Opinion
Case No. 1:04-cv-426.
March 16, 2005
OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. The Court has granted Plaintiff leave to proceed in forma pauperis, and Plaintiff has paid the initial partial filing fee. Under the Prison Litigation Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321 (1996) (" PLRA"), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff's pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards, the Court will dismiss Plaintiff's complaint for failure to state a claim.
Discussion
I. Factual Allegations
Plaintiff Mevelyn Jeanette Brabo presently is incarcerated at the Kent County Jail. She sues the Kent County Jail and other unknown parties named as "male guards/procedures at Kent County Jail."
Plaintiff raises two claims. First, she alleges that on or about March 28, 2004, she was placed in Pod D3 of the Kent County Correctional Facility. The pod is located across the unit from a pod housing male prisoners. Plaintiff alleges that male and female prisoners can view one another across the unit, notwithstanding official representations that the tower in the middle of the pods blocks such viewing. Plaintiff contends that male prisoners routinely show their naked bodies and masturbate in front of the women and that some women also show themselves to the men. Plaintiff further alleges that when the men are outside having recreation, they verbally harass the women if the women do not respond to their catcalls.
Second, Plaintiff alleges that on April 13 or 14, 2004, she was placed on suicide watch because she refused to eat. While on suicide watch, her clothes were taken from her and she was provided only a paper gown. She complains that the gown did not adequately cover her 280pound body, that it ripped with every movement, and that she was only allowed one gown every eight hours. She therefore was forced to lie on the floor totally nude for hours, while being observed by a male guard through an in-cell camera. When she tried to block the camera lens with wet paper, a response team came to her cell, permitting four guards to view her naked body. In addition, Plaintiff alleges that male guards do the head counts and monitor the showers, which have no shower curtains. Plaintiff alleges that the lack of privacy is cruel and barbaric.
For relief, Plaintiff seeks a variety of injunctions, including the elimination of housing that permits men and women to view one another's naked bodies, as well as the removal of male guards. She also seeks compensation for sexual harassment that has caused humiliation, shame and mental anguish.
II. Failure to state a claim
A complaint fails to state a claim upon which relief can be granted when it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint. Jones v. City of Carlisle, 3 F.3d 945, 947 (6th Cir. 1993). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the federal Constitution or laws and must show that the deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).
A. Jail as defendant
Plaintiff sues the Kent County Jail. The jail is a building, not an entity capable of being sued in its own right. Vine v. County of Ingham, 884 F. Supp. 1153, 1158 (W.D. Mich. 1995) (citing Hughson v. County of Antrim, 707 F. Supp. 304, 306 (W.D. Mich. 1988) and Bayer v. Almstadt, 185 N.W.2d 40, 44 (1970)). Accordingly, the Kent County Jail is not a proper party defendant.
B. Unnamed Parties
Plaintiff's complaint also lists unnamed male guards as defendants. In general, the use of generalities to identify a defendant is not favored in the federal courts. See Colle v. Brazos County, Tex., 981 F.2d 237, 243 (5th Cir. 1993) (discussing naming of "Doe" defendants); Strauss v. Chicago, 760 F.2d 765, 770 n. 6 (7th Cir. 1985); Nagle v. Lee, 807 F.2d 435, 439 (5th Cir. 1987). The use of the fictitious names such as Jane and John Doe is permitted only in limited circumstances, and only in the context where there is at least one named party and discovery from that party may eventually allow the true identity of the Jane or John Doe to be discovered. See, e.g., Berndt v. Tennessee, 796 F.2d 879, 882-94 (6th Cir. 1986) (remanding to allow plaintiff to amend complaint to name the parties); Odum v. Knox County, No. 89-5987, 1990 WL 57241, at *1 (6th Cir. 1990) (complaint contained sufficient facts for the named defendants to discover the correct defendant with minimal investigation). Ordinarily, an appropriate disposition of the claims against the unnamed defendants is an order dismissing them without prejudice, so that Plaintiff's ability to bring an action is preserved, should he later learn their identities. Cf., Brown v. Our Lady of Lourdes Med. Center, 767 F. Supp. 618, 621 (D.N.J. 1991), aff'd, 961 F.2d 207 (3d Cir. 1992). However, because Plaintiff's allegations fail to state a constitutional claim, as set forth below, the Court will dismiss the action on the merits.
