisoner’s constitutional rights” (internal quotation marks omitted)). On occasion, “[t]he maintenance of prison security and discipline may require that inmates be subjected to physical contact actionable as assault under common law.” Combs v. Wilkinson, 315 F.3d 548, 556 (6th Cir. 2002) (citing Pelfrey v. Chambers, 43 F.3d 1034, 1037 (6th Cir. 1995)),

quoted in Cordell v. McKinney, 759 F.3d 573, 580–81 (6th Cir. 2014). Prison officials nonetheless violate the Eighth Amendment when their “offending conduct reflects an unnecessary and wanton infliction of pain.” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (internal quotation marks omitted); Bailey v. Golladay, 421 F. App’x. 579, 582 (6th Cir. 2011). There is an objective component and a subjective component to an Eighth Amendment claim. Santiago v. Ringle, 734 F.3d 585, 590 (6th Cir. 2013) (citing Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001)). First, “[t]he subjective component focuses on the state of mind of the prison officials.” Williams, 631 F.3d at 383. Courts ask “whether force was applied in a good- faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”

Hudson, 503 U.S. at 7. Second, “[t]he objective component requires the pain inflicted to be ‘sufficiently serious.’” Williams, 631 F.3d at 383 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). “The Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” Hudson, 503 U.S. at 9 (internal quotation marks omitted). The objective component requires a “contextual” investigation, one that is “responsive to ‘contemporary standards of decency.’” Id. at 8 (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). While the extent of a prisoner’s injury may help determine the amount of force used by the prison official, it is not dispositive of whether an Eighth Amendment violation has occurred. Wilkins v. Gaddy, 559 U.S. 34, 37 (2010). “When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated . . . [w]hether or not significant injury is evident.” Hudson, 503 U.S. at 9. “Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury.” Id.

c. Sexual Assault Standard “Federal courts have long held that sexual abuse is sufficiently serious to violate the Eighth Amendment[;] [t]his is true whether the sexual abuse is perpetrated by other inmates or by guards.” Rafferty v. Trumbull Cnty., 915 F.3d 1087, 1095 (6th Cir. 2019) (citations omitted); Bishop v. Hackel, 636 F.3d 757, 761 (6th Cir. 2011) (discussing inmate abuse); Washington v. Hively, 695 F.3d 641, 642 (7th Cir. 2012) (discussing abuse by guards). However, in the context of claims against prison officials, the Sixth Circuit has repeatedly held that the use of harassing or degrading language by a prison official, although unprofessional and deplorable, does not necessarily rise to constitutional dimensions. See, e.g., Ivey v. Wilson, 832 F.2d 950, 954–55 (6th Cir. 1987); see also Johnson v. Dellatifa, 357 F.3d 539, 546 (6th Cir. 2004) (concluding that harassment and verbal

abuse do not constitute the type of infliction of pain that the Eighth Amendment prohibits); Violett v. Reynolds, 76 F. App’x 24, 27 (6th Cir. 2003) (finding that verbal abuse and harassment do not constitute punishment that would support an Eighth Amendment claim). Further, some courts, including the Sixth Circuit, have held that minor, isolated incidents of sexual touching coupled with offensive sexual remarks also do not rise to the level of an Eighth Amendment violation. See, e.g., Solomon v. Mich. Dep’t of Corr., 478 F. App'x 318, 320–21 (6th Cir. 2012) (finding that two “brief” incidents of physical contact during pat-down searches, including touching and squeezing the prisoner’s penis, coupled with sexual remarks, do not rise to the level of a constitutional violation); Jackson v. Madery, 158 F. App’x 656, 662 (6th Cir. 2005) (concluding that correctional officer’s conduct in allegedly rubbing and grabbing prisoner's buttocks in degrading manner was “isolated, brief, and not severe” and so failed to meet Eighth Amendment standards); Johnson v. Ward, No. 99-1596, 2000 WL 659354, at *1 (6th Cir. May 11, 2000) (holding that male prisoner’s claim that a male officer placed his hand on the prisoner’s buttock in a sexual manner and made an offensive sexual remark did not meet the objective

