Edwards 972689 v. McIntyre

• Court: District Court, W.D. Michigan
• Decided: May 22, 2023
• Docket: 2:23-cv-00079
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION ______

DOMINIQUE T. EDWARDS,

Plaintiff, Case No. 2:23-cv-79

v. Honorable Maarten Vermaat

UNKNOWN MCINTYRE et al.,

Defendants. ____________________________/ OPINION This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. Plaintiff has been 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. 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. §§ 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 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 th[e] 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. Discussion Factual Allegations Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Cooper Street Correctional Facility (JCS) in Jackson, Jackson County, Michigan. The events about which he complains, however, occurred at the Newberry Correctional Facility (NCF) in Newberry, Luce County, Michigan. Plaintiff sues Captain Unknown McIntyre, Sergeants Unknown Robinson and Unknown Party #1, Hearings Investigator Unknown Marshall, and

Corrections Officers Unknown Kenyon and Unknown Burke.

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”). Plaintiff alleges that on March 5, 2022, he was lying on his bunk when “an altercation transpired between two individuals who lock[] in said cube in question.” (ECF No. 1, PageID.2.) About 5 to15 minutes later, Defendant Kenyon came into the cube, carrying a trash bag. (Id.) Defendant Kenyon looked at Plaintiff and asked, “Where do you lock?” (Id.) He then told Plaintiff to step out of the cube. (Id., PageID.3.)

Later that day, Defendants Kenyon and Burke escorted Plaintiff to the officers’ station. (Id.) Defendant Burke said, “Now you know [you’re] not suppose[d] to have that in your property.” (Id.) Plaintiff asked him what he was talking about. (Id.) Defendant Burke replied, “Knives, you know shanks.” (Id.) Plaintiff responded that he had no shanks or knives in his property. (Id.) According to Plaintiff, Defendant Kenyon then said, “Leave the darkie alone, we must do this one by the book,” then laughed.” (Id., PageID.7.) Defendants Kenyon and Burke then escorted Plaintiff to see Defendant John Doe, who asked to see Plaintiff’s hands and body, and Plaintiff “removed his shirt so that [Defendant John Doe] could examine [him].” (Id., PageID.3.) Another sergeant then told Plaintiff that he would be

