Gibson v. Yaw

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

MARIO GIBSON : Case No. 1:22-cv-773

:

Plaintiff, :

: Judge Michael R. Barrett

vs. :

Magistrate Judge Kimberly A. Jolson

:

LIEUTENANT LUCY YAW, :

:

Defendant. :

:

ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION AND

REPORT AND RECOMMENDATIONS ON INITIAL REVIEW

Plaintiff Mario Gibson, proceeding without counsel, filed an action alleging violations of

his civil rights. ECF No. 1-1. The matter is currently before the undersigned Magistrate Judge on

what the Court construes as Plaintiff’s motion for reconsideration of this Court’s prior order

assessing filing fees (the “Motion for Reconsideration”), ECF No. 6, and to conduct the initial

screen required by law. 28 U.S.C. § 1915A(a).

For the reasons stated below, the Court ORDERS that the motion for reconsideration be

DENIED. The Court RECOMMENDS the following be DISMISSED with prejudice: (1) all

requests for relief that Yaw be disciplined; and (2) all claims against Yaw in her official capacity.

The Court further RECOMMENDS that only the Eighth Amendment conditions of confinement

claim against Yaw relating to the conditions of Plaintiff’s confinement for the week of September

9, 2022, through September 15, 2022 be allowed to proceed and that all other claims against Yaw

in her individual capacity be DISMISSED without prejudice for failure to state a claim.

I. ORDER ON MOTION FOR RECONSIDERATION

A. Background

On December 29, 2022, Plaintiff filed a motion to proceed in forma pauperis and without

the prepayment of fees (the “IFP Motion”) and attached the required affidavit and institutional

trust account statements. ECF No. 1. On January 6, 2023, the Court granted Plaintiff’s IFP Motion

(the “IFP Order”), ECF No. 2, after which Plaintiff filed what this Court construed as a motion

seeking a waiver or postponement of payment of the initial partial filing fee assessed in the IFP

Order (the “Motion for Fee Waiver”), ECF No. 3. In the Motion for Fee Waiver Plaintiff indicated

that he was unable to pay the initial partial filing fee and requested to either proceed without

payment indefinitely or postpone the suit until he was able to pay. Id. The Court denied the

Motion for Fee Waiver on January 18, 2023, explaining filing fees cannot be waived under section

804(a)(3) of the Prison Litigation Reform Act of 1995 (the “PLRA”), and instructing Plaintiff to

file a formal motion seeking an extension of time to make his initial payment if additional time

was needed. ECF No. 4.

On January 23, 2023, Plaintiff filed what the Court construed as a motion seeking to

voluntarily dismiss the Complaint, seeking a refund of all partial filing fees paid, and a waiver of

any future fee assessments related to the filing of his Complaint (the “Motion to Dismiss”). ECF

No. 5. The Court denied Plaintiff’s Motion to Dismiss on February 1, 2023, again explaining that

Plaintiff had the right to dismiss the case voluntarily at this early stage of the proceeding, and refile

it at a later date, but that “where a plaintiff subject to the PLRA obtains in forma pauperis status,

the Court has “no authority to waive his fees under the PLRA” after he brings a civil action or files

an appeal. Id. at PageID 42 (citing Porter v. Dep’t of Treasury, 564 F.3d 176, 180 (3d Cir. 2009)

(quoting 28 U.S.C. § 1915(b)(1))). The Court further instructed Plaintiff that if he were to

voluntarily dismiss his Complaint, and then refile his claims, resulting in a new case being opened,

that he would be assessed another filing fee in addition to the one already assessed in this case. Id.

Ultimately, the Court denied Plaintiff’s Motion to Dismiss as the relief sought was not available,

reiterating that filing fees would continue to be assessed in this case, and again instructing Plaintiff

that if he wished to voluntarily dismiss his Complaint, he would need to file a new motion to

voluntarily dismiss in compliance with Rule 41(a) of the Federal Rules of Civil Procedure. Id. at

PageID 43.

On the same day the Court’s Order denying the Motion to Dismiss was entered, Plaintiff

filed the instant Motion for Reconsideration, objecting to the Court’s January 6 IFP Order granting

his IFP Motion.1 ECF No. 6.

B. Analysis

Plaintiff argues that his case should not proceed and he should not be liable for any filing

fees because when he filed the Complaint and his IFP Motion, he only did so “to see if [he]

qualified to proceed without pre-payment,” and upon learning of the assessment of an initial partial

filing fee and additional monthly partial filing fee payments in the IFP Order, he decided not to

immediately proceed with the case, instead informing the Court of his intention to delay

adjudication of his Complaint until the filing fee could be paid in full. Id. at PageID 38

(referencing his Motion for Fee Waiver). Plaintiff argues that when the IFP Motion was granted,

instead of allowing him to decide if he wanted to proceed, he was “forced into a contract” whereby

filing fees were deducted from his inmate trust account without his consent.2 Id. Plaintiff submits

1 The Court notes that due to the timing of the entry of the Order denying the Motion to Dismiss and Plaintiff’s filing

of the Motion for Reconsideration by mail, see ECF No. 6-1 (postmarked January 25, 2023), that Plaintiff was unaware

of and therefore did not intend to seek reconsideration of the Order denying the Motion to Dismiss.

2 Plaintiff, however, in seeking to proceed in forma pauperis, “authorized the institution of incarceration to forward

monthly payments of 20 percent of [his] preceding month's income credited to [his] prison account until [he has] paid

that had the IFP Motion not been granted (or presumably had it been provisionally granted

allowing him the choice of proceeding or not as he argues was the proper procedure) he could have

chosen not to proceed and thus would not be required to pay filing fees. Id. He now seeks a return

of all filing fees previously deducted from his trust account as payment towards the instant suit

and informs the Court he does not wish to proceed with this suit at this time. Id. at PageID 39.

As an initial matter, the Court notes that Plaintiff's Objection to this Court’s granting of the

IFP Order is more accurately described as a motion for reconsideration brought under Federal Rule

of Civil Procedure 59, as Plaintiff, in part, asks the Court to reverse its own order granting his IFP

Motion. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (indicating that a pro se litigant's

pleadings are to be construed liberally and held to a less stringent standard than are formal

pleadings drafted by lawyers); McDowell v. Dynamics Corp. of America, 931 F.2d 380, 382 (6th

Cir.1991) (motions for reconsideration are often treated as Rule 59 motions)). However, to

succeed when seeking reconsideration of a prior ruling, a movant must demonstrate a clear error

of law, newly discovered evidence, an intervening change in controlling law, or manifest injustice.

See GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999).

Here, it appears Plaintiff argues the Court misapplied the law based on his mistaken belief

that he may provisionally file a complaint and motion to proceed IFP, and then determine if he

wishes to proceed with his case based on the Court’s determination regarding amounts and timing

of filing fee payments. ECF No. 7 at PageID 38. However, Plaintiff supplies no legal authority

for this proposition and the Court knows of none. Indeed, as explained in two prior orders, the

PLRA does not allow for such a process.

the full amount of the filing fee,” ECF No. 1 at PageID 4, rendering both his argument that the fees were deducted

without his consent and that he was unaware the deduction of fees would occur without merit.

As previously clarified, the Court does not have the authority to waive or indefinitely

postpone payment of filing fees after a complaint is filed. See ECF No. 4 at PageID 33; ECF No.

7 at PageID 42. To further reiterate, “[t]he PLRA makes prisoners responsible for their filing fees

the moment a civil action or appeal is filed,” and by filing a complaint a prisoner waives any

objection to both the fee assessment and withdrawal of funds from his trust account to pay filing

fees. ECF No. 4 at PageID 32–33 (citing McGore v. Wigglesworth, 114 F.3d 601, 605 (6th Cir.

1997) (citing In re Tyler, 110 F.3d 528, 529–30 (8th Cir. 1997)); Ballard v. Burrage, 97 F.3d 382,

383 (10th Cir.1996))). This Court finds no error or change in controlling law that would require

overturning its prior order.

Plaintiff, however, labels the IFP Order granting the IFP Motion and the subsequent

collection of filing fees as “extortion,” which arguably could fall under the motion for

reconsideration standard of manifest injustice. See ECF. No. 7 at PageID 39. To establish manifest

injustice a moving party must “show that there exist[s] a fundamental flaw in the court's decision

that without correction would lead to a result that is both inequitable and not in line with applicable

policy.” United States v. Carney, No. 3:21-CR-00098, 2022 WL 678648, at *2 (M.D. Tenn. Mar.

4, 2022) (internal citation and quotation omitted) (explaining that both criminal and civil

proceedings utilize the same general standard for addressing motions for reconsiderations of a

prior order or judgment).