C. Eighth Amendment
The Eighth Amendment imposes a constitutional limitation on the power of the states to punish those convicted of crimes. Punishment may not be "barbarous" nor may it contravene society's "evolving standards of decency." Rhodes v. Chapman, 452 U.S. 337, 346 (1981). The Amendment, therefore, prohibits conduct by prison officials that involves the "unnecessary and wanton infliction of pain." Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987) (per curiam) (quoting Rhodes, 452 U.S. at 346). The deprivation alleged "must result in the denial of `the minimal civilized measure of life's necessities.'" Rhodes, 452 U.S. at 347; see also Wilson v. Yaklich, 148 F.3d 596, 600-601 (6th Cir. 1998). The Eighth Amendment is only concerned with "deprivations of essential food, medical care, or sanitation" or "other conditions intolerable for prison confinement." Rhodes, 452 U.S. at 348. Moreover, "[n]ot every unpleasant experience a prisoner might endure while incarcerated constitutes cruel and unusual punishment within the meaning of the Eighth Amendment." Ivey, 832 F.2d at 954.
"[B]ecause the sexual harassment or abuse of an inmate by a corrections officer can never serve a legitimate penological purpose and may well result in severe physical and psychological harm, such abuse can, in certain circumstances, constitute the `unnecessary and wanton infliction of pain' forbidden by the Eighth Amendment." Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997) (quoted cases omitted). "To prevail on a constitutional claim of sexual harassment, an inmate must therefore prove, as an objective matter, that the alleged abuse or harassment caused `pain' and, as a subjective matter, that the officer in question acted with a sufficiently culpable state of mind." Freitas, 109 F.3d at 1338 (citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)).
Circuit courts consistently have held that sexual harassment, absent contact or touching, does not satisfy the objective requirement because such conduct does not constitute the unnecessary and wanton infliction of pain. See Morales v. Mackalm, 278 F.3d 126, 132 (2d Cir. 2002) (allegations that prison guard asked prisoner to have sex with her and to masturbate in front of her and other female staffers did not rise to level of Eighth Amendment violation); Barney v. Pulsipher, 143 F.3d 1299, 1311 n. 11 (10th Cir. 1998) (allegations that county jailer subjected female prisoners to severe verbal sexual harassment and intimidation was not sufficient to state a claim under the Eighth Amendment); Howard v. Everett, No. 99-1277EA, 2000 WL 268493, at *1 (8th Cir. March 10, 2000) (sexual comments and gestures by prison guards did not constitute unnecessary and wonton infliction of pain); Zander v. McGinnis, No. 97-1484, 1998 WL 384625, at *2 (6th Cir. June 19, 1998) (verbal abuse of mouthing "pet names" at prisoner for ten months failed to state an Eighth Amendment claim); Murray v. United States Bureau of Prisons, No. 95-5204, 1997 WL 34677, at *3 (6th Cir. Jan. 28, 1997) (magistrate judge correctly held that verbal abuse in the form of offensive remarks regarding a transsexual prisoner's bodily appearance, transsexualism, and presumed sexual preference cannot state an Eighth Amendment claim); cf. Seltzer-Bey v. Delo, 66 F.3d 961, 962-63 (8th Cir. 1995) (allegations that prison guard conducted daily strip searches, made sexual comments about prisoner's penis and buttocks, and rubbed prisoner's buttocks with nightstick were sufficient to withstand motion for summary judgment).