“receiving some misconducts.” (Id.) Plaintiff contends this sergeant also said, “You big black guys pride yourselves on abusing white inmates.” (Id., PageID.7.) Plaintiff was allowed to return to his cube, where he requested to “visit the Jpay room.” (Id., PageID.3.) However, he was subsequently ordered out of the JPay room, placed in handcuffs, and escorted to the control center. (Id.) Plaintiff was then placed in a “segregated shower” and told to strip. (Id.) He was then escorted to a bathroom “to be drug tested absent any reason or probable cause.” (Id.) On March 7, 2022, Plaintiff was issued a Class I misconduct ticket for “assault resulting in serious physical injury.” (Id.) Plaintiff contends that because of the ticket, he was placed on “nonbondable status.” (Id., PageID.8.) He was confined to a cell and received “segregated food trays.” (Id.) According to Plaintiff, those trays contain smaller portions than the trays given to general population inmates, and he lost 15 pounds as a result. (Id.) The misconduct ticket set forth the following facts: On 3/5/22 at 1308 hours, Prisoner Sullivan 679913 can be seen entering A-Cube of Housing Unit 11. At 1310 hours, Prisoner Sullivan can be seen exiting A-Cube, crawling on his hands and knees, grasping his left leg. Prisoner Sullivan was seen by health care who confirmed an abrasion to the right and left side of his face. Prisoner Sullivan was also seen by PA Havens who confirmed that the left leg of Prisoner Sullivan needed to be X-Ray’d due to the seriousness of the injury. Prisoner Edwards 972689 was identified by OMNI and HU 11 countboard. (ECF No. 1-1, PageID.12.) At Plaintiff’s initial misconduct hearing, the hearings officer directed that the misconduct be “relist[ed]” and rewritten “as to who, what, where[,] and when as to what [Plaintiff] was to have done so he is given proper notice of the charge.” (Id., PageID.13.) The ticket was to be relisted no later than March 25, 2022. (Id.) In the rewritten misconduct ticket, Defendant McIntyre provided the following facts: On 3/5/22 at 1308 hours, Prisoner Sullivan 679913 can be seen entering A-Cube of Housing Unit 11. At 1310 hours, Prisoner Sullivan can be seen exiting A-Cube, crawling on his hands and knees, grasping his left leg. Prisoner Sullivan was seen by health care who confirmed an abrasion to the right and left side of his face. Prisoner Sullivan was also seen by PA Havens who confirmed that the left leg of Prisoner Sullivan needed to be X-Ray’d due to the seriousness of the injury. Based on the video footage of Prisoner Sullivan’s inability to walk, the injury to the left leg of Prisoner Sullivan[,] and the review of confidential witness statements, it is determined that Prisoner Edwards twisted Prisoner Sullivan’s leg to the point of a fracture (serious physical injury). Prisoner Edwards 972689 was identified by OMNI and HU 11 countboard. (Id., PageID.14.) Plaintiff appeared before Hearing Officer Theut (not a party) on March 24, 2022. (Id., PageID.15.) Plaintiff argued that he was not guilty and that the hearing was in violation of MDOC Policy Directive 03.03.105 because “a misconduct that’s pulled can’t be heard.” (Id.) Theut found Plaintiff guilty and sanctioned him to 30 days’ toplock and 30 days’ loss of privileges (LOP) status. (Id.) Plaintiff contends that prior to the March 5, 2022, altercation, he had commented that “this would be a better cube but for racist inmates.” (ECF No. 1, PageID.6.) Plaintiff contends that “[r]acism runs rampant at NCF,” so he was penalized for his comment. (Id.) He alleges that the “racial slurs and ongoing harassment got so bad” that he had to “see a psych and alerted the facility inspector to no avail.” (Id., PageID.8.)

Based on the foregoing, Plaintiff asserts First Amendment retaliation claims, as well as Eighth Amendment claims and Fourteenth Amendment due process claims. (Id., PageID.5.) The Court also liberally construes Plaintiff’s complaint to assert Eighth Amendment claims premised upon the use of racial slurs and Fourteenth Amendment equal protection claims premised upon his belief that the misconduct was racially motivated. Plaintiff seeks declaratory relief, as well as compensatory and punitive damages. (Id.) 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 § 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). A. First Amendment Retaliation Claims Plaintiff suggests that Defendants retaliated against him, in violation of the First Amendment, by penalizing him “for exercising his right to free speech.” (ECF No. 1, PageID.5.)

Specifically, Plaintiff claims that before the March 5, 2022, altercation, he had commented that “this would be a better cube but for racist inmates.” (ECF No. 1, PageID.6.) Plaintiff contends that Defendants issued a false Class I misconduct for assault because of Plaintiff’s statement. 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 the exercise of the protected right was a substantial or motivating factor in the defendant’s alleged retaliatory conduct. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). It is well recognized that “retaliation” is easy to allege and that it can seldom be demonstrated by direct evidence. See Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005);

Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987). “[A]lleging merely the ultimate fact of retaliation is insufficient.” Murphy, 833 F.2d at 108. “[C]onclusory allegations of retaliatory motive ‘unsupported by material facts will not be sufficient to state a claim under § 1983.’” Harbin-Bey, 420 F.3d at 580 (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538–39 (6th Cir. 1987)); see also Murray v. Unknown Evert, 84 F. App’x 553, 556 (6th Cir. 2003) (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))). Even if Plaintiff’s statement constitutes protected activity, nothing in the complaint permits the court to infer a retaliatory motive on any named Defendant’s behalf. Plaintiff’s complaint does not even allege that any Defendant was aware of Plaintiff’s statement regarding racist inmates. Plaintiff’s “[c]onclusory allegations of temporal proximity are not sufficient to show a retaliatory motive.” Skinner v. Bolden, 89 F. App’x 579, 580 (6th Cir. 2004). Furthermore, the Court cannot accept Plaintiff’s allegations that the misconduct was false as true. Hearing Officer Theut rejected Plaintiff’s claim that he was not guilty and that the hearing was “illegal” pursuant to MDOC Policy Directive 03.03.105. (ECF No. 1-1, PageID.15.) Hearing Officer Theut found Plaintiff guilty of assault based upon, inter alia, statements made by confidential witnesses. (Id.) A prisoner’s claim that he was falsely accused of a major misconduct is barred where there has been a finding of guilt. See Peterson v. Johnson, 714 F.3d 905, 917 (6th Cir. 2013) (holding that a factual finding in a major misconduct proceeding has preclusive effect and is not subject to