In support of his position, Plaintiff argues that if his trust account balance was zero for the

six months preceding the filing of his IFP Motion, based on the formula utilized for determining

initial partial filing fees and fee payments when a motion to proceed in forma pauperis is approved,

the Court would have found he had no funds available and he could have proceeded without

payment. ECF No. 7 at PageID 38. He submits that only because he received some money from

family during the review period for processing his IFP Motion, was he required to make monthly

filing fee payments. Id. While Plaintiff’s displeasure with the PLRA’s fee payment structure is

clear, the Court found no authority for Plaintiff’s apparent contention that the PLRA fee payment

structure is different when the source of funds in a prisoner’s trust account is family “gifts.”

Ultimately Plaintiff has not established a manifest injustice based on the Court’s IFP Order as he

does not argue that the Court’s decision was inequitable or outside of the PLRA’s filing fee

collection policies.

Because Plaintiff’s Motion for Reconsideration seeks the same unavailable relief he sought

in his Motion to Dismiss—return of the filing fee paid and waiver of the remainder of the unpaid

filing fee assessed upon voluntary dismissal of his complaint—and because he has provided no

new law, no new evidence, nor established a manifest injustice to support his request for

reconsideration of this Court’s prior order, it is hereby ORDERED that the Motion for

Reconsideration, ECF No. 6, is DENIED without prejudice and the case will remain open. The

Court again instructs Plaintiff that although he is not entitled to a fee waiver, he may still

voluntarily dismiss this action by filing a proper notice or motion under Rule 41(a) if he so chooses.

Plaintiff is also notified that to the extent he files an additional motion or motions seeking a waiver,

a stay on the collection, or a return of the filing fees in this case, without providing a basis for

reconsideration under Fed. R. Civ. P. 59, the motion(s) will summarily be dismissed.

II. REPORT AND RECOMMENDATIONS UPON INITIAL REVIEW

A. Standard

Because Plaintiff is a prisoner seeking “redress from a governmental entity or officer or

employee of a governmental entity,” and is also incarcerated, the Court is required to conduct an

initial screen of his Complaint. 28 U.S.C. §§ 1915(e)(2), 1915A(a), (b). The Court must dismiss

the Complaint, or any portion of it, that is frivolous, malicious, fails to state a claim upon which

relief can be granted, or seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A(b).

A complaint is frivolous if the plaintiff cannot make any claim with a rational or arguable

basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall,

898 F.2d 1196, 1198 (6th Cir. 1990). An action has no arguable legal basis when the defendant is

immune from suit or when plaintiff claims a violation of a legal interest which clearly does not

exist. Neitzke, 490 U.S. at 327. An action has no arguable factual basis when the allegations are

delusional or rise to the level of the irrational or ‘wholly incredible.’” Denton, 504 U.S. at 32;

Lawler, 898 F.2d at 1199. The Court need not accept as true factual allegations that are “fantastic

or delusional,” Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010), or “clearly irrational or wholly

incredible.” Ruiz v. Hofbauer, 325 F. App’x 427, 429-30 (6th Cir. 2009) (citing Denton v.

Hernandez, 504 U.S. 25, 33 (1992)).

To state a claim for relief, a complaint must set forth “a short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Court must

construe the complaint in plaintiff’s favor, accept all well-pleaded factual allegations as true, and

evaluate whether it contains “enough facts to state a claim to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Twombly, 550 U.S. at 556). A complaint that consists of mere “labels and conclusions” or “a

formulaic recitation of the elements of a cause of action” is insufficient. Id. (quoting Twombly,

550 U.S. at 555).

In the interest of justice, this Court is required to construe a pro se complaint liberally and

to hold it “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976) and citing

Fed. R. Civ. P. 8(f)). Even with such a liberal construction, however, a pro se complaint must still

adhere to the “basic pleading essentials.” Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

Specifically, a pro se “complaint ‘must contain either direct or inferential allegations respecting

all the material elements’ to recover under some viable legal theory.’” Barhite v. Caruso, 377 F.

App’x 508, 510 (6th Cir. 2010) (quoting Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005)).

B. Background

Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, naming correctional officer Lieutenant

Lucy Yaw (“Yaw”) as the sole defendant.3 ECF No. 1-1. The Complaint details a series of events

occurring while Plaintiff was incarcerated at Madison Correctional Institution (“MaCI”) from

August 20, 2022, through his transfer to Ross Correctional on September 20, 2022, alleging Yaw

repeatedly “violated many of [his] ORC Rights as a TPU Restrictive Housing Inmate.” Id. at

PageID 11.

Specifically, Plaintiff alleges on August 20, 2022, he had a “family emergency” after

learning his son was shot and was hospitalized. Id. at PageID 11. The following day Plaintiff was

3 In the body of the Complaint, Plaintiff describes actions by several officers that he identifies by name and/or title

but has not named as defendants. ECF No. 1-1 at PageID 11–18 (naming Bretz, Holten, Raypool, Sheetz, Bennett,

Birming, Erickson, the MaCI “Warden,” and the MaCI Correctional Inspector, and listing individual officers Plaintiff

alleges “knew” of Yaw’s alleged violations). Because these individuals are not named as defendants and are not

parties to this case, the Court declines to analyze Plaintiffs statements with respect to these non-defendants and

RECOMMENDS that any purported claims with respect to them be DISMISSED. See Chapple v. Franklin Cnty.,

No. 2:21-CV-5086, 2022 WL 856815, at *16 (S.D. Ohio Mar. 23, 2022), report and recommendation adopted as

modified sub nom. Chapple v. Franklin Cnty. Sheriff's Officers FCCC 1 & 2, No. 2:21-CV-05086, 2022 WL 16734656

(S.D. Ohio Nov. 7, 2022).

placed in “TPU”4 for investigation of a “rule violation.” Id. From August 23 through September

2, 2022, he made daily verbal requests5 to use the telephone to check up on his son, to contact his

criminal appellate counsel, and for access to his “legal documents”6 relating to his criminal appeal

and a “civil suit” where he is proceeding pro se. Id. at PageID 11–12. Plaintiff also sent paper

“kite” requests7 to Yaw seeking telephone access to check on his son’s status and his appellate

counsel and his legal documents, which were repeatedly denied or ignored. Id. at PageID 11–13.

From September 2 through September 8, 2022, Plaintiff continued making verbal and kite

requests8 to call his son, his appellate counsel, and to obtain access to his legal documents, all of

which were ignored by Yaw. Id. at PageID 13. During that time, Plaintiff alleges he attempted to

access a “kiosk” to send a kite to inform the warden of his grievances regarding Yaw, which first

were declined, and then when he was allowed to access the kiosk it was “off line.” Id. From

September 6, through September 8, 2022, once the kiosk was available, he sent three “kites” to the

MaCI “warden” (presumably to complain of his lack of access to a telephone, his appellate counsel,

and his legal documents) which were not returned. Id.

On September 8, 2022, Plaintiff alleges he was “frustrated but not mentally stable” (but

“not suicidal or homicidal”) and “boarded up” his cell to protest being ignored by Yaw and to gain

4“TPU” is defined as a “Transitional Programming Unit” serving as “restrictive housing” at MaCI. See Adams,

Charlie, CIIC, MADISON CORRECTIONAL INSTITUTION (2017), at 41–42,

https://www.ciic.state.oh.us/assets/reports/231.pdf (last accessed April 2, 2023).

5 It is unclear if Plaintiff made verbal requests to “daily institutional workers who made rounds thought TPU” or Yaw

directly. See ECF No. 1-1 at PageID 11–12.

6 Plaintiff also does not indicate if his legal documents were taken from him when he was placed in TPU or at some

other time. See Id. at 11–17.

7 “The kite system is used within the institution to facilitate communications between inmates and prison personnel.”

See State ex rel. Chasteen v. Ohio Dep't of Rehab. & Corr., 2014-Ohio-1848, 2014 WL 1778183, ¶ 2, n. 1 (10th Dist.)

(discussing the use of “kites” as MaCI).

8 Plaintiff does not indicate who these verbal requests were made to. Plaintiff submits Yaw instructed her TPU officers

“that they can only give TPU inmates paper kites to her for request towards her.” ECF No. 1-1 at PageID 12–13. The

Court construes this statement as meaning all requests were to be forwarded to, and addressed, only by Yaw.

the attention of a higher ranking official, which resulted in Yaw coming to his cell, handcuffing

him tightly, and placing him in a “cool off block.” Id. at PageID 13–14. Plaintiff alleges he asked

to have the handcuffs loosened but was told they would not be loosened until he gave Yaw his

“paperwork”9 and submitted to “property restriction.” Id. at PageID 14. Upon compliance

Plaintiff alleges he was placed in a “suicide gown” without underclothes and returned to his cell

which contained only a mattress but had no clothing or personal hygiene items, no toilet paper, or

towels. Id. Plaintiff asserts he asked “numerous times for medical to check marks on [his] wrist

from handcuffs” but his requests were denied. Id. Plaintiff alleges that Yaw and fellow officer

Bretz “lied,”10 indicating Plaintiff “refused to attend [his] own hearing.”11 Id. at PageID 15.

