UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

AUDREY AIKENS,

Plaintiff, No. 15-12016

v. District Judge Linda V. Parker

Magistrate Judge R. Steven Whalen

JOLANDRA MACK, ET AL.,

Defendants.

 /

REPORT AND RECOMMENDATION

On June 3, 2015, Plaintiff Audrey Aikens, a prison inmate in the custody of the

Michigan Department of Corrections (“MDOC”), filed a pro se complaint under 42

U.S.C. § 1983, alleging violation the Eighth Amendment [Doc. #1]. Before the Court are

motions for summary judgment filed by Defendants Jolandra Mack [Doc. #21] and Krista

Boyd [Doc. #30], which have been referred for Reports and Recommendations pursuant

to 28 U.S.C. § 636(b)(1)(B). Because these Defendants are entitled to qualified immunity,

I recommend that both motions be GRANTED.

I. FACTS

On January 4, 2015, Ms. Aikens was housed in the Level IV unit of the Huron

Valley Correctional Facility, an MDOC women’s facility. Complaint, p.4 (Statement of

Facts). There is a toilet in her cell, but not in the common area outside the cell. She states

that when an inmate leaves her cell, the door locks automatically, and can only be opened

by prison staff. In other words, “prisoners are not allowed to unlock their assigned cell

doors to go into the cell or come out off their cell at will.” Id. 

On the date in question, Ms. Aikens was outside her cell, and requested to be let

-1-

4:15-cv-12016-LVP-RSW Doc # 33 Filed 02/21/17 Pg 1 of 12 Pg ID 219
into her cell to use the toilet. The matter being urgent, she pled with Defendant Boyd to

be let into her cell, but Officer Boyd told her she was “not letting her in her cell at this

time.” Id. When Ms. Aikens asked permission to use the staff toilet, Officer Boyd

threatened that she would “tase” her if she did so, and “wantonly refus[ed] to open

Plaintiff Aiken’s cell door to allow her use of her cell toilet.” Id.

Ms. Aikens states that she “beseeched” the officers to let her into her cell to use

the toilet because “she was experiencing an urgency due to a medical issue which affects

her bowels often in addition to the poor quality of prison chow hall food.” She alleges

that “staff” were aware of her medical condition. Due to the urgent nature of her need,

“she went into the caustic closet to use the sink drain instead of defecating on herself, her

clothes and the floor.” Officer Mack then locked her in the closet. Officer Mack later

wrote her a Class III misconduct ticket. Id.

Ms. Aikens brings an Eighth Amendment claim, claiming that “[i]t is cruel and

unusual punishment to refuse Plaintiff use of a toilet and locking Plaintiff in the caustic

closet when it was not reasonabl[y] related to legitimate penological interests.” Id., at 5

(Statement of Claims). She seeks declaratory and monetary relief.

Defendant Mack’s affidavit is appended to her motion [Doc. #21] as Exhibit 1. She

states that on January 4, 2014, between 7:15 and 7:20 p.m., Ms. Aikens told her and other

officers that she need to use the bathroom. Officer Mack told her that she would have to

wait until the officers finished their rounds, which would be about five minutes. Mack

Affidavit, ¶ 4. Ms. Aikens stated that if she could not use the toilet in her cell, she would

use the staff bathroom. She was advised that such action was impermissible, and Officer

Mack told her “not to make the situation worse by going into the staff bathroom without

authorization.” Id. ¶ 5. Shortly later, Officer Make observed Ms. Aikens enter a utility

-2-

4:15-cv-12016-LVP-RSW Doc # 33 Filed 02/21/17 Pg 2 of 12 Pg ID 220
closet and close the door. This utility closet was used by prisoners who were assigned to

clean the housing units; there was a water source, and mop buckets were stored there. Id.