challenge in a § 1983 action). However, as the Sixth Circuit subsequently qualified in Roberson v. Torres, 770 F.3d 398 (6th Cir. 2014), not every factual finding is entitled to preclusive effect. Instead, the question of preclusion cannot be resolved categorically, as it turns on case- specific factual questions such as what issues were actually litigated and decided, and whether the party to be precluded had sufficient incentives to litigate those issues and a full and fair opportunity to do so—not just in theory, but in practice. [Peterson, 714 F.3d] at 916–17. It likewise turns on the court’s “sense of justice and equity,” Blonder-Tongue Labs., v. Univ. of Ill. Found., 402 U.S. 313, 334 (1971), which may require a case-by-case analysis of surrounding circumstances. Roberson, 770 F.3d at 404–05. In Maben v. Thelen, the Sixth Circuit further clarified the limitations of the preclusion doctrine, as follows: To determine whether we must give preclusive effect to “factfinding from Michigan prison hearings,” we look to four requirements, all of which must be met: (1) the state agency “act[ed] in a ‘judicial capacity’”; (2) the hearing officer “resolved a disputed issue of fact that was properly before it”; (3) the prisoner “had an adequate opportunity to litigate the factual dispute”; and, (4) if these other three requirements are met, we must “give the agency’s finding of fact the same preclusive effect it would be given in state courts.” Peterson v. Johnson, 714 F.3d 905, 911–13 (6th Cir. 2013) (internal citation and quotation marks omitted). In Peterson, the Court considered, as a matter of first impression, whether a hearing officer’s factual determination at a Michigan major misconduct hearing has preclusive effect in litigation brought by a prisoner under § 1983. Id. at 908, 911. The Court concluded that, because all four requirements were met, the “hearing officer’s factual finding that [the prisoner] was the one who grabbed [the officer’s] hand precludes a contrary finding in federal court.” Id. at 917. In Roberson v. Torres, the Court considered the same issue, and identified the four requirements listed above. 770 F.3d 398, 403–04 (6th Cir. 2014). The Court said that Peterson does not mean that “any factual findings by a hearing officer in a major-misconduct hearing in a Michigan prison are to be accorded preclusive effect.” Id. at 404. “Peterson is not a blanket blessing on every factual finding in a major-misconduct hearing.” Id. Indeed, the question of preclusion cannot be resolved categorically, as it turns on case-specific factual questions such as what issues were actually litigated and decided, and whether the party to be precluded had sufficient incentives to litigate those issues and a full and fair opportunity to do so— not just in theory, but in practice. It likewise turns on the court’s sense of justice and equity, which may require a case-by-case analysis of surrounding circumstances. Id. at 404–05 (internal citations and quotation marks omitted). The Court declined to decide the preclusion question, and remanded the case to the district court to consider the argument for the first time. Id. at 405. The Court instructed the district court to “give particular attention to the fairness and accuracy of the factual findings made by the major-misconduct hearing officer.” Id. The Court advised that “[n]umerous inquiries may be relevant to the district court’s analysis,” like “why the hearing officer refused to review the alleged video of the incident, whether the hearing officer provided a sufficient and reasonable basis for her factual findings, and whether the testimony of other witnesses corroborated the accounts provided by either [the prisoner] or [the officer].” Id. at 405. Maben, 887 F. 3d at 259. In the instant case, Plaintiff’s major misconduct hearing was conducted by Hearing Officer Theut, who was acting in a judicial capacity. Plaintiff expressly defended against the assault charge by arguing that he was not guilty and did not do anything to prisoner Sullivan. Hearing Officer Theut rejected Plaintiff’s defense after reviewing statements made by confidential witnesses who had observed Plaintiff grabbing prisoner Sullivan’s leg and twisting it. (ECF No. 1-1, PageID.16.) Plaintiff had ample opportunity to litigate the issue, and exercised that opportunity. Precluding Plaintiff from relitigating the same disputed facts now comports with the Court's “sense of justice and equity.” As a consequence, the elements of the Peterson/Roberson/Maben test are met. The decision by Hearing Officer Theut therefore precludes Plaintiff’s claim that the misconduct ticket was issued in retaliation for Plaintiff’s statement regarding racist inmates. Accordingly, for all of the reasons set forth above, Plaintiff has failed to state First Amendment retaliation claims against Defendants premised upon the retaliatory act of writing an allegedly false misconduct report. B. Eighth Amendment Claims Plaintiff contends that his Eighth Amendment rights were violated when he was confined

