UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION ______

JERRY DON JOHNSON,

Plaintiff, Case No. 2:20-cv-97

v. Honorable Paul L. Maloney

UNKNOWN BURNSIDE et al.,

Defendants. ____________________________/ OPINION This is a civil rights action brought by a state prisoner under

. Under the Prison Litigation Reform Act,

Stat. 1321 (1996) (PLRA), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief.

(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s pro se complaint indulgently, see Haines v. Kerner,

(1972), and accept Plaintiff’s allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez,

(1992). Applying these standards, the Court will dismiss Plaintiff’s complaint for failure to state a claim against Defendant Soeltner. Discussion I. Factual Allegations Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Alger Correctional Facility (LMF) in Munising, Alger County, Michigan. The events about which he complains occurred at that facility. Plaintiff sues LMF staff Captain P. Soeltner and Food Supervisor Unknown Burnside. Plaintiff alleges that on March 20, 2019, he notified Defendant Burnside that he was not provided the full lunch portion of chicken. Defendant Burnside did not resolve the issue.

Plaintiff notified Defendant Burnside that he would file a grievance against her, and Defendant Burnside asked for Plaintiff’s identification card in response. When Plaintiff asked Defendant Burnside why she needed his identification, she allegedly told him that she planned to file a misconduct against him because he intended to file a grievance against her. Later that day, Plaintiff filed his step 1 grievance against Defendant Burnside. The following morning, on March 21, 2019, Defendant Burnside filed a misconduct charge against Plaintiff for disobeying a direct order and insolence. At Plaintiff’s March 26, 2019 hearing on the misconduct charge, Defendant Soeltner found Plaintiff guilty and gave him 10 days’ loss of privileges. Plaintiff alleges that Defendants have violated his rights provided under the First,

Eighth, and Fourteenth Amendments. Plaintiff seeks declaratory and injunctive relief as well as compensatory and punitive damages. II. Failure to State a Claim A complaint may be dismissed for failure to state a claim if it fails “‘to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly,

(2007) (quoting Conley v. Gibson,

(1957)). While a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more than labels and conclusions. Twombly,

; Ashcroft v. Iqbal,

(2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). The court must determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Twombly,

. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,

. Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it

asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal,

(quoting Twombly,

). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—that the pleader is entitled to relief.” Iqbal,

(quoting Fed. R. Civ. P. 8(a)(2)); see also Hill v. Lappin,

(6th Cir. 2010) (holding that the Twombly/Iqbal plausibility standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i)). To state a claim under

, a plaintiff must allege the violation of a right secured by the federal Constitution or laws and must show that the deprivation was committed by a person acting under color of state law. West v. Atkins,

(1988); Street v. Corr.

Corp. of Am.,

(6th Cir. 1996). Because § 1983 is a method for vindicating federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify the specific constitutional right allegedly infringed. Albright v. Oliver,

(1994). III. Fourteenth Amendment Plaintiff appears to allege that Defendants violated his due process rights by filing and convicting him of Class II misconduct charge.1

1 A Class II misconduct is classified as a “minor” misconduct. See MDOC Pol’y Directive 03.03.105 at ¶ B (effective July 1, 2018). A minor misconduct conviction does not implicate the due process clause. A prisoner does not have a protected liberty interest in prison disciplinary proceedings unless the sanction “will inevitably affect the duration of his sentence” or the resulting restraint imposes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”

See Sandin v. Conner,

(1995). The Sixth Circuit routinely has held that misconduct convictions that do not result in the loss of good time are not atypical and significant deprivations and therefore do not implicate due process. See, e.g., Ingram v. Jewell,

(6th Cir. 2004); Carter v. Tucker,

(6th Cir. 2003); Green v. Waldren, No. 99-1561,

, at *2 (6th Cir. June 23, 2000); Staffney v. Allen, No. 98- 1880,

, at *2 (6th Cir. Aug. 12, 1999). Plaintiff’s minor misconduct does not result in the loss of good time. See

. Consequently, Plaintiff fails to allege that either Defendant deprived him of his right to due process by filing or convicting him of the misconduct. Accordingly, the Court will dismiss Plaintiff’s due process claim.