Later that day when the “2nd shift” came to work and Lieutenant Holten was on duty,

Plaintiff continued his protest, again boarded up his cell. Id. at PageID 14. When he refused to

comply with commands or talk to responding officers, Nurse Raypool authorized the use of mace

to force his compliance, which “burned [his] skin, penis, testic[les] made [him] use the restroom

on [himself]” and embarrassed him.12 Id. at PageID 14–15. Plaintiff alleges he was then placed

in a “dry cell” for 24 hours without a restroom, forcing him to relieve himself on the floor until he

was given a urinal the morning of September 9, 2022, before he was released from the dry cell

later that day to his cell in TPU, which still “reeked” of mace fumes. Id. at PageID 15. Plaintiff

9 Plaintiff alleges he had possession of some paperwork at the time. Id. at 14. The Court presumes the paperwork he

had are not the legal documents he had been trying to obtain in the weeks prior.

10 Plaintiff does not indicate in the Complaint who Bretz and Yaw allegedly lied to. See Id. at PageID 15.

11 For purposes of clarity and brevity, the Court shall hereinafter refer to Plaintiff’s first allegation of boarding up his

cell, being handcuffed and placed in the cool off block and then later returned to his cell by Yaw, as the “First

Incident.”

12 Plaintiff alleges “Officer Bretz” was also present and recorded the mace incident on a cell phone. Id. at PageID 15.

alleges he attempted to take a shower to rinse the mace off his skin from the day before, but

showering caused his skin to burn “worse” than it already was.13 Id.

From September 9, 2022, through September 15, 2022, Plaintiff alleges he was forced to

remain in his cell sleeping “on [the] floor or metal bunk bed in the freez[ing] cold with no

matt[ress]-hygiene - Tooth brush – Tooth Paste – clothes – Sheets – blanket – Toilet Paper nothing

but a suicide gown an[d] blanket with mace residue on it.” Id. On September 12, 2022, Plaintiff

participated in a call with his appellate counsel that took place in Yaw’s office where Yaw and her

bailiff “Bennett” was present. Id. at PageID 15–16. During the call Yaw indicated his legal

documents were “on the floor with the rest of [his] property” and that he would have access to it

once he was off property restriction. Id. at PageID 16.

On September 15, 2022, Plaintiff alleges he was released from property restriction but still

did not obtain access to his legal documents, submitting they were in Yaw’s office. Id. On

September 16, 2022, Plaintiff alleges he had another call with his appellate counsel where Yaw

indicated she would give Plaintiff the legal documents he needed. Id. After the call he returned

to his cell, and asked officer “Sheets” if he could obtain his legal documents and use the telephone

to call to check on his son but his requests were denied by Yaw. Id. When the second shift came

on that day, Plaintiff submits he asked officer “Jewell” to ask Yaw for his legal paperwork. Id.

Officer Jewell responded that Plaintiff’s “sergeant” would get the papers for him, and that his

“cash slip” for his mail to the MaCI Correctional Inspector was completed. Id. Plaintiff alleges

that he submitted “copies of [the] kite request to file [a] grievance” by mail to the MaCI

13 For purposes of clarity and brevity, the Court shall hereinafter refer to Plaintiff’s second allegation of boarding up

his cell, his being maced and held in the dry cell for 24 hours, as the “Second Incident.”

Correctional Inspector but that the Correctional Inspector “neglected his duties” and never

responded to any of his “issues.” Id.

On September 17, 2022, Plaintiff alleges that Yaw still refused to give him any of his “legal

mail,” he was unable to use the phone to check on his son,14 he was unable to contact his appellate

counsel, and that officers Birming and Erickson “denied [his] written request of [his] rights. Id. at

17.

On September 20, 2022, Plaintiff was transferred from MaCI to Ross Correctional, after

which he received his property, legal documents, envelopes, and personal written music but that

“property receipts” were missing from his legal documents. Id.

The Court liberally construes Gibson’s claims against Yaw as follows:

1. General prison policy violations including denial of access to a telephone for a

personal family emergency and failure to follow prison grievance policy.15

2. Due Process: (a) taking legal papers and personal property, (b) administrative

segregation.

3. Right to Counsel: denial of call with counsel.

4. Access to Courts: (a) denial of access to legal paperwork, (b) denial of

call/conference with counsel.

5. Cruel and Unusual Punishment: (a) deliberate indifference to medical needs, (b)

lack of sanitary conditions and personal hygiene needs, (c) use of excessive force,

(d) administrative segregation.

14 Plaintiff alleges that he was unable to use the phone because his “phone pin” was not working and that Yaw restricted

his phone pin but denied she had done so. Id. at 17.

15 The Court notes that Plaintiff does not indicate which claims he alleges were policy violations and which were

protected rights. As such, any claims that potentially implicated a federally protected right are not individually listed

in the general prison policy violation category here.

Plaintiff seeks the following relief: (1) to “hold [ ] Yaw accountable” for various rule

violations; (2) compensatory and punitive damages for his “mental state”; and (3) attorney fees

and costs. Id. at PAGEID 19.

C. Recommendations Based on Initial Review of Plaintiff’s Complaint

Before discussing the substance of the Complaint, the Court considers the capacity in

which claims against Yaw are made as Plaintiff does not state whether he seeks to sue Yaw in her

individual capacity, official capacity, or both. See ECF No. 1-1 at PAGEID 1 (simply naming

Lieutenant Lucy Yaw of “M.C.I.” as the sole defendant).

“When a plaintiff ‘fails to affirmatively plead capacity in the complaint, we then look to

the course of proceedings to determine whether’ the official has notice.” Vittetoe v. Blount Cnty.,

Tennessee, 861 F. App'x 843, 851 (6th Cir. 2021) (quoting Moore v. City of Harriman, 272 F.3d

769, 773 (6th Cir. 2001)). Generally, in the Sixth Circuit, where a plaintiff does not indicate

whether a government official is sued in his or her individual or official capacity, only “absent any

indication that these defendants are being sued individually, we must assume that they are being

sued in their official capacities.” Moore, 272 F.3d at 772 (emphasis in original) (internal citation

and quotation omitted).

The test for determining if a defendant is on notice they are being sued individually is the

course-of-the-proceedings test which “considers such factors as the nature of the plaintiff’s claims,

requests for compensatory or punitive damages, and the nature of any defenses raised in response

to the complaint, particularly claims of qualified immunity, to determine whether the defendant

had actual knowledge of the potential for individual liability.” Vittetoe, 861 F. App’x at 851 (citing

Moore, 272 F.3d at 772 n.1). Where a complaint does not use the official title of a government

official, contained language indicating the official was acting for themselves, and requested

damages from each defendant, the Sixth Circuit has found an official was on notice they were

being sued in their individual capacity despite a plaintiff’s failure to plead individual capacity.

Moore, 272 F.3d at 773.

Here, no answer to the Complaint has been filed, therefore this Court is limited to a review

of the Complaint. In the Complaint, Plaintiff requests compensatory and punitive damages from

Yaw, utilizes Yaw’s official title of Lieutenant both in the caption and throughout the Complaint,

and does not use specific language indicating Yaw was “acting for herself” or otherwise acting as

an individual. As it is arguable whether Plaintiff intended to sue Yaw in her individual capacity,

for the purpose of this initial review, the Court shall review the Complaint as if Plaintiff intended

to sue Yaw in both her individual and official capacities.

1. Official Capacity Claims

“While ‘[p]ersonal-capacity suits seek to impose personal liability upon a government

official for actions he takes under color of state law,’ individuals sued in their official capacities

stand in the shoes of the entity they represent.” Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003)

(quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)). It follows that, “[a] suit against an

individual in his official capacity is the equivalent of a suit against the governmental entity” and

is therefore no different from a suit against the state itself. Matthews v. Jones, 35 F.3d 1046, 1049

(6th Cir. 1994) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 68 (1989)). As Yaw is

employed by the state of Ohio,16 any claims against Yaw in her official capacity would be

construed as claims against the State of Ohio.

16 MaCI is part of the Ohio Department of Rehabilitation and Correction’s network of facilities. See Ohio Department

of Rehabilitation and Correction, Facilities, available at: https://drc.ohio.gov/about/facilities (last accessed Apr. 2,

2023).

Where “state officials are being sued for money damages in their official capacity, the

Eleventh Amendment is squarely in play as a bar to suit in federal court, at least to the extent that

[p]laintiffs are bringing claims under 42 U.S.C. § 1983.” Lee Testing & Eng’g, Inc. v. Ohio Dep’t

of Transp., 855 F. Supp. 2d 722, 725 (S.D. Ohio 2012). Accordingly, to the extent Plaintiff sues

Yaw in her official capacity and seeks money damages, this Court RECOMMENDS all claims

against Yaw in her official capacity be DISMISSED with prejudice for want of federal

jurisdiction as:

It is well settled that 42 U.S.C. § 1983 does not abrogate Eleventh Amendment

immunity. See generally Quern v. Jordan, 440 U.S. 332 (1979). And the State of

Ohio has not waived its immunity from suits for money damages, except to the

extent that such claims are allowed to be brought in the Court of Claims of Ohio.