to segregation and served “small portions of food via a segregated food tray,” which resulted in him losing 15 pounds. (ECF No. 1, PageID.5.) The Court also construes Plaintiff’s complaint to assert Eighth Amendment claims premised upon the use of racial slurs. 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. In order for a prisoner to prevail on an Eighth Amendment claim, he must show that he faced a sufficiently serious risk to his health or safety and that the defendant official acted with “‘deliberate indifference’ to [his] health or safety.” Mingus v. Butler, 591 F.3d 474, 479–80 (6th Cir. 2010) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)) (applying deliberate indifference standard to medical claims); see also Helling v. McKinney, 509 U.S. 25, 35 (1993)

(applying deliberate indifference standard to conditions of confinement claims). The 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. Smaller Portions “The Eighth Amendment imposes a duty on officials to provide ‘humane conditions of confinement,’ including insuring, among other things, that prisoners receive adequate . . . food.” Young ex rel. Estate of Young v. Martin, 51 F. App’x 509, 513 (6th Cir. 2002) (quoting Farmer, 511 U.S. at 832). The Constitution “does not mandate comfortable prisons,” however. Rhodes, 452 U.S. at 349. Thus, the deprivation of a few meals for a limited time generally does not rise to the level of an Eighth Amendment violation. See Davis v. Miron, 502 F. App’x 569, 570 (6th Cir. 2012) (finding that denial of seven meals over six days was not an Eighth Amendment violation); Richmond v. Settles, 450 F. App’x 448, 456 (6th Cir. 2011) (concluding that denial of five meals over three consecutive days, and a total of seven meals over six consecutive days, did not rise to Eighth Amendment violation, where the prisoner failed to allege that his health suffered); Cunningham v. Jones, 667 F.2d 565, 566 (6th Cir. 1982) (per curiam) (providing a prisoner only one meal per day for fifteen days did not violate the Eighth Amendment, because the meals

provided contained sufficient nutrition to sustain normal health); see also Staten v. Terhune, 67 F. App’x 462, 462–63 (9th Cir. 2003) (finding the deprivation of two meals is not sufficiently serious to form the basis of an Eighth Amendment claim); Berry v. Brady, 192 F.3d 504, 507–08 (5th Cir. 1999) (finding the denial of a few meals over several months does not state a claim); Cagle v. Perry, No. 9:04-CV-1151, 2007 WL 3124806, at *14 (N.D.N.Y. Oct. 24, 2007) (finding the deprivation of two meals is “not sufficiently numerous, prolonged or severe” to give rise to an Eighth Amendment claim). As an initial matter, Plaintiff’s complaint is devoid of any allegations from which the Court could infer that any of the named Defendants were personally responsible for providing the smaller