component of the Eighth Amendment); Berryhill v. Schriro, 137 F.3d 1073, 1075 (8th Cir. 1998) (finding that, where inmate failed to assert that he feared sexual abuse, two brief touches to his buttocks could not be construed as sexual assault). In contrast, repeated and extreme incidents may sufficiently state a claim. For example, the Sixth Circuit found an Eighth Amendment violation when a male prison official sexually harassed a female prisoner by demanding on multiple occasions that the prisoner expose herself and masturbate while the official watched and intimidated her into complying. Rafferty, 915 F.3d at 1095–96. The Rafferty court noted that, considering the coercive dynamic of the relationship between prison staff and prisoners, such demands amount to sexual abuse. Id. at 1096.

d. Failure to Protect Standard Inmates have a constitutionally protected right to personal safety grounded in the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 833 (1994). 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). For a prisoner to state 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, 511 U.S. at 834); see also Helling v. McKinney, 509 U.S. 25, 35 (1993). Deliberate indifference is a higher standard than negligence and requires that “the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837; see also Bishop v. Hackel, 636 F.3d 757, 766–67 (6th Cir. 2011). An officer or other prison official is liable for another prison official’s use of excessive force where the defendant “‘observed or had reason to know that excessive force would be or was being used’ and ‘had both the opportunity and the means to prevent the harm

from occurring.’” Burgess v. Fischer, 735 F.3d 462, 475 (6th Cir. 2013) (emphasis in original) (quoting Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997)); accord Alexander v. Carter for Byrd, 733 F. App’x 256, 265 (6th Cir. 2018); Partin v. Parris, No. 17-6172, 2018 WL 1631663, at *3 (6th Cir. Mar. 20, 2018). 2. Defendants Berry and Carter In his complaint, Plaintiff alleges that on April 24, 2024, Defendant Berry stated that he wanted Plaintiff to “f*** in the butt.” (Compl., ECF No. 1, PageID.3 (asterisks added).) Defendant Berry then pulled his underwear out of the back of his pants and tried to force a finger into his anus, stating “just like this.” (Id.) Later that day, during rounds, Defendant Berry stopped by Plaintiff’s cell and said, “Dozier show me your penis or you’ll get a ticket.” (Id.) On May 2, 2024,

as Plaintiff turned around to be cuffed for his shower, Defendant Carter “jammed the pointed end of the handcuffs into [Plaintiff’s] butto[cks] and stated, ‘things can get worse for you, stop f***ing with C/O Berry.’” (Id. (asterisks added).) Finally, on May 9, 2024, Defendant Berry was cuffing Plaintiff for a shower when Defendant Berry reached into the back of Plaintiff’s shorts and forced a finger into Plaintiff’s buttocks. (Id.) Plaintiff alleges that Defendant Berry twisted his finger with force, causing Plaintiff to scream out in pain. (Id.) In light of the foregoing allegations, Plaintiff’s Eighth Amendment excessive force/sexual assault claims against Defendant Berry, as well as his Eighth Amendment excessive force claim against Defendant Carter, will not be dismissed on initial review. 3. Defendants Hubble and Naeyart Plaintiff suggests that Defendants Hubble and Naeyart violated his Eighth Amendment rights by failing to protect him from Defendant Berry’s sexual assaults. (Compl., ECF No. 1, PageID.4–5.) With respect to Defendant Hubble, Plaintiff alleges that on May 2, 2024, he asked

