Bates v. Dyer

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

ROBERT BATES, : Case No. 1:23-cv-16

:

Plaintiff, :

: Judge Jeffery P. Hopkins

vs. :

Magistrate Judge Karen L. Litkovitz

:

BRAD W. DYER, ET. AL., :

:

Defendants. :

:

ORDER AND REPORT AND RECOMMENDATIONS ON INITIAL REVIEW

Plaintiff Robert Bates, proceeding without counsel, filed an action alleging violations of

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

conduct the initial screen required by law. 28 U.S.C. §§ 1915(e)(2), 1915A(a).

I. 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 v.

Hernandez, 504 U.S. 25, 32 (1992); 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, 504 U.S. at 33).

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)).

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II. PLAINTIFF’S COMPLAINT

Plaintiff, an inmate at the Southern Ohio Correctional Facility (“SOCF”), brings this

action under 42 U.S.C. § 1983 alleging violations of his constitutional rights. He names the

following SOCF employees as defendants in their official and individual capacities: Captain

Brad W. Dyer (“Dyer”), Correctional Officer Billy Joe Gaffin (“Gaffin”), Correctional Officer

Haynes (“Haynes”), “RIB Supervisor”/Hearing Officer Barney (“Barney”), Unit “RB” Manager

Harris (“Harris”), and Correctional Officer Harr (“Harr”). ECF No. 1-1 at PageID 1, 3–4. The

Complaint details a series of events occurring while Plaintiff was incarcerated at SOCF relating

to each of the named defendants. Id. at PageID 5–10.

Plaintiff alleges that Gaffin retaliated against him for “writing up an unreported use of

force that took place at [the] SOCF infirmary on 5-8-21 (see Bates v. Hales, et al., Case No.

1:22-cv-433).”1 ECF No. 1 at PageID 5. Specifically, Plaintiff alleges that on the afternoon of

September 6, 2021, Gaffin approached Plaintiff’s cell where Plaintiff was “locked behind a door

and was not a threat to himself, defendant Gaffin, or the institution,” called Plaintiff a “snitch” in

front of “violent inmates,” and “attempt[ed] to break [P]laintiff’s arm through the cuff port” (the

“Incident”) causing him “physical pain.” Id. at PageID 5–6. Plaintiff further alleges that Gaffin

violated prison policy and did not report the Incident for six days to “cover up” the fact that he

used unnecessary force against Plaintiff (and had violated additional prison policies in doing so).

Id. at PageID 5.

1 Plaintiff filed a separate lawsuit related to the May 2021 alleged use of force. See Bates v. Hale, No. 1:22-cv-488

(S.D. Ohio). The Court takes judicial notice of the complaint filed in Bates v. Hale, ECF No. 1-1, and notes that

neither Gaffin nor any other defendant named in the instant complaint are parties to that lawsuit. See Lynch v. Leis,

382 F.3d 642, 648 n.5 (6th Cir. 2004) (citing Lyons v. Stovall, 188 F.3d 327, 332 n.3 (6th Cir. 1999) (a court may

take judicial notice of court records that are available online to members of the public)).

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At around 9:30 p.m. the following day, a day when Gaffin was not working at SOCF,

Plaintiff alleges he “filled out an HSR and was seen” and filed an informal complaint resolution

and grievance. Id. That same day Plaintiff alleges Harr filled out a false conduct report “acting

as” Gaffin, to stop Plaintiff from pursuing his grievances related to the Incident and to “cover

up” Gaffin’s alleged policy and constitutional violations which would have otherwise been

reported in Gaffin’s personnel file. Id. at PageID 6.

About a week later on September 12, 2021, Plaintiff alleges that Dyer, in his supervisory

role, intentionally and deliberately violated Plaintiff’s Eighth Amendment right to a “reasonable

safe environment and protection from known danger.” Plaintiff states that Dyer reviewed the

DVR footage of the Incident with Gaffin and colluded with Gaffin to “cover up” the incident by

instructing Gaffin to issue a “use of force report, [a] Conduct report,” and to get checked by

medical. Id. at PageID 8. Plaintiff alleges that the following day, September 13, Barney, in his

supervisory role as a hearing officer, learned of Gaffin’s alleged retaliatory conduct and held a

hearing on the allegedly false conduct report. Barney found Plaintiff “guilty” of retaliation for

“pursuing legal claims against SOCF staff,” placed Plaintiff in solitary confinement, and gave

Plaintiff “more” time in Extended Restricted Housing (“ERH”). Id. at PageID 7.