portions to Plaintiff. In any event, considering the case law set forth above, if the deprivation of a few meals for a limited period of time fails to state an Eighth Amendment claim, it stands to reason that Plaintiff’s allegations concerning smaller portions fall far short of the serious deprivations protected by the Eighth Amendment. Cf. Turner v. Gilbertson, No. 2:17-cv-65, 2017 WL 1457051, at *5 (W.D. Mich. Apr. 25, 2017) (concluding that an inmate failed to state an Eighth Amendment claim when he “missed two packets of crackers—far less than even one meal—and was forced to use a broken spoon to eat the same meal”). Furthermore, while Plaintiff alleges that he lost 15 pounds as a result of the smaller portions, Plaintiff does not set forth any facts from which the Court could infer that such weight loss was significant or detrimentally affected Plaintiff’s health. See Sims v. Mich. Dep’t of Corr., 23 F. App’x 214, 216 (6th Cir. 2001) (agreeing that the plaintiff failed to set forth an Eighth Amendment claim because he “did not allege that he was denied sufficient food on a daily basis or that he could not maintain his health based on the diet provided him even though one of the six meals he received per day may have consisted of one cup of fruit”); Crockett v. Core Civic, No. 3:17-cv-00746, 2017 WL 3888352, at *3 (M.D. Tenn. Sept. 5, 2017)

(finding that the prisoner-plaintiff had not alleged an Eighth Amendment violation where he had not alleged that “his caloric intake during the brief periods of his food restriction is insufficient to sustain health or that he has sustained any injury, i.e., illness or significant weight loss, as a result of the food he is served”). Plaintiff’s Eighth Amendment claims regarding the smaller portions of food will, therefore, be dismissed. 2. Racial Slurs The Court also construes Plaintiff’s complaint to assert Eighth Amendment claims premised upon the use of racial slurs. While unprofessional, 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. Even the occasional or sporadic use of racial slurs, although unprofessional and reprehensible, does not rise to a level of constitutional magnitude. See Torres v. Oakland Cnty., 758 F.2d 147, 152 (6th Cir. 1985); Jones Bey v. Johnson, 248 F. App’x 675, 677–78 (6th Cir. 2007) (finding that prison guard’s use of racial slurs and other derogatory language against state prisoner did not rise to level of a violation of the Eighth Amendment); Williams v. Gobles, No. 99-1701, 2000 WL 571936, at *1 (6th Cir. May 1, 2000) (holding that the occasional or sporadic use of racial slurs does not rise to a level of constitutional magnitude). Thus, any Eighth Amendment claims premised upon the use of racial slurs will be dismissed. C. Fourteenth Amendment Claims 1. Due Process Plaintiff suggests that he was denied due process by the issuance of the allegedly false misconduct and during the misconduct proceedings. (ECF No. 1, PageID.5.) He mentions that he asked for certain witnesses, but was denied, and that Defendant Marshall never turned over any statements made by the confidential witnesses. (ECF No. 1, PageID.4.) Plaintiff appears to allege

a violation of the procedural protections of the Fourteenth Amendment’s Due Process Clause. A prisoner’s ability to challenge a prison misconduct conviction depends on whether the convictions implicated any liberty interest. A prisoner does not have a protected liberty interest in prison disciplinary proceedings unless the sanction “will inevitably affect the duration of his sentence” or the resulting restraint imposes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” See Sandin v. Conner, 515 U.S. 472, 484, 487 (1995). Plaintiff does not allege that the misconduct conviction had any effect on the duration of his sentence—and he cannot. Plaintiff is serving sentences imposed in 2016 for crimes committed in 2015. See MDOC Offender Tracking Information System (OTIS), https://mdocweb.state.mi.us/ otis2/otis2profile.aspx?mdocNumber=972689 (last visited May 4, 2023). For a prisoner like

Plaintiff, who is serving a sentence for an offense committed after 2000, even a major misconduct conviction results only in the accumulation of “disciplinary time.” Mich. Comp. Laws § 800.34. Disciplinary time is considered by the Michigan Parole Board when it determines whether to grant parole. Id. § 800.34(2). It does not necessarily affect the length of a prisoner’s sentence because it is “simply a record that will be presented to the parole board to aid in its [parole] determination.” Taylor v. Lantagne, 418 F. App’x 408, 412 (6th Cir. 2011). Therefore, the misconduct conviction had no impact on the duration of Plaintiff’s sentence. Moreover, Plaintiff’s misconduct convictions did not result in significant and atypical hardships. To the extent Plaintiff was placed in segregation pending his misconduct hearings, confinement in administrative segregation “is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration.” Hewitt v. Helms, 459 U.S. 460, 468 (1983). Thus, it is considered atypical and significant only in “extreme circumstances.”

