Charlie Omar Coleman v. Brandon Kent

NOT RECOMMENDED FOR PUBLICATION

File Name: 25a0315n.06 No. 24-1737

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CHARLIE OMAR COLEMAN,

Plaintiff-Appellant, v.

BRANDON KENT et al., Defendants-Appellees.

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ON APPEAL FROM THE

UNITED STATES DISTRICT

COURT FOR THE WESTERN

DISTRICT OF MICHIGAN

OPINION

Before: MOORE, GRIFFIN, and KETHLEDGE, Circuit Judges.

KAREN NELSON MOORE, Circuit Judge. Charlie Coleman, a Michigan prisoner, allegedly suffered racial slurs, an injured eye, and a threat of violence after he threatened to exercise his First Amendment right to file a grievance. After suffering these abuses, Coleman brought First Amendment retaliation and equal-protection claims against Correctional Officer Brandon Kent.¹On initial screening, the district court sua sponte dismissed Coleman's complaint with prejudice for failure to state a claim.

For the reasons that follow, we AFFIRM IN PART and REVERSE IN PART the district court's decision, and REMAND for proceedings consistent with this decision.

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I. BACKGROUND

A. Factual Background

We recite the facts as alleged in the complaint. Savel v. MetroHealth Sys., 96 F.4th 932, 937 (6th Cir. 2024). Coleman is a state prisoner who was housed at all relevant times in the Marquette Branch Prison ("MBP") in the Michigan Department of Corrections ("MDOC"). R. 1 (Compl. ¶ 3) (Page ID #2).

On November 8, 2021, as Coleman was released from segregated housing, Defendant Correctional Officer Kent stopped him. Id. ¶ 6 (Page ID #2). According to Coleman, it is MDOC policy that, prior to returning from segregation, a prisoner and authorized staff must inspect the prisoner's cell to ensure it has not been damaged or otherwise tampered with. Id. ¶ 6 (Page ID #3). After completing the inspection, both sign a "cell evaluation sheet" proving the inspection occurred. Id. Kent demanded that Coleman accept a cell evaluation sheet without first inspecting Coleman's cell. Id. Coleman denied Kent's demand. Id. Kent, in response, said to Coleman:

"You mother***ing n***er! Take this f***ing cell sheet before I send you back to seg!" Coleman

v. Kent, No. 2:23-cv-172, 2024 WL 3664569, at *2 (W.D. Mich. Aug. 6, 2024) (alterations in original) (quoting R. 1 (Compl. ¶ 6) (Page ID #3)). Coleman threatened to file a grievance about Kent's derogatory language, and a third party escorted Coleman back to his cell. R. 1 (Compl. ¶ 6) (Page ID #3).

Almost four months later, on March 5, 2022, Kent delivered mail to Coleman's cell. Id. ¶ 7 (Page ID #3). After Coleman received his mail, he placed the state envelope on his cell bars for Kent to retrieve. Id. Kent did so and then walked away. Id. Shortly thereafter, Coleman "felt a prick in his left eye." Id. ¶ 8 (Page ID #3). Apparently, Kent had crumpled up the envelope and

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thrown it at Coleman. Id. ¶ 8 (Page ID #3-4). Kent then verbally harassed Coleman, which prompted Coleman to threaten to file another grievance about Kent's harassment. Id. ¶ 9 (Page ID #4). Kent hurled another racial epithet at Coleman and threatened to attack him. Id. Coleman reached through his cell bars and hit Kent in the face. Id. Coleman never received treatment for his eye injury. Id. ¶ 13 (Page ID #5).

That same day, on March 5, 2022, Coleman complained to Defendant Captain Leach that Kent had instigated the incident. Id. ¶ 12 (Page ID #4). To prove his point, Coleman asked Leach to look at the camera footage. Id. Leach declined to investigate, and told Coleman he can "rot"

in segregation. Id. Coleman then threatened to file a grievance against Leach, which earned Coleman yet more invectives. Id. ¶ 12 (Page ID #5).

Later that month, on March 29, 2022, Defendant Sergeant Allen interviewed Coleman about the incident involving Kent. Id. ¶ 14 (Page ID #5). Allen accused Coleman of lying about Kent initiating the incident. Id. Although Coleman insisted that the camera footage would prove that Kent started the fight, Allen stated that he would never go against his colleague. Id. Leach then denied Coleman's grievance related to the Kent incident. Id. ¶ 15 (Page ID #6). Ultimately, at Coleman's misconduct hearing for assaulting Kent, the camera footage from the incident showed that Kent instigated the conflict. Id. ¶ 16 (Page ID #6). Despite proof that Kent instigated, Defendant Hearing Officer Mohrman found Coleman guilty of assault on staff. Id.

