Parsons v. Litteral et al

Filing 6

MEMORANDUM OPINION & ORDER: IT IS ORDERED that: 1. Myron Parsons' complaint DE 1 is DISMISSED WITH PREJUDICE. 2. The Court will enter an appropriate judgment. 3. This matter is STRICKEN from the active docket. Signed by Judge Henry R. Wilhoit, Jr on 6/15/17.(KSS)cc: COR, Parsons (via US Mail)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at ASHLAND
)

MYRON PARSONS,

)

Plaintiff,

)

Civil No. 17-62-HRW

)

v.

)
)

KATHY LITTERAL, et al.,

)
)
)

Defendants.

MEMORANDUM OPINION
AND ORDER

*** *** *** ***
Myron Parsons is a prisoner incarcerated at the Eastern Kentucky Correctional
Facility in West Liberty, Kentucky.

On February 13, 2016, Parson's father,

daughter, brother, and sister came to visit him at the prison, having traveled all the
way from Minnesota, Chicago, Michigan, and Massachusetts to see him. Because
of the time and expense they had incurred to get to Kentucky, Parsons had previously
obtained permission from the prison to have them stay for a five-hour "extended"
visit, much longer than that usually permitted by prison rules. [D. E. No. 1 at 2-3;
No. 1-1 at 12-14]
However, after the two hours permitted for "special" visits, correctional
officer Prater told Parsons and his family that their time was up, and his visitors
would have to leave the prison. Parsons protested, and told Officer Prater that he
had been approved for an "extended" visit, and tried to show Prater paperwork
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confirming that fact, but to no avail. After Parsons' family members had left the
visiting room, Prater did check and found the approval paperwork, but it was too
late: Parsons' family had left the area. [D. E. No. 1-1 at 3]
Parsons filed inmate grievances and appeals, beginning on February 18, 2016
and concluding on April 27, 2016. At each step of administrative review, Kentucky
Department of Corrections ("KDOC") persmmel readily acknowledged the error,
but could only offer him another chance for an extended visit with his family. [D.
E. No. 1 at 5; No. 1-1 at 1-9] Unsatisfied, Parsons filed a claim with the Kentucky
Board of Claims. KDOC again acknowledged that Officer Prater's actions were
negligent, but on December 1, 2016, the Board denied compensation, concluding
that Parsons' mental distress was not compensable and that only his family incurred
compensable "costs" under Ky. Rev. Stat. 44.070. [D. E. No. 1-1at12-16]
In his complaint, Parsons contends that the actions of defendants Warden
Kathy Litteral, Officer Prater, and EKCC violated his rights under the Ninth
Amendment. He seeks recompense for the costs incurred by his family for their
truncated visit, as well as to be moved to a closer prison to which travel will be more
affordable. [D. E. No. l at 4, 8]
The Court must conduct a preliminary review of Parsons' complaint because
he has been granted permission to proceed in forma pauperis and because he asserts
claims against government officials. 28 U.S.C. §§ 1915(e)(2), 1915A. A district
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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 who is
immune from such relief. Hill v. Lappin, 630 F. 3d 468, 470-71 (6th Cir. 2010).
When testing the sufficiency of Parsons' complaint, the Court affords it a forgiving
construction, accepting as true all non-conclusory factual allegations and liberally
construing its legal claims in the plaintiff's favor. Davis v. Prison Health Servs.,
679 F.3d 433, 437-38 (6th Cir. 2012).
The events described in Parsons' complaint are regrettable, and his frustration
with the responsible officer is understandable. But his claims are subject to dismissal
on both factual and legal grounds, and the Court must dismiss his complaint.
First, of the three defendants he has named in his complaint, only officer
Prater may be sued. EKCC is just a building, not an independent legal entity. Even
if the Court were to construe this claim as being asse1ied against KDOC, the state
agency which operates the prison, that claim would be barred by the Eleventh
Amendment.

The Eleventh Amendment to the United States Constitution

specifically prohibits federal courts from exercising subject matter jurisdiction over
a suit for money damages brought directly against the state, its agencies, and state
officials sued in their official capacities. Puerto Rico Aqueduct & Sewer Auth. v.

