Nichols v. Boyd County Detention Center

Filing 5

MEMORANDUM OPINION & ORDER: (1) Complaint is DISMISSED WITH PREJUDICE; (2) Court will enter an appropriate judgment; (3) Action is stricken from the active docket. Signed by Judge Henry R. Wilhoit, Jr. on 3/11/2013.(CMR)cc: COR, Nathan Nichols, Sr. by U.S. Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND

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NATHAN NICHOLS, SR.,

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Plaintiff,

Civil Action No. 13-CV-16-HRW

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V.

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Defendants.

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MEMORANDUM OPINION

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BOYD COUNTY DETENTION
CENTER, et ai.,

AND ORDER

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Nathan Joel Nichols, Sr., is an inmate confined in the Boyd County Detention
Center ("BCDC") in Catlettsburg, Kentucky.

Proceeding without an attorney,

Nichols has filed a civil rights complaint [D. E. No.1] asserting claims under 42
U.S.C. § 1983. By prior order, the Court has granted Nichols's motion to pay the
filing fee in installments. [D. E. No.4]
The Court must conduct a preliminary review of Nichols's complaint because
he has been granted permission to pay the filing fee in installments and because he
asserts claims against government officials. 28 U.S.C. §§ 1915(e)(2), 1915A. A
district court must dismiss any claim that is frivolous or malicious, fails to state a
claim upon which relief may be granted, or seeks monetary relief from a defendant
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who is immune from such relief. McGore v. Wrigglesworth, 114 F.3d 601,607-08
(6th Cir. 1997). The Court evaluates Nichols's complaint under a more lenient
standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S.
89,94 (2007); Burton v. Jones, 321 F.3d 569,573 (6th Cir. 2003). At this stage, the
Court accepts Nichols's factual allegations as true, and liberally construes his legal
claims in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
Having reviewed the complaint, the Court must dismiss it with prejudice
because none ofthe alleged conduct about which Nichols complains rises to the level
of a constitutional violation.
DISCUSSION

Nichols alleges that on August 1,2012, he mailed three items to his sister: (1)
a letter he had written to her; (2) a letter he had written to the Kentucky Department
of Corrections ("KDOC"), and (3) a grievance complaining about money which
Nichols claims the BCDC owed him. On August 28,2012, that mailing was returned
to Nichols for insufficient postage, but the returned envelope contained only the letter
addressed to Nichols's sister. Nichols claims that someone at the BCDC had removed
the grievance and had " ... sealed my letter to DOC and sent it off." [D. E. No.1, p. 2]
Nichols alleges that unidentified BCDC officials violated his constitutional rights by
holding his returned mail for almost a month after the post office determined it lacked
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adequate postage; opening his returned mail; removing his grievance form; and
sending his other letter to the KDOC without his knowledge.
Nichols also alleges that an unidentified BCDC deputy repeatedly referred to
him and other African-American inmates as "Detroit," and that the deputy told white
BCDC inmates he regretted having to place them in the "Detroit" cell (meaning the
cell occupied by African-American inmates). [Id., p. 2] Nichols alleges that by
referring to him as "Detroit," the BCDC deputy was actually making an offensive
racial comment which violated his constitutional rights.
Finally, Nichols alleges that he was placed in solitary confinement "...for
talking about what jail administration didn't want to hear.... " [Id., p. 8, § VI].
Nichols provided no other information about his alleged placement in solitary
confinement and identified no specific jails officials, but broadly construing his
statement, he could be asserting a First Amendment retaliation claim.
Section IV of the complaint form asked Nichols to identify what, if any, steps
he took to administratively exhaust his claims. Nichols gave conflicting responses.
First, Nichols marked the "no" box in response to that question, indicating that he did
not file grievances pursuant to the KDOC's exhaustion procedures. [Id., p. 5, § IV
(B)(l)] Nichols also states that he did not exhaust his claims because the BCDC
changed the grievance forms and process by which it distributed grievance forms.
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[ld., § IV (B)(5)]

In other passages, however, Nichols indicates that he has filed one or more
grievances, stating that on February 4, 2013, he had " ... asked for a copy of each
grievance I've filed with the jaiL.." [ld., § IV (B)( 4)] Nichols also states that he had
asked Damon Matthews for a grievance, but that "If jail administration or Damon
Matthews doesn't want an inmate to have a grievance form then you won't have one."
[ld., p. 6, § IV (C)(5)] Finally, Nichols notes that the grievance which BCDC

officials removed from his August 1,2012, mailing had been mailed to the KDOC.
[ld., §IV (C)(4)(0]

Nichols seeks $150,000 in compensatory damages and injunctive relief in the
form of an order directing the KDOC to provide the BCDC staff with better training
and handbooks which instruct them how to properly operate a county jail.