See R.C. 2743.03. Ohio has not waived its Eleventh Amendment immunity from

suits for money damages in federal court. See Turker v. Ohio Dept. of Rehab. and

Corrections, 157 F.3d 453, 457 (6th Cir.1998).

Id. at 725–26; see also Kentucky v. Graham, 473 U.S. 159, 167 n.13 (1985) (punitive damages are

not available in an official capacity claim).

Plaintiff also seeks injunctive relief in the form of discipline. See ECF No. 1-1 at PageID

17. The Court has no authority to discipline prison officials in a § 1983 action regardless of the

capacity a state official is sued under and therefore has no authority to grant such relief as requested

by Plaintiff here. See Keeling v. Grayson Cnty. Det. Ctr., No. 4:22-CV-P148-JHM, 2023 WL

2482221, at *4 (W.D. Ky. Mar. 13, 2023) (collecting cases). Accordingly, this Court

RECOMMENDS any claim seeking disciplinary proceedings against Yaw in any capacity be

DISMISSED with prejudice.

2. Individual Capacity Claims

To state a claim under 42 U.S.C. § 1983, a plaintiff must: (1) allege a violation of a federal

constitutional right or federal law; and (2) 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). In addition to alleging a violation of federal

constitutional or statutory law by a person acting under color of law, a plaintiff must allege that he

suffered a specific injury as a result of the conduct of a particular defendant and he must allege an

affirmative link between the alleged injury and the conduct of that defendant. Rizzo v. Goode, 423

U.S. 362, 371-72, 377 (1976).

Because § 1983 is a method for vindicating federal rights, not a source of substantive rights

itself, a claim may proceed under § 1983 only if there is a federal right at issue. Albright v. Oliver,

510 U.S. 266, 271 (1994). To the extent Plaintiff alleges any of his claims against Yaw are policy

violations, he must establish these denials involved rights protected under the United States

Constitution or federal law to proceed here.

As such, the Court will first identify any protected right allegedly infringed in each claim,

and then, if a protected right is at issue, determine if a viable claim has been stated allowing

Plaintiff to proceed on that claim.

a. No Federally Protected Right

i. Prison policy generally

Plaintiff alleges that Yaw’s behavior violated “ORC AR’s An[d] Policy OAC’s,” and

“violated many of [his] ORC Policy Rights as a TPU Restrictive Housing Inmate.” ECF No. 1-1

at PageID 11, 17.

As an initial matter, conclusory claims unsupported by specific facts are insufficient to

state a plausible claim for relief. See High v. Silverdal Core Civic of Am., No. 1:19-CV-00214,

2019 WL 4723803, at *1 (E.D. Tenn. Sept. 26, 2019) (citing Iqbal, 556 U.S. at 681). Plaintiff’s

conclusions, without identifying a federal right supporting his § 1983 claims and naming any

specific prison policies Yaw allegedly violated, is not enough. See ECF No. 1-1.

Moreover, an alleged failure to comply with an administrative rule or prison policy does

not itself give rise to a § 1983 claim. See Laney v. Farley, 501 F.3d 577, 581 n. 2 (6th Cir. 2007)

(“[A] § 1983 claim may not be based upon a violation of state procedure that does not violate

federal law.”); Smith v. Freland, 954 F.2d 343, 347–48 (6th Cir.1992); Barber v. City of Salem,

953 F.2d 232, 240 (6th Cir.1992); McVeigh v. Bartlett, No. 94–23347, 1995 WL 236687, at *1

(6th Cir. Apr. 21, 1995) (policy directive does not create a protectable liberty interest). Thus, even

if Plaintiff had named any policies at issue, he cannot state a claim under § 1983 simply by alleging

Yaw violated MaCI policies.

Accordingly, this Court RECOMMENDS all general claims against Yaw for failure to

follow prison policy be DISMISSED without prejudice for failure to state a claim on which relief

may be granted.

ii. Telephone access for personal use

Plaintiff alleged that Yaw refused him use of the telephone to address a personal

emergency. ECF No. 1-1 at PageID 11–13, 17. There is no free-standing constitutionally

protected right to routine use of a telephone while imprisoned as “[a p]laintiff's access to a

telephone at his prison unit is a privilege, and privileges have no constitutional protection.”

Emmett v. Ebner, No. CIV A. H10-3611, 2010 WL 3941899, at *2 (S.D. Tex. Oct. 7, 2010) (citing

Overton v. Bazzetta, 539 U.S. 126 (2003)).

As Plaintiff has no constitutionally protected rights in personal telephone use, this Court

RECOMMENDS all claims that Yaw violated state law and/or prison policy by denying him

access to a telephone to check on his son be DISMISSED without prejudice for failure to state a

claim on which relief may be granted.

iii. Prison grievance procedure

Plaintiff alleges Yaw failed to respond or otherwise address various kites and verbal

requests and restricted him from using the “kiosk” which, when some of his requests were made,

was not functioning properly. ECF No. 1-1 at PageID 7, 11, 13. There is “no constitutional right

to an effective, fair, or properly functioning prison grievance procedure, and a prison inmate does

not have a constitutionally protected interest in prison grievance procedures.” Young v. Hodge,

No. 3:12-0009, 2012 WL 5494892, at *7 (M.D. Tenn. Nov. 13, 2012), report and recommendation

adopted, No. 3:12-CV-0009, 2013 WL 440964 (M.D. Tenn. Feb. 5, 2013) (citing Walker v. Mich.

Dep’t of Corr., 128 Fed. Appx. 441 (6th Cir. 2005); Miller v. Haines, 156 F.3d 1231, 1998 WL

476247 (6th Cir. Aug.3, 1998); Spencer v. Moore, 638 F. Supp. 315 (E.D. Mo. 1986); Azeez v.

DeRobertis, 568 F. Supp. 8 (N.D. Ill. 1982)).

As Plaintiff has no constitutionally protected interest in MaCI’s grievance procedure, this

Court RECOMMENDS all claims against Yaw relating to Yaw’s failure to respond to his requests

made via the kite system, the prison kiosk, or any other claims regarding the functioning of the

MaCI grievance procedure be DISMISSED without prejudice for failure to state a claim on

which relief may be granted.

b. Procedural Due Process

The Court construes Plaintiff’s allegations that Yaw deprived him of his legal documents

and other personal property, and deprived him of his personal liberty via administrative

segregation, see ECF No. 1-1 at 11–14, 17, as potentially implicating his right to Due Process

under the Fourteenth Amendment.

Procedural due process claims are concerned not with the deprivation of a

constitutionally protected interest in ‘life, liberty, or property,’ but deprivation of

those interests without due process of law. When reviewing a procedural due

process claim, [a court] must determine whether a protected liberty or property right

is at stake and, if so, what process is due.

Handy-Clay v. City of Memphis, Tenn., 695 F.3d 531, 546 (6th Cir. 2012) (internal citations

omitted). To state claim for a due process violation, Plaintiff must demonstrate three elements:

(1) he had a life, liberty, or property interest protected by the Due Process Clause of the Fourteenth

Amendment; (2) that Defendant deprived him of this protected interest; and (3) that Defendant did

not afford him adequate procedural rights before depriving him of this protected interest.

Wedgewood Ltd. P’ship I v. Twp. Of Liberty, Ohio, 610 F.3d 340, 349–50 (6th Cir. 2010). While

a plaintiff may establish that he was deprived of a liberty or property interest because of either an

established state procedure or pursuant to a random and unauthorized act, he must also establish

that available state remedies would not adequately compensate it for the loss suffered. Id. (citation

and internal quotations omitted).

i. Legal documents and other personal property

Plaintiff’s allegations that Yaw violated prison policy by denying him access to his legal

documents and other personal property, see ECF No. 1-1 at 11–14, 17, address property interests

potentially protected by the due process clause of the Fourteenth Amendment. See Badger v.

Chapman, No. 16-2886-STA-EGB, 2018 WL 5777504, at *7 (W.D. Tenn. Nov. 2, 2018) (denial

of access to legal documents implicates the Due Process clause of the Fourteenth Amendment).

While prisoners have protected property rights, see id., where adequate remedies are

provided by state law, the negligent or intentional loss or destruction of a prisoner’s personal

property does not state a claim cognizable under the Due Process Clause. Hudson v. Palmer, 468

U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part on other grounds,

Daniels v. Williams, 474 U.S. 327 (1986); see also Copeland v. Machulis, 57 F.3d 476, 479 (6th

Cir. 1995) (holding that deprivation of a prisoner’s property, be it negligent or intentional, “does

not violate due process if adequate state remedies are available to redress the wrong.”). As

explained by Justice O’Conner in her concurrence in Palmer,

[A] mere allegation of property deprivation does not by itself state a constitutional

claim under either [the Due Process or Takings] Clause. The Constitution requires

the Government, if it deprives people of their property, to provide due process of

law and to make just compensation for any takings. The due process requirement

means that Government must provide to the inmate the remedies it promised would

be available. Concomitantly, the just compensation requirement means that the

remedies made available must adequately compensate for any takings that have

occurred. Thus, in challenging a property deprivation, the claimant must either avail

himself of the remedies guaranteed by state law or prove that the available remedies

are inadequate. When adequate remedies are provided and followed, no

uncompensated taking or deprivation of property without due process can result.