¶ 6. Officer Mack and Officer Santiago observed Ms. Aikens, via security camera, pull

down her pants and sit on the sink. Three other prisoners also became aware of the

situation, Id. ¶ 8, and “[d]ue to the rising concerns of the prisoners on the base at the time

of the incident, the custody staff felt it was necessary to secure the door to the utilities

closet.” Their “purpose in doing this was to ensure the safety of prisoner Akens, the staff

and prisoners who were in the general area.” Id. ¶ 10. Officer Mack states that Ms. Aikens

was secured in the utilities closet for approximately 2 to 4 minutes, during which time

staff “maintained a visual on prisoner Aikens via the security monitor at the desk. This

gave the officers enough time to secure the prisoners who were out at the time back into

their cells.” Id. ¶ 11. After the unit was secured, states Officer Mack, she unlocked the

closet door and escorted Ms. Aikens to the Sergeant’s office. Afterward, Ms. Aikens was

given “the necessary tools to clean the utilities closet.” Id. ¶ 12. Officer Mack states that

at no time during this incident did Ms. Aikens mention any medical condition that would

prevent her from controlling her bowels. Id. ¶ 14. Officer Mack does not specifically

recall whether it was she who locked the closet door, but states that if it were, her actions

would have been “consistent with MDOC policy and necessary considering the situation.”

Id. ¶ 14.

Officer Boyd has submitted her affidavit as Exhibit 1 to her summary judgment

motion [Doc. #31]. Her recitation of facts is virtually identical to those provided by

Officer Mack. She states that she was not verbally abusive to Ms. Aikens, and that her

response to Ms. Aikens’ request to use the bathroom was consistent with MDOC policy.

Boyd Affidavit, ¶ 14. She states that she “used [her] best judgment to help secure the

-3-

4:15-cv-12016-LVP-RSW Doc # 33 Filed 02/21/17 Pg 3 of 12 Pg ID 221
situation, to assist and protect prisoner Aikens, and to protect the other prisoners.” Id. 

¶ 16. 

II. LEGAL PRINCIPLES RE: QUALIFIED IMMUNITY

Qualified immunity is an affirmative defense. A state official is protected by

qualified immunity unless the Plaintiff shows (1) that the Defendant violated a

constitutional right, and (2) the right was clearly established to the extent that a

reasonable person in the Defendant’s position would know that the conduct complained

of was unlawful. Saucier v. Katz, 533 U.S. 194, 202 (2001). Under Saucier, the inquiry

was sequential, requiring the district court to first consider whether there was a

constitutional violation. However, in Pearson v. Callahan, 555 U.S. 223 (2009), the

Supreme Court held that the two-step sequential analysis set forth in Saucier is no longer

mandatory. Rather, Pearson commended the order of inquiry to the judge’s discretion,

to be exercised on a case-by-case basis:

“On reconsidering the procedure required in Saucier, we conclude that,

while the sequence set forth there is often appropriate, it should no longer

be regarded as mandatory. The judges of the district courts and the courts of

appeals should be permitted to exercise their sound discretion in deciding

which of the two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular case at hand.” 

555 U.S. at 235.

The doctrine of qualified immunity affords latitude to government actors who are

discharging their duties. In Hunter v. Bryant, 502 U.S. 224, 229 (1991), the Supreme

Court explained,

“The qualified immunity standard ‘gives ample room for mistaken

judgments’ by protecting ‘all but the plainly incompetent or those who

knowingly violate the law.’ This accommodation for reasonable error exists

because ‘officials should not err always on the side of caution’ because they

fear being sued.” (Internal citations omitted).

Once a defendant has met the burden of affirmatively pleading the defense, the

-4-

4:15-cv-12016-LVP-RSW Doc # 33 Filed 02/21/17 Pg 4 of 12 Pg ID 222
ultimate burden of proof is on the plaintiff to show that a defendant is not entitled to

qualified immunity. Wegener v. Covington, 933 F.2d 390, 392 (6th Cir. 1991). 

III. DISCUSSION

Ms. Aikens claims an Eighth Amendment violation. While the constitution “does

not mandate comfortable prisons,” Rhodes v. Chapman, 452 U.S. 337, 349 (1981), the

Eighth Amendment, which prohibits “cruel and unusual punishments,” does impose a

duty on prison officials to “provide humane conditions of confinement.” Farmer v.