Defendant Hubble to escort him to the showers because Plaintiff did not feel comfortable with Defendant Berry escorting him to the showers in light of Plaintiff’s PREA complaint against Defendant Berry. (Compl., ECF No. 1, PageID.3.) Defendant Hubble said, “I’ll look into it.” (Id.) Plaintiff next mentions Defendant Hubble when he notes that he reported Defendant Berry’s May 9, 2024, assault to Defendant Hubble and asked Defendant Hubble why Defendant Berry had been allowed to escort him to the shower because of the pending PREA investigation. (Id., PageID.4.) Defendant Hubble stated, “I’ll look into it.” (Id.) Plaintiff, however, alleges no facts from which the Court could infer that Defendant Hubble was personally aware that Defendant Berry had ended up escorting Plaintiff to the shower on May 9, 2024. Likewise, Plaintiff’s complaint is devoid of facts from which the Court could infer that Defendant Hubble knew that Defendant Berry intended

to assault Plaintiff a second time and ignored that risk. Plaintiff’s conclusory allegations cannot support a failure to protect claim against Defendant Hubble. Accordingly, Plaintiff’s Eighth Amendment claim against Defendant Hubble will be dismissed. With respect to Defendant Naeyart, Plaintiff alleges that after Defendant Berry’s first sexual assault on April 24, 2024, Plaintiff went to Defendant Naeyart to report a PREA violation and request a PREA grievance. (Id., PageID.3.) Defendant Naeyart responded, “This is Alger Max, [we’re] riding with C/O Berry, you don’t have shit coming.” (Id.) Plaintiff, however, alleges no facts to indicate that Defendant Naeyart was aware of a substantial risk of harm to Plaintiff’s safety from Defendant Bery, nor any from which Defendant Naeyart should have inferred such a risk. Moreover, although Plaintiff alleges that he was again sexually assaulted by Defendant Berry after he complained to Defendant Naeyart, nowhere in Plaintiff’s complaint does he set forth any facts from which the Court could infer that Defendant Naeyart had any indication that Defendant Berry would assault Plaintiff a second time and ignored that risk. Plaintiff’s allegations are conclusory and cannot support a failure to protect claim against Defendant Naeyart. Accordingly, Plaintiff’s

Eighth Amendment claim against Defendant Naeyart will also be dismissed. D. Fourteenth Amendment Claims Plaintiff suggests that Defendants Naeyart and Hubble violated his Fourteenth Amendment due process rights by ignoring Plaintiff’s complaints regarding Defendant Berry. (Compl., ECF No. 1, PageID.4–5.) To the extent that Plaintiff is claiming that various Defendants violated his due process rights when they failed to respond to his grievances and complaints, any such claims lack merit. Plaintiff has no due process right to file a prison grievance. The courts repeatedly have held that there exists no constitutionally protected due process right to an effective prison grievance procedure. See Hewitt v. Helms, 459 U.S. 460, 467 (1983); Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 445 (6th Cir. 2005); Argue v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir.

2003); Young v. Gundy, 30 F. App’x 568, 569–70 (6th Cir. 2002); Carpenter v. Wilkinson, No. 99- 3562, 2000 WL 190054, at *2 (6th Cir. Feb. 7, 2000); see also Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (collecting cases). Michigan law does not create a liberty interest in the grievance procedure. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983); Keenan v. Marker, 23 F. App’x 405, 407 (6th Cir. 2001); Wynn v. Wolf, No. 93- 2411, 1994 WL 105907, at *1 (6th Cir. Mar. 28, 1994). Because Plaintiff has no liberty interest in the grievance process, Defendants Naeyart and Hubble did not deprive him of due process. Conclusion The Court will grant Plaintiff leave to proceed in forma pauperis. (ECF No. 2.) Moreover, having conducted the review required by the PLRA, the Court determines that Defendants Hubble and Naeyart 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 will also dismiss, for failure to state a claim,

Plaintiff’s official capacity claims and any personal capacity claims seeking declaratory relief against Defendants Berry and Carter. The following personal capacity claims for damages remain in the case: (1) Plaintiff’s First Amendment retaliation claim against Defendant Carter; (2) Plaintiff’s Eighth Amendment excessive force claim against Defendant Carter; and (3) Plaintiff’s Eighth Amendment sexual assault/excessive force claims against Defendant Berry. An order consistent with this opinion will be entered.

Dated: March 26, 2025 /s/ Sally J. Berens SALLY J. BERENS United States Magistrate Judge