Case 1:21-cv-00566-PLM-PJG ECF No. 8, PageID.31 Filed 08/11/21 Page 1 of 10




                            UNITED STATES DISTRICT COURT
                            WESTERN DISTRICT OF MICHIGAN
                                 SOUTHERN DIVISION
                                       ______

AKMAL HOWARD,

                      Plaintiff,                    Case No. 1:21-cv-566

v.                                                  Honorable Paul L. Maloney

MATT MACAULEY et al.,

                      Defendants.
____________________________/

                                           OPINION

               This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983.

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 Macauley, McBride, Bolton, Battle, and Stroll. The Court will also dismiss, for failure

to state a claim, Plaintiff’s Eighth Amendment claims against the remaining Defendants.
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                                            Discussion

I.        Factual Allegations

                Plaintiff is presently incarcerated with the Michigan Department of Corrections

(MDOC) at the Central Michigan Correctional Facility (STF) in St. Louis, Gratiot County,

Michigan. The events about which he complains, however, occurred at the Bellamy Creek

Correctional Facility (IBC) in Ionia, Ionia County, Michigan. Plaintiff sues the following IBC

staff: Warden Matt Macauley; Deputy Warden Unknown McBride; Unit 3 Supervisor/Sergeant

Unknown Fuller; Corrections Officers Unknown Gibson and Unknown Pasch; Resident Unit

Manager Unknown Bolton; and Assistant Resident Unit Managers Unknown Battle and Unknown

Stroll.

                Plaintiff’s complaint resembles dozens of others that have been brought in the

Western District of Michigan by prisoners with legitimate fears posed by the ongoing COVID-19

pandemic and frustrations with their prisons’ responses. Plaintiff alleges that IBC administration

moved him to Unit 3 on August 25, 2020, because they suspected he had COVID-19. At the time,

IBC used Unit 3 to isolate prisoners with COVID-19 or its symptoms and to quarantine those who

may have been exposed. In his list of legal claims, Plaintiff states that when he arrived on Unit 3,

he was placed in a cell with a prisoner who tested positive. Plaintiff, however, apparently remained

negative for COVID-19 during his time on Unit 3. On September 14, 2020, he tested negative for

COVID-19 for the fourth time. Apparently based on this fourth negative test, IBC healthcare

cleared him to move out of Unit 3. He was not immediately moved out.

                On September 20, 2020, Plaintiff sent kites to Defendants Fuller, Battle, Stroll, and

Macauley “stating he was negative for Covid and cleared by healthcare to be moved out of the

Covid unit.” (Compl., ECF No. 1, PageID.6.) Presumably Plaintiff also asked to be moved from

Unit 3 because he asserts that he “was denied by each defendant.” (Id.)

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               Plaintiff complained to Defendants Pasch, Gibson, and Fuller. They allegedly told

Plaintiff that they would move him when they were “good and ready.” (Id., PageID.7.) They also

ordered Plaintiff to take another COVID-19 test. Plaintiff refused. He instead threatened to write

a grievance.

               Plaintiff states that Defendant Fuller issued him a misconduct ticket on

October 5, 2020, and moved him to segregation because Plaintiff refused to take a COVID-19 test.

As Plaintiff was taken to segregation, he asked for his property to be packed purportedly pursuant

to MDOC policy. Defendants Fuller, Gibson, and Pasch allegedly refused and stated that

“prisoners who write grievances don’t deserve property.” (Id.) He alleges that his personal, legal,

and state property was instead disposed of. Plaintiff was also later found guilty of this misconduct

ticket and sanctioned.

               Plaintiff seeks declaratory relief, compensatory and punitive damages, and costs.

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. Twombly, 550 U.S. at 555; 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
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asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. 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.” Iqbal, 556 U.S. 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)(i)).

                 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).

III.      Lack of any allegations

                 Plaintiff makes no allegations against Defendant McBride and Bolton. It is a basic

pleading essential that a plaintiff attribute factual allegations to particular defendants. See

Twombly, 550 U.S. at 544 (holding that, in order to state a claim, a plaintiff must make sufficient

allegations to give a defendant fair notice of the claim). The Sixth Circuit “has consistently held

that damage claims against government officials arising from alleged violations of constitutional

rights must allege, with particularity, facts that demonstrate what each defendant did to violate the

asserted constitutional right.” Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008) (citing

Terrance v. Northville Reg’l Psych. Hosp., 286 F.3d 834, 842 (6th Cir. 2002)). Where a person is

named as a defendant without an allegation of specific conduct, the complaint is subject to
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dismissal, even under the liberal construction afforded to pro se complaints. See Frazier v.

Michigan, 41 F. App’x 762, 764 (6th Cir. 2002) (dismissing the plaintiff’s claims where the

complaint did not allege with any degree of specificity which of the named defendants were

personally involved in or responsible for each alleged violation of rights); Griffin v. Montgomery,

No. 00-3402, 2000 WL 1800569, at *2 (6th Cir. Nov. 30, 2000) (requiring allegations of personal

involvement against each defendant) (citing Salehpour v. Univ. of Tenn., 159 F.3d 199, 206 (6th

Cir. 1998)); Rodriguez v. Jabe, No. 90-1010, 1990 WL 82722, at *1 (6th Cir. June 19, 1990)

(“Plaintiff’s claims against those individuals are without a basis in law as the complaint is totally

devoid of allegations as to them which would suggest their involvement in the events leading to

his injuries.”). Plaintiff fails to even mention Defendants McBride and Bolton in the body of his

complaint. Consequently, his allegations against them fall far short of the minimal pleading

standards under Fed. R. Civ. P. 8 (requiring “a short and plain statement of the claim showing that

the pleader is entitled to relief”). Therefore, the Court will dismiss the complaint against them.