Plaintiff submits that after his release from ERH he was almost immediately “harassed”

by Haynes and Gaffin for pursuing legal claims against defendant Gaffin and SOCF employees

and by filing informal complaints and grievances. Id. at PageID 8–9. Plaintiff alleges that on

June 22, 2022, Haynes violated prison policy by engaging in a retaliatory cell search of

Plaintiff’s cell, which had already been “shook down” that day by the “first shift Defendant,” and

threatened to spray Plaintiff with mace if he did not comply with the order to go to the shower.

Id. at PageID 9. Plaintiff further alleges that as he was being taken from his cell he informed

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Unit Manager Harris that he was threatened by Haynes and that his cell had already been

searched that day, but Harris ignored him. Id.

Plaintiff also states that on June 23, 2022, Gaffin and Haynes conspired to retaliate

against Plaintiff via “verbal harassment”—calling him a snitch in from of violent inmates and

stated that Plaintiff “looked like a crack head ‘lil Wayne,’” and laughed at him. Id. at PageID 10.

He alleges that Gaffin and Haynes “refused [P]laintiff ice, and cell clean up for approximately 90

days” when Plaintiff’s cell was 100 degrees and denied Plaintiff showers while they were

working on Second Shift. Lastly, Plaintiff alleges he was deliberately and intentionally ignored

when he complained to their supervisors. Id.

Plaintiff alleges the foregoing actions violate prison policy and his constitutional rights.

Plaintiff seeks monetary, declaratory, and injunctive relief.

III. ANALYSIS

At this stage in the proceedings, without the benefit of briefing by the parties to this

action, the undersigned concludes that Plaintiff may proceed with his Eighth Amendment

excessive use of force claim against Gaffin. This claim is deserving of further development and

may proceed at this juncture.

Plaintiff’s remaining claims should be dismissed. See 28 U.S.C. §§ 1915(e)(2)(B) &

1915A(b).

a. Official capacity claims

Plaintiff is prohibited from bringing a suit for damages against any “state actor”

defendant in his or her official capacity. “The Eleventh Amendment protects a state official from

suit for monetary damages in his or her official capacity because ‘a suit against a state official in

his or her official capacity is not a suit against the official but rather is a suit against the official’s

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office. . . . As such, it is no different from a suit against the State itself.’” Zakora v. Chrisman,

44 F. 4th 452, 474 (6th Cir. 2022) (quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 63-

64, 71 (1989) (citations omitted)). See also Monell v. Dep’t of Soc. Services, 436 U.S. 658, 690

n.55 (1978)) (holding that “neither a State nor its officials acting in their official capacities are

‘persons’” who may be held liable for constitutional violations in a § 1983 action); see also

Turker v. Ohio Dep’t of Rehab. & Corr., 157 F.3d 453, 456 (6th Cir. 1998) (and cases cited

therein) (“It is well-established that a plaintiff cannot sue a state agency or any of its employees

in their official capacities for monetary damages.”). Here, all of the SOCF defendants are state

officials or employees. Thus, the claims for monetary damages against them in their official

capacity are barred by the Eleventh Amendment.

To the extent Plaintiff seeks “[a] preliminary and permanent injunction ordering [all

defendants] to follow ODRC Policy 31-SEM-02; 64-DCM-02” and an order for institutional

transfer (ECF No. 1 at PageID 12), he has failed to make “a clear showing” that he is entitled to

such relief. See S. Glazer’s Distributors of Ohio, LLC v. Great Lakes Brewing Co., 860 F.3d

844, 849 (6th Cir. 2017) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)).