Violett v. Dowden, No. 3:17CV-P531-TBR, 2017 WL 5892211, at *8 (W.D. Ky. Nov. 29, 2017)

(citing Palmer, 438 U.S. at 539).

Therefore, as Plaintiff’s access to his personal property including his legal papers was

restricted for at most several weeks, as all of it was returned to him with exception to several

property receipts, and as he failed to allege what process or remedies he was due or attempted to

use, any due process claim relating to his legal documents and any other property mentioned in his

Complaint should fail.

This Court therefore RECOMMENDS all claims against Yaw for violation of Plaintiff’s

right to due process by temporarily denying him access to his legal documents and other personal

property be DISMISSED without prejudice for failure to state a claim on which relief may be

granted.

ii. Administrative segregation

The Court also construes Plaintiff’s allegations that Yaw violated prison policy by placing

him in segregated confinement following the First Incident,17 see ECF No. 1-1 at PageID 14–17,

as implicating liberty interests potentially protected by the due process clause of the Fourteenth

Amendment. See Harden-Bey v. Rutter, 524 F.3d 789, 792 (6th Cir. 2008) (“inmate still retains a

‘liberty’ interest, guarded by due process, with respect to state-imposed prison discipline”)

(quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)).

The due process clause, “does not protect every administrative slight that occurs behind

prison walls.” Harbin-Bey, 524 F.3d at 791. Therefore, “[a] prison disciplinary action does not

give rise to a protected liberty interest unless the restrictions imposed constitute an ‘atypical and

significant hardship on the inmate in relation to the ordinary incidents of prison life.’” Trawick v.

Kelly, No. 4:12 CV 1714, 2012 WL 5400007, at *3 (N.D. Ohio Nov. 5, 2012) (quoting Sandin v.

Conner, 515 U.S. 472, 484 (1995)). “This is so because “[d]iscipline by prison officials in

response to a wide range of misconduct falls within the expected perimeters of the sentence

imposed by a court of law.” Badger, 2018 WL 5777504, at *8 (quoting Grinter v. Knight, 532

F.3d 567, 573 (6th Cir. 2008) (quoting Sandin, 515 U.S. at 485)). The Sixth Circuit has held that

a number of common incidents of prison life do not raise due process concerns. Id. (collecting

cases) (citing Grinter, 532 F.3d at 574 (the use of four-point restraints without the presence of a

nurse); Bazzetta v. McGinnis, 430 F.3d 795, 802–03 (6th Cir. 2005) (banning visitors); Harbin-

Bey, 420 F.3d at 577 (designating prisoner a threat to others); Workman v. Wilkinson, 23 F. App’x

439, 440 (6th Cir. 2001) (increased security classification); Rimmer-Bey v. Brown, 62 F.3d 789,

17 For the reasons set forth infra, when discussing the details of Plaintiff’s excessive force claim against Yaw in Section

II.C.2.e.iii., the Court shall not address the events of the Second Incident as Plaintiff fails to allege Yaw’s involvement

in it or culpability for it.

791 (6th Cir. 1995) (assigning an inmate serving a life sentence to segregation without a

reclassification hearing)). State prison officials are entitled to generous leeway in operating

prisons, and courts should accede to their expertise unless deprivations of constitutional rights

force judicial intervention. See generally Bell v. Wolfish, 441 U.S. 520, 547–48 (1979); United

States v. Michigan, 940 F.2d 143 (6th Cir. 1991).

To the extent Plaintiff seeks to argue Yaw placed him under administrative segregation in

violation of his right to due process, he must show that this segregation imposed “atypical and

significant hardship” on him “in relation to the ordinary incidents of prison life.” DeKoven v. Dyke,

107 F.3d 11 (6th Cir. 1997) (citing Sandin, 515 U.S. at 484). Plaintiff makes no such allegations,

instead admitting he was placed in a cool off block for a few hours because he boarded up his cell

and refused to comply with prison staff, and only complaining of wrist pain resulting from

handcuffs that he submits were too tight. ECF No. 1-1 at PageID 13–14. There is simply no basis

for this Court to determine the segregation imposed was either atypical or otherwise placed a

significant hardship on Plaintiff implicating that a due process violation occurred.

This Court therefore RECOMMENDS all claims against Yaw for violation of Plaintiff’s

right to due process for segregating him to the cool off block be DISMISSED without prejudice

for failure to state a claim on which relief may be granted.

c. Access to Courts

Plaintiff alleges Yaw denied him access to his legal documents relating to his criminal

appeal in an ongoing civil matter and denied him access to his counsel to discuss his criminal

appeal, ECF No. 1-1 at PageID 11–14, 17, which this Court construes as a denial of access to

courts claim.

Prisoners and pro-se litigants have a constitutional right to access to the courts. Bounds v.

Smith, 430 U.S. 817 (1977); Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir. 1985); Patterson v.

Mintzes, 717 F.2d 284, 288 (6th Cir. 1983) (prisoners have the right to access the courts for the

purpose of presenting their complaints) (quoting Cruz v. Beto, 405 U.S. 319, 321 (1972), quoting,

Johnson v. Avery, 393 U.S. 483, 485 (1969))). Convenience to access, however, is not the same

as “access,” with only access being constitutionally provided for. Walker, 771 F.2d at 932.

The elements of a viable access-to-courts claim in the Sixth Circuit are: (1) “a non-

frivolous underlying claim”; (2) “obstructive actions by state actors”; (3) “‘substantial[ ] prejudice’

to the underlying claim that cannot be remedied by the state court”; and (4) “a request for relief

which the plaintiff would have sought on the underlying claim and is now otherwise unattainable.”

Flagg v. City of Detroit, 715 F.3d 165, 174 (6th Cir. 2013) (internal citations omitted). Moreover,

to state a viable claim for interference with access to the courts, a plaintiff must show actual injury.

Lewis v. Casey, 518 U.S. 343 (1996).

No actual injury occurs without a showing that such a claim “has been lost or rejected, or

that the presentation of such a claim is currently being prevented.” Id. at 356; Harbin-Bey, 420

F.3d at 578 (“Examples of actual prejudice to pending or contemplated litigation include having a

case dismissed, being unable to file a complaint, and missing a court-imposed deadline.”). In other

words, a “lack of meaningful access to the courts claim must be established by alleging actual

prejudice from the deprivation at issue.” Violett, 2017 WL 5892211, at *7.

Here, Plaintiff alleges that he made continuous oral and written requests for access to his

legal papers involving both his criminal appeal and an unspecified civil matter, and to speak with

his counsel telephonically regarding his ongoing criminal appeal. ECF No. 1-1 at PageID 11–17.

While receipt of materials of a legal nature which “have impact upon or import with respect to that

prisoner’s legal rights and/or matters” have been found to be “a basic right recognized and afforded

protection by the courts,” see Kensu v. Haigh, 87 F.3d 172, 174 (6th Cir. 1996), Plaintiff falls well

short of establishing any access to courts claim.

First, Plaintiff does not allege any specific facts regarding the nature of the information

contained in his legal documents or the nature of his meeting with appellate counsel which would

establish the alleged deprivations had an impact on his legal rights or legal matters. Moreover,

while he does imply that Yaw’s deprivations caused him to miss a court proceeding, see ECF No.

1-1 at PageID 15 (alleging Yaw “lied, along with 2nd Shift officer Bretz about [Plaintiff] refusing

[his] presence to attend [his] own hearing”),18 he does not allege the denial of access resulted in

any nonfrivolous claim being lost, rejected, or that he suffered any prejudice as a result. Further,

Plaintiff admits that after several days of being refused access to his counsel, on September 12,

2022, he had a call with counsel, id. at 15–16, and his legal papers were returned to him on

September 20, 2022, when he was transferred to a different facility, see id. at 17, without any

allegations of harm resulting from these temporary deprivations.

As such, this Court RECOMMENDS that all claims for denial access to courts against

Yaw be DISMISSED without prejudice for failure to state a claim on which relief may be

granted.

18 The Court notes that while it is unclear whether Plaintiff alleges he actually missed a hearing or if alleges Yaw

conveyed a message that Plaintiff refused to attend his hearing to an unspecified person but that no hearing was

actually missed, for the purpose of comprehensive review, the Court addresses this allegation as if Plaintiff

affirmatively alleged Yaw’s deprivation caused him to miss a court proceeding.

d. Access to Counsel

Plaintiff alleges Yaw denied him access to communications with his criminal appellate

counsel on several instances, ECF No. 1-1 at PageID 11–13, which this Court construes as alleging

a violation of Plaintiff’s constitutionally protected right to counsel.