B. District Court Proceedings

On September 5, 2023, Coleman filed a pro-se-prisoner complaint in the district court against Kent, Allen, Leach, Mohrman, and unknown medical staff related to Coleman's

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harassment, assault, misconduct hearing, and lack of medical care for his eye. Coleman, 2024 WL 3664569, at *1, *3. Coleman consented to a magistrate judge and participated in early mediation. Id. at *1. After early mediation fell through, the magistrate judge conducted an initial review pursuant to the Prison Litigation Reform Act. Id. The district court construed Coleman's complaint as raising the following, relevant²claims: "First Amendment retaliation, . . . and Fourteenth Amendment 'racial discrimination' claims against" Kent. Coleman, 2024 WL 3664569, at *3.

Regarding Coleman's First Amendment retaliation claim, the district court found that Coleman could not state a claim for relief because "threatening to 'f*** [Plaintiff] up again'" does not constitute an adverse action under circuit precedent. Id. at *5 (alterations in original) (quoting R. 1 (Compl. ¶ 9) (Page ID #4)); see also id. at *5 (citing Smith v. Craven, 61 F. App'x 159, 162 (6th Cir. 2003); Spearman v. Williams, No. 22-1309, 2023 WL 7000971, at *4 (6th Cir. July 17, 2023); Hardy v. Adams, No. 16-2055, 2018 WL 3559190, at *3 (6th Cir. Apr. 13, 2018)). Regarding Coleman's equal-protection claim, the district court reached two points. First, it held that Coleman's allegations failed to state a claim for relief on his race-based claim because they did not identify any comparators and were "wholly conclusory." Id. at *10. Second, the district court found that Coleman could not state a "class-of-one" equal-protection claim for the same reasons as his race-based claim. Id. at *10-11.

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The district court dismissed Coleman's claims with prejudice. Id. at *12; see also R. 14 (Judgment) (Page ID #76) (dismissing case with prejudice). Coleman timely appealed. R. 16 (Notice of Appeal) (Page ID #79).

II. STANDARD OF REVIEW

"We review a district court's decision to dismiss under 28 U.S.C. §§ 1915(e), 1915A, and

42 U.S.C.§ 1997e de novo." Wershe v. Combs, 763 F.3d 500, 505 (6th Cir. 2014) (quoting Grinter

v. Knight, 532 F.3d 567, 571-72 (6th Cir. 2008)). "In determining whether a prisoner has failed to state a claim, we construe his complaint in the light most favorable to him, accept his factual allegations as true, and determine whether he can prove any set of facts that would entitle him to relief." Id. (quoting Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005)).

III. ANALYSIS

For the reasons that follow, we reverse the district court's decision dismissing Coleman's claims with prejudice. Before addressing the merits of that decision, we note that district courts should not lightly dismiss pro-se complaints with prejudice and without leave to amend when the plaintiff has "an arguable claim." Brown v. Matauszak, 415 F. App'x 608, 614-15 (6th Cir. 2011) (quoting Wolf v. Petrock, 382 F. App'x 674, 677 (10th Cir. 2010)). Pro-se plaintiffs should be afforded the opportunity to amend prior to sua sponte dismissal, especially when, as is the case here, the plaintiff's claims are not patently frivolous. See, e.g., Luevano v. Wal-Mart Stores, Inc.,

722 F.3d 1014, 1024 (7th Cir. 2013) ("These circuits have crafted a sensible rule: IFP applicants whose complaints are dismissed pursuant to a section 1915 screening for failure to state a claim should be granted leave to amend at least once in all cases in which Rule 15(a) would permit leave

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to amend."); Brown v. Johnson, 387 F.3d 1344, 1348 (11th Cir. 2004); Salahuddin v. Cuomo, 861 F.2d 40, 42-43 (2d Cir. 1988).

A. First Amendment Retaliation

We reverse the district court's decision to dismiss with prejudice Coleman's First Amendment retaliation claim.