DISCUSSION
Given Nichols's conflicting comments about exhaustion efforts, and affording
Nichols leniency because he does not have an attorney, the Court will treat his claims
as exhausted and address them on the merits. Because Nichols's claims are deficient
on their merits, however, they will be dismissed with prejudice.
Nichols first alleges that the opening, reading, and handling of his returned
mail by BCDC officials on or about August 28, 2012, violated his constitutional
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rights. Nichols can not recover damages from the BCDC based on the alleged
opening ofhis mail on August 28,2012, because municipal departments, such as jails,
are not "persons" subject to suit under § 1983. Rhodes v. McDannel, 945 F .2d 117,
120 (6th Cir.1991); see also Marbry v. Corr. Med. Serv., 238 F.3d 422,2000 WL
1720959, at *2 (6th Cir. Nov. 6,2000) (Table) (holding that the Shelby County jail
is not an entity subject to suit under § 1983); Chism v. Christian County Jail, No.
5: 10-CV-88-R, 2010 WL 3947504 (W.D. Ky. October 7,2010) (same, as to Christian
County Jail); Wilkey v. Adams, No. 5:07-CV-P61, 2008 WL 2743939, at *4 (W. D.
Ky., July 11,2008) (same, as to the McCracken County Jail).
Further, inmates retain the right under the First Amendment to receive mail, but
that right is more limited in scope than the constitutional rights held by individuals
in society at large. Shaw v. Murphy, 532 U.S. 223, 228-29 (2001); Turner v. Safley,
482 U.S. 78, 84-85 (1987); Pel! v. Procunier, 417 U.S. 817, 822 (1974). Courts do
distinguish between legal mail and non-legal mail.

Jackson v. Williams, No.

1:11-CV-01841, 2011 WL 6326123, at *2 (N.D. Ohio December 16,2011). As a
general matter prison officials may open, inspect, and read non-legal mail pursuant
to a unifonn and evenly applied policy in order to maintain the safety of staff and
inmates and the security of the facility, prevent escape plans, and prevent prisoners
from accessing inflammatory materials or other forms ofcontraband. See Turner, 482

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U.S. at 92; Sallier v. Brooks, 343 F.3d 868,874 (6th Cir. 2003); Lavado v. Keohane,
992F.2d601, 607 (6thCir. 1993); Youngv. Weathersby,No.1:09-CV-67,2010WL
3909463, at

* 8 (W.D. Mich. Sept.15, 2010).

Legal mail is given much greater protection from unreasonable intrusion than
non-legal mail. See e.g., Wolffv. McDonnell, 418 U.S. 539, 577 (1974); Kensu v.

Haigh, 87 F.3d 172, 174 (6th Cir. 1996). Legal mail is defined as mail received from
elected officials and government agencies including the courts, Muhammad v.

Pitcher, 35 F.3d 1081, 1984-85 (6th Cir. 1994), and mail sent to and from an
inmate's attorney, Sallier, 343 F.3d at 875-77; Kensu, 87 F.3d at 174. Courts
carefully scrutinize policies giving prison officials unfettered discretion to open and
read "legal mail" because such correspondence implicates the attorney-client
privilege and the prisoner's right of access to the courts. Id. Prison officials may
open, read, and inspect legal mail for contraband only in the prisoner's presence, but
a prisoner must request special handling of his legal mail. Sal/ier, 343 F.3d at 875.
Whether a particular piece of mail is "legal mail" is a question of law which
the Court must determine. Id. at 871. Based on Nichols's description of his August
1, 2012, mailing, none of its contents could broadly be considered "legal mail"
entitled to special protections under the First Amendment. Therefore, the fact that
unidentified BCDC officials opened Nichols's incoming mail- which originated as
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his own outgoing mail - when it was returned for insufficient postage did not violate
Nichols's First Amendment rights. See Nicklay v. Brand, No.1 :08CV330, 2008 WL
4738386, at *2 (W.D. Mich. Oct. 27, 2008) (dismissing prisoner's First Amendment
claims where he neither requested special handling of his legal mail nor alleged that
his incoming mail was from a court or attorney or otherwise qualified as confidential
legal mail which would implicate First Amendment rights).
Nichols's second claim, that unidentified BCDC deputies subjected him to
verbal racial harassment, fails because " ... the occasional or sporadic use of racial
slurs, although unprofessional and reprehensible, does not rise to a level of a viable
constitutional claim." Williams v. Johnson, 55 F. App'x 736, 737 (6th Cir. 2003);

Iveyv. Wilson, 832 F.2d 950, 954-55 (6th Cir.1987).
Nichols's third claim, that he was placed in solitary confinement" ... for talking
about what jail administration didn't want to hear.... " [D. E. No.1, p. 8, § VI] does
not suffice as the basis of a retaliation claim.

The First Amendment forbids

retaliation against a prisoner for exercising his or her constitutional rights.

