NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 12a0466n.06

No. 11-2383

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MARTIN TONY SOLOMON,

Plaintiff-Appellant,

v.

MICHIGAN DEPARTMENT OF

CORRECTIONS,

Defendant,

UNKNOWN TERVO; M. CODY;

L. BUCKNER,

Defendants-Appellees.

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ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF

MICHIGAN

Before: MARTIN and CLAY, Circuit Judges; HOOD, District Judge.*

PER CURIAM. Martin Tony Solomon, a Michigan prisoner proceeding pro se, appeals a

district court judgment dismissing his civil rights complaint filed pursuant to 42 U.S.C. § 1983. 

In March 2010, Solomon sued the Michigan Department of Corrections; the Director of the

Department of Corrections, Patricia Caruso; the MarquetteBranch Prison; the prison Warden, Gerald

Hofbauer; a prison correctional officer, Joel Tervo; and two prison supervisory officers, Matthew

Cody and Lewis Buckner. Solomon claimed that the defendants violated his Eighth Amendment

rights when: 1) Tervo sexually assaulted him on two occasions during pat-down searches; 2) Cody

The Honorable Joseph M. Hood, United States District Judge for the Eastern District of *

Kentucky, sitting by designation.
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and Buckner failed to protect him from Tervo’s sexual advances; 3) Hofbauer erroneously ruled

against him on administrative appeal; and 4) Caruso failed to respond to “several request letters.”

The district court issued an order dismissing the complaint against the Department of

Corrections, the prison, Caruso, and Hofbauer. The remaining defendants filed a motion for

summary judgment, to which Solomon responded. 

A magistrate judge recommended that the district court grant summary judgment in favor of

the defendants, concluding that: 1) Solomon failed to exhaust his administrative remedies with

respect to Buckner and Cody; 2) Tervo’s conduct did not rise to the level of an Eighth Amendment

violation; 3) Buckner and Cody were not deliberately indifferent to Solomon’s safety because they

investigated his allegations and determined that the evidence did not support his complaints against

Tervo; 4) Solomon’s official-capacity claims were barred by Eleventh Amendment immunity; and

5) Solomon’s individual-capacity claims were barred by qualified immunity. 

Solomon filed objections, generally stating that he objected “to the entire content of the

magistrate’s findings.” He specifically argued, however, that: 1) the magistrate judge erred in

concluding that he did not exhaust his administrative remedies against Buckner and Cody because

the exhaustion requirement was excused by those defendants’ threats that he should not pursue any

grievance against them; and 2) the magistrate judge erred in recommending summary judgment on

his claim against Tervo because Tervo’s conduct amounted to a sexual assault, not mere sexual

harassment. The district court overruled Solomon’s objections and granted summary judgment for

Tervo, Buckner, and Cody.

On appeal, Solomon argues that the district court erred when it concluded that: 1) Tervo’s

alleged sexually assaultive conduct did not rise to the level of an Eighth Amendment violation; and
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2) Buckner and Cody’s alleged threats did not excuse his burden of exhausting his administrative

remedies.

Solomon presents no arguments on appeal challenging the dismissal of his claims against the

remaining defendants. Therefore, these claims are deemed abandoned and not reviewable on appeal. 

See Grace Cmty. Church v. Lenox Twp., 544 F.3d 609, 618 n.1 (6th Cir. 2008). We will not review

the magistrate judge’s recommendation that the district court grant summary judgment with respect

to: 1) Solomon’s claims that Buckner and Cody were deliberately indifferent to his safety; 2) his

official capacity claims against these defendants; and 3) his individual capacity claims against these

defendants because Solomon did not raise specific objections to these issues in his objections to the

magistrate judge’s report. See Thomas v. Arn, 474 U.S. 140, 155 (1985). Although Solomon raised

a general objection to “all of the magistrate’s findings,” such a general objection is insufficient to

satisfy the objection requirement. See Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006).

The district court did not err when it granted summary judgment in favor of the defendants

with respect to Solomon’s remaining claims. We review a grant of summary judgment de novo. 