He has failed to establish a likelihood of success on the merits of his claims or that he would

suffer irreparable harm in the absence of an injunction. Wilson v. Williams, 961 F.3d 829, 837

(6th Cir. 2020). Plaintiff’s request for injunctive relief should be denied.

b. Deliberate indifference claims

Plaintiff’s claims based on allegations that Gaffin and Haynes laughed at him, called him

names, threatened him, and called him a “snitch” in front of “violent inmates” should be

dismissed. It is well-settled that “[v]erbal harassment or idle threats by a state actor do not create

a constitutional violation and are insufficient to support a section 1983 claim for relief.” Wingo

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v. Tennessee Dep’t of Corr., 499 F. App’x 453, 455 (6th Cir. 2012) (citing Ivey v. Wilson, 832

F.2d 950, 955 (6th Cir. 1987)). Therefore, Plaintiff’s allegations of verbal harassment or threats

should be dismissed. Moreover, to the extent being labeled a “snitch ” could make an inmate a

target for other prisoners’ attacks, there is no Eighth Amendment deliberate indifference claim

without any resulting physical harm stemming from being labeled a snitch. See Thompson v.

Mich. Dep’t of Corrections, 25 F. App’x 357, 359 (6th Cir. 2002) (affirming district court’s

dismissal where “[plaintiff’s] claim that he was endangered by being labeled a snitch was

unsupported by any allegation of resultant harm”); cf. Wilson v. Yaklich, 148 F.3d 596, 600-01

(6th Cir. 1998) (plaintiff failed to state an Eighth Amendment claim based upon inmate threats

where he alleged no physical injury); White v. Trayser, No. 10-cv-11397, 2011 WL 1135552, at

*5 (E.D. Mich. Mar. 25, 2011) (and cases cited therein); 42 U.S.C. § 1997e(e) (“No Federal civil

action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for

mental or emotional injury suffered while in custody without a prior showing of physical

injury.”). Plaintiff has not alleged any specific incident of actual physical injury by inmates who

allegedly heard the “snitch” statement and acted on it. In the absence of any allegations showing

a connection between allegedly being called a snitch and some resultant physical harm,

Plaintiff’s complaint fails to state a claim for relief.

To the extent Plaintiff alleges Dyer failed to protect him from a known danger (i.e.,

Gaffin’s alleged use of force), Plaintiff’s complaint fails to state an Eighth Amendment claim. A

prison official may be held liable based on the failure to protect an inmate from an attack if he

knows that the inmate faces “a substantial risk of serious harm and disregards that risk by failing

to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 834, 847 (1994).

Plaintiff fails to allege any facts indicating Dyer had prior knowledge of any threats by Gaffin

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against Plaintiff and failed to take reasonable measures to abate the harm. Rather, Plaintiff

alleges that it was not until six days after Gaffin allegedly “attempted to break plaintiff’s arm

through the cuff port” that Dyer learned of the alleged use of force incident. Plaintiff’s

deliberate indifference claim against Dyer should be dismissed.

c. Retaliation claims

Plaintiff alleges that on September 6, 2021, Gaffin verbally harassed him, called him a

snitch in front of dangerous inmates, and almost broke his arm through the “cuff port” of his cell

in retaliation for plaintiff’s “write up” of an unreported use of force occurring on May 8, 2021.

He further alleges Gaffin and Haynes retaliated against him for filing informal complaints and

grievances against various prison employees by verbally harassing him, calling him a snitch in

front of violent inmates, searching his cell, and refusing access to ice and cell cleaning for

roughly 90 days. Plaintiff also alleges that Harr filed a false conduct report under Gaffin’s name,

and Barney found him guilty on that conduct report in retaliation for his informal complaints and

grievances.

A prisoner seeking to establish a First Amendment retaliation claim must show that (1) he

was engaged in protected conduct; (2) the defendant took an adverse action that was capable of

deterring a person of “ordinary firmness from continuing to engage in that conduct”; and (3) “the

adverse action was motivated at least in part by the [prisoner’s] protected conduct.” Hill v.

Lappin, 630 F.3d 468, 472 (6th Cir. 2010) (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 394,

398 (6th Cir. 1999) (en banc)).