While the Sixth Amendment provides a guarantee of a right to counsel in certain

circumstances, “there is no abstract, free standing right to full and unfettered access to contact with

legal counsel for post-conviction and civil matters.” Rouse v. Washington, No. 20-CV-11409,

2021 WL 2434196, at *6 (E.D. Mich. June 15, 2021) (citing Lewis v. Casey, 518 U.S., 343, 351

(1996)). Denial of the right to telephone or otherwise consult with counsel does not necessarily

constitute a constitutional violation. See Stamper v. Campbell Cnty., Ky., 415 F. App’x 678, 680

(6th Cir. 2011). “Courts have rejected claims . . . where prisoners or pretrial detainees have been

denied telephone use [to contact counsel] for certain periods of time or where other limitations

have been placed on that use, so long as the inmate or detainee had other reasonable means to

contact his or her attorney and where no prejudice resulted.” Stamper v. Campbell Cnty., Ky., No.

CIV A 2007-49 (WOB), 2009 WL 2242410, at *2 (E.D. Ky. July 24, 2009), aff’d, 415 F. App’x

678 (6th Cir. 2011) (collecting cases). Moreover, where a prisoner seeks to assert restrictions of

access to legal counsel, whether it be in a post-conviction proceeding or in relation to a civil matter,

the prisoner must “specifically allege facts that would support a finding that prison officials’

conduct inflicted an ‘actual injury, i.e., that the conduct hindered the prisoner's efforts to pursue a

non-frivolous legal claim.” Rouse, 2021 WL 2434196 at * 6 (citing Lewis, 518 U.S. at 351–353).

Here, the Court need not address whether the Sixth Amendment right to counsel attached

at the time Plaintiff alleges the deprivations occurred as Plaintiff fails to allege he could not

communicate with his counsel in any other manner or plead any actual injury or injuries resulting

from the restrictions on his access to counsel.

This Court RECOMMENDS that all claims for denial of access to counsel against Yaw

be DISMISSED without prejudice for failure to state a claim on which relief may be granted.

e. Eighth Amendment

In liberally construing the Complaint the Court finds that Plaintiff alleges the following

claims which may be brought under the Eighth Amendment: deliberate indifference to medical

needs, conditions of confinement, excessive force, and administrative segregation. See ECF No.

1-1 at PageID 13–17.

A claim alleging a violation of the Eighth Amendment’s prohibition against cruel and

unusual punishment has both an objective and subjective component: (1) a sufficiently grave

deprivation of a basic human need; and (2) a sufficiently culpable state of mind. Wilson v. Seiter,

501 U.S. 294, 298 (1991). The objective component requires a court to determine if the pain

inflicted was sufficiently serious, requiring a “contextual” investigation responsive to

“contemporary standards of decency.” Cordell v. McKinney, 759 F.3d 573, 580 (6th Cir. 2014)

(internal quotations omitted) (quoting Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011)

(quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991); Hudson v. McMillian, 503 U.S. 1, 8 (1992)

(quoting Estelle v. Gamble, 429 U.S. at 103)). The subjective component, which focuses on the

state of mind of the official, requires a court to determine “whether force was applied in a good-

faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Id.

(citing McMillian, 503 U.S. at 7). However, in instances when prison officials maliciously and

sadistically use force to cause harm, the court need not address the objective component as

contemporary standards of decency always are violated whether or not significant injury is evident.

Id. (quoting McMillian, 503 U.S. at 9).

i. Deliberate indifference to medical needs

Plaintiff alleges that he requested medical attention multiple times for pain and marks on

his wrists relating to handcuffs being put on too tightly, but his requests were denied or ignored

by Yaw19 and other prison personnel.20 ECF No. 1-1 at PageID 14. The Court construes Plaintiff’s

claim as one of deliberate indifference to medical needs in violation of the Eighth Amendment.

Prison officials are forbidden from “‘unnecessarily and wantonly inflicting pain’ on an

inmate by acting with ‘deliberate indifference’ toward [his] serious medical needs.” Blackmore v.

Kalamazoo County, 390 F.3d 890, 895 (6th Cir. 2004) (quoting Estelle, 429 U.S. at 104).

Deliberate indifference “is a stringent standard of fault, requiring proof that a municipal actor

disregarded a known or obvious consequence of his action.” Bd. of Cnty. Comm’rs of Bryan Cnty.,

Okl. v. Brown, 520 U.S. 397, 410 (1997). The subjective element requires a showing that prison

officials have “a sufficiently culpable state of mind in denying medical care.” Id. (internal citation

and quotation omitted).

Because society does not expect that prisoners will have unqualified access to health care,

deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those

needs are “serious.” See Estelle, 429 U.S. at 103–04. A sufficiently serious medical need is one

19 While the Complaint is not entirely clear as to whether Plaintiff asked Yaw for medical attention or if his request

was directed to another MaCI employee, based on Plaintiff’s allegation that he told Yaw he was going to file suit

against her immediately following his discussion of his wrist injuries, for purposes of initial review the Court interprets

his request for medical attention as directed to Yaw. See ECF No. 1-1 at PageID 14.

20 Plaintiff describes a second injury he received in conjunction with the use of mace on him as “burn[s to] [his] skin,

penis, [and] testic[les,]” causing him to urinate on himself, and continuing to burn when he attempted to shower later.

ECF No. 1-1 at PageID 15. While Plaintiff’s description of his mace-related injuries reads more serious in nature than

his description of his wrist injuries, he does not allege that he requested or otherwise sought and was denied medical

attention or that any prison officials including Yaw, were aware of his mace-related injuries.

“that has been diagnosed by a physician as mandating treatment or one that is so obvious that even

a lay person would easily recognize the necessity for a doctor’s attention.” Harrison v. Ash, 539

F.3d 510, 518 (6th Cir. 2008) (citations omitted).

Serious medical needs have been found when a failure to treat an injury or condition could

result in “further significant injury or the unnecessary and wanton infliction of pain.” Ford v.

LeMire, No. 03-CV-10176-BC, 2004 WL 1234137, at *4 (E.D. Mich. June 1, 2004) (internal

quotations omitted) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992), overruled

on other grounds by WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997)). Serious medical

needs have also been found where a physician made a diagnosis mandating treatment, or where

the injury or condition is so obvious that a lay person would “easily” recognize the necessity for a

doctor’s treatment, and the medical needs require “immediate” attention. Id. (citing Smith v.

Franklin County, 227 F.Supp.2d 667, 677 n. 10 (E.D. Ky. 2002) (citations omitted)). By example,

nonobvious and minor injuries including minor cuts and bruises resulting from a glass splinter that

required neither stitches nor painkillers have been found to not serious enough to support an Eighth

Amendment claim. See Blackmore v. Kalamazoo Cty., 390 F.3d 890, 98 (6th Cir. 2004) (collecting

cases).

Here, Plaintiff’s claim stems from being refused any medical treatment for his wrists, but

he does not allege any pain or ongoing medical issues relating to his wrist injuries, nor does his

description of his injury indicate it would have been recognizable as requiring medical attention

as Plaintiff’s entire description of his injuries consist of “marks on my wrists.” ECF No. 1-1 at

14. Even when viewing the evidence “in the light most favorable” to Plaintiff, this Court cannot

conclude that simply demonstrating that he sustained “marks” on his wrists constitutes a serious

medical need. See Cordell, 759 F.3d at 581 (quoting Scott v Harris, 550 U.S. 372, 380 (2007)).

As Plaintiff has failed to allege a claim regarding his wrist injury which would both meet

the objective “serious medical need” standard, and the subjective “culpable state of mind standard”

this Court RECOMMENDS all claims against Yaw for deliberate indifference to medical needs

to be DISMISSED without prejudice.

ii. Conditions of confinement

Plaintiff alleges several incidents which the Court construes as alleging an Eighth

Amendment conditions of confinement claim.21 The first relates to Yaw’s alleged placement of

Plaintiff back in his cell following the First Incident, which Plaintiff alleges contained only a

mattress and he was wearing only a suicide gown without under clothes underneath it. ECF No.

1-1 at PageID 14. The second relates to Plaintiff being returned to his cell following the Second

Incident where he was held in allegedly freezing conditions with no mattress and only a single

blanket containing mace residue for a week, wearing only a suicide gown with no access to any

other clothes, and no access to any basic sanitary necessities such as a toothbrush, toothpaste, or

toilet paper. ECF No. 1-1 at PageID 15.