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). To establish a First
Amendment retaliation claim, the plaintiff must prove that: 1) he engaged in activities
protected by the Constitution or statute; 2) the defendant took an adverse action that
would deter a person of ordinary firmness from continuing to engage in that conduct;
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and 3) that this adverse action was taken at least in part because ofthe exercise ofthe
protected conduct. The plaintiff has the burden of proof on all three elements.
Murray v. Evert, 84 F. App'x 553,556 (6th Cir. 2003); Green v. Tudor, 685 F. Supp.

2d 678, 692 (W.D. Mich. 2010).
Nichols has not established the first element of a construed retaliation claim,
i. e., he did not allege that BCDC officials placed him in solitary confinement because

he was engaged in constitutionally protected conduct, such as filing non-frivolous
grievances, observing his religious beliefs, or accessing his right to the courts.
Nichols may have filed a non-frivolous grievance raising the unidentified topic, but
he did not specify that fact - or any other legitimate possibility - in his complaint.
Nor did Nichols state when he was placed in solitary confinement, by whom, or for
how long. He merely alleged that he was "talking about" some unidentified topic
about which BCDC officials did not want to hear. This vague and broad allegation
requires the Court to speculate as to why Nichols was placed in solitary confinement.
A plaintiff asserting claims under § 1983 must provide some factual basis for his or
her claims, and mere conclusory allegations of unconstitutional conduct are
insufficient to state a claim for relief. Ashcrofiv. Iqbal, 556 U.S. 662, 678-79 (2009);
Maldowan v. City ofWarren, 578 F .3d 351, 390-91 (6th Cir. 2009); Chapman v. City
ofDetroit, 808 F.2d 459, 465 (6th Cir. 1986). A district court is not required to
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conjure up facts to support vague and conclusory claims. Scheid v. Fanny Farmer
Candy Shops, Inc., 859 F.2d 434,437 (6th Cir. 1988); Morgan v. Church's Fried
Chicken, 829 F.2d 10, 12 (6th Cir. 1987).
This is particularly true where a prisoner alleges retaliation.

"[B]ecause

prisoner retaliation claims are easily fabricated, and accordingly pose a substantial
risk of unwarranted judicial intrusion into matters of general prison administration,
we are careful to require non-conclusory allegations." Moore v. Michigan Dept. of
Corrections, No. 1:07-CV-756, 2009 WL 2170369, at *3 (W.D. Mich. July 21,
2009) (citing Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003)). In Moore, the
court dismissed the prisoner's retaliation claim because he did not demonstrate that
he had participated in any protected activity that would serve as the basis for his First
Amendment retaliation claim. Moore, 2009 WL 2170369, at *3. The court stated
that "Plaintiff alleges that the retaliation arose from an unspecified issue raised at the
warden's forum. He fails to identify the issue raised or even the date of the forum."
Id. The same rationale applies to Nichols's construed retaliation claim.
Nichols might have filed a grievance complaining about alleged verbal
harassment from BCDC deputies when he was placed in solitary confinement, but
even if that were the case, verbal abuse can not be the basis of a constitutional
violation.

See Ivey, 832 F.2d at 954-55.

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Thus, if Nichols filed a grievance

complaining about alleged derogatory racial comments, his grievances would have
been frivolous and could not have formed the basis of a First Amendment retaliation
claim. See Scott v. Kilcherman, No. 99-1711, 2000 WL 1434456 (6th Cir. Sept. 18,
2000) (holding that prisoner's frivolous grievance would not support a First
Amendment retaliation claim). An inmate has a First Amendment right to file
grievances against prison officials, but that right is protected only if the grievances
are not frivolous. Herron v. Harrison, 203 F.3d 410,415 (6th Cir. 2010).
Nichols might also have filed a grievance complaining about the opening and
handling of his returned mail on August 28, 2012. As the Court has explained that
the mail room staffs action in this respect did not violate Nichols's constitutional
rights, any grievance complaining of this conduct also could not have been the
foundation of a retaliation claim.
Finally, Nichols might have been placed in solitary confinement because he
committed some type of disciplinary infraction. If that were the case, he has again
failed to establish a retaliation claim. "[I]f a prisoner violates a legitimate prison
regulation, he is not engaged in 'protected conduct,' and cannot proceed beyond step
one." Thaddeus-X, 175 F.3d at 395.
Even under the liberal pleading standards afforded to litigants proceeding
without an attorney, Nichols has not stated a retaliation claim relating to his
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confinement in solitary confinement.

Nichols's construed First Amendment

retaliation allegation will be dismissed with prejudice for failure to state a claim upon
which relief can be granted.

CONCLUSION

Accordingly, IT IS ORDERED that:

1.

The 42 U.S.C. § 1983 complaint [D. E. No.1] filed by Nathan Joel

Nichols, Sr., is DISMISSED WITH PREJUDICE;
2.

The Court will enter an appropriate judgment; and

3.

This action is STRICKEN from the active docket.

This March 11,2013.

SWJl18d By-

Henry R. WIlhoit Jr.

United States Dlstnct Judg£

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