In this case, the complaint contains no allegations that plausibly support an inference that

any of the defendants acted in response to Plaintiff’s protected conduct under the First

Amendment. “[C]onclusory allegations of retaliatory motive ‘unsupported by material facts will

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not be sufficient to state . . . a claim under § 1983.’” Harbin v. Rutter, 420 F.3d 571, 580 (6th

Cir. 2005) (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538–39 (6th Cir. 1987)). The Sixth

Circuit has held that temporal proximity between protected conduct and retaliatory acts may

create an inference of retaliatory motive. See Maben v. Thelen, 887 F.3d 252, 268 (6th Cir.

2018) (issuance of misconduct ticket “immediately” after prisoner complained about inadequate

food portions and as prisoner was trying to remedy situation with another official created

“suspicious temporal proximity”) (emphasis in the original) (citing King v. Zamiara, 680 F.3d

686, 695-96 (6th Cir. 2012)). However, “conclusory allegations of temporal proximity are not

sufficient to show a retaliatory motive.” Skinner v. Bolden, 89 F. App’x 579, 579-80 (6th Cir.

2004).

Other than conclusory assertions of retaliation in his complaint, Plaintiff provides

insufficient facts for the Court to plausibly infer that the actions taken by any of the defendants

were motivated by Plaintiff’s “write up,” informal complaints, or grievances. For example,

Gaffin’s alleged retaliatory actions, which occurred on September 6, 2021—nearly four months

after plaintiff’s “write up” about an unreported May 8, 2021 use of force incident—are simply

too remote to plausibly infer a retaliatory motive. See Vaughn v. Robb, No. 1:11-cv-323, 2012

WL 769481, at *4 (W.D. Mich. Feb. 17, 2012), report and recommendation adopted, 2012 WL

772453 (W.D. Mich. Mar. 8, 2012) (citing cases where even three weeks between the protected

conduct and alleged adverse action was too remote in time to establish a causal connection for a

claim of retaliation). Plaintiff also states that Harr filed a false conduct report against him; that

Barney found Plaintiff guilty on the conduct report and sentenced him to solitary and ERH; and

Haynes searched Plaintiff’s cell and verbally harassed him, all because of Plaintiff’s informal

complaints and grievances. Plaintiff, however, alleges no factual circumstances in connection

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with each defendant’s actions to support an inference of retaliatory motive. Plaintiff’s

conclusory allegations are simply insufficient to state an actionable claim for relief. Twombly,

550 at 555–57. Therefore, Plaintiff’s retaliation claims should be dismissed.

d. Due process claims

Next, Plaintiff fails to state a plausible due process claim against any of the defendants.

Plaintiff alleges hearing officer Barney found Plaintiff “guilty” on false charges, placed him in

solitary confinement, and gave Plaintiff more time in ERH. These allegations fail to state a due

process claim.

A prison disciplinary proceeding does not give rise to a constitutionally protected liberty

interest protected by the Due Process Clause unless the imposed discipline “inevitably affect[s]

the duration of his sentence” or constitutes an “atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.” Sandin v. Connor, 515 U.S. 472, 484, 487

(1995). The Sixth Circuit has held that confinement in segregation generally does not rise to the

level of an “atypical and significant” hardship implicating a liberty interest except in “extreme

circumstances, such as when the prisoner’s complaint alleged that he is subject to an indefinite

administrative segregation” or that such confinement was excessively long in duration. Joseph v.

Curtin, 410 F. App’x 865, 868 (6th Cir. 2010) (citing Harden-Bey v. Rutter, 524 F.3d 789, 795

(6th Cir. 2008)) (emphasis in original); see also Harris v. Caruso, 465 F. App’x 481, 484 (6th

Cir. 2012) (holding that the prisoner’s 8-year confinement in segregation was of “atypical

duration” and thus “created a liberty interest that triggered his right to due process”). Cf.

Wilkinson v. Austin, 545 U.S. 209, 223-24 (2005) (ruling that an inmate’s transfer to Ohio’s

“supermax” prison “imposes an atypical and significant hardship” given the combination of

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extreme isolation of inmates, prohibition of almost all human contact, indefinite duration of

assignment, and disqualification for parole consideration of otherwise eligible inmates).