The Eighth Amendment’s prohibition against cruel and unusual punishment is applicable

to inhumane conditions of confinement. Farmer v. Brennan, 511 U.S. 825 (1994). “[P]rison

officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and

must ‘take reasonable measures to guarantee the safety of the inmates.’” Id. at 832 (quoting

Palmer, 468 U.S. at 526–27). However, “[n]ot every unpleasant experience a prisoner might

endure while incarcerated constitutes cruel and unusual punishment within the meaning of the

21 The Court notes that while Plaintiff claims he was put in a dry cell for 24 hours wearing only a suicide gown, without

access to a toilet for at least 12 hours by Lieutenant Holten, for the reasons set forth infra, when discussing Plaintiff’s

excessive force claims against Yaw in Section II.C.2.e.iii., the Court shall not address this incident as Plaintiff fails to

allege Yaw’s involvement in or knowledge of it.

Eighth Amendment.” Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987). Instead, “[e]xtreme

deprivations are required to make out a conditions-of-confinement claim.” McMillian, 503 U.S. at

9.

For example, “a prison official cannot be found liable under the Eighth Amendment for

denying an inmate humane conditions of confinement unless the official knows of and disregards

an excessive risk to inmate health or safety; the official must both be aware of facts from which

the inference could be drawn that a substantial risk of serious harm exists, and he must also draw

the inference.” Id. Therefore, to state a claim pursuant to the Eighth Amendment, a plaintiff must

allege (1) a deprivation that is objectively “sufficiently serious,” for example, that the plaintiff is

“incarcerated under conditions posing a substantial risk of serious harm,” and (2) that the defendant

prison official has a “sufficiently culpable state of mind,” specifically one of “deliberate

indifference” to inmate health or safety. Farmer, 511 U.S. at 834 (citations and internal quotations

omitted).

Generally, “[t]he circumstances, nature, and duration of a deprivation . . . must be

considered in determining whether a constitutional violation has occurred.” Boyington v. Walker,

No. 3:18CV-P134-GNS, 2018 WL 3649027, at *3 (W.D. Ky. Aug. 1, 2018) (collecting cases).

While temporary inconveniences generally do not demonstrate that conditions fell beneath the

minimal civilized measure of life’s necessities as measured by a contemporary standard of decency

required to support a conditions of confinement claim, see Dellis v. Corr. Corp. of Am., 257 F.3d

508, 511 (6th Cir. 2001), there is, however, no uniform standard for determining how long before

a deprivation is no longer “temporary” or a precise definition of what constitutes a serious

deprivation that can be applied to every case.

While “there is a substantial risk of serious harm in the denial of the minimal civilized

measure of life’s necessities, including adequate food, clothing, shelter, medical care, and

reasonable safety,” Barker v. Goodrich, 649 F.3d 428, 434–35 (6th Cir. 2011) (cleaned up)

(quoting Spencer v. Bouchard, 449 F.3d 721, 727–28 (6th Cir. 2006) (quoting Farmer, 511 U.S.

at 834) (internal quotation mark omitted)), even when there are multiple deprivations relating to

such items, “short term deprivations of toilet paper, towels, sheets, blankets, mattresses, toothpaste,

toothbrushes and the like” lasting several days “do not rise to the level of a constitutional

violation,” whereas long term deprivations of the same items may. Gilland v. Owens, 718 F. Supp.

665, 685 (W.D. Tenn. 1989).

Restraining an inmate in an uncomfortable position, denying access to water, and denying

access to the toilet can rise to the level of an Eighth Amendment violation. Barker v. Goodrich,

649 F.3d 428 (6th Cir. 2011), relying on Hope v. Pelzer, 536 U.S. 730 (2002). “A sufficiently

serious deprivation might also be found where an inmate is subjected to a low cell temperature at

night, not provided blankets, and deprived of his basic need for warmth.” Satterfield, 2007 WL

2159296, at *2 (citing Wilson v. Seiter, 501 U.S. 294, 304 (1991)). But, where a prisoner alleged

he had no access to water, sink, toilet, sheets, or a mattress in a cold cell for “at most two days”

the court found the lack of access was for such a short duration that his allegations did not amount

to an Eighth Amendment conditions of confinement violation. Boyington, 2018 WL 3649027, at

*3 (citing Richmond v. Settles, 450 F. App'x 448, 455 (6th Cir. 2011) (finding no Eighth

Amendment violation where inmate alleged “no toilet paper, soap, toothpaste, toothbrush, running

water, or the ability to shower for six days while on Behavioral Management”)).

Courts in this circuit have found that “the Eighth Amendment does not require that

prisoners enjoy immediately available and flushable toilets,” Abdur-Reheem-X v. McGinnis, No.

99-1075, 1999 WL 1045069, at *1 (6th Cir. Nov. 12, 1999), nor is the Eighth Amendment

implicated when an inmate is deprived of a meal for one night, Grzelak v. Washington, No. 1:19-

CV-1003, 2020 WL 289229, at *3 (W.D. Mich. Jan. 21, 2020), or a mattress for two weeks, Jones

v. Toombs, No. 95-1395, 1996 WL 67750, at *1 (6th Cir. Feb. 15, 1996). No Eighth Amendment

claim has been found due to temporary discomforts resulting from placement in a “dry cell” for 14

days without running water. Wiley v. Ky. Dep't of Corr., No. 11-97-HRW, 2012 WL 5878678, at

*4 (E.D. Ky. Nov. 21, 2012). Nor have two several day exposures to cold conditions been long

enough to be considered a serious deprivation under the Eighth Amendment. Glover v. Grant Cty.

Det. Ctr., No. 10-00088-DLB, 2010 WL 2804054, at *4 (E.D. Ky. July 15, 2010); see also Clark

v. Spey, No. 01-C-9669, 2002 WL 31133198 (N.D. Ill. Sept. 26, 2002) (finding inmate held

overnight in cold cell with no toilet did not state a claim).

In relation to the conditions Plaintiff was allegedly subjected to after being returned to his

cell following the First Incident, Plaintiff has not demonstrated that a deprivation of access to any

personal hygiene items and a mattress for several hours is long enough to be considered a serious

deprivation. Where Plaintiff alleges he was returned to his cell and held for a week in freezing

cold while wearing only a suicide gown with no access to clothes, a mattress, or any personal

hygiene products including toilet paper, the allegations fall closer to an Eighth Amendment

violation. While the deprivations at issue were temporary as they lasted seven or eight days, courts

in this circuit have considered not only the severity of the cold, but the length of time spent in the

cold, and whether a plaintiff had any clothing or blankets to “protect” him from the cold

temperatures, when determining if being subjected to cold temperatures was sufficiently serious

to support an Eighth Amendment claim. Satterfield, 2007 WL 2159296, at *2. Taking Plaintiff’s

allegations as true, as this Court is required to do at this point in the proceedings, see Denton v.

Hernandez, 504 U.S. 25, 33 (1992) (requiring the court to accept a plaintiff's allegations as true,

unless they are clearly irrational or wholly incredible), the combination of the cold temperatures,

lack of clothing, mattress, and products essential for sustained personal hygiene constitute

allegations of a serious enough deprivation serious enough to survive initial review.

A conditions of confinement claim, however, also “requires a finding of deliberate

indifference, that is, ‘that the official acted or failed to act despite his knowledge of a substantial

risk of serious harm.’” Barker, 649 F.3d at 434 (quoting Farmer, 811 U.S. at 842). Therefore,

even if the alleged condition divested Plaintiff of basic essentials of life, he must also establish

Yaw’s “deliberate indifference” to the conditions in which he was held. Farmer, 511 U.S. at 837.

A plaintiff need not allege actual knowledge on the part of a defendant, however, as a plaintiff may

demonstrate, and a factfinder may conclude, that an official had knowledge of the risk via

circumstantial evidence and inference or from the very fact that the risk was obvious. Barker, 649

F.3d at 434 (internal quotation mark omitted) (quoting Bouchard, 449 at 729 (quoting Farmer,

511 U.S. at 842) (internal quotation mark omitted)).

While his allegations do not implicate Yaw as having any role in deciding to hold Plaintiff

for a week in his cell following his return in the conditions alleged, from September 9, 2022,

through September 15, 2022, it is not beyond reason to find that the conditions in which Plaintiff

was held were obvious to prison staff including Yaw. Plaintiff alleges that Yaw was a supervisor

responsible for Yaw’s area, that all of Plaintiff’s complaints were to pass though Yaw, and that he

met with Yaw on September 12, 2022, during the week of confinement at issue. See ECF No. 1-

1 at 15–16. The Court may infer from Plaintiff’s allegations that Yaw, having been involved in

restraining Plaintiff in the First Incident, her supervisory capacity, and her presence at the facility

during the week in question, would have learned of the Second Incident, Plaintiff’s dry cell

confinement, and would be aware of the conditions of Plaintiff’s confinement when he returned to

his cell for seven days following release from the dry cell. These facts and inferences, taken as

true, are sufficient to state an Eighth Amendment conditions of confinement claim against Yaw

relating to the week of September 9, 2022, through September 15, 2022.