Brennan, 511 U.S. 825, 832 (1994). There is both an objective and a subjective

component to an Eighth Amendment claim regarding conditions of confinement. Under

the objective component, “the deprivation alleged must be, objectively, ‘sufficiently

serious.’” Id. at 833 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Under the

subjective component, the prison official must have a “sufficiently culpable state of mind.

Id. That state of mind is termed “deliberate indifference.” In Farmer v. Brennan, 511 U.S.

at 837, the Supreme Court defined “deliberate indifference” as a subjective test:

“We hold...that a prison official cannot be found liable under the Eighth

Amendment for denying an inmate humane conditions of confinement

unless the official knows of and disregards an excessive risk to inmate

health or safety; the official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists, and

he must also draw the inference.”

A finding of deliberate indifference requires that the official have actual

knowledge of a significant risk; it is not enough that he, she, or a reasonable person

should have known. “[A]n official’s failure to alleviate a significant risk that he should

have perceived but did not, while no cause for commendation, cannot under our cases be

condemned as the infliction of punishment.” Id at 838.

But even prison officials who have actual knowledge of a risk may be excused

from Eighth Amendment liability if they act reasonably under the circumstances.

-5-

4:15-cv-12016-LVP-RSW Doc # 33 Filed 02/21/17 Pg 5 of 12 Pg ID 223
“[P]rison officials who actually knew of a substantial risk to inmate health or safety may

be found free from liability if they responded reasonably to the risk, even if the harm

ultimately was not averted. A prison official’s duty under the Eighth Amendment is to

ensure ‘reasonable safety’... a standard that incorporates due regard for prison officials’

‘unenviable task of keeping dangerous men in safe custody under humane

conditions’....Whether one puts it in terms of duty or deliberate indifference, prison

officials who act reasonably cannot be found liable under the Cruel and Unusual

Punishments Clause.” Id. at 844-45 (internal citations omitted)(emphasis added).

In the present case, Ms. Aikens claims an Eighth Amendment violation based on

her being denied bathroom facilities while corrections officers completed their rounds,

and being locked in a utility closet for a short period of time. Applying a qualified

immunity analysis, I will examine the second prong of Pearson– whether the

constitutional right that the Defendants are accused of violating was clearly established,

with reference to the specific facts of this case. The right in question, however, cannot be

a generalized right. “It must be clearly established in a ‘particularized’ sense, so that ‘the

contours of the right’ are clear enough for any reasonable official in the defendants’

position to know that what the official is doing violates that right.” Danese v. Asman, 875

F.2d 1239, 1242 (6th Cir. 1989)(citations omitted). See also Myers v. Potter, 422 F.3d

347, 356 (6th Cir.2005) (“[W]e do not assess the right violated at a high level of

generality, but instead, we must determine whether the right [is] ‘clearly established’ in a

more particularized ... sense”); Martin v. Heideman, 106 F.3d 1308, 1312 (6th Cir.1997)

(“Because most legal rights are ‘clearly established’ at some level of generality, immunity

would be impossible to obtain if a plaintiff were required only to cite an abstract legal

principle that an official had ‘clearly’ violated”). 

-6-

4:15-cv-12016-LVP-RSW Doc # 33 Filed 02/21/17 Pg 6 of 12 Pg ID 224
There are circumstances under which the denial of bathroom facilities can

constitute an Eighth Amendment violation, but the cases finding such violations are

readily distinguishable from Ms. Aiken’s case. For example, In Barker v. Goodrich, 649

F.3d 428 (6th Cir. 2011), the inmate was effectively denied the use of a toilet overnight,

for about twelve hours. In addition, however, he was handcuffed behind his back in a

detention cell for that period of time, missed a meal, was unable to sit or lie down without

pain, or obtain water from a fountain. The Court discerned no legitimate penological

purpose for these deprivations, and found that in combination they supported an Eighth

Amendment claim. The Court found deliberate indifference because the evidence showed

that the defendants knew that the plaintiff’s restraints would make it difficult for him to

lie down comfortably, push a button for water, or remove his pants to use the toilet, and

chose to ignore these conditions as punishment.

In Hope v. Pelzer, 536 U.S. 730 (2002), the inmate was also denied the use of

bathroom facilities. But there was much more; he was also handcuffed to a hitching post

in the hot sun for an extended period of time and denied water.

In Glaspy v. Malicoat, 134 Fed.Supp.2d 890 (W.D.Mich. 2001), the plaintiff was

the 69-year-old father of a prison inmate. While in the visiting room, both he and his son

told the defendant corrections officer that he (the father) needed to urinate, and that it was

an emergency situation. The officer told plaintiff that he would have to wait until count

was completed. When plaintiff said that he did not think he could wait, the officer called

the control center regarding plaintiff’s request, but did not convey the urgent nature of

that request; the officer at the control center therefore denied the request. When the

plaintiff urinated in his pants, the officer laughed at him. During discovery, the control

center officer testified that had he known of the urgency of the situation, he would have

-7-

4:15-cv-12016-LVP-RSW Doc # 33 Filed 02/21/17 Pg 7 of 12 Pg ID 225
allowed the plaintiff to use the restroom in the visitors’ area. Because the plaintiff was not

an inmate, the court analyzed the case under the Fourteenth Amendment Due Process

Clause, not the Eighth Amendment, finding a Due Process violation. The court found that

the plaintiff had a “fundamental right to urinate,” and that the defendant officer exercised

his authority “without any reasonable justification in the service of a legitimate

governmental objective.” Id. at 895, quoting County of Sacramento v. Lewis, 523 U.S.

833, 846 (1998). There is a clear difference between a situation involving a non-prisoner

in a visiting area where there is no clear policy prohibiting a visitor’s use of a public

bathroom and one involving an inmate inside the prison. See Parter v. Valone, 2006 WL

3086900, *4 (E.D. Mich. 2006), distinguishing Glaspy. In Parter, the officers were

dismissed on qualified immunity grounds, where an inmate was refused permission to

leave the law library for a restroom during his two-hour library time, resulting in the

inmate urinating on himself.

In assessing the reasonableness of an officer’s actions, it is significant whether the

officer had knowledge of an inmate’s medical condition that required frequent bathroom

use. As explained above, knowledge of a serious risk of harm is germane to the deliberate

indifference inquiry. So in Percival v. Stuhler, 2016 WL 4536330, at *7 (W.D. Mich.

2016), the court dismissed an Eighth Amendment claim where there were no alleged facts

that the officers had knowledge of a medical condition:

“In this case, Plaintiff fails to allege facts showing that the named

Defendants were aware of his medical need to use the bathroom more than

once each hour, and that they denied him access to the bathroom despite

this knowledge. Nor does Plaintiff allege that he received a medical

accommodation for unfettered access to the bathroom based on his alleged

diagnosis. Because Plaintiff has failed to allege facts showing that prison

officials were deliberately indifferent to a diagnosed serious medical need,

this claim is properly dismissed.”

Ms. Aikens makes a conclusory allegation that “prison staff” knew she had a

-8-

4:15-cv-12016-LVP-RSW Doc # 33 Filed 02/21/17 Pg 8 of 12 Pg ID 226
medical condition that required frequent bathroom use, but neither alleges nor provides

facts to support that claim. Nor does she state what that medical condition is. She alleges

that other inmates shouted out that she was HIV positive after she relieved herself in the

utility closet, which was obviously after the Defendants denied her immediate bathroom

use. But there are no facts showing that a symptom of being HIV positive is a need for

frequent bathroom use. Accepting as true that prison food is bad, that would not qualify

as a sufficiently serious condition. If it were, all inmates would have unlimited access to

bathrooms at all times.

Other cases hold that there is no constitutional right to an inmate’s immediate

access to a bathroom on demand. See Abdur-Reheem-X v. McGinnis, 198 F.3d 244

(Table), 1999 WL 1045069 *2, (6th Cir. 1999)(“the Eighth Amendment does not require

that prisoners enjoy immediately available and flushable toilets”); Dellis v. Corrections

Corp. of America, 257 F.3d 508, 511-12 (6th Cir. 2001) (no constitutional claim where

prison deprived inmate of a lower bunk, subjected him to a flooded cell, and deprived him

of a working toilet for an unspecified period of time); Rivers v. Pitcher, 68 F.3d 475 (6th

Cir. 1995) (no claim where inmate was allowed to use the toilet every two hours). 

Moreover, it is uncontested that the incident with Ms. Aikens occurred during

rounds, a time when there are legitimate security concerns around the movement of

inmates in and out of their cells. The staff bathroom did not have a security camera, and

thus permitting an inmate to use that facility would create a security risk. Likewise,

locking Ms. Aikens in the utility closet for a short time (between two and ten minutes)

after she defecated in the sink was a security measure, not a punishment. Thus, it cannot

be said that the Defendants had no legitimate penological purpose or motivation in

refusing Ms. Aikens’ request.

-9-

4:15-cv-12016-LVP-RSW Doc # 33 Filed 02/21/17 Pg 9 of 12 Pg ID 227
In short, there may be clearly established law that denial of use of a bathroom

constitutes an Eighth Amendment violation under certain circumstances, eg., where the

deprivation is for a significant period of time; where the denial is one part of a number of

serious deprivations (such as being chained to a post in the hot sun or handcuffed

overnight in a cell); where the officer has actual knowledge of an inmate’s medical

condition that requires frequent bathroom use; or where there is no legitimate penological

justification for the denial. None of those circumstances is present in Ms. Aiken’s case.

To the contrary, and taking all of her allegations as true, Defendants’ actions were

reasonable under the circumstances. See Farmer v. Brennan, 511 U.S. at 844-45. Stated

differently, no “reasonable person in the Defendant[s’] position would know that the

conduct complained of was unlawful. Saucier v. Katz, 533 U.S. at 202. Accordingly,

Defendants are entitled to qualified immunity.

1

IV. CONCLUSION

I recommend that Defendant Mack’s Motion for Summary Judgment [Doc. #21]

and Defendant Boyd’s Motion for Summary Judgment [Doc. #30] both be GRANTED on

the basis of qualified immunity.

Any objections to this Report and Recommendation must be filed within fourteen

(14) days of service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D.

Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further

right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985);

Howard v. Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638

1

 This is not to say that the denial of bathroom facilities was commendable or that

Ms. Aikens’ request to use a bathroom was unreasonable. Indeed, given what is now seen

as the urgency of her situation, and her Hobson’s choice of using the utility sink or soiling

herself, she likely made the best choice she could under the circumstances. In a more

perfect world, she would have received an apology, not a misconduct ticket.

-10-

4:15-cv-12016-LVP-RSW Doc # 33 Filed 02/21/17 Pg 10 of 12 Pg ID 228
F.2d 947 (6th

 Cir. 1981). Filing of objections which raise some issues but fail to raise

others with specificity will not preserve all the objections a party might have to this

Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 

1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 

1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served

upon this Magistrate Judge.

Within fourteen (14) days of service of any objecting party’s timely filed objections,

the opposing party may file a response. The response shall be not more than twenty (20)

pages in length unless by motion and order such page limit is extended by the court. The

response shall address specifically, and in the same order raised, each issue contained within

the objections. 

s/R. Steven Whalen 

R. STEVEN WHALEN

United States Magistrate Judge

Dated: February 21, 2017

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was sent to parties of record on

February 21, 2017, electronically and/or by U.S. mail.

s/Carolyn M. Ciesla 

Case Manager 

-11-

4:15-cv-12016-LVP-RSW Doc # 33 Filed 02/21/17 Pg 11 of 12 Pg ID 229
-12-

4:15-cv-12016-LVP-RSW Doc # 33 Filed 02/21/17 Pg 12 of 12 Pg ID 230