The prison discipline that Plaintiff alleges that Barney imposed—time in solitary and

additional time in EHR—does not constitute “atypical and significant hardship” in relation to the

ordinary course of prison life. See, e.g., Workman v. Wilkinson, 23 F. App’x 439, 440-41 (6th

Cir. 2001) (the plaintiff inmate’s “administrative control and maximum security classification do

not constitute atypical and significant hardship because heightened security status is one of the

ordinary incidents of prison life.”) (citing Sandin, 515 U.S. at 484). “Courts in this District have

expressly held that assignment to extended restrictive housing, ODRC’s most restrictive security

level, does not implicate a due process liberty interest.” Perry v. Erdos, No. 1:22-cv-178, 2022

WL 2256901, at *3 (S.D. Ohio June 22, 2022), report and recommendation adopted, 2022 WL

3083522 (S.D. Ohio Aug. 3, 2022) (citing Cook v. Davis, No. 1:19-cv-624, 2019 WL 4564741,

at *4 (S.D. Ohio Sept. 20, 2019); Wheeler v. Pickaway Corr. Inst., No. 2:19-cv-3512, 2019 WL

4744781, at *4 (S.D. Ohio Sept. 30, 2019); Hairston v. Smith, No. 2:18-cv-826, 2018 WL

4599905, at *4 (S.D. Ohio Sept. 25, 2018), report and recommendation adopted, 2018 WL

5268747 (S.D. Ohio Oct. 23, 2018)). For these reasons, Plaintiff’s due process challenges to

defendant Barney’s actions fail to state a claim upon which relief may be granted.

Nor does Plaintiff allege a claim upon which relief may be granted against any of the

defendants to the extent that he asserts that SOCF staff failed to follow prison procedures.

“Failing to follow proper procedures is insufficient to establish an infringement of a liberty

interest.” Grinter v. Knight, 532 F.3d 567, 574, 576 (citing Olim v. Wakinekona, 461 U.S. 238,

250 (1983)). Accordingly, Plaintiff’s due process claims should be dismissed.

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e. Conspiracy claims

Plaintiff alleges that defendants Harr, Dyer, Barney and Haynes conspired against him

when Harr and Gaffin issued false conduct reports; Dyer instructed Gaffin to issue a use of force

report; Barney found plaintiff guilty on a conduct report; Haynes engaged in a retaliatory search

of Plaintiff’s cell and threatened to spray Plaintiff with mace if he did not comply; and Unit

Manager Harris ignored Plaintiff’s complaints regarding Haynes actions. To the extent that

Plaintiff alleges that defendants conspired to violate his rights, his conclusory allegations are

insufficient to state a conspiracy claim. See Bickerstaff v. Lucarelli, 830 F.3d 388, 400 (6th Cir.

2016). “Although circumstantial evidence may prove a conspiracy, it is well-settled that

conspiracy claims must be pled with some degree of specificity and that vague and conclusory

allegations unsupported by material facts will not be sufficient to state such a claim under §

1983.” Id. A plaintiff must plead facts “showing the existence of ‘a single plan’.” Trans Rail

Am., Inc. v. Hubbard Twp., 478 F. App’x 986, 988 (6th Cir. 2012) (quoting Hooks v. Hooks, 771

F.2d 935, 944 (6th Cir. 1985)). Where there are no facts establishing the “that each of the

defendants conspired with one another,” and instead only conclusory allegations unsupported by

material facts are pleaded, dismissal is appropriate. Id. (citing Twombly, 550 U.S. at 555).

Plaintiff’s conspiracy claims should be dismissed.

f. Prison Policy

Plaintiff’s complaint fails to state a claim upon which relief may be granted to the extent

that he bases his claim on violations of prison policies. An alleged failure to comply with an

administrative rule or prison policy does not itself give rise to a § 1983 claim. See Hursey v.

Anderson, No. 16-1146, 2017 WL 3528206, at *2 (6th Cir. Mar. 31, 2017) (“claims related to

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violations of prison policies do not state a constitutional violation”). Thus, these claims should

be dismissed.

g. Conditions of Confinement

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

applicable to inhumane conditions of confinement. Farmer, 511 U.S. 825. “[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 Hudson v.

Palmer, 468 U.S. 517, 526-27 (1984)). “Not every unpleasant experience a prisoner might

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

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.” Hudson v.

McMillian, 503 U.S. 1, 9 (1992).