IV. Eighth Amendment Plaintiff appears to allege that Defendant Burnside violated the Eighth Amendment when she denied Plaintiff a full portion of chicken for lunch. “[T]he Eighth Amendment imposes a duty on officials to provide ‘humane conditions of confinement,’ including insuring, among other things, that prisoners receive adequate ... food.” Young ex rel. Estate of Young v. Martin,

(6th Cir. 2002) (quoting Farmer, 511 U.S. at 832). The Constitution “does not mandate comfortable prisons,” however. Rhodes v. Chapman,

(1981). “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,

, 954 (6th Cir. 1987). Thus, the deprivation of a few meals for a limited time generally does not rise to the level of an Eighth Amendment violation. See Cunningham v. Jones,

(6th Cir. 1982) (per curiam) (providing a prisoner only one meal per day for fifteen days did not violate the Eighth Amendment, because the meals provided contained sufficient nutrition to sustain normal health); Davis v.

Miron,

(6th Cir. 2012) (denial of seven meals over six days is not an Eighth Amendment violation); Richmond v. Settles,

(6th Cir. 2011) (same); see also Berry v. Brady,

(5th Cir. 1999) (denial of a few meals over several months does not state a claim); Staten v. Terhune, No. 01-17355,

, at *1 (9th Cir. June 16, 2003) (deprivation of two meals is not sufficiently serious to form the basis of an Eighth Amendment claim); Cagle v. Perry, No. 9:04-CV-1151,

, at *14 (N.D.N.Y. Oct. 24, 2007) (deprivation of two meals is “not sufficiently numerous, prolonged or severe” to give rise to an Eighth Amendment claim). In Richmond, the Sixth Circuit determined that a prisoner who was deprived of five meals over three consecutive days, and a total of seven meals over six consecutive days, did not

state a viable Eighth Amendment claim, because he “does not allege that his health suffered as a result of not receiving the meals.” Richmond,

. In Cunningham, the Sixth Circuit determined that providing a prisoner only one meal a day for over two weeks was not an Eighth Amendment violation, because the meals provided were adequate to sustain normal health. Cunningham,

. Plaintiff does not allege that he was denied a full meal much less that his health suffered because of the deprivation. Neither does Plaintiff allege that the meals he did receive were inadequate to sustain his health. He merely contends that he did not receive the full portion of chicken at a single meal. Such allegations fall well short of the standard for an Eighth Amendment violation set by Richmond, Cunningham, and Davis. Consequently, Plaintiff fails to allege a violation of the Eighth Amendment. Accordingly, the Court will dismiss his Eighth Amendment claim. V. First Amendment Plaintiff alleges Defendant Burnside violated the First Amendment claim because she retaliated against Plaintiff after he filed a grievance against her.

Retaliation based upon a prisoner’s exercise of his or her constitutional rights violates the Constitution. See Thaddeus-X v. Blatter,

(6th Cir. 1999) (en banc). In order to set forth a First Amendment retaliation claim, a plaintiff must establish that: (1) he was engaged in protected conduct; (2) an adverse action was taken against him that would deter a person of ordinary firmness from engaging in that conduct; and (3) the adverse action was motivated, at least in part, by the protected conduct.

Moreover, a plaintiff must be able to prove that the exercise of the protected right was a substantial or motivating factor in the defendant’s alleged retaliatory conduct. See Smith v. Campbell,

(6th Cir. 2001) (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

(1977)).

On initial review, Plaintiff has sufficiently alleged facts to state a claim for retaliation against Defendant Burnside. Conclusion Having conducted the review required by the Prison Litigation Reform Act, the Court determines that Defendant Soeltner will be dismissed for failure to state a claim, under

(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The Court will also dismiss, for failure to state a claim, Plaintiff’s Fourteenth Amendment due process claims and Eighth Amendment claims against Defendant Burnside. Plaintiff’s First Amendment retaliation claim against Defendant Burnside remains in the case. An order consistent with this opinion will be entered.

Dated: July 9, 2020 /s/ Paul L. Maloney Paul L. Maloney United States District Judge