A First Amendment retaliation claim "entails three elements: (1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two[.]" Bell v. Johnson, 308 F.3d 594, 602 (6th Cir. 2002) (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc)). The parties dispute the second element, whether Coleman has sufficiently alleged that Kent's actions qualify as an adverse action.³

We hold that Coleman has sufficiently alleged an adverse action for purposes of proceeding past initial review under the PLRA. As the en banc court in Thaddeus-X explained, "while certain threats or deprivations are so de minimis that they do not rise to the level of being constitutional violations, this threshold is intended to weed out only inconsequential actions . . . ." 175 F.3d at

398. Therefore, "in most cases, the question of whether an alleged retaliatory action poses a sufficient deterrent threat to be actionable will not be amenable to resolution as a matter of law."

Bell, 308 F.3d at 603.

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Based on Coleman's allegations, and in light of the fact-intensive nature of the adverse- action element, Coleman has sufficiently pleaded an adverse action. On November 8, 2021, Kent used a racial slur against Coleman after Coleman attempted to exercise his rights under MDOC policy. R. 1 (Compl. ¶ 6) (Page ID #2-3). Coleman then warned Kent that he would file a grievance against Kent for "his vulgar and offensive speech," and a different officer had to take Coleman to his cell to prevent further escalation. Id. ¶ 6 (Page ID #6). Then, a few months later, Kent provoked Coleman by throwing a piece of paper that injured Coleman's left eye. Id. ¶¶ 8-9 (Page ID #3-4). When Coleman threatened to file a grievance, Kent said, "Do it, and I will f*** you up again, n***er." See id. As other courts have recognized, this particularly odious slur carries with it the weight of centuries of hate. See, e.g., Bennett v. Metro. Gov't of Nashville & Davidson Cnty., 977 F.3d 530, 543 & n.7 (6th Cir. 2020); Gates v. Bd. of Educ. of the City of Chicago, 916 F.3d 631, 640 (7th Cir. 2019); Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013) (per curiam). Kent allegedly used this word twice. On the second occasion, he injured Coleman's eye and threatened to harm him physically. Taken together, Coleman has alleged a pattern of derogatory treatment, physical harm, and the threat of physical harm. These allegations are sufficient at this stage to allege an adverse action. An inmate of ordinary firmness would be deterred from exercising his or her First Amendment rights based on Kent's history of confronting Coleman and his direct threat of physical harm, so Coleman's allegations are sufficient at this stage to allege an adverse action.

The cases relied on by MDOC do not convince us otherwise. As we held in Walker v. Baker, threats accompanied by "more" can constitute an adverse action for purposes of pleading First Amendment retaliation. No. 23-1232, 2023 WL 6380124, at *4 (6th Cir. Sept. 27, 2023)

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(order). In Walker, a prisoner in Michigan custody filed a First Amendment retaliation claim based on harassment he had received from a corrections officer. Id. at *1. The Walker plaintiff alleged that, on two different days, a correction officer made lewd comments directed at the plaintiff. Id. The plaintiff did not allege the comments escalated to physical harm, id., unlike how Coleman has alleged here. Nor did the comments involve threats of violence, id., unlike how Coleman has alleged here. Nor did the threats involve repeated use of an odious slur, id., unlike how Coleman has alleged here. Yet Walker held that the plaintiff had stated a First Amendment retaliation claim. Id. at *3-4. Because Coleman has alleged more, we see no reason to reach a different result. MDOC's reliance on Spearman v. Williams also does not persuade us to reach a different result. No. 22-1309, 2023 WL 7000971 (6th Cir. July 17, 2023) (order). Spearman held in an unpublished, nonbinding order that an isolated incident of a mere threat—coupled with spitting—

"does not amount to a constitutional violation." Id. at *4. But, as we have already explained, Coleman has alleged more. Coleman has alleged a pattern of escalation by Kent in response to Coleman's threats to file grievances against Kent. Kent's allegedly racist remarks escalated to physical harm and threats of physical violence. The nature of the threats and escalation alleged by Coleman is unlike the isolated incident alleged in Spearman.

Similarly distinguishable is the unpublished order in Hardy v. Adams, No. 16-2055, 2018 WL 3559190 (6th Cir. Apr. 13, 2018) (order). In Hardy, the plaintiff alleged that he was told that his life would be a "living hell" if he did not drop a lawsuit. Id. at *3. The panel held that the mere threat, on its own, was too vague to constitute an adverse action. Id. Unlike the plaintiff in Hardy, Coleman has alleged more than a mere threat. As Hardy notes, "a threat can constitute an

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adverse action if the threat is capable of deterring a person of ordinary firmness from engaging in a protected conduct." Id. We believe Coleman's allegations satisfy this standard. Taking Coleman's allegations as true, we hold that he has stated a claim for First Amendment retaliation for purposes of screening under the PLRA.