An Eighth Amendment conditions of confinement claim has an objective and a subjective

component. Wilson v. Seiter, 501 U.S. 294, 298 (1991). To state a conditions of confinement

claim pursuant to the Eighth Amendment, a plaintiff must therefore 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,” (the objective component) and (2) that the

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

“deliberate indifference” to inmate health or safety (the subjective component). Farmer, 511

U.S. at 834 (citations and internal quotations omitted). When determining if a condition

objectively posed a substantial risk of harm, “[t]he circumstances, nature, and duration of a

deprivation . . . must be considered in determining whether a constitutional violation has

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occurred.” Boyington v. Walker, No. 3:18CV-P134, 2018 WL 3649027, at *3 (W.D. Ky. Aug. 1,

2018) (collecting cases).

Plaintiff complains that he was denied ice, showers and “cell clean up” by Defendants

Gaffin and Haynes. Plaintiff states that Gaffin and Haynes “refused [P]laintiff ice, and cell clean

up for approximately 90 days[,] the cells was 100 degrees [and] [P]laintiff was not allowed to

take showers on second shift while Defendant’s [sic] [Gaffin and Haynes] were working.” ECF

No. 1 at PageID 10.

Plaintiff’s allegation that he was denied showers “on second shift” when Gaffin and

Haynes “were working” fails to state an Eighth Amendment claim. “The Constitution does not

mandate showers; it requires only that prisoners be allowed to maintain hygiene.” Williams v.

Cooley, No. 1:22-cv-825, 2022 WL 7945082, at *5 (W.D. Mich. Oct. 14, 2022). “Allegations

about temporary inconveniences, e.g., being deprived of a lower bunk, subjected to a flooded

cell, or deprived of a working toilet, do not demonstrate that the conditions fell beneath the

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

decency.” Id. (citing Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001) (discussing

temporary inconveniences generally). Here, Plaintiff does not allege he was denied the ability to

maintain adequate hygiene. Nor does he allege a denial of showers altogether for a specified

period. Rather, he alleges he was unable to take a shower when defendants Gaffin and Haynes

were working on second shift. He does not allege any facts indicating the length of this alleged

deprivation, whether showers were only permitted on second shift and this was a daily

occurrence, or the frequency with which Gaffin and Haynes worked on second shift such that the

Court could reasonably infer the alleged denial of showers was not merely a temporary

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inconvenience and rose to the level of an Eighth Amendment violation. This claim should be

dismissed.

Regarding the alleged 90-day lack of “cell clean up,” an inmate’s inability to maintain a

hygienic living area for 90 days is arguably a sufficient length of time to constitute a serious

deprivation under the Eight Amendment. However, Plaintiff does not allege that his cell was

unhygienic, that he was not able to clean his cell when Gaffin and Haynes were not on duty, or

that he suffered any health problems as a result. As such, the Court is unable to conclude that the

alleged 90-day ban on cell cleaning by Gaffin and Haynes on the days they worked resulted in an

objectively serious condition under the Eighth Amendment. This claim should also be

dismissed.

Finally, Plaintiff alleges that the heat level in his cell was 100 degrees for roughly 90

days and he was denied ice (presumably to cool down). Courts have considered the following

factors when determining if exposure to extreme heat constitutes an Eighth Amendment

violation:

In order to establish a claim of extreme cell temperatures, [a plaintiff] must show

that the heat subjected him to a substantial risk of harm. Vasquez v. Frank, No. 05-

C-528-C, 2007 WL 3254702 at *––––, 2007 U.S. Dist. LEXIS 82106 at *17 (W.D.

Wis. Nov. 2, 2007). For example, allegations that poor cooling caused an inmate

to become simply lightheaded and woozy is not a viable Eighth Amendment claim,

even when the heat lasted for ten days. Jackson v. Young, 2013 WL 6038158, *2

(C.D. Ill. Nov. 14, 2013). Further, Courts look to the duration of the confinement

to determine whether the conditions amount to a constitutional violation, finding

that longer periods of confinement (measured in weeks or months) often come

closer to Eighth Amendment violations than shorter periods. See Corselli v.