IV.    Respondeat superior

               Plaintiff similarly fails to make specific factual allegations against Defendant

Macauley, other than his claim that Macauley failed to respond to his kites. Government officials

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
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supervisor 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. Plaintiff has failed to allege that Defendant Macauley engaged in any active

unconstitutional behavior. Accordingly, he fails to state a claim against him, and the Court will

dismiss Defendant Macauley from this action.

V.     First Amendment

               Plaintiff alleges that Defendants Fuller, Pasch, and Gibson retaliated against him

when they allegedly refused to allow Plaintiff to pack his property.

               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)).

               On initial review, the Court concludes that Plaintiff has alleged facts sufficient to

state a First Amendment retaliation claim against Defendants Fuller, Pasch, and Gibson.

VI.    Eighth Amendment

               Plaintiff alleges that his Eighth Amendment rights were violated when Defendants

Fuller, Pasch, and Gibson refused to allow Plaintiff to pack his property; when Defendants Stroll,



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Fuller, and Battle moved Plaintiff into Unit 3; and when Defendants Stroll, Battle, and Fuller

refused to move Plaintiff out of Unit 3 after IBC healthcare cleared him.

               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 cindymorgan@example.net. “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.

       A.      Deprivation of property

               Plaintiff alleges that his personal, state, and legal property was disposed of when

he went to segregation. He alleges that Defendants Fuller, Pasch, and Gibson violated his Eighth

Amendment rights because they did not allow him to pack his property. Plaintiff does not specify

what he specifically lost, but nothing he alleges suggests that Defendants deprived him of the basic

necessities of life. See Rhodes, 452 U.S. at 347. Because he fails to allege that Defendants Fuller,

Pasch, and Gibson deprived him of a basic necessity or that their conduct otherwise created
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intolerable conditions, Plaintiff fails to state an Eighth Amendment claim against them for their

refusal to pack his property. See id. at 348.

       B.      Segregation

               Plaintiff arguably also alleges that Defendants Fuller, Pasch, and Gibson violated

the Eighth Amendment when they moved him to segregation. Placement in segregation is a routine

discomfort that is “‘part of the penalty that criminal offenders pay for their offenses against

society.’” Hudson, 503 U.S. at 9 (quoting Rhodes, 452 U.S. at 347). Although it is clear that

Plaintiff was denied certain privileges as a result of his administrative segregation, he does not

allege or show that he was denied basic human needs and requirements. The Sixth Circuit has

held that without a showing that basic human needs were not met, the denial of privileges as a

result of administrative segregation cannot establish an Eighth Amendment violation. See Evans

v. Vinson, 427 F. App’x 437, 443 (6th Cir. 2011); Harden-Bey v. Rutter, 524 F.3d 789, 795 (6th

Cir. 2008). Moreover, Plaintiff cannot bring an Eighth Amendment claim for emotional or mental

damages because he does not allege a physical injury. See 42 U.S.C. §1997e(e); see also Hudson,

503 U.S. at 5; Harden-Bey, 524 cindymorgan@example.net. As a result, Plaintiff fails to state an Eighth

Amendment claim against Defendants Fuller, Pasch, and Gibson for his placement in segregation.

       C.      Deliberate indifference

               Plaintiff asserts that Defendants Stroll, Fuller, and Battle were deliberately

indifferent to his health or safety first when they moved Plaintiff into Unit 3 and again later when

they failed to move Plaintiff out of Unit 3 after IBC healthcare cleared him.

               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

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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.

               Plaintiff fails to state facts showing that he was at a substantial risk of serious harm.

As a preliminary matter, the Court presumes that extended exposure to individuals with

COVID-19 creates a substantial risk to an individual who does not have COVID-19. However,

Plaintiff does not assert that he faced such a threat.

               Instead, Plaintiff merely gives vague allegations. He states that he was on Unit 3,

which IBC used to house prisoners with COVID-19 or who were suspected of having COVID-19.

Plaintiff insinuates that he faced a substantial risk of contracting COVID-19 while on Unit 3. Yet,

none of his allegations demonstrate that his placement on Unit 3—or the decision for him to remain

there—necessarily put him in close proximity to prisoners with contagious COVID-19 infections

or otherwise put him at substantial risk of contracting COVID-19.




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               Plaintiff’s allegation that when he arrived on Unit 3, he was placed in a cell with

another prisoner who tested positive, is likewise vague. Plaintiff provides no context about his

exposure to his cellmate and the timeline of his cellmate’s infection. He fails to indicate when his

cellmate tested positive, much less that his cellmate was contagious and that Defendants had reason

to know about it when they assigned him to the cell. In short, Plaintiff has alleged facts suggesting

only the mere possibility that Defendants violated the Eighth Amendment. His allegations

therefore fail to state a claim. See Iqbal, 556 U.S. at 678. Accordingly, the Court will dismiss

Plaintiff’s Eighth Amendment claims against Stroll, Fuller, and Battle.

                                            Conclusion

               Having conducted the review required by the Prison Litigation Reform Act, the

Court determines that Defendants Macauley, McBride, Bolton, Battle, and Stroll 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 Eighth Amendment claims

against the remaining Defendants.       Plaintiff’s First Amendment retaliation claims against

Defendants Fuller, Pasch, and Gibson remain in the case.

               An order consistent with this opinion will be entered.



Dated:    August 11, 2021                             /s/ Paul L. Maloney
                                                      Paul L. Maloney
                                                      United States District Judge




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