Joseph v. Curtin, 410 F. App’x 865, 868 (6th Cir. 2010). Generally, courts will consider the nature and duration of a stay in segregation to determine whether it imposes an “atypical and significant hardship.” Harden-Bey v. Rutter, 524 F.3d 789, 794 (6th Cir. 2008). In Sandin, the Supreme Court concluded that the segregation at issue in that case (disciplinary segregation for 30 days) did not impose an atypical and significant hardship. Sandin, 515 U.S. at 484. Similarly, the Sixth Circuit has held that placement in administrative segregation for two months does not require the protections of due process. See Joseph, 410 F. App’x at 868 (finding that 61 days in segregation was not atypical and significant). The Sixth Circuit has also held, in specific circumstances, that confinement in segregation for a much longer period of time

does not implicate a liberty interest. See, e.g., Jones, 155 F.3d at 812–13 (two years of segregation while the inmate was investigated for the murder of a prison guard in a riot); Mackey v. Dyke, 111 F.3d 460 (6th Cir. 1997) (one year of segregation following convictions for possession of illegal contraband and assault, including a 117-day delay in reclassification due to prison crowding). Generally, only periods of segregation lasting for several years or more have been found to be atypical and significant. See, e.g., Selby v. Caruso, 734 F.3d 554, 559 (6th Cir. 2013) (13 years of segregation implicates a liberty interest); Harris v. Caruso, 465 F. App’x 481, 484 (6th Cir. 2012) (eight years of segregation implicates a liberty interest); Harden-Bey, 524 F.3d at 795 (remanding to the district court to consider whether the plaintiff’s allegedly “indefinite” period of segregation, i.e., three years without an explanation from prison officials, implicates a liberty interest). While Plaintiff may have been housed in segregation pending his misconduct hearings, it does not appear that he was sanctioned to detention in segregation following his misconduct conviction. Rather, Plaintiff received 30 days’ toplock2 and 30 days’ LOP. (ECF No. 1-1,

PageID.15.) A few days on toplock, however, does not amount to an atypical or significant hardship. See Graham v. Chicowski, No. 18-2049, 2019 WL 4381841 (6th Cir. May 3, 2019); Green v. Waldren, No. 99-1561, 2000 WL 876765, at *2 (6th Cir. June 23, 2000); Percival v. Stuhler, No. 16-0083, 2016 WL 4536330, at *5 (W.D. Mich. Aug. 31, 2016). Moreover, pursuant to MDOC Policy Directive 03.03.105, the “loss of privileges” sanction involves the loss of various privileges, such as access to the day room, exercise facilities, group meetings, “[o]ut of cell hobbycraft activities,” the kitchen area, the general library (not including the law library), movies, music practice, and other “[l]eisure time activities.” MDOC Policy Directive 03.03.105, Attach. E (eff. July 1, 2018). Where a stay of that duration in segregation is not considered an atypical or

significant hardship, it defies logic to suggest that the lesser penalties of “loss of privileges” and toplock for that duration could be atypical or significant. Sixth Circuit authority bears that out. See Ingram v. Jewell, 94 F. App’x 271, 273 (6th Cir. 2004) (holding that a fourteen-day loss of privileges sanction did not implicate the due process clause); Carter v. Tucker, 69 F. App’x 678, 680 (6th Cir. 2003) (nine-month loss of package privileges did not impose an atypical and significant hardship); Miles v. Helinski, No. 20-1279, 2021 WL 1238562, at *4 (6th Cir. Jan. 29, 2021) (five days’ toplock and five days’ loss of privileges fails to state a due process claim);

