Spencer 529310 v. Annis

• Court: District Court, W.D. Michigan
• Decided: January 9, 2023
• Docket: 1:22-cv-01181
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______

NICHOLAS JAMES SPENCER,

Plaintiff, Case No. 1:22-cv-1181

v. Honorable Robert J. Jonker

UNKNOWN ANNIS 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. 5.) 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 against Defendants Johnson, Lofton, Burgess, and Russell. The Court will also dismiss, for failure to state a claim, the following claims against remaining Defendant Annis: (1) Plaintiff’s official capacity claims; (2) any claims for injunctive relief against Defendant Annis in his individual capacity; (3) Plaintiff’s claims regarding Defendant Annis’s destruction of Plaintiff’s grievance; (4) any Eighth Amendment claim premised upon Defendant Annis’s verbal harassment of Plaintiff; (5) Plaintiff’s Fourteenth Amendment due process claim regarding the deprivation of his property; and (6) any civil conspiracy claim. The following claims against Defendant Annis remain in the case: Plaintiff’s First Amendment claim, and his Eighth Amendment deliberate indifference claim premised upon being labeled a snitch. Discussion

I. Factual Allegations Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Oaks Correctional Facility (ECF) in Manistee, Manistee County, Michigan. The events about which he complains occurred at that facility. Plaintiff sues MDOC Grievance Manager Richard D. Russell, as well as the following ECF personnel: Warden Michael Burgess, Lieutenant Unknown Lofton, Sergeant Unknown Johnson, and Corrections Officer Unknown Annis. Plaintiff sues Defendants in both their official and personal capacities. (ECF No. 1, PageID.2.) Plaintiff alleges that in August of 2022, Defendant Annis began harassing him, telling Plaintiff that he did not like him because Plaintiff “hung out with ‘n***** friends.’” (Id., PageID.3.) Plaintiff filed a grievance about Defendant Annis’s behavior, and Defendant Annis “stole the grievance[,] destroyed it[,] and told [Plaintiff] he was going to get [Plaintiff] back for

snitching on him.” (Id.) According to Plaintiff, Defendant Annis “went up and down the hallway telling other prisoners [Plaintiff] was a snitch causing prisoners to tell [Plaintiff] they would assault him.” (Id.) On August 26, 2022, Plaintiff was sent to administrative segregation. (Id.) Defendant Annis was responsible for packing Plaintiff’s property. (Id.) Plaintiff contends that Defendant Annis “took his opportunity to get back at Plaintiff like he said he would for filing the grievance.” (Id.) Plaintiff claims that Defendant Annis stole or destroyed Plaintiff’s headphones, a pair of Nike shoes, his Casio watch, his beard and mustache trimmers, and a burgundy polar fleece jacket. (Id.) Plaintiff filed a Step I grievance about his missing property. (Id.) He was interviewed by Defendants Johnson and Lofton, who told Plaintiff that they “were going to help conceal the fact [Defendant] Annis ‘got rid of’ Plaintiff’s property . . . because [Defendant Annis] was their friend and co-worker.” (Id.) Plaintiff contends that Defendants Burgess and Russell “aided in the cover up” by denying his Step II and III grievances. (Id.)

Based on the foregoing, Plaintiff asserts: (1) violations of his First Amendment right to be free from retaliation, and (2) violations of his Eighth Amendment rights premised upon Defendant Annis telling other prisoners that Plaintiff is a snitch. (Id., PageID.3–4.) Plaintiff also contends that the supervisory Defendants (Defendants Johnson, Lofton, Burgess, and Russell) are liable for having a custom of “allowing and encouraging violation of prisoners[’] rights.” (Id., PageID.4.) He also suggests that these individuals “failed to adequately train and supervise [Defendant] Annis.” (Id.) The Court also construes Plaintiff’s complaint to assert: (1) claims against all Defendants premised upon the denial and destruction of his grievance; (2) an Eighth Amendment claim against Defendant Annis premised upon his verbal harassment; (3) a Fourteenth Amendment