Numerous circuit court decisions, including an unpublished opinion of the Sixth Circuit, have held that even some touching is insufficient to state an Eighth Amendment claim. See, e.g., Johnson v. Ward, No. 99-1596, 2000 WL 659354, at *1 (6th Cir. May 11, 2000) (male prisoner's claim that a male officer placed his hand on the prisoner's buttock in a sexual manner and made an offensive sexual remark did not meet the objective component of the Eighth Amendment); Berryhill v. Schriro, 137 F.3d 1073, 1075 (8th Cir. 1998) (where inmate failed to assert that he feared sexual abuse, two brief touches to his buttocks could not be construed as sexual assault); Boddie v. Schneider, 105 F.3d 857, 859-61 (2d Cir. 1997) (court dismissed as inadequate a prisoner's claim that a female corrections officer made a pass at him, squeezed his hand, touched his penis, called him a "sexy black devil," pressed her breasts against his chest, and pushed her vagina against his penis).
To the extent Plaintiff makes allegations about male jail guards viewing her naked condition while she was on suicide watch, her claim fails to meet the Eighth Amendment standard. See Schroeder v. Andrews, No. 97-2300, 1997 WL 829270, at * 1-2 (2d Cir. Dec. 8, 1997) (holding that guard's placement of prisoner in "`see through' paper gown" before escorting her past other inmates did not rise to Eighth Amendment violation). Plaintiff alleges no touching or any other egregious behavior by any prison guard beyond the simple observation required in their role. As a result, Plaintiff fails to state a claim against any prison guard for sexual harassment.
With respect to Plaintiff's claim that Defendants facilitated or failed to protect her from sexually harassing conduct by male prisoners, Plaintiff also fails to state a claim. In its prohibition of "cruel and unusual punishments," the Eighth Amendment places restraints on prison officials, directing that they must "take reasonable measures to guarantee the safety of the inmates." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-527 (1984)). To establish liability under the Eighth Amendment for a claim based on a failure to prevent harm to a prisoner, Plaintiff must show that the prison officials acted with "deliberate indifference" to a substantial risk that another person would cause the prisoner serious harm. Farmer v. Brennan, 511 U.S. at 834; Helling v. McKinney, 509 U.S. 25, 32 (1993); Woods v. Lecureux, 110 F.3d 1215, 1222 (6th Cir. 1997); Street, 102 F.3d at 814; Taylor v. Michigan Dep't of Corrections, 69 F.3d 76, 79 (6th Cir. 1995). See Curry v. Scott, 249 F.3d 493, 506 (6th Cir. 2001).
Assuming Plaintiff's allegations to be true, jail conditions permitting male prisoners to expose female prisoners to unwanted sexual images and language may be offensive, but they do not rise to the level of an Eighth Amendment violation or constitute the type of sufficiently serious harm that would trigger Defendants' duty to protect. See Farmer, 511 U.S. at 834. Plaintiff does not allege that any prisoner touched her or had any form of physical contact with her. Acts of verbal sexual harassment, standing alone, are insufficient to state a claim under the Eighth Amendment. See Morales, 278 F.3d at 132; Zander, 1998 WL 384625, at *2.
Finally, Plaintiff does not allege or show that she suffered physical injury from any of the alleged conduct. As a result, her Eighth Amendment claim for mental anguish is barred by 42 U.S.C. § 1997e(e), which precludes any claim by a prisoner "for mental or emotional injury suffered while in custody without a prior showing of physical injury." See Perkins v. Kansas Dep't of Corr., 165 F.3d 803, 807 (10th Cir. 1999); Gomez v. Chandler, 163 F.3d 921, 924 (5th Cir. 1999); Zehner v. Trigg, 133 F.3d 459, 461 (7th Cir. 1997); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997); Oliver v. Sundquist, No. 00-6372, 2001 WL 669994, at *1 (6th Cir. June 7, 2001); Siller v. Dean, No. 99-5323, 2000 WL 145167, at *2 (6th Cir. Feb. 1, 2000). For all these reasons, Plaintiff's allegations fails to state an Eighth Amendment claim against any defendant.
Conclusion
Having conducted the review now required by the Prison Litigation Reform Act, the Court determines that Plaintiff's action fails to state a claim and will therefore be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c).
The Court must next decide whether an appeal of this action would be in good faith within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the $255 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless Plaintiff is barred from proceeding in forma pauperis, e.g., by the "three-strikes" rule of § 1915(g). If he is barred, he will be required to pay the $255 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A Judgment consistent with this Opinion will be entered.