2 “Toplock” is a restriction of the prisoner to his own cell, room or bunk and bunk area. MDOC Directive 03.03.105, ¶ MMM–OOO (eff. July 1, 2018). Alexander v. Vittitow, No. 17-1075, 2017 WL 7050641, at *3 (6th Cir. Nov. 9, 2017) (“thirty days’ loss of privileges—did not implicate a protected liberty interest”); Langford v. Koskela, No. 16- 1435, 2017 WL 6803554, at *3 (6th Cir. Jan. 24, 2017) (thirty days’ toplock and thirty days’ loss of privileges “does not amount to an ‘atypical and significant hardship’”). Plaintiff fails to allege any facts showing that he was subjected to conditions which would

implicate a liberty interest as a result of the allegedly false misconduct ticket. Plaintiff’s Fourteenth Amendment due process claims premised upon such will, therefore, be dismissed.3

3 To the extent Plaintiff intended to raise substantive due process claims regarding the alleged false misconduct, he fails to state such a claim. “Substantive due process ‘prevents the government from engaging in conduct that shocks the conscience or interferes with rights implicit in the concept of ordered liberty.’” Prater v. City of Burnside, 289 F.3d 417, 431 (6th Cir. 2002) (quoting United States v. Salerno, 481 U.S. 739, 746 (1987)). “Substantive due process . . . serves the goal of preventing governmental power from being used for purposes of oppression, regardless of the fairness of the procedures used.” Pittman v. Cuyahoga Cnty. Dep’t of Child. & Fam. Servs., 640 F.3d 716, 728 (6th Cir. 2011) (quoting Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir. 1996)). “Conduct shocks the conscience if it ‘violates the decencies of civilized conduct.’” Range v. Douglas, 763 F.3d 573, 589 (6th Cir. 2014) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846–47 (1998)). With respect to an allegedly falsified misconduct report, the Sixth Circuit has held that framing an inmate by planting evidence may violate substantive due process where a defendant’s conduct shocks the conscience and constitutes an “egregious abuse of governmental power.” Cale v. Johnson, 861 F.2d 943, 950 (6th Cir. 1988), overruled in other part by Thaddeus- X v. Blatter, 175 F.3d 378 (6th Cir. 1999). Plaintiff’s complaint, however, is devoid of any allegations from which the Court could infer that any of the named Defendants acted to frame Plaintiff.

“Where a particular [a]mendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that [a]mendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.’” Albright v. Oliver, 510 U.S. 266, 273–75 (1994) (quoting Graham v. Connor, 490 U.S. 386, 394 (1989)) (holding that the Fourth Amendment, not substantive due process, provides the standard for analyzing claims involving unreasonable search or seizure of free citizens). If such an amendment exists, the substantive due process claim is properly dismissed. See Heike v. Guevara, 519 F. App’x 911, 923 (6th Cir. 2013). In this case, the First and Eighth Amendments, as well as the Fourteenth Amendment’s procedural due process and equal protection clauses, apply to protect Plaintiff’s liberty interest in the misconduct proceedings. Consequently, any intended substantive due process claims will be dismissed. 2. Equal Protection The Court also construes Plaintiff’s complaint to suggest that the issuance of the allegedly false misconduct violated his Fourteenth Amendment equal protection rights based upon Plaintiff’s belief that the misconduct was racially motivated. The Equal Protection Clause prohibits discrimination by government actors which either

burdens a fundamental right, targets a suspect class, or intentionally treats one differently than others similarly situated without any rational basis for the difference. Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 681–82 (6th Cir. 2011); Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005). A state practice generally will not require strict scrutiny unless it interferes with a fundamental right or discriminates against a suspect class of individuals. Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976). “A plaintiff presenting a race-based equal protection claim can either present direct evidence of discrimination, or can establish a prima facie case of discrimination under the burden-shifting scheme set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Umani v. Mich. Dep’t of Corr., 432 F. App’x 453, 458 (6th Cir. 2011) (citing Arendale v. City of Memphis, 519 F.3d 587, 603 (6th Cir. 2008)).