claim against all Defendants premised upon the deprivation of his property; and (4) a civil conspiracy claim. Plaintiff requests the appointment of counsel, $100,000.00 in compensatory damages, $200,000.00 in punitive damages, a public apology from the MDOC, and for the MDOC and the criminal justice system to “engage in reforms.” (Id., PageID.5.) II. Request for Counsel As noted supra, Plaintiff requests the appointment of counsel. (Id.) Indigent parties in civil cases have no constitutional right to a court-appointed attorney. Abdur-Rahman v. Mich. Dep’t of Corr., 65 F.3d 489, 492 (6th Cir. 1995); Lavado v. Keohane, 992 F.2d 601, 604–05 (6th Cir. 1993). The Court may, however, request an attorney to serve as counsel, in the Court’s discretion. Abdur- Rahman, 65 F.3d at 492; Lavado, 992 F.2d at 604–05; see Mallard v. U.S. Dist. Ct., 490 U.S. 296 (1989). Appointment of counsel is a privilege that is justified only in exceptional circumstances. In determining whether to exercise its discretion, the Court should consider the complexity of the issues, the procedural posture of the case, and Plaintiff’s apparent ability to prosecute the action

without the help of counsel. See Lavado, 992 F.2d at 606. The Court has carefully considered these factors and determines that, at this stage of the case, the assistance of counsel does not appear necessary to the proper presentation of Plaintiff’s position. Plaintiff’s request for counsel (ECF No. 1, PageID.5) will, therefore, be denied. III. Failure to State a Claim A complaint may be dismissed for failure to state a claim if it fails “to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more than labels and conclusions. 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. Official Capacity Claims As noted supra, Plaintiff sues Defendants in both their official and personal capacities. (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). In numerous opinions, the United States Court of Appeals for the Sixth Circuit has specifically held that the MDOC is absolutely immune from a § 1983 suit under the Eleventh Amendment. See, e.g., Harrison v. Michigan, 722 F.3d 768, 771 (6th Cir. 2013); Diaz v. Mich. Dep’t of Corr., 703 F.3d 956, 962 (6th Cir. 2013); McCoy v. Michigan, 369 F. App’x 646, 653–54 (6th Cir. 2010). Here, Plaintiff seeks damages and appears to seek injunctive relief in the form of the MDOC enacting “reforms.” (ECF No. 1, PageID.5.) Official capacity defendants, however, are 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). Official capacity actions seeking injunctive relief, however, constitute 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. Importantly, “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)). Plaintiff, however, has not alleged an ongoing violation of federal law against any named Defendant. Plaintiff, therefore, cannot rely upon Ex Parte Young to maintain claims for injunctive relief against Defendants, and such claims will be dismissed.1 Plaintiff’s official capacity claims will, therefore, be dismissed in their entirety.

1 To the extent Plaintiff seeks injunctive relief against any Defendants in their individual capacities, such claims will also be dismissed for the reasons set forth above. B. Individual Capacity Claims 1. Supervisory Liability Claims Plaintiff contends that Defendants Johnson, Lofton, Burgess, and Russell violated his “right to supervisor[y] liability” by reviewing Plaintiff’s grievances, aiding in the “cover up,” having a “custom of allowing and encouraging violation of prisoners[’] rights,” and “fail[ing] to adequately train and supervise [Defendant] Annis.” (ECF No. 1, PageID.4.)

Government officials, however, may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior 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, § 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); 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).

Here, Plaintiff fails to allege any facts suggesting that Defendants Johnson, Lofton, Burgess, and Russell encouraged or condoned the conduct of Defendant Annis, or authorized, approved, or knowingly acquiesced in that conduct. Although Plaintiff contends that Defendants Johnson and Lofton stated that they would help Defendant Annis conceal the deprivation of property, Plaintiff’s complaint suggests that comment was made in connection with their denial of Plaintiff’s Step I grievance. Moreover, Plaintiff’s only allegation regarding Defendants Burgess and Russell is that they denied his Step II and III grievances. As noted above, denial of grievances is insufficient to impose § 1983 liability. See Shehee, 199 F.3d at 300. Plaintiff’s conclusory allegations of supervisory responsibility are insufficient to demonstrate that Defendants Johnson,