B. Equal Protection Claim

We hold that Coleman may proceed to service on his equal-protection claim.

"To state an equal protection claim, a plaintiff must adequately plead that the government treated the plaintiff 'disparately as compared to similarly situated persons and that such disparate treatment either burdens a fundamental right, targets a suspect class, or has no rational basis.'"

Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011) (quoting Club Italia Soccer & Sports Org., Inc. v. Charter Township of Shelby, 470 F.3d 286, 299 (6th Cir.

2006)).

As we have held on multiple occasions, a plaintiff need not allege that he or she "was treated differently than similarly-situated members of the unprotected class" if the plaintiff has alleged "direct evidence of discrimination." See Umani v. Mich. Dep't of Corr., 432 F. App'x 453, 460 (6th Cir. 2011) (per curiam) (citing Lautermilch v. Findlay City Sch., 314 F.3d 271, 275 (6th Cir. 2003)); accord Davis v. Prison Health Servs., 679 F.3d 433, 439-40 (6th Cir. 2012). This is especially true with a pro-se prisoner's complaint, which "should not be dismissed sua sponte because of failure to identify similarly situated prisoners." Robinson v. Killips, No. 18-1485, 2019 WL 1931873, at *2 (6th Cir. Feb. 22, 2019) (order) (citing Davis, 679 F.3d at 439-40). Because Coleman proceeds on a theory of direct evidence of discrimination—as evidenced by Kent's repeated use of a racial slur against Coleman—Coleman's complaint is not inadequate for failing

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to allege that similarly situated inmates were treated differently. There is no question that repeated use of the n-word is direct evidence of discriminatory animus. Accordingly, we reject MDOC's argument that we must affirm the district court's decision because Coleman failed to allege any comparators. MDOC Br. at 17-18.

Coleman argues that, properly framed, his equal-protection claim is that Kent threatened and assaulted him because of Kent's racial animus. Reply at 3. In other words, Coleman's equal- protection claim is that Kent's repeated use of a racial slur is evidence that his threats and assaults were motivated by racial animus. See id. Thus, the proper question is not whether use of a slur alone rises to the level of an equal-protection claim. Rather, the proper inquiry is whether racially discriminatory language "coupled with some additional harassment or constitutional violation"

qualifies as an equal-protection claim. Taylor v. City of Falmouth, 187 F. App'x 596, 601 (6th Cir. 2006) (per curiam) (quoting King v. City of Eastpointe, 86 F. App'x 790, 814 (6th Cir. 2003) (Moore, J., concurring in part and dissenting in part)).

Although no opinion from this circuit has formally adopted this position, Coleman urges us to adopt the Fifth Circuit's position as articulated in Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004). Coleman Br. at 10; see also Reply at 3. In Johnson, the Fifth Circuit held that allegations that a plaintiff "was denied protection because of his [protected class]" could support an equal- protection claim, where "the [discriminatory] comments are relevant because they tend to reveal the defendants' reasons for their actions in denying him safekeeping." Johnson, 385 F.3d at 530. Johnson similarly concludes that "inference-producing comparisons are unnecessary where the § 1983 plaintiff has direct evidence of discriminatory motive." Id. at 531. For purposes of initial review of Coleman's claims under the PLRA, we adopt the Fifth Circuit's position. Coleman

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proceeds on the theory that he was assaulted and threatened on the basis of his race. This, according to Coleman, is the right way to frame his claims.

Based on this framework Coleman's allegations are sufficient. Not only has Coleman alleged an escalating pattern of derogatory verbal abuse, but also Kent allegedly injured Coleman's eye, threatened violence, and retaliated against Coleman for his exercise of his First Amendment rights. Coleman's complaint alleges that Kent "assault[ed] and batter[ed]" him and "used vulgar racial comments" in violation of his Frist Amendment rights. R. 1 (Compl. ¶ 18) (Page ID #7-8). An escalating pattern of abuse, coupled with physical harm and an alleged constitutional violation, is sufficient in these circumstances. Coleman has alleged more than mere derogatory verbal abuse. Nor is it dispositive that he did not include comparators in his complaint. Not only was Coleman's complaint drafted pro se and without leave to amend any apparent deficiencies, but also he proceeds on a theory of direct proof of racial discrimination.

Accordingly, Coleman may proceed to service on his equal-protection claim as well as on his First Amendment retaliation claim.

IV. CONCLUSION

For these reasons, we AFFIRM IN PART and REVERSE IN PART the order and judgment of the district court and REMAND for proceedings consistent with this opinion.