Here, although Plaintiff alleges that Defendant Kenyon called him a “darkie” and that a sergeant stated that “you big black guys pride yourselves on abusing white inmates,” (ECF No. 1, PageID.8), Plaintiff fails to identify any comparative prisoners. Instead, Plaintiff’s allegations of discriminatory treatment are wholly conclusory. Conclusory allegations of unconstitutional conduct without specific factual allegations fail to state a claim under § 1983. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555. In sum, Plaintiff fails to allege sufficient facts to support a claim of intentional race discrimination by either direct or indirect evidence. See Davis v. Prison Health Servs., 679 F.3d 433, 440 (6th Cir. 2012) (discussing the distinction between direct and indirect methods of proving discrimination). Moreover, to the extent that Plaintiff intended to assert an equal protection claim in a class-of-one case, he fails to state such a claim. To prove an equal protection claim in a class-of- one case, Plaintiff must demonstrate “intentional and arbitrary discrimination” by the state; that is, he must demonstrate that he “has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Vill. of Willowbrook v.

Olech, 528 U.S. 562, 564 (2000); see also Nordlinger v. Hahn, 505 U.S. 1, 10–11 (1992); United States v. Green, 654 F.3d 637, 651 (6th Cir. 2011). “‘[T]he hallmark of [a “class-of-one”] claim is not the allegation that one individual was singled out, but rather, the allegation of arbitrary or malicious treatment not based on membership in a disfavored class.’” Davis, 679 F.3d at 441 (emphasis removed) (quoting Aldridge v. City of Memphis, 404 F. App’x 29, 42 (6th Cir. 2010)); see also Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008) (“The ‘class of one’ theory . . . is unusual because the plaintiff in a ‘class of one’ case does not allege that the defendants discriminate against a group with whom she shares characteristics, but rather that the defendants simply harbor animus against her in particular and therefore treated her arbitrarily.” (emphasis in

original)). A plaintiff “must overcome a ‘heavy burden’ to prevail based on the class-of-one theory.” Loesel v. City of Frankenmuth, 692 F.3d 452, 462 (6th Cir. 2012) (citing TriHealth, Inc. v. Bd. of Comm’rs, Hamilton Cnty., 430 F.3d 783, 791 (6th Cir. 2005)). “Unless carefully circumscribed, the concept of a class-of-one equal protection claim could effectively provide a federal cause of action for review of almost every executive and administrative decision made by state actors.” Id. (quoting Jennings v. City of Stillwater, 383 F.3d 1199, 1210–11 (10th Cir. 2004)). The threshold element of an equal protection claim is disparate treatment. Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006); Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011) (“To state an equal protection claim, a plaintiff must adequately plead that the government treated the plaintiff ‘disparately as compared to similarly situated persons and that such disparate treatment either burdens a fundamental right, targets a suspect class, or has no rational basis.’” (citation omitted)). “‘Similarly situated’ is a term of art—a comparator . . . must be similar in ‘all relevant respects.’” Paterek v. Vill. of Armada, 801 F.3d 630, 650 (6th Cir. 2015) (quoting United States v. Green, 654 F.3d 637, 651 (6th Cir.

2011)); see also Nordlinger, 505 U.S. at 10; Tree of Life Christian Sch. v. City of Upper Arlington, 905 F.3d 357, 368 (6th Cir. 2018). Even viewing Plaintiff’s equal protection claim as a class-of-one claim, Plaintiff’s equal protection claim fails to state a claim upon which relief may be granted. Plaintiff fails to allege facts suggesting that he was treated disparately from similarly situated persons in any respect. Plaintiff’s conclusory allegations simply do not suffice to state a claim. Accordingly, for all of the reasons set forth above, any Fourteenth Amendment equal protection claims are properly dismissed. 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 § 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: May 22, 2023 /s/Maarten Vermaat Maarten Vermaat United States Magistrate Judge