Lofton, Burgess, and Russell were personally involved in the events described in Plaintiff’s complaint. Thus, Plaintiff cannot maintain his supervisory responsibility claims against them. 2. Claims Regarding the Grievance Process The Court has construed Plaintiff’s complaint to suggest that Defendants Johnson, Lofton, Burgess, and Russell violated his rights by denying his grievance and grievance appeals concerning Defendant Annis. Moreover, Plaintiff contends that Defendant Annis destroyed his first grievance complaining about Defendant Annis’s verbal harassment. Plaintiff, however, has no due process right to file a 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’ conduct did not deprive him of due process. Moreover, Plaintiff’s First Amendment right to petition the government was not violated by Defendants’ failures to act upon his 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 Minn. 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). Finally, Defendants’ actions (or inactions) have not barred Plaintiff from seeking a remedy for his complaints. See Cruz v. Beto, 405 U.S. 319, 321 (1972). “A prisoner’s constitutional right to assert grievances typically is not violated when prison officials prohibit only ‘one of several ways in which inmates may voice their complaints to, and seek relief, from prison officials’ while leaving a formal grievance procedure intact.” Griffin v. Berghuis, 563 F. App’x 411, 415–16 (6th Cir. 2014) (citing Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 130 n.6 (1977)). 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 improperly prevented 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 he therefore 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). In light of the foregoing, the Court finds that Plaintiff has failed to state a cognizable claim against Defendants based on a failure to act upon his grievances. 3. First Amendment Retaliation Claims Plaintiff contends that all Defendants violated his First Amendment rights by retaliating

against him. (ECF No. 1, PageID.4.) He alleges that Defendant Annis retaliated against him for filing a grievance about the verbal harassment by calling Plaintiff a snitch in front of other prisoners and by going into Plaintiff’s cell and taking his property. (Id.) Plaintiff suggests further that Defendants Johnson, Lofton, Burgess, and Russell retaliated by “covering up” these actions by denying his grievances. (Id.) 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)).

Plaintiff engaged in protected conduct by filing a grievance about Defendant Annis’s verbal harassment. See Smith, 250 F.3d at 1037; Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000). Moreover, Plaintiff has alleged that Defendant Annis acted adversely by taking his property and calling him a snitch. See Bell v. Johnson, 308 F.3d 594, 606 (6th Cir. 2002) (citing Walker v. Bain, 257 F.3d 660, 664 (6th Cir. 2001)) (discussing that a cell search and property confiscation can be adverse actions); Ball v. Evers, No. 19-10315, 2021 WL 3164273, at *9 (E.D. Mich. July 27, 2021) (holding that the defendant yelling at the plaintiff and accusing him of being a snitch as the plaintiff walked in the yard constituted an adverse action). Finally, Plaintiff contends that Defendant Annis told him that he “was going to get [Plaintiff] back for snitching on him,” and

Plaintiff alleges that the adverse actions noted above occurred close in time to when Plaintiff filed his grievance. Given these allegations, the Court concludes that Plaintiff has set forth plausible First Amendment retaliation claims against Defendant Annis. Plaintiff, however, cannot maintain retaliation claims against Defendants Johnson, Lofton, Burgess, and Russell premised upon their denial of his grievances. Many courts, including this one, have held that the denial or refusal to process a grievance is not an adverse action. See, e.g., Cameron v. Gurnoe, No. 2:19-cv-71, 2019 WL 2281333, at *4–5 (W.D. Mich. May 29, 2019) (citing cases); Branch v. Houtz, No. 1:16-cv-77, 2016 WL 737779, at *6 (W.D. Mich. Feb. 26, 2016); Ross v. Westchester Cnty. Jail, No. 10 Civ. 3937(DLC), 2012 WL 86467, at *8 (S.D.N.Y. Jan. 11, 2012) (holding that the refusal to file a grievance is, without more, insufficient to constitute an adverse action); Stone v. Curtin, No. 1:11-cv-820, 2011 WL 3879505, at *4 (W.D. Mich. Aug. 31, 2011) (concluding that the failure to process a prison grievance would not deter a prisoner of ordinary firmness from exercising his right to file a grievance); Green v. Caruso, No. 1:10-cv-958, 2011 WL 1113392, at *10 (W.D. Mich. Mar. 24, 2011) (finding that the denial of a prisoner’s

grievances was not sufficiently adverse to support a retaliation claim); Burgos v. Canino, 641 F. Supp. 2d 443, 454 (E.D. Pa. 2009), aff’d, 358 F. App’x 302 (3d Cir. 2009) (discussing that the rejection or denial of prison grievances does not constitute an adverse action for purposes of a retaliation claim). Denying a grievance could not deter a person of ordinary firmness from engaging in protected conduct because it does not have any adverse consequences, as discussed supra in Part II.B.2. Because Plaintiff fails to allege that Defendants Johnson, Lofton, Burgess, and Russell took adverse action against him, the Court will dismiss Plaintiff’s First Amendment retaliation claims against Defendants Johnson, Lofton, Burgess, and Russell. 4. Eighth Amendment Claims Plaintiff contends that Defendant Annis violated his Eighth Amendment right “to be free

from excessive force when he called Plaintiff a snitch and told other prisoners he was a snitch.” (ECF No. 1, PageID.3.) Although Plaintiff mentions excessive force, the complaint is devoid of allegations suggesting that Plaintiff was subjected to any use of force by Defendant Annis. The Court, therefore, characterizes his claim as one asserting that Defendant Annis was deliberately indifferent to Plaintiff’s safety in violation of the Eighth Amendment. The Court has also construed Plaintiff’s complaint to assert an Eighth Amendment claim against Defendant Annis premised upon his verbal harassment of Plaintiff. 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). Therefore, “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. a. Verbal Harassment The Court has construed Plaintiff’s complaint to assert an Eighth Amendment claim premised upon the verbal harassment by Defendant Annis. 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. The Court, therefore, will dismiss any Eighth Amendment claim premised upon verbal harassment that Plaintiff asserts against Defendant Annis. b. Labeling Plaintiff a Snitch As noted supra, Plaintiff contends that Defendant Annis violated his Eighth Amendment

rights by calling him a snitch in the presence of other prisoners. (ECF No. 1, PageID.3.) Inmates have a constitutionally protected right to personal safety grounded in the Eighth Amendment. Farmer, 511 U.S. 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). In particular, 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.” Id. at 833. To establish a violation of this right, Plaintiff must show that Defendant was deliberately indifferent to the Plaintiff’s risk of injury. Walker v. Norris, 917 F.2d 1449, 1453 (6th Cir. 1990); 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”). The Sixth Circuit has observed that identifying a prisoner as an informant or snitch may constitute deliberate indifference to the inmate’s safety. See Comstock v. McCrary, 273 F.3d 693, 699 n.2 (6th Cir. 2001); LaFountain v. Martin, 334 F. App’x 738, 741 (6th Cir. 2009) (citing Benefield v. McDowall, 241 F.3d 1267, 1271 (10th Cir. 2001)) (noting that “labeling an inmate a snitch satisfies the Farmer standard, and constitutes deliberate indifference to the safety of that inmate”). Here, Plaintiff alleges that Defendant Annis “went up and down the hallway telling other prisoners [that Plaintiff] was a snitch.” (ECF No. 1, PageID.3.) This caused “prisoners to tell [Plaintiff] they would assault him.” (Id.) Although Plaintiff has by no means proven deliberate

indifference, taking the facts alleged in the light most favorable to him, the Court concludes that Plaintiff has set forth a plausible Eighth Amendment deliberate indifference claim against Defendant Annis premised upon being labeled a snitch. 5. Fourteenth Amendment Due Process—Deprivation of Property The Court has construed Plaintiff’s complaint to assert a Fourteenth Amendment due process claim premised upon the deprivation of his property (his headphones, shoes, watch, trimmers, and fleece jacket). Any such claim, however, is barred by the doctrine of Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327 (1986). Under Parratt, a person deprived of property by a “random and unauthorized act” of a state employee has no federal due process claim unless the state fails to afford an adequate post-deprivation remedy. Parratt, 451 U.S. at 541. If an adequate post-deprivation remedy exists, the deprivation, although real, is not “without due process of law.” Id. at 537. This rule applies to both negligent and intentional deprivations of property, as long as the deprivation was not done pursuant to an established state procedure. See Hudson, 468 U.S. at 530–36. Because Plaintiff’s claim is premised upon allegedly unauthorized acts of a state official, he must plead and prove the inadequacy of

state post-deprivation remedies. See Copeland v. Machulis, 57 F.3d 476, 479–80 (6th Cir. 1995); Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir. 1993). Under settled Sixth Circuit authority, a prisoner’s failure to sustain this burden requires dismissal of his § 1983 due process action. See Brooks v. Dutton, 751 F.2d 197 (6th Cir. 1985). Plaintiff has not sustained his burden in this case. Plaintiff has not alleged that state post- deprivation remedies are inadequate. Michigan law authorizes actions in the Court of Claims asserting tort or contract claims “against the state or any of its departments or officers.” Mich. Comp. Laws § 600.6419(1)(a). The Sixth Circuit specifically has held that Michigan provides adequate post-deprivation remedies for deprivation of property. See Copeland, 57 F.3d at 480.