Based upon the above, the Court concludes that Plaintiff has stated an Eighth Amendment

conditions of confinement claim against Yaw.22 The Court RECOMMENDS that only the Eighth

Amendment conditions of confinement claim against Yaw relating to the to the conditions of

Plaintiff’s confinement for the week of September 9, 2022, through September 15, 2022, be

allowed to proceed and that all other conditions of confinement claims against Yaw be

DISMISSED without prejudice for failure to state a claim.

iii. Excessive force

Plaintiff alleges two instances the Court construes as claims of excessive force: being

handcuffed in relation to the First Incident, and the use of mace in relation to the Second Incident.

For the reasons set forth below, the Court finds that neither meets the requirements for stating an

excessive force claim under the Eighth Amendment.

“In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places

restraints on prison officials, who may not, for example, use excessive physical force against

prisoners . . . and must take reasonable measures to guarantee the safety of the inmates.” Farmer,

511 U.S at 832 (citations and internal quotation marks omitted). A prisoner may only claim the

right to be free from punishment “so totally without penological justification that it results in the

gratuitous infliction of suffering.” Gregg v. Georgia, 428 U.S. 153, 183 (1976).

22 The Court only concludes Plaintiff has met the pleading standard for stating this claim and expresses no opinion on

its merits at this time.

The Supreme Court has held that “whenever guards use force to keep order,” the standards

enunciated in Whitley v. Albers, 475 U.S. 312 (1986), should be applied. McMillian, 503 U.S. at

6–7. Under Whitley, the main judicial inquiry is “whether force was applied in a good-faith effort

to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S.

at 6–7 (citing Whitley, 475 U.S. at 320–21). In determining whether force was applied in a

malicious or sadistic manner, the Court should consider factors such as (1) the need for application

of the force, (2) the amount of force used, (3) the extent of injury inflicted, (4) the threat to the

safety of staff and inmates reasonably perceived by the prison official, and (5) any efforts made to

temper the severity of the forceful response. Id. (citing Whitley, 475 U.S. at 321).

In relation to both the First and Second Incidents, Plaintiff admits force was used to bring

him into compliance after he had boarded up his cell and refused to cooperate with prison staff.

See ECF No. 1-1 at PageID 13–15. However, Plaintiff does not elaborate on his own behavior

during either incident prior to the use of force or the level of disturbance he caused,23 rendering it

impossible to determine the level of threat and safety to prison staff and/or other inmates.

In relation to the First Incident, while allegations of prison personnel refusing to loosen

tight handcuffs have been found to establish the malicious or sadistic application of force element,

the circumstances were far different, and the injuries were far more serious than Plaintiff’s

allegations here. See Pewitte v. Haycraft, No. 3-13-0484, 2015 WL 5038026, at *5 (M.D. Tenn.

Aug. 25, 2015) (prisoner was a diabetic, the tightness of the handcuffs caused ulcerations and

“purulent discharge” from her wrists, and there was nothing in the record to suggest the prisoner’s

behavior was a threat to officer safety at the time she was handcuffed though their removal several

23 Of note, from a review of the Compliant and Plaintiff’s allegations that he was placed in a “suicide gown” despite

his protestations that he was not suicidal, the Court infers that Plaintiff’s behavior prior to being handcuffed likely

caused a disturbance in his cell and the surrounding areas. See ECF No. 1-1 at PageID 13–14.

hours later). Here, Plaintiff admits he was noncompliant with prison officials resulting in his

handcuffing, and he alleges no facts that would establish his wrist injuries were anything more

than minor.

In relation to the use of mace in the Second Incident, “the Sixth Circuit has held that there

is no Eighth Amendment violation where a prisoner was sprayed with pepper spray after repeatedly

disobeying orders, and in numerous cases concluded that the use of chemical agents against

recalcitrant prisoners did not violate the Eighth Amendment.” Batson v. Hoover, 355 F. Supp. 3d

604, 614 (E.D. Mich. 2018), aff’d 788 F. App’x 1017 (6th Cir. 2019) (cleaned up) (citing Roberson,

770 F.3d at 406 (citing Caldwell v. Moore, 968 F.2d 595, 600 (6th Cir. 1992) (collecting cases))

(quotations omitted)). Applying Plaintiff’s version of the facts, clearly mace was used only after

he boarded up his cell and then refused to communicate or otherwise comply with prison officials.

See ECF No. 1-1 at PageID 14–15. Furthermore, Plaintiff does not establish that Yaw had the

requisite culpable state of mind as he does not allege she was present, aware of, or in command

over the officers involved in the Second Incident. See ECF No. 1-1 at PageID 14–15 (alleging he

“boarded up” his cell while Lt. Holten was in command, that “Nurse Raypool authorized for mace

to be used on [him]” and that Officer Bretz to TPU recorded the mace incident and that “N.

Bennett” was also present).

The doctrine of respondeat superior does not apply in § 1983 lawsuits to impute liability

upon supervisory personnel; rather, in order to find a supervisor liable, a plaintiff must allege that

he condoned, encouraged, or knowingly acquiesced in the alleged misconduct. Taylor v. Michigan

Dep’t of Corr., 69 F.3d 76, 80–81 (6th Cir.1995). As Plaintiff’s only allegation that Yaw is liable

for the Second Incident was a general allegation that his protests were in response to Yaw’s alleged

violations of prison policy and his other unnamed rights, see id. at PageID 11 (alleging his protests

and subsequent punishments were made “in the process of the violations of Lieutenant Yaw”), and

as there is no allegation or indication in the Complaint that Yaw had supervisory authority over

the lieutenant who was in command of the second shift at the time the Second Incident occurred

or any of the other officers present, any attempt at implicating Yaw as liable for the Second

Incident should fail. The Court therefore RECOMMENDS any Eighth Amendment claim against

Yaw—either for her personal involvement or for the actions of the officers allegedly involved in

the Second Incident under a respondeat superior theory—should be DISMISSED without

prejudice for failure to state a claim.

iv. Administrative segregation

Being placed in segregation is “a routine discomfort that is a part of the penalty that

criminal offenders pay for their offenses against society, [and] is insufficient to support an Eighth

Amendment claim.” Murray v. Unknown Evert, 84 F. App’x 553, 556 (6th Cir. 2003) (citing

McMillian, 503 U.S. at 9).

To the extent Plaintiff claims that his segregation to the cool off block for several hours

relating to the First Incident was excessive and in violation of the Eighth Amendment, ECF No.

1-1 at PageID 13 (alleging Yaw “over punished” him), his claim must fail.24

The Court therefore RECOMMENDS any Eighth Amendment claim against Yaw related

to Plaintiff’s placement in administrative segregation be DISMISSED without prejudice for

failure to state a claim.

24 As stated previously, the Court need not address the 24-hour segregation relating to the Second Incident as discussed

supra, Plaintiff failed to establish Yaw was aware of or otherwise responsible for that event.

III. CONCLUSION

A. Order On Plaintiff’s Motion for Reconsideration of the Order graining

Plaintiff’s IFP Motion

Plaintiff’s motion for reconsideration of this Court’s prior Order granting Plaintiff’s

IFP Motion and setting a filing fee payment schedule, ECF No. 6, is DENIED without

prejudice. The Order granting Plaintiff’s IFP Motion, ECF No. 2, remains effective and

controls the fee payment schedule.

B. Report And Recommendations Following Initial Review

Having conducted the initial screen required by law, IT IS THEREFORE

RECOMMENDED THAT: The following claims set forth in Plaintiff’s Complaint be

DISMISSED with prejudice: (1) all requests for relief that Yaw be disciplined; and (2) all claims

against Yaw in her official capacity. The Court further RECOMMENDS that only the Eighth

Amendment conditions of confinement claim against Yaw relating to the to the conditions of

Plaintiff’s confinement for the week of September 9, 2022, through September 15, 2022, be

allowed to proceed and that all other claims against Yaw in her individual capacity be

DISMISSED without prejudice for failure to state a claim.

As Plaintiff has provided the requisite forms for service of process, see ECF Nos. 1-3 and

1-4, the Court will order service of process on Defendant if appropriate once the Court considers

this Report and Recommendation and any objections to it. Plaintiff is ADVISED that he must

keep this Court informed of his current address, and promptly file a Notice of New Address if he

is released or transferred.

The Court further RECOMMENDS that the District Court certify pursuant to 28 U.S.C.

§ 1915(a)(3) that for the foregoing reasons an appeal of an Order adopting this Report and

Recommendations would not be taken in good faith, and consequently, leave for Plaintiff to appeal

in forma pauperis should be denied.

Procedure on Objections to Report and Recommendation

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting

authority for the objection(s). A Judge of this Court shall make a de novo determination of those

portions of the Report or specified proposed findings or recommendations to which objection is

made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in

part, the findings or recommendations made herein, may receive further evidence or may recommit

this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the District Judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED AND RECOMMENDED.

Date: April 7, 2023 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE