Wiley II v. State of Kentucky, Department of Corrections et al
Filing
16
MEMORANDUM OPINION & ORDER, 1) Clerk modify CM/ECF sheet to reflect that a) dft Billy J. Patrick is also known as "Patrick Billys" and b) KDOC is a separate, specific dft in this proceeding 2) following claims are DISMISSED WITH PREJUDICE f or failure to state a claim upon which relief can be granted a) claim against State of KY the KDOC and all seven EKCC dfts in their official capacities b) that dft Patrick Billys and Jamie Nickells denied him a Quran for one day on 8/19/10 c) challen ging the conditions of his confinement in the "dry cell" between 8/19/10 and 9/11/10; d) claims alleging verbal abuse and verbal harrassment while he was confined for two weeks in "dry cell" e) claims alleging dft Shawn McKensie e xposed him to overflowing toilets, raw sewage and offensive odors between 9/11-12/10; f) freedom on religion claims and his 14th amendment equal protection claims challenging EKCC mail room placing a seven day hold on his incoming mail/religious lite rature g) claims alleging discovery of a dead rat in his soup on 5/1/11; h) claims alleging on 6/10/10 dft Shawn McKensie denied him access to his legal documents i) claims stemming from removal of his personal property on 6/10/11; j) claims alleging the discovery of ants in his Ramadan food tray on 8/1/11 k) claims alleging emotional distress l) claims steming from search of his cell by dfts Billys on 8/9/11 m) demand for damages n) demand for damages under RLUIPA o) negligent and intentional i nfliction of emotion distress against Commonwealth of KY the KDOC and EKCC dfts Gary Beckstrom; Jamie Nickells, Billy J. Patrick, Travis Evans, Shawn McKenzie and Heather Nickells,; 3) following claims are dismissed WITHOUT PREJUDICE a) Patrick Billy s and Jamie Nickells applied excessive force on him 8/19/10; b) due process claims that dft Heather Nickells denied him due process of law by filing a false disciplinary charge against him on 8/9/11 4) clerk shall terminate: Kentucky Department of C orrections, Shawn McKenzie, Jamie Nickells, Heather Nickells, Billy J. Patrick, State of Kentucky, Department of Corrections, Gary Beckstrom and Travis Evans terminated. 5) claims alleging that dft Todd Boyce denied him a Quran for one year and denie d him equal protection of the law and his pendant state law claims against Boyce alleging negligent and intentional infliction of emotional distress shall proceed 6) Ashland Clerk's office shall prepare and issue summons for dft Todd Boyce and a lso prepare as many copies of complaint and this order as there are summonses and any required USM 285. if insufficient info exists to complete any summons regarding Boyce clerk shall make entry on docket stating why clerk cannot complete summons or USM 285 or any other document necessary to effectuate service 7) Ashland Clerk shall send by cert mail the required service packets for dft Boyd to USMS in Lexingtgon, KY; Clerk shall enter the cert mail receipt into record and note on docket on date which packet was delivered to USMS; 8) USMS shall serve dft Todd Boyce by a) sending a service packet to him to be served by cert mail or reg. mail and b) sending a service packet to him to KDOC in Frankfort by cert or reg mail or c) personally serv ing a service packet upon him through any arrangement it may have with KDOC 10) Wiley shall advise Ashland Celrk of any change in current address; failure to do so may result in dismissal 11) Wiley must communicate with court solely through notices o r motions filed with Ashland Clerk's office; court will disregard sent directly to Judge 12) for every further pldg he wishes to submit serve upon each dft or counsel; and send original papers to be filed with clerk with certificate of service; if judge or mag. judge receives any document which has not be filed with clerk or fails to include cert of service court will disregard it.. Signed by Judge Henry R. Wilhoit, Jr on 11/21/12.(SMT)cc: COR, Wiley via USMail, USMS by cert mail service packet for dft Boyce
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND
ALLEN WILEY, II,
Plaintiff,
v.
KENTUCKY DEPARTMENT OF
CORRECTIONS, et at.,
Defendants.
)
)
)
)
)
)
)
)
)
)
Civil Action No. 11-97-HRW
MEMORANDUM OPINION
AND ORDER
***** ***** ***** *****
Allen Wiley, II, is an inmate confined in the Eastern Kentucky Correctional
Complex ("EKCC") in West Liberty, Kentucky. Proceeding without counsel, Wiley
has filed a civil rights complaint challenging numerous conditions ofhis confinement
at EKCC. Wiley has named nine defendants, and asserts claims against the seven
individually-named EKCC officials in both their individual and official capacities. I
The named defendants are: (1) the Commonwealth of Kentucky; (2) the Kentucky
Department of Corrections ("KDOC"); (3) Gary Beckstrom, EKCC Warden; (4) Jamie Nickells,
EKCC Officer; (5) Billy J. Patrick, EKCC Officer; (6) Todd Boyce, EKCC Chaplain; (7) Travis
Evans, EKCC Officer; (8) Shawn McKenzie, EKCC Unit Administrator; and (9) Heather Nickells,
EKCC Registered Nurse. The Clerk of the Court will be instructed to modify the CMIECF cover
sheet to reflect that the KDOC is a defendant separate from the State of Kentucky. Wiley identified
one ofthe defendants as "Patrick, Billy J.," in the caption ofthe complaint [D. E. No.1, p. 1], which
name the Clerk of the Court listed on the CMIECF cover sheet as "Billy J. Patrick." In the text of
the complaint, however, Wiley identified that defendant as "Patrick Billys." The Clerk ofthe Court
will be directed to modify the CM/ECF sheet to reflect that "Billy J. Patrick" is also known as
I
1
Wiley asserts claims under 42 U.S.C. § 1983; the Religious Land Use and
Institutionalized Persons Act of 2000 ("RLUIPA") § 3 et seq., 42 U.S.C.A. §
2000cc-l et seq.; and Kentucky common law. Wiley seeks a declaratory judgment
finding that the defendants' actions violated his federal constitutional rights;
injunctive relief directing Warden Beckstrom to cease specified activity;
compensatory and punitive damages against each defendant; his court costs; and any
other equitable relief to which he is entitled.
Because Wiley has been allowed to proceed by paying the filing fee in
installments [D. E. No.6] and is asserting claims against government officials, the
Court now screens his complaint pursuantto 28 U.S.C. §§ 1915A and 1915(e)(2)(B).
Both ofthese sections require dismissal of any claims that are frivolous or malicious,
fail to state a claim upon which relief may be granted, or seek monetary relief from
defendants who are immune from such relief. Id.; see also McGore v. Wrigglesworth,
114 F.3d 601,607-08 (6th Cir. 1997).
As explained below, one defendant will be required to respond to Wiley's
federal claims and pendant state claims, but Wiley's claims against the other
defendants will be dismissed.
"Patrick Billys."
2
DISCUSSION
1. Claims under 42 U.S.C. § 1983
Wiley seeks damages under 42 U.S.C. § 1983 from the Commonwealth of
Kentucky, the KDOC, and the EKCC defendants in both their official and individual
capacities stemming from incidents he alleges occurred between August 19,2010,
and August 9,2011. Wiley's demand or damages from the Commonwealth Kentucky
and/or the KDOC will be dismissed because the Eleventh Amendment to the United
States Constitution specifically prohibits federal courts from entertaining suits for
money damages brought directly against a state or its agencies. Puerto Rico Aqueduct
& Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 687-88 (1993); see also Will
v. Mich. Dep'tofState Police, 491 U.S. 58,71 (1989).
Likewise, Wiley can not recover damages from the EKCC defendants in their
official capacities under § 1983 because state officials and employees sued in their
official capacities for damages are absolutely immune from liability under the
Eleventh Amendment to the United States Constitution. See Will, 491 U.S. at 71;
Wellsv. Brown, 891 F.2d591, 592-93 (6thCir.1989);Kentuckyv. Graham,473 U.S.
159,165-69 (1985) ("This [Eleventh Amendment] bar remains in effect when State
officials are sued for damages in their official capacity."). Wiley's § 1983 official
capacity claims against the EKCC defendants will be dismissed for failure to state a
3
claim upon which relief can be granted.
The Court will address each of the constitutional claims which Wiley asserts
against the EKCC defendants in their individual capacities.
1. Alleged Denial of Quran on August 19, 2010.
Wiley alleges that on
August 19, 2010, defendants Patrick Billys and Jamie Nickles violated his First
Amendment right to practice his religion by refusing to allow him to take his Quran
with him when he was placed in administrative segregation on that date. Based on
Wiley's statements, it appears the alleged deprivation lasted one day.
This claim fails to state claim upon which relief can be granted because a
temporary deprivation of a religious item does not rise to the level of a constitutional
violation. See, e.g., Marsh v. Corrections Corp. ofAmerica, 134 F.3d 383,383 (10th
Cir.1998) (table decision) (concluding that plaintiffs allegations that defendants
temporarily deprived her ofreligious items for fifteen days failed to satisfy her burden
of establishing First Amendment violation); see also McCroy v. Douglas County
Corrections Center, 2010 WL 1610945, at *3 (D. Neb. Apr. 20,2010) (prisoner did
not state a claim for relief where his religious items were confiscated during a
shakedown and then returned 15 days later after prisoner filed a grievance form).
Wiley's claims challenging the denial of a Quran for a single day will be dismissed
for failure to state a claim upon which relief can be granted.
4
2. Alleged Excessive Force. Wiley states that on the same date, August 19,
2010, he demanded to speak to Billys' and Nickells' supervisor about their alleged
refusal to provide him with a Quran. Wiley alleges that in response to his inquiry,
Nickells grabbed him by the neck and began choking him and Billys slammed him
to the ground, causing his head to hit the concrete floor. Wiley alleges that Nickells
choked him so hard that he passed out, and that when he awoke, both officers were
twisting and bending his arms, wrists, and head, causing him to suffer excruciating
pain. Wiley alleges that as a result of the excessive force Nickells and Billy applied
to him, he sustained bruises on his wrists; an injured lip; pain, suffering, and swelling
in his neck and on the left side of his head. [D. E. No.1, p. 3-4]
Wiley alleges that after the assault, he was confined for two weeks in a "dry
cell" with no running water and without access to his personal property. He states
that because he lacked access to his personal property during this two-week period,
he could not file a grievance about the alleged use of excessive force on August19,
2010. [Id., p. 5]
The KDOC's administrative regulations, known as Corrections Policies and
Procedures ("CPP") govern prison grievance procedures in KDOC facilities. See 501
K.A.R. 6:020. CPP § 14.6, entitled "Inmate Grievance Process," lists the steps which
KDOC inmates must pursue during the grievance process prior to filing a lawsuit.
5
Pursuant to CPP 14.6, a KDOC an inmate must file a written grievance and seek an
Informal Resolution, [§ II (J)(1)-(4)], ("Step I"). If not satisfied there, he must
submit a written request to the Grievance Committee seeking a hearing to consider
his grievance, [§ II (J)(2)], ("Step 2").
If not satisfied with the Grievance
Committee's disposition, he must appeal to the Warden, [(§ II (J)(3)], ("Step 3").
Finally, if dissatisfied with the Warden's decision, he must file an appeal to the
Commissioner of the KDOC, [§ II (J)(4)], ("Step 4"). Time frames for appeals and
responses are established within the regulation.
Wiley admits in his complaint that he did not exhaust his excessive force
claims through the KDOC's administrative remedy process, justifying that failure on
his lack of access to his personal property for two weeks he was confined in the "dry
cell." Wiley does not allege that during that two-week period, he either requested,
or was denied, the forms necessary to comply with the KDOC's administrative
remedy process.
The Prison Litigation Reform Act, ("PLRA") 42 U.S.C. § 1997e(a), requires
state and federal prisoners to exhaust all available administrative remedies before
filing suit challenging any aspect of their prison conditions. The Supreme Court of
the United States has twice held that the statute means precisely what it says. See
Booth v. Churner, 532 U.S. 731, 741 (2001); Porter v. Nussle, 534 U.S. 516, 525
6
(2002). Additionally, the Supreme Court has held that exhaustion of administrative
remedies must be done "properly," which means going through all steps that the
agency holds out, obeying all directions, and adhering to all deadlines set by the
administrative rules. Woodford v. Ngo, 548 U.S. 81, 90 (2006). Administrative
exhaustion is required even if the prisoner subjectively believes that the
administrative remedy procedure is ineffectual or futile. Pack v. Martin, 174 F.
App'x. 256, 262 (6th Cir. 2006).
Wiley's lack of access to his personal property would not have prevented him
from complying with the KDOC's administrative exhaustion process. In short, Wiley
short-circuited the exhaustion process by filing this lawsuit. When the affirmative
defense of failure to exhaust appears on the face of a complaint, a district court can,
on its own motion, dismiss the complaint on the ground that it fails to state a claim.
Jones v. Bock, 549 U.S. 199,214-15 (2007); 28 U.S.C. § 1915A(b)(1)); Carbe v.
Lappin, 492 F.3d 325, 328 (5th Cir. 2007) (holding that a district court can dismiss
a PLRA case on its own for failure to state a claim, predicated on failure to exhaust,
if the complaint itself makes clear that the prisoner failed to exhaust his
administrative remedies).
This Court, and other district courts in this circuit, have held that in light of
Jones, sua sponte dismissal of a complaint is warranted where failure to exhaust is
7
apparent from the face of the complaint. Walker v. Baker, No. 6:10-CV- 68-ART
(E.D. Ky.) [R. 9 & 10, June 24,2010]; Smith v. Lief, 2010 WL 411134, at *4 (E.D.
Ky. Jan. 27, 2010); Gunn v. Kentucky Depart. O/Corrections, 2008 WL 2002259, *
4 (W.D. Ky. May 7, 2008); Deruyscher v. Michigan Dept. o/Corrections Health,
2007 WL 1452929, at *3 (E.D. Mich. May 17, 2007). Wiley's Eighth Amendment
excessive force claim against Defendants Patrick Billys and Jamie Nickells will be
dismissed without prejudice because ofWiley' s admitted failure to exhaust the claim.
3. Two-week Confinement in "Dry Cell." Wiley alleges that during his two
week confinement in the "dry cell," he had no running water; was unable to wash his
hands after using the bathroom; endured cold temperatures; was denied clean clothes,
linens, and access to his personal property; and that unidentified EKCC officers
verbally harassed and ridiculed him. [Id., p. 4-5] Wiley alleges that these conditions
constituted cruel and unusual punishment in violation of the Eighth Amendment of
the United States constitution.
As he did with his excessive force claims, Wiley states that he was unable to
file any grievances concerning either the alleged "dry cell" conditions or the alleged
harassment "...due to no property for two weeks." [Id., p. 5]. Wiley's excuse for not
exhausting his "dry cell conditions" claims is insufficient for the same reason stated
as to his excessive force allegations, but these claims will be dismissed with prejudice
8
because on their merits, they do not amount to constitutional violations.
To establish an Eighth Amendment violation based on the conditions of
confinement, a prisoner plaintiff must show that the conditions resulted in "extreme
deprivations" of basic necessities. Hudson v. McMillian, 503 U.S. 1, 8-9 (1992).
Temporary placement in a cell with no flushable toilet is not an extreme deprivation
of a basic necessity. See Abdur-Reheem-X v. McGinnis, 1999 WL 1045069, at *2
(6th Cir. Nov. 12, 1999); Knop v. Johnson, 977 F.2d 996,1013 (6th Cir. 1992). The
short-term lack of running water is also not a condition that violates the Eighth
Amendment. See Richmond v. Settles, 2011 WL 6005197, at *6 (6th Cir. Dec. 2,
2011); Diaz v. Cumberland County Jail, 2010 WL 3825704, at *4 (D.N.J. Sept. 23,
2010); Gibert v. Anderson County Sheriffs Office, 2007 WL 328840, at *8 (D.S.C.
Feb. 5,2007); Siller v. Dean, 2000 WL 145167, at *2 (6th Cir. Feb. 1,2000).
The conditions about which Wiley complains - lack of running water, clean
clothes and linens - were discomforts which he experienced for a short period oftime,
fourteen days. Being deprived of a working toilet or running water are temporary
inconveniences, not conditions that fall beneath the minimal civilized measure of
life's necessities as measured by a contemporary standard ofdecency. Dellis v. Corr.
Corp. ofAm., 257 F.3d 508,511 (6th Cir. 2001); see also J.P. v. Taft, 439 F. Supp.
2d 793, 811 (S. D. Ohio 2006) ("[M]inor inconveniences resulting from the
9
difficulties in administering a large detention facility do not gIve rIse to a
constitutional claim.") (internal citation omitted).
Depriving an inmate of clean sheets and/or towels does not rise to the level of
an Eighth Amendment violation. Street v. Corr. Corp. ofAmerica, 102 F3d 810, 814
(6th Cir. 1996); Irving v. Masker, 2008 WL 2224262, at *1 (W.D. Mich. May 28,
2008); Gilland v. Owens, 718 F. Supp. 665, 685 (W.D. Tenn. 1989) ("Short term
deprivations of toilet paper, towels, sheets, blankets, mattresses, toothpaste,
toothbrushes and the like do not rise to the level of a constitutional violation."). But
see Flanory v. Bonn, 604 F.3d 249, 255-56 (6th Cir. 2010) (holding that allegations
that an inmate was deprived oftoothpaste for 337 days and experienced dental health
problems did not constitute a temporary inconvenience and were sufficient to state
an Eighth Amendment claim). Wiley's complaints about the conditions of his two
week confinement in the "dry cell," i.e., the temporary denial ofrunning water, clean
clothes, and linens, will be dismissed for failure to state an Eighth Amendment claim
upon which relief can be granted.
Wiley's allegation that EKCC officials taunted and/or verbally harassed him
during his confinement in the "dry cell" also fails to state a relief upon which can be
granted because verbal harassment, while not condoned, does not qualify as an Eighth
Amendment violation. Johnson v. Dellatifa, 357 F.3d 539, 546 (6th Cir. 2004)
10
(harassment and verbal abuse do not constitute the type of infliction of pain that the
Eighth Amendment prohibits); Violett v. Reynolds, 2003 WL 22097827, at *3 (6th
Cir. Sept. 5,2003) (verbal abuse and harassment do not constitute punishment that
would support an Eighth Amendment claim); Williams v. Gobles, 2000 WL 571936,
at *1 (6th Cir. 2000); Ivey
v.
Wilson, 832 F.2d 950, 955 (6th Cir. 1987). Wiley's
allegations of verbal abuse and harassment while confined in the "dry-cell" will be
dismissed for failure to state an Eighth Amendment claim.
4. Overflowing toilet and offensive odors, September 11-12,2010. Wiley
states that after his confinement in the "dry-cell" concluded on September 11,2010,
he was placed in cell where the toilet overflowed every time other inmates flushed
their toilets. [D. E. No.1, p. 5] Wiley claims that the mal-functioning toilets caused
human waste to spill onto the tloor and walls of his cell, creating sickening odors
which he was forced to smell. Wiley alleges Unit Administrator Shawn McKensie
ordered the floor officers not to move him to another cell or to clean up the waste,
forcing him "... to breath and walk in others human waste until the next day." [Id.].
The circumstances, nature, and duration of a deprivation must be considered
In
determining whether a constitutional violation has occurred."
Spencer v.
Bouchard, 449 F.3d at 727 (citing Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.
2000)). Based on Wiley's statement, either he was removed from the polluted cell or
11
the cell with the overflowing toilet was cleaned "the next day," meaning September
12,2010. Under either scenario, Wiley's alleged exposure to the overtlowing toilet
and resulting odors, while no doubt unpleasant, was of short duration - one day - and
did not amount to an Eighth Amendment violation. Gilland v. Owens, 718 F. Supp.
665,684 (W.D. Tenn.1989); Smith v. Copeland, 87 F.3d 265, 269 (8th Cir. 1996)
(finding no Eighth Amendment violation as a matter of law where inmate was
exposed to raw sewage from an overflowed toilet in his cell for four days); Mills v.
C.C.A., 2010 WL 5155478, at *5 (M.D. Tenn. Dec.14, 2010) ("Even if the Court
takes as true the allegations that [unsanitary] water flowed from a nearby shower into
the Plaintiffs cell three times a week, that this condition occurred for a period of
several weeks, and that the water was not promptly cleaned up, these facts simply do
not show that he was subjected to the type of extreme deprivation necessary to
implicate the Eighth Amendment."); Evans v. Fogg, 466 F. Supp. 949 (S.D.N.Y.
1979) (no claim stated by prisoner confined for 24 hours in refuse-strewn cell and for
two days in flooded cell). Compare Braswell v. Corrections Corp. ofAmerica, 419
F. App'x 622,627 (6th Cir. 2011) (finding an Eighth Amendment issue of fact in a
§ 1983 action where for nine months, the prisoner had been left in a filthy,
disgustingly unsanitary cell where mold grew in the toilet and the cell floor was
littered with food trays).
12
Wiley's Eighth Amendment claims alleging overflowing toilets and exposure
to raw sewage and offensive odors between September 11-12, 2010, will be dismissed
for failure to state a claim upon which relief can be granted.
5. Seven-day hold on incoming mail-Muslim literature. Wiley alleges that
on December 31, 2010, EKCC mail-room employees placed a seven-day hold on a
soft- back commentary Holy Quran mailed to him from a New York City mosque, but
that two days later, the mail-room employees did not place a seven-day hold on a
Christian bible mailed to another EKCC inmate from a church in Pikeville, Kentucky.
[D. E. No.1, pp. 5-6] Wiley alleges that he "... attempted to receive another holy
Quran from the same mosque and it was again rejected." [Id., p. 6] Wiley alleges that
he wrote the warden and chaplain about the mail room employees denying his Quran
while permitting another inmate to receive a Christian Bible, but that neither the
warden nor the chaplain responded. Wiley does not allege that he pursued the
KDOC's administrative remedy process set forth in CPP 14.6.
Wiley did not refer to any KDOC policy authorizing mail-room employees to
temporarily confiscate mailed literature, but he attached two "Notices of
Unauthorized Mail," dated December 29,2010, and March 1,2011, respectively [D.
E. No. 1-3, p. 1; D. E. No. 1-4, p. 1] These notices informed Wiley that the Muslim
faith books mailed to him constituted contraband and would be held for seven days
13
pursuant to paragraph seven of the notices, which states that "All books / magazines
/ religious material must be mailed by publisher or authorized distributor." [Id., at ~
7] The contraband notices cite CPP 16.2 and EKCC 16.2 as authority for the seven
day hold on books, magazines, and religious material not mailed directly to an inmate
by the publisher or authorized distributor. This policy, known as the "publishers
only" policy, prohibits inmates from receiving books, magazines, and newspapers
from sources other than their publisher.
To the extent that Wiley challenges the "publishers only" policy itself as an
invalid restriction on his First Amendment right to practice his religion, his claim fails
to state a claim upon which relief can be granted. In Bell v. Wolfish, 441 U.S. 520,
550 (1979), the Supreme Court held that a "publishers only" rule for receiving hard
cover books does not violate the First Amendment. In 1989, the Sixth Circuit
extended the "publishers only" rule to magazines, books, and soft-cover materials.
See Ward v. Washtenaw County Sheriff's Dep't., 881 F.2d 325, 330 (6th Cir. 1989)
(holding that a "publishers only" policy for receiving magazines does not violate the
First Amendment). Thus, the EKCC mailroom's implementation ofthe "publisher's
rule" as to certain incoming publications did not violate the First Amendment's ban
on the practice of religion.
Wiley also alleges that the EKCC mail-room staff discriminated against him
14
on the basis of his religion by placing a seven-day hold on Muslim literature mailed
to him, while not placing a seven-day hold on Christian literature mailed to other
EKCC inmates from non-publisher sources. This claim falls under the Fourteenth
Amendment of the United States, which applies to state actors and guarantees equal
protection of the law. "To state a claim under the Equal Protection Clause, a § 1983
plaintiffmust allege that a state actor intentionally discriminated against the plaintiff
because of membership in a protected class" or burdened a fundamental right.
Midkiffv. Adams County Regional Water District, 409 F.3d 758, 770 (6th Cir. 2005);
Purisch v. Tennessee Technical University, 76 F.3d 1414,1424 (6th Cir. 1996).
Wiley's Fourteenth Amendment equal protection claim fails because he did not
identify the mail-room employee(s) who allegedly discriminated against him on the
basis of his religion. To establish liability under 42 U.S.C. § 1983, a plaintiff must
plead and prove that a defendant is personally responsible for the unconstitutional
actions that injured him. Monell v. New York City Dept. ofSocial Services, 436 U.S.
658 (1978); Copelandv. Machulis, 57 F.3d 476,481 (6th Cir. 1995) (per curiam).
A claimed constitutional violation must be based upon active unconstitutional
behavior. Grinter v. Knight, 532 F.3d 567, 575 (6th Cir.2008). Unless the complaint
affirmatively pleads personal involvement of a defendant in the unconstitutional
conduct, the allegation fails to state a claim and dismissal ofthat claim is warranted.
15
Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984).
Wiley did not allege that any ofthe five individually named EKCC defendants
in this action violated his equal protection rights by placing a hold on his incoming
Muslim religious material while not placing the same seven-day hold on incoming
Christian mailings. Wiley alleges that on December 31,2010, "The mailroom then
placed a seven (7) day hold on the Quran .... " [D. E. No.1, p. 6 (emphasis added)],
but he named no EKCC mail-room employees as defendants to this action.
The
"Staff Signature" on the two contraband notices attached to the complaint is not
entirely legible, but appears to be that of a "Nikki Clifford," see D. E. Nos. 1-3 and
1-4, but Wiley did not name this individual- or any other EKCC mail-room employee
- as a defendant to this action.
Wiley did name Warden Gary Beckstrom as a defendant, but he did not allege
that Beckstrom implicitly authorized, approved, or knowingly acquiesced in the mail
room's alleged religious discrimination against him. Any construed equal Fourteenth
Amendment equal protection claims against Warden Beckstrom must be dismissed
because respondeat superior can not form the basis of supervisor liability in a § 1983
action. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) ("Because vicarious liability is
inapplicable to Bivens and § 1983, a plaintiff must plead that each
Government-official defendant, through the official's own conduct, has violated the
16
Constitution."); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999); Bellamy v.
Bradley, 729 F.2d 416,421 (6th Cir. 1994).
Finally, Wiley's allegation that he wrote letters and/or grievances to Warden
Beckstrom complaining about Boyce's failure to provide him with a Quran fails to
state a claim for relief because a warden's failure to respond to, or act upon, a
grievance is insufficient to support a claim of supervisory liability under § 1983.
Harris v. Caruso, 465 F. App'x 481,487 (6th Cir. 2012) (citing Shehee, 199 F.3d at
300). Wiley's Fourteenth Amendment claim that the EKCC mail-room staff denied
him equal protection of the law by discriminating against him on the basis of his
religion will be dismissed for failure to state a claim upon which reliefcan be granted.
28 U.S.C. § 1915 (e)(2).
6. Denial of Quran for one-year. Wiley alleges that after the incidents of
August 19,2010, he was confined in administrative segregation at EKCC for twelve
months;2 that during that 12-month period, he repeatedly asked EKCC Chaplain Todd
Boyce to provide him with a Quran; and that Boyce refused to provide him with a
Quran but promptly provided other inmates with Christian Bibles at their request. [D.
E. No.1, pp. 6-7] Wiley asserts that his inability to obtain a Quran for an entire year
(a) prevented him from practicing and observing his religious beliefs, in violation of
2
It was unclear when Wiley's twelve-month period in segregation began and ended.
17
the First Amendment of the United States Constitution, and (b) violated his right to
equal protection of the law guaranteed by the Fourteenth Amendment of the United
States Constitution.
Wiley alleges that for several months he attempted to administratively grieve
that issue, but that the segregation officers continually prevented him from exhausting
the claim, either by refusing to place his name on the grievance list or by refusing to
provide him with a grievance form.
[D. E. No.1, p. 7].
Wiley attached
correspondence from the KDOC in response to his inquiries about obtaining a Quran.
[D. E. No. 1-5; 1-6]. Accepting that allegation as true, Boyce will be directed to
respond to Wiley's First and Fourteenth Amendment claims.
7. Rat in Soup. Wiley alleges that on May 1,2011, he discovered a dead rat
in the soup which he had been eating; that after he repeatedly complained about the
discovery, defendant Shawn McKensie provided him with a new food tray from
which the bread and dessert were missing; and that as a result of ingesting the
contaminated soup, he vomited and experienced stomach spasms for three days. [D.
E. No.1, pp. 7-8] Wiley alleges that he was "denied grievance opportunities with
refusals to be put on the grievance list, " [Id., p. 8], but he attaches two letters from
James Erwin, Deputy Commissioner ofthe KDOC [D. E. Nos. 1-7 and 1-8] in which
Erwin responded to Wiley's complaints about discovering a rodent in his soup.
18
Wiley's allegations do not rise to the level of an Eighth Amendment violation.
Courts have consistently held that isolated incidents of foreign bodies, including
rodents and insects, surfacing in the food served to prisoners is not an Eighth
Amendment violation. Tuckerv. Rose, 955 F. Supp. 810, 815 (6th Cir. 1997) (citing
Estelle v. Gamble, 429 U.S. 97, 106 (1974)). "The fact that the [prison] food
occasionally contains foreign objects or is sometimes served cold, while unpleasant,
does not amount to a constitutional deprivation." Smith v. Younger, No. 98-5482,
1999 WL 623355, at *2 (6th Cir. Aug. 9, 1999) (affirming district court's dismissal
ofplaintiff s Eighth Amendment claim based on the presence ofa worm in her peanut
butter); see also, Hamm v. DeKalb County, 774 F.2d 1567, 1575 (lIth Cir. 1985);
Miles v. Konvalenka, 791 F.Supp. 212 (N.D. 111.1992) (single instance of finding
mouse in food not actionable). Wiley's claim about his prison food on May 1, 2011,
will be dismissed for failure to state a claim upon which relief can be granted.
8. Denied Access to Legal Documents. Wiley alleges that on June 10,2011,
he attempted to take his legal materials with him to a court proceeding in Louisville,
Kentucky, but that unidentified EKCC officers informed him that defendant Shawn
McKensie did not allow prisoners in segregation to take legal documents to court.
[D. E. No.9] . Wiley alleges that he needed to provide the documents to his attorney.
Wiley does not allege what constitutional right, or rights, of his were violated by this
19
action, but broadly construing his claim, it would fall under the First Amendment of
the United States Constitution, which guarantees the right of access to the courts,
and/or the Sixth Amendment, which guarantees the right to counsel in a criminal
proceeding. Wiley's claim fails under either amendment.
Prisoners have a constitutional right to access to the courts. Lewis v. Casey,
518 U.S. 343 (1996); Hadix v. Johnson, 182 F.3d 400 (6th Cir. 1999); Leveye v.
Metropolitan Pub. De! Office, 2003 WL 21801466 (6th Cir. AugA, 2003). To state
a viable First Amendment claim, an inmate must show that he suffered an "actual
injury" because of the prison officials' actions. Lewis, 518 U.S. at 351. This injury
requirement is not satisfied by "just any type offrustrated legal claim." Id. A prison
official may be held liable only if his actions either prevented a prisoner from
pursuing, or caused the rejection of, a specific non-frivolous direct appeal, habeas
corpus application, or a civil rights action. Id; see also Hadix, 182 F.3d at 405;
Thaddeus-Xv. Blatter, 175 F.3d 378,391 (6th Cir.1999). "Impairment of any other
litigating capacity is simply one of the incidental, and perfectly constitutional,
consequences of conviction and incarceration." Lewis, 518 U.S. at 355.
Wiley does not identify what type oflegal proceeding he attended on June 10,
2011, but irrespective of the nature of the case, he did not allege that his inability to
take unspecified legal documents to his attorney at that proceeding resulted in any
20
specific adverse consequence to him in the Louisville legal proceeding, or prejudiced
him in any ofthe three examples listed in Lewis. See Stanleyv. Vining, 602 F.3d 767,
770 (6th Cir. 2010) (rejecting prisoner's First Amendment claim because he did not
allege that the guard's interference with his legal mail in any way affected his access
to the courts); Jones v. Lee, 2012 WL 683362, at *8 (E.D. Mich. March 2, 2012)
(holding hat prisoner failed to "allege, or provide evidence of, any specific,
litigation-related detriment" resulting from the defendant's allegedly denying him
access to the prison law library). Absent an actual injury in a legal proceeding to
which the right of access is protected by the First Amendment, Wiley's construed
First Amendment claim must be dismissed for failure to state a claim upon which
relief can be granted.
Additionally, Wiley does not allege a valid Sixth Amendment claim on this
issue. The Sixth Amendment's reach "... is only to protect the attorney-client
relationship from intrusion in the criminal setting...." Wolffv. McDonnell, 418 U.S.
539,576-77 (1974). As Wiley does not allege that the court proceeding he attended
on June 10,2011, to which he was not allowed to bring his legal documents, involved
a criminal matter. Any construed Sixth Amendment claim fails as a matter of law.
9. Removal of Personal Property. Wiley alleges that upon returning to his
cell after his June 10,2011, court appearance, all ofhis personal property, consisting
21
of"legal, Islam materials, responses to letters of complaints, etc." had been removed
from his cell. [D. E. No.1, p. 9] Wiley alleges that when he attempted to grieve the
issue by placing his name of the grievance list, his name was "not called out as
usual," id.; that he wrote the warden but received no response; and that when some
ofhis personal property was returned to him on August 16,2011, most ofhis personal
items were still missing, including his Muslim books. He valued his un-returned
Muslim books at approximately $80.00. [Id., p. 10]
In a federal claim alleging the deprivation of personal property without due
process of law, a plaintiff must (1) demonstrate that he was deprived of property as
a result of established state procedure that itself violates due process rights; or (2)
prove that the defendants deprived him of property pursuant to a "random and
unauthorized act" and that available state remedies would not adequately compensate
him for the loss of the property. See Macene v. MJW, Inc., 951 F.2d 700,706 (6th
Cir. 1991); Vicory v. Walton, 721 F.2d 1062, 1064 (6th Cir. 1983).
Wiley has not satisfied either criterion. He did not allege that the seizure ofhis
personal property resulted from an established policy that violated his due process
rights in violation of the Fourteenth Amendment. Wiley's allegation could be
construed as a claim that his property was removed pursuant to a random or
unauthorized act, but Wiley had an available remedy - a state court action for
22
conversion - through which he could have sought compensation for his seized
property. The unauthorized intentional deprivation of property does not violate the
due process clause if a meaningful post-deprivation remedy for the loss is available.
See Hudson v. Palmer, 468 U.S. 517, 533 (1984); Baileyv. Carter, 15 F. App'x 245,
251 (6th Cir. 2001); Vicory, 721 F.2d at 1063; Plummer v. Debbo, 2010 WL
6749074, at *2 (D. S. C. May 26, 2010).
Wiley has not demonstrated that his state court remedy for the deprivation
(either intentional or negligent) of his personal property was inadequate, and it was
his burden to make that showing. Vicory, 721 F.2d at 1066; Fox v. Van Oosterum,
987 F.Supp. 597, 606 (W.D. Mich. 1997). Wiley's claims challenging the removal
and confiscation of his personal property on June 10, 2011, will be dismissed for
failure to state a claim upon which relief can be granted.
10. Ant-infested Ramadan Food Tray. Wiley alleges that on August 1,
2011, while he was observing the Ramadan religious practice of fasting until
sundown, Officer Evans served him a food tray which was infested with ants; that
when he complained to Evans about the food, Evens laughed at him and ridiculed
him; and that after Evans removed the ant-infested food tray, he received no
replacement despite the fact that he had been fasting all day. [D. E. No. 10-11]
These claims fail as a matter of law. If true, the existence of ants in Wiley's
23
food on that date created an unpleasant and even unsanitary condition, but as
previously explained, isolated incidents of food contaminated with foreign matter do
not rise to the level of Eighth Amendment violations. Tucker v. Rose, 955 F. Supp.
at 815; Smith v. Younger, 1999 WL 623355, at *2; Hamm v. DeKalb County, 774
F.2d at 1575 (lIth Cir. 1985). Further, the verbal abuse and harassment by Officer
Evans, even if true, does not qualify as an Eighth Amendment violation. Violett,
2003 WL 22097827, at *3; Williams, 2000 WL 571936, at *1; !vey, 832 F.2d at 955.
Wiley's complaints about the quality of the food served to him on August 1,2011,
and his claims of alleged verbal abuse on that date, will be dismissed for failure to
state a claim upon which relief can be granted.
11. Alleged emotional distress. Wiley states that all of the defendants'
alleged actions caused him to suffer emotional distress and emotional scarring, for
which he seeks damages. [D. E. No.1, p. 14] This claim fails because emotional
distress is not compensable in the prison context absent a physical injury. 42 U.S.C.
§ 1997e(e) precludes any claim by a prisoner "for mental or emotional injury suffered
while in custody without a prior showing of physical injury." See also, Harden Bey
v. Rutter, 524 F.3d 789, 795-96 (6th Cir. 2008) (affirming dismissal of emotional
distress claims where inmate complained ofplacement in segregation but alleged no
physical injury as a result of such confinement); Carter v. Tucker, 69 F. App 'x 678,
24
680 (6th Cir. 2003) (prisoner's claims of emotional distress were properly dismissed
because he alleged no physical injury resulting from defendants' alleged actions).
Wiley alleges that he suffered physical injuries when Defendants Nickells and
Billys applied excessive force on him on August 19,2010, but this allegation does not
assist Wiley because the Court has dismissed this claim without prejudice for obvious
lack ofexhaustion. Wiley also alleged that on May 1, 2011, he experienced vomiting
and stomach spasms as a result of ingesting contaminated soup, but the Court has
dismissed that allegation because it did not amount to a compensable Eighth
Amendment violation. Wiley does not allege that he otherwise suffered a physical
injury as a result of the other complained-of actions. Accordingly, Wiley's demand
for damages for emotional distress will be dismissed for failure to state a claim upon
which relief can be granted.
12. Search of his Cell. Wiley states that on August 9, 2011, Defendant Billys
and another unidentified EKCC searched his cell to collect his (Wiley's) hand writing
samples, and that they ordered him to stand outside of his cell while they searched
his cell. [D. E. No.1, p. 18] Wiley alleges that Billys "... knew who plaintiff was
before the search was conducted, assaulted plaintiffprior to this incident. ..." id.; that
Billys searched his cell to harass him, not to maintain security; and that the search
was a "shakedown" in violation ofthe Eighth Amendment. Wiley further alleges that
25
ordering him to stand outside of his cell violated KDOC-CPP 9.8. Wiley did not
explain what conduct CPP 9.8 requires, permits, or prohibits in the context of a cell
search, but his description of the CPP 9.8 suggests that it prohibits an KDOC
correctional officer from searching an inmates' cell outside ofthe inmates' presence.
To the extent that Wiley alleges that Billys engaged in a pattern of harassment
consisting of more than the single search of his cell on August 9, 2011, and that
Billys' actions, taken as a whole, constituted cruel and unusual punishment under the
Eighth Amendment, his claim lacks merit. Cell searches are a critical part of prison
security, Hensley v. Kampshaefer, 2009 WL 69074, at *4 (W.D. Ky. Jan. 9, 2009),
and prisoners have no protected liberty interest to be free from searches oftheir cells,
Hudson v. Palmer, 468 U.S. 517 (1984)
A single search of a prisoner's cell does not amount to an Eighth Amendment
violation. See, e.g., Tate v. Campbell, 85 F. App'x 413,417 (6th Cir. Dec. 15,2003).
To establish a pattern of harassment sufficient to implicate the Eighth Amendment,
a prisoner faces a high hurdle. For example, in Johnson v. Dellatifa, the prisoner
alleged that the defendant:
continuously bangs and kicks Johnson's cell door, throws his food trays
through the bottom slot of his cell door so hard that the top flies off,
makes aggravating remarks to him, makes insulting remarks about his
hair being too long, growls and snarls through his window, smears his
window to prevent him from seeing out of it, behaves in a racially
26
prejudicial manner toward him and jerks and pulls him unnecessarily
hard when escorting him from his cell. Johnson contends that Stasewish
knows that he suffers from hypertension and intentionally harasses him
in an attempt to cause him to suffer a heart attack, stroke or nervous
breakdown.
Johnson v. Dellatifa, 357 F.3d 539, 545 (6th Cir. 2004). The Sixth Circuit rejected
Johnson's argument, finding that even if the allegations of "shameful and utterly
unprofessional behavior by the defendant" were true, they were insufficient to
establish an Eighth Amendment violation because"... harassment and verbal abuse,
such as Johnson has described, do not constitute the type of infliction ofpain that the
Eighth Amendment prohibits." Id. at 546 (internal citations omitted).
Applying that rule, this Court has previously determined that the alleged verbal
abuse about which Wiley complained did not amount to an Eighth Amendment
violation. Even adding to that equation the single search of Wiley's cell on August
9,2011, the pattern ofharassment Wiley alleged in his complaint falls far short ofthe
allegations in the Dellatifa case. See also, Carney v. Johnson, 2010 WL 3810153, at
*2 (W.D. Mich. Sept. 23, 2010) (adopting magistrate judge's recommendation to
dismiss prisoner's Eighth Amendment claim alleging that prison officials' earlier
verbal comments and subsequent single search of his cell constituted a campaign of
harassment prohibited by the Eighth Amendment). Wiley's allegation that defendant
Billys violated his Eighth Amendment rights by searching his cell on August 9,2011,
27
will be dismissed for failure to state a claim upon which relief can be granted.
Wiley's next claim - that Billys violated CPP 9.8 - also fails to state a
constitutional claim under § 1983. Assuming that CPP 9.8 prohibits a correctional
officer from searching a prison cell outside of the inmate's presence, as Wiley
suggests, the EKCC officers' failure to follow KDOC policy does not state a valid
constitutional claim. Kennedy v. Stallard, 2010 WL 1489288, at *1 (E.D. Ky. April
12, 2010) (citing Sandin v. Conner, 515 U.S. 472 (1995)); Higgs v. Sanford, 2010
WL 1959530, at *4 (W.D. Ky. May 17,2010); see also Smith v. City ofSalem, Ohio,
378 F.3d 566, 578 (6th Cir. 2004) ("state law, by itself, cannot be the basis for a
federal constitutional violation.").
While the violation of a prison policy may
constitute negligence in some cases, it does not amount to a constitutional violation.
Gibson v. Foltz, 963 F.2d 851,854 (6th Cir. 1992).
Next, it is unclear if Wiley is alleging that the search ofhis cell was retaliatory,
but even if that was Wiley's intention, such a claim would fail. To establish a claim
ofretaliation, a plaintiff must show 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 continuing to engage in that conduct; and (3) there was a causal
connection between elements one and two - that is, the adverse action was motivated
at least in part by the plaintiffs protected conduct. Brown v. Crowley, 312 F.3d 782,
28
787 (6th Cir. 2002); Thaddeus-Xv. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
Though searching a prisoner's cell and seizing his legal paperwork could
constitute an adverse action, Bell v. Johnson, 308 F.3d 594, 600 (6th Cir. 2002),
Wiley did not allege that at the time of the August 9, 2011, cell search, he was
engaged in activity that was protected by the First Amendment, i. e., filing grievances
or lawsuits in court. Wiley stated that Billys had used excessive force against him on
a prior occasion, but such an allegation, even if true, is not the same as an allegation
that he was engaged in constitutionally protected conduct at the time of the search.
Wiley's allegations challenging the August 9, 2011, search of his cell will be
dismissed for failure to state a claim upon which relief can be granted.
13. Filing of False Disciplinary Charge. Wiley alleges that on August 9,
2010, defendant Heather Nickells found and read an apology letter he had written to
an EKCC nurse concerning an event unrelated to this action, and that based on the
contents of his letter, Nickells caused a false disciplinary charge (pursuing a
relationship with a staff member) to be filed against him. [D. E. No.1, p. 18-19]
Wiley's factual allegations on this issue are not entirely clear, but he also appears to
allege that Heather Nickells was retaliating against him because Jamie Nickells- a
relative of Heather Nickells- had assaulted him on a prior occassion. [Id., p. 19].
Wiley alleged that it was highly probable that he would be convicted of the charged
29
offense and that he would be given the maximum penalty, i.e., 45 days in segregation
and 60 days' loss of good time credit. [Id., p. 20]. Broadly construed, Wiley's claim
is that defendant Heather Nickells' actions violated his right to due process of law
guaranteed by the Fourteenth Amendment of the United States Constitution.
Wiley's claim against Nickells suffers from two deficiencies. First, Wiley
lacked standing to raise this claim when he asserted it in his complaint. A plaintiff
must have standing to assert a claim alleging a violation of his constitutional rights,
Wuliger v. Mfrs. Life Ins. Co., 567 F.3d 787, 793 (6th Cir. 2009). To establish
standing under Article III ofthe United States constitution, a plaintiffmust show that:
(1) he has suffered an injury in fact which is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable
to the challenged action of the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision. Id. (quoting
Am. Civil Liberties Union a/Ohio, Inc. v. Taft, 385 F.3d 641, 645 (6th Cir. 2004)).
At the time Wiley filed his complaint, he was merely speculating that he would be
convicted ofthe disciplinary offense and that he would lose good-time credits. Thus,
his due process claim lacks merit and must be dismissed.
Second, even if Wiley has since been convicted ofthe disciplinary charge and
has lost any good time credits, he can not collaterally challenge his prison disciplinary
30
conviction by filing a civil rights action unless and until his disciplinary conviction
has been reversed, set aside, or called into question in a habeas corpus proceeding or
other tribunal, because success in a § 1983 action would necessarily imply the
invalidity of his disciplinary conviction, an impermissible result. See Edwards v.
Balisok, 520 U.S. 641, 646 (1997); Lee-Beyv. Gundy, 80 F. App'x 435,436 (6th Cir.
2003) (Michigan prisoner could not challenge a misconduct proceeding resulting in
a loss of good-time credits in a § 1983 action because his major misconduct
conviction had not been reversed).
If Wiley has been convicted of the charged disciplinary offense and has lost
good-time credits, he must first file a 28 U.S.C. § 2255 habeas petition in state court
challenging that conviction and the loss of his good-time credits. If Wiley's
disciplinary conviction and/or sanction has been set aside or reversed in that
proceeding, only then may he proceed with a civil rights action against those persons
involved in his disciplinary conviction. Wiley's Fourteenth Amendment due process
claim challenging his disciplinary charge will be dismissed without prejudice.
2. Claims under 42 U.S.C. § 1985
Wiley alleges that the defendants' actions also violated 42 U.S.C. § 1985 (3).
[D. E. No.1, p. 3]. This statue prohibits conspiracies to deprive an individual of his
or her right to equal protection of the law. A § 1985(3) conspiracy claim requires a
31
plaintiff to prove five elements: (1) the existence ofa conspiracy; (2) the purpose of
the conspiracy was to deprive any person or class of persons the equal protection or
equal privileges and immunities of the law; (3) an act in furtherance of the
conspiracy; (4) injury or deprivation of a federally protected right, and (5)
discrimination based on race or membership in another class comprising "discrete and
insular minorities that receive special protection under the Equal Protection Clause
because of inherent personal characteristics."
Volunteer Med. Clinic, Inc. v.
Operation Rescue, 948 F.2d 218, 224 (6th Cir. 1991) (internal quotation marks and
citations omitted).
Wiley has not satisfied the first element of §1985(3). Although Wiley alleged
that various EKCC defendants engaged in specific and isolated unconstitutional
conduct, he alleged no facts suggesting that any ofthe defendants conspired to violate
his right to equal protection ofthe law. "'Conspiracy claims must be pled with some
degree ofspecificity and ... vague and conclusory allegations unsupported by material
facts will not be sufficient to state such a claim.'" Ctr. for Bio-Ethical Reform, Inc.
v. City ofSpringboro, 477 F 3d 807, 832 (6th Cir. 2007) (quoting Gutierrez v. Lynch,
826 F.2d 1534, 1538-39 (6th Cir. 1987)).
Even ifWiley had alleged sufficient facts constituting a conspiracy, he can not
satisfy the fifth element of § 1985(3) because prisoners are not a "protected class" for
32
equal protection purposes. Hampton v. Hobbs, 106 F.3d 1281, 1286 (6th Cir.1997);
Dotson v. Wilkinson, 477 F. Supp. 2d 838,851 (N.D. Ohio 2007). Wiley's § 1985(3)
claims will be dismissed for failure to state a claim upon which relief can be granted.
3. CLAIMS UNDERRLUIPA
The statutory framework known as RLUIPA prohibits prison officials from
implementing a prison rule that imposes a substantial burden on an inmate's exercise
ofhis or her religious beliefs unless the officials can demonstrate that the rule "(1) is
in furtherance of a compelling governmental interest; and (2) is the least restrictive
means of furthering that compelling governmental interest." 42 U.S.C. §
2000cc-1(a)(l)-(2). "RLUIPA thus protects institutionalized persons who are unable
freely to attend to their religious needs and are therefore dependent on the
government's permission and accommodation for exercise of their religion." Cutter
v. Wilkinson, 544 U.S. 709, 721 (2005).
Wiley's claims for damages under RLUIPA against the Commonwealth of
Kentucky, the KDOC, and the EKCC defendants in their official capacities, are
barred by Eleventh Amendment's grant of sovereign immunity. Sossamon v. Texas,
_U.S. _,131 S.Ct. 1651 (2011) (RLUIPA generally authorizes only injunctive
reliefand does not waive a state's sovereign immunity from suit for money damages).
Wiley also asserts RLUIPA claims against the EKCC defendants in their
33
individual capacities. Whether RLUIPA allows damages to be awarded against state
officials sued in their individual capacities is an open question, but the majority of
district courts in this circuit have held that such suits would be in the nature of a
private right of action under RLUIPA and are not authorized. See Aladimi v.
Hamilton County Justice Center, 2012 WL 292587, at *18 (S.D. Ohio Feb. 1,2012);
Treesh v. Bobb-Itt, 2011 WL 3837099, at *3 (S.D. Ohio Aug. 29, 2011); Heard v.
Caruso, 2010 WL 5759027 (W.D. Mich. May 27, 2010), adopted and affirmed, 2011
WL 444769 (W.D. Mich. Jan 31,2011); Garrison v. Dutcher, 2008 WL 4534098, at
*4 (W.D. Mich. Sept. 30, 2008) ("The Court is persuaded by the reasoning of the
[United States Court ofAppeals for the] Eleventh Circuit and concludes that RLUIPA
does not authorize individual-capacity claims."); Horacek v. Burnett, 2008 WL
4427792, at *1 (E.D. Mich. Sept. 30, 2008) (granting summary judgment as to
RLUIPA claims against the defendant in his personal capacity).3
Given the weight ofauthority in this circuit, Wiley's request for damages under
RLUIPA will be dismissed for failure to state claim upon which reliefcan be granted.
4. Pendant State Law Claims
3 One district court in this circuit permitted individual capacity claims to proceed under
RLUIP A. Farnsworth v. Baxter, 2007 WL 2793364, at *4 (W.D.Tenn. Sept. 26, 2007). Farnsworth
could be distinguished from the other cases cited above on the basis that the district court merely
explained that the specific case which the defendants had cited in their summary judgment motion
(seeking qualified immunity) did not hold that it was clearly established that RLUIPA conferred
liability for damages against a defendant sued in his individual capacity. Id.
34
Wiley alleges that by taking the various actions he alleged, the EKCC
defendants negligently and intentionally inflicted emotional distress on him in
violation of Kentucky state law.
The only EKCC defendant who will be required to respond to Wiley's federal
constitutional claims is Chaplain Todd Boyce, as the Court has dismissed Wiley's
federal claims against the other EKCC defendants. A district court should generally
decline to exercise jurisdiction over pendent state law claims when the underlying
federal claims have been dismissed. See 28 U.S.C. § 1367(c)(3); United Mine
Workers v. Gibbs, 383 U.S. 715, 726 (1966); Taylorv. First ofAm. Bank-Wayne, 973
F.2d 1284, 1287 (6th Cir. 1992). The Court will allow Wiley's pendant state law
claims to proceed against defendant Todd Boyce, but will dismiss Wiley's pendant
state law claims asserted against all of the other EKCC defendants.
CONCLUSION
Accordingly, it is ORDERED as follows:
1.
The Clerk ofthe Court shall modify the CMIECF sheet to retlect that (a)
Defendant "Billy J. Patrick" is also known as "Patrick Billys," and (b) the KDOC is
a separate, specific defendant in this proceeding;
2.
The following claims are DISMISSED WITH PREJUDICE for failure
to state a claim upon which relief can be granted:
35
a.
Wiley's 42 U.S.C. § 1983 claims against the State of Kentucky,
the KDOC, and all seven EKCC defendants in their official
capacities;
b.
Wiley's First Amendment claims that defendants Patrick Billys
and Jamie Nickells denied him a Quran for one day on August 19,
2010;
c.
Wiley's Eighth Amendment claims challenging the conditions of
his confinement in the "dry cell" between August 19, 2010, and
September 11, 2010;
d.
Wiley's Eighth Amendment claims alleging verbal abuse and
verbal harassment while he was confined for two weeks in the
"dry-cell;"
e.
Wiley's Eighth Amendment claims alleging that defendant Shawn
McKensie exposed him to overflowing toilets, raw sewage, and
offensive odors between September 11-12, 2010;
f.
Wiley's First Amendment freedom of religion claims and his
Fourteenth Amendment equal protection claims challenging the
EKCC mail-room's placing a seven-day hold on his incoming
mail/religious literature;
36
g.
Wiley's Eighth Amendment claims alleging the discovery of a
dead rat in his soup on May 1, 2011;
h.
Wiley's First and Sixth Amendment claims alleging that on June
10, 2010, defendant Shawn McKensie denied him access to his
legal documents;
1.
Wiley's Fourteenth Amendment claims stemming from the
alleged removal ofhis personal property from his cell on June 10,
2011;
J.
Wiley's Eighth Amendment claims alleging the discovery ofants
in his Ramadan food tray on August 1, 2011;
k.
Wiley's Eighth Amendment claims alleging emotional distress;
,
1.
Wiley's claims under the First, Fourth, and Eighth Amendments
stemming from the search of his cell by defendant Billys on
August 9,2011;
m.
Wiley's demand for damages under 42 U.S.C. § 1985(3);
n.
Wiley's demand for damages under RLUIPA;
o.
Wiley's claims state law claims alleging negligent and intentional
infliction of emotional distress against the Commonwealth of
Kentucky, the KDOC, and EKCC defendants Gary Beckstrom,
37
EKCC Warden; Jamie Nickells, EKCC Officer; Billy J. Patrick,
aJka "Patrick Billys," EKCC Officer; Travis Evans, EKCC
Officer; Shawn McKenzie, EKCC Unit Administrator; and
Heather Nickells, EKCC Registered Nurse.
3.
The following claims are DISMISSED WITHOUT PREJUDICE:
a.
Wiley's Eighth Amendment claims that defendants Patrick Billys
and Jamie Nickells applied excessive force on him August 19,
2010;
b.
Wiley's Fourteenth Amendment due process claim that defendant
Heather Nickells denied him due process of law by filing a false
disciplinary charge against him on August 9, 2011;
4.
The Clerk of the Court Shall TERMINATE the following defendants:
(a) the Commonwealth of Kentucky, (b) the KDOC; (c) Gary Beckstrom, EKCC
Warden; (d) Jamie Nickells, EKCC Officer; (e) Billy J. Patrick, aJka "Patrick Billys,"
EKCC Officer;
(0 Travis Evans, EKCC Officer; (g) Shawn McKenzie, EKCC Unit
Administrator; and (h) Heather Nickells, EKCC Registered Nurse;
5.
Wiley's First and Fourteenth Amendment claims alleging that defendant
Todd Boyce, EKCC Chaplain, denied him a Quran for one year and denied him equal
protection of the law, and his pendant state law claims against Boyce alleging
38
negligent and intentional infliction of emotional distress, shall proceed;
6.
The Ashland Clerk's Office shall prepare and issue summons for
defendant Todd Boyce, EKCC Chaplain and shall also prepare as many copies ofthe
complaint [D. E. No. I], and this Order, as there are summonses and any required
USM Forms 285. If insufficient information exists to sufficiently or effectively
complete any summons or USM Form 285 regarding Boyce, the Clerk shall promptly
make a Clerk's entry on the docket stating why the Clerk cannot complete the
summons or USM Form 285 or any other documents necessary to effectuate service;
7.
The Ashland Clerk shall send by certified mail the required Service
Packets for Defendant Todd Boyce to the United States Marshals Service "USMS"
in Lexington, Kentucky. The Clerk shall enter the certified mail receipt into the
record and note in the docket the date on which the Service Packet was delivered to
the USMS;
8.
The USMS shall serve defendant Todd Boyce by:
a.
Sending a Service Packet to him to be served by way of certified
or registered mail, and
b.
Sending a Service Packet for him to the KDOC in Frankfort,
Kentucky, by certified or registered mail; or,
c.
Personally serving a Service Packet upon him through any
39
arrangement it may have with the KDOC;
10.
Wiley shall immediately advise the Ashland Clerk's Office of any
change in his current mailing address. Failure to do so may result in dismissal ofthis
case.
11.
Wiley must communicate with the Court solely through notices or
motions filed with the Ashland Clerk's Office.
The Court will disregard
correspondence sent directly to the Judge's chambers; and
12.
For every further pleading or other document he wishes to submit to the
Court, Wiley shall serve upon each defendant, or, if appearance has been entered by
counsel, upon each attorney, a copy ofthe pleading or other document. Gamble shall
send the original papers to be filed with the Clerk of the Court together with a
certificate stating the date a true and correct copy ofthe document was mailed to each
defendant or counsel. If a District Judge or Magistrate Judge receives any document
which has not been filed with the Clerk, or which has been filed but fails to include
the certificate of service of copies, the Court will disregard it.
This 21 st day of November, 2012.
40
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