Dixon v. Gonzales, 481 F.3d 324, 330 (6th Cir. 2007). Summary judgment is proper “if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a).

The Eighth Amendment prohibits anypunishment that violates civilized standards of decency

or reflects unnecessary and wanton infliction of pain. Estelle v. Gamble, 429 U.S. 97, 102–03

(1976). A viable Eighth Amendment claim has an objective and a subjective component. Farmer

v. Brennan, 511 U.S. 825, 834 (1994). The objective component requires that the pain be

sufficiently serious within the context of “contemporary standards of decency.” Hudson v.

McMillian, 503 U.S. 1, 8–9 (1992) (internal quotation marks and citation omitted). The subjective
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component requires the plaintiff to show that the defendant acted with deliberate indifference to an

inmate’s health or safety. The plaintiff must show that prison officials had a “sufficiently culpable

state of mind,” where the officials were aware of and disregarded an excessive risk to an inmate’s

health or safety. Farmer, 511 U.S. at 834 (internal quotation marks and citation omitted). 

Tervo’s alleged misconduct does not rise to a constitutional level. Minor, isolated incidents

of touching, even if coupled with offensive sexual remarks, do not rise to the level of an Eighth

Amendment violation. See Boddie v. Schnieder, 105 F.3d 857, 859–61 (2d Cir. 1997). 

Solomon’s allegations that Tervo “sexually assaulted” him involve two brief incidents of

physical contact during pat-down searches, coupled with sexually offensive remarks. On one

occasion, Tervo allegedly groped Solomon’s penis, both inside and outside of his pants, while

making sexually suggestive comments. However, Solomon acknowledged that Tervo searched his

“groin area,” indicated that he felt something, and then checked inside of Solomon’s pants while

informing Solomon that he was checking to make sure that Solomon was not stealing anything from

the kitchen. Although Solomon alleged that he warned Tervo that he intended to file a grievance

concerning the pat-down, and that Tervo squeezed his penis hard enough to cause pain, Solomon did

not allege that he was injured. On another occasion, Solomon alleged that he attempted to leave the

kitchen area after completing his work detail, but that Tervo blocked his way, pressed his erect penis

into Solomon’s buttocks during the search, and made sexually suggestive remarks about Solomon’s

buttocks. He also alleged that Tervo grabbed his penis. However, Solomon again acknowledged

that this conduct occurred during a pat-down, that Tervo prevented him from leaving prior to the patdown, and instructed Solomon to comply with the pat-down. These isolated incidents of “sexual”

touching, even coupled with sexual remarks, do not rise to the level of a constitutional violation. 

Id. Although Solomon complains of conduct that would certainly be improper, the record reflects
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that the conduct was brief, and limited to the context of two pat-down searches that were warranted

after Solomon had completed his work detail in the kitchen. Moreover, the prison conducted

investigations into Solomon’s allegations, but dismissed them as unsupported by the evidence.

Furthermore, the district court did not err when it concluded that Solomon was required to

exhaust his administrative remedies against Buckner and Cody prior to filing his § 1983 complaint. 

The Prison Litigation Reform Act of 1995 requires that prisoners exhaust “available” prison

grievance procedures before filing a § 1983 claim. 42 U.S.C. § 1997e(a). “[E]xhaustion is

mandatory . . . and . . . unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199,

211 (2007). A prisoner must properly exhaust his remedies before filing his § 1983 complaint. 

Woodford v. Ngo, 548 U.S. 81, 93 (2006). Solomon does not dispute that he failed to exhaust his

remedies against these defendants because he did not name them in his Step I grievances. Instead,

he argues that Buckner and Cody threatened him about pursuing a grievance against them and that,

pursuant to Woodford, these threats relieved him of his duty to exhaust his administrative remedies. 

The district court properly rejected this argument because Woodford does not stand for the

proposition Solomon espouses. Rather, Woodford explicitly requires proper exhaustion before an

inmate may file a § 1983 complaint. Id. 

We affirm the district court’s judgment.