Plaintiff does not allege any reason why a state court action would not afford him complete relief for the deprivation, either negligent or intentional, of his personal property. Accordingly, Plaintiff’s due process claim against Defendants regarding the deprivation of his property will be dismissed. 6. Civil Conspiracy The Court has also construed Plaintiff’s complaint to assert a civil conspiracy claim against all Defendants. A civil conspiracy under § 1983 is “an agreement between two or more persons to injure another by unlawful action.” See Hensley v. Gassman, 693 F.3d 681, 695 (6th Cir. 2012) (quoting Hooks v. Hooks, 771 F.2d 935, 943–44 (6th Cir. 1985)). The plaintiff must show the existence of a single plan, that the alleged coconspirator shared in the general conspiratorial objective to deprive the plaintiff of a federal right, and that an overt action committed in furtherance of the conspiracy caused an injury to the plaintiff. Id.; Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th Cir. 2011). Moreover, a plaintiff must plead a conspiracy with particularity, as vague and conclusory allegations unsupported by material facts are insufficient. Twombly, 550 U.S. at 565 (recognizing that allegations of conspiracy must be supported by allegations of fact

that support a “plausible suggestion of conspiracy,” not merely a “possible” one); Fieger v. Cox, 524 F.3d 770, 776 (6th Cir. 2008); Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003); Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987). Plaintiff provides no allegations regarding any agreement among the Defendants, beyond the fact that they all work for the MDOC. As the Supreme Court has held, such allegations, while hinting at a “possibility” of conspiracy, do not contain “enough factual matter (taken as true) to suggest that an agreement was made.” Twombly, 550 U.S. at 556. Instead, the Court has recognized that although parallel conduct may be consistent with an unlawful agreement, it is insufficient to state a claim where that conduct “was not only compatible with, but indeed was more likely

explained by, lawful, unchoreographed . . . behavior.” Iqbal, 556 U.S. at 680 (citing Twombly, 550 U.S. at 567). Moreover, as to all Defendants, Plaintiff’s conspiracy claim is barred by the intracorporate conspiracy doctrine. The intracorporate conspiracy doctrine states that “if all of the defendants are members of the same collective entity, there are not two separate ‘people’ to form a conspiracy.” Hull v. Cuyahoga Valley Joint Vocational Sch. Dist. Bd. of Ed., 926 F.2d 505, 510 (6th Cir. 1991). Initially applied to claims under 42 U.S.C. § 1985(3), Johnson v. Hills & Dales Gen. Hosp., 40 F.3d 837, 839–40 (6th Cir. 1994) (quoting Hull, 926 F.2d at 510), the Sixth Circuit has concluded that the intracorporate conspiracy doctrine applies to claims under § 1983 as well, Jackson v. City of Cleveland, 925 F.3d 793, 817–19 (6th Cir. 2019). As a result, unless members of the same collective entity (such as the MDOC) are acting outside the scope of their employment, they are deemed to be one collective entity and not capable of conspiring. Id. at 819; see also Novak v. City of Parma, 932 F.3d 421, 436–37 (6th Cir. 2019) (same). Here, all Defendants are members of the same collective entity—the MDOC. Plaintiff does

not even allege, much less show, that Defendants were acting outside the scope of their employment. The “scope of employment” limitation “recognizes a distinction between collaborative acts done in pursuit of an employer’s business and private acts done by persons who happen to work at the same place.” Johnson, 40 F.3d at 840. To bring claims outside of the intracorporate conspiracy doctrine, a plaintiff must allege that the defendants “acted other than in the normal course of their corporate duties.” Id. Plaintiff’s complaint is devoid of facts suggesting that Defendants were acting outside the normal course of their duties, however improperly he believes they may have been exercising those duties. As a consequence, Plaintiff’s conspiracy claim under § 1983 is barred by the intracorporate conspiracy doctrine.

Conclusion Having conducted the review required by the Prison Litigation Reform Act, the Court determines that Defendants Johnson, Lofton, Burgess, and Russell 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, the following claims against remaining Defendant Annis: (1) Plaintiff’s official capacity claims; (2) any claims for injunctive relief against Defendant Annis in his individual capacity; (3) Plaintiff’s claims regarding Defendant Annis’s destruction of Plaintiff’s grievance; (4) any Eighth Amendment claim premised upon Defendant Annis’s verbal harassment of Plaintiff; (5) Plaintiff’s Fourteenth Amendment due process claim regarding the deprivation of his property; and (6) any civil conspiracy claim. The following claims against Defendant Annis remain in the case: Plaintiff’s First Amendment claim, and his Eighth Amendment deliberate indifference claim premised upon being labeled a snitch. The Court will also deny Plaintiff’s request for the appointment of counsel (ECF No. 1, PageID.5). An order consistent with this opinion will be entered.

Dated: January 9, 2023 /s/ Robert J. Jonker Robert J. Jonker United States District Judge