Coughlin, 842 F.2d 23, 27 (2d Cir. 1988) (claims that inmate was exposed to

subfreezing temperatures for three months with ice forming in toilet bowl were

sufficient to raise issues of fact for jury, even where prison officials gave inmate

extra blanket); Wilson v. Timmerman-Cooper, No. 2:14-cv-539, 2015 WL 457823,

2015 U.S. Dist. LEXIS 12471 (S.D. Ohio Feb. 3, 2015) (finding Plaintiff’s claim

that temperatures reaching 120 degrees and lasting for two days did not rise to the

level of an Eighth Amendment violation).

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Johnson v. Cathers, No. 6:19-cv-258, 2021 WL 7707754, at *4 (E.D. Ky. July 29, 2021).

Plaintiff does not allege whether during this 90-day period his exposure to extreme

temperatures was continuous or sporadic. He does not allege that he suffered any adverse health

consequences from the heat. Nor does he allege he was unable to obtain relief from the heat on

days or shifts when Gaffin and Haynes were not on duty. As such, the Court cannot conclude

that Plaintiff’s allegations concerning extreme heat exposure are objectively severe under the

Eighth Amendment. Plaintiff’s conditions of confinement claims should be dismissed.

h. Claim against defendant Harris

Plaintiff alleges that Unit Manager Harris ignored Plaintiff’s complaint about Hayne’s

retaliatory cell search. Respondeat superior does not apply to § 1983 claims and may not serve

as a basis for liability. See Iqbal, 556 U.S. at 676; Monell v. Dep’t of Social Servs., 436 U.S. 658

(1978); Hill v. Marshall, 962 F.2d 1209, 1213 (6th Cir. 1992). “[Section] 1983 liability of

supervisory personnel must be based on more than the right to control employees.” Bellamy v.

Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Furthermore, § 1983 liability is premised on active

unconstitutional behavior and not a mere failure to act. Greene v. Barber, 310 F.3d 889, 899

(6th Cir. 2002); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). The mere fact that

defendant Harris may have a supervisory role or failed to take corrective action is not enough to

impose liability under section 1983. Nor does a prison official’s alleged failure to adequately

investigate claims of misconduct rise to the level of “encouragement” that would make the

official liable for such misconduct. Knop v. Johnson, 977 F.2d 996, 1014 (6th Cir. 1992);

Bellamy, 729 F.2d at 421. Therefore, Plaintiff’s claim against defendant Harris should be

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

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IT IS THEREFORE RECOMMENDED THAT:

1. The complaint be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) & 1915A(b),

with the exception of Plaintiff’s Eighth Amendment excessive use of force claim against

defendant Gaffin.

2. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons

an appeal of any Order adopting this Report and Recommendation would not be taken in good

faith, and therefore, deny Plaintiff leave to appeal in forma pauperis. See McGore v.

Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).

IT IS THEREFORE ORDERED THAT:

1. The United States Marshal shall serve a copy of the complaint, summons, the Order

granting plaintiff in forma pauperis status, and this Order and Report and Recommendation upon

defendant Gaffin as directed by Plaintiff, with costs of service to be advanced by the United

States.

2. Plaintiff shall serve upon defendant Gaffin or, if appearance has been entered by

counsel, upon defendant’s attorney(s), a copy of every further pleading or other document

submitted for consideration by the Court. Plaintiff shall include with the original paper to be

filed with the Clerk of Court a certificate stating the date a true and correct copy of any

document was mailed to defendant or defendant’s counsel. Any paper received by a district

judge or magistrate judge which has not been filed with the Clerk or which fails to include a

certificate of service will be disregarded by the Court.

3. Plaintiff shall inform the Court promptly of any changes in his address which may

occur during the pendency of this lawsuit.

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NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after

being served with a copy thereof. That period may be extended further by the Court on timely

motion by either side for an extension of time. All objections shall specify the portion(s) of the

R&R objected to, and shall be accompanied by a memorandum of law in support of the

objections. A party shall respond to an opponent’s objections within FOURTEEN DAYS after

being served with a copy of those objections. Failure to make objections in accordance with this

procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States

v. Walters, 638 F.2d 947 (6th Cir. 1981).

June 12, 2023 Flon sn Kika,

Karen L. Litkovitz

UNITED STATES MAGISTRATE JUDGE

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