Metcalf & Eddy, Inc., 506 U.S. 139, 687-88 (1993); Cady v. Arenac Co., 574 F.3d
334, 342 (6th Cir. 2009); Kentucky v. Graham, 473 U.S. 159, 169 (1985). In
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addition, state agencies are not considered "persons" within the meaning of 42
U.S.C. § 1983. Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). Parsons
may therefore not sue either EKCC or KDOC for damages in this Court.
For her part, Warden Litteral may not be sued because she was not in any way
personally involved in the conduct about which Parsons complains. In order to state
a viable claim against a given defendant in a civil rights action, the plaintiff "must
allege that the defendant [was] personally involved in the alleged deprivation of
federal rights." Nwaebo v. Hawk-Sawyer, 83 F. App'x 85, 86 (6th Cir. 2003) (citing
Rizzo v. Goode, 423 U.S. 362, 373-77 (1976)). The requirement of personal
involvement does not mean that the particular defendant actually committed the
conduct complained of, but it does require a supervisory official to have "at least
implicitly authorized, approved, or knowingly acquiesced in the unconstitutional
conduct." Hays v. Jefferson County, Kentucky, 668 F.2d 869, 874 (6th Cir. 1982).
The mere fact of supervisory capacity is not enough: respondeat superior is not an
available theory of liability. Polk County v. Dodson, 454 U.S. 312, 325-26 (1981).
Here, at most the warden responded to Parsons' inmate grievance on the subject, a
response which acknowledged the officer's error. That conduct is no basis for
liability. Alder v. Corr. Medical Services, 73 F. App'x. 839, 841 (6th Cir. 2003)
("The mere denial of a prisoner's grievance states no claim of constitutional
dimension."). Nor is she subject to liability for a subordinate's negligent, or even

4

intentional, failure to abide by the prison's regulations. Ashcroft v. Iqbal, 556 U.S.
662, 677 (2009).
That leaves only a claim against Officer Prater. But regardless of whom the
claim is asserted against, it would fail as a matter of law for three reasons.
First, the claim is time barred. Parsons's claims accrued on February 13,
2016, the day his family was improperly directed to leave the visiting room before
the time for his extended visit was up. Estate ofAbdullah ex rel. Carswell v. Arena,
601 F. App'x 389, 393-94 (6th Cir. 2015) ("Once the plaintiff knows he has been
hurt and who has inflicted the injury, the claim accrues.") (internal quotation marks
omitted) (citing United States v. Kubrick, 444 U.S. 111, 122 (1979)). Because the
remedy afforded in a civil rights action is entirely judge-made, there is no statutory
limitations period.

Instead, federal comis apply the most analogous statute of

limitations from the state where the events occurred. Wilson v. Garcia, 471 U.S.
261, 268-71 (1985). The events about which Parsons now complains occurred in
Kentucky; therefore, Kentucky's one-year statute of limitations for asserting
personal injuries applies. Ky. Rev. Stat.§ 413.140(1)(a); Hornback v. LexingtonFayetfe Urban Co. Gov't., 543 F. App'x 499, 501 (6th Cir. 2013); ivfitchell v.
Chapman, 343 F.3d 811, 825 (6th Cir. 2003).
Ordinarily, that would have required Parsons to file suit by February 13, 2017.
But federal law requires inmates to exhaust their administrative remedies before

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filing suit, 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 205-07 (2007), so the
limitations period is extended while he does so, as long as such remedies are pursued
diligently and in good faith. Brown v. Morgan, 209 F.3d 595, 596 (6th Cir. 2000).
Parsons filed a grievance within days after his visit was cut short, and finished
exhausting his remedies when KDOC Commissioner Ballard denied his last appeal
on April 27, 2016. [D. E. No. 1-1 at 9] At the latest, Parson's complaint was
therefore required to be filed by April 27, 2017. But it was not received in this Court
until June 5, 2017, and is therefore untimely.
The Court has considered whether Parson's complaint can be saved by the
"prison mailbox rule," but concludes that it cannot. Under that rule, a pro se
prisoner's complaint is deemed filed when it is handed to a prison official for mailing
to the court. Richardv. Ray, 290 F.3d 810, 812-13 (6th Cir. 2002) (extending the
rule of Houston v. Lack, 487 U.S. 266 (1988) to civil matters). Ordinarily, the Court
presumes that this occurs on the date the complaint is signed. Brand v. 111otley, 526
F.3d 921, 925 (6th Cir. 2008). Parsons signed his complaint on March 8, 2017 [D.
E. No. 1 at 8], before the running of the limitations period, but a full two months
before it was received by the Comi. But there is proof in the record that the delay
in mailing after that date was not caused by prison officials. Specifically, Parsons
signed his motion to proceed in forma pauperis nearly a month later, on April 26,
2017. [D. E. No. 2 at l] And it was not mailed to the Court until May 30, 2017. [D.

6

E. No. 1-3 at 1] Because Parsons did not mail his complaint for filing until after the
statute of limitations had run, his claims are time-barred and must be dismissed.
Dellis v. Corr. Corp. ofAm., 257 F.3d 508, 511 (6th Cir. 2001).

Even if his complaint had been timely filed, it fails to state a claim for
violation of his constitutional rights. The Ninth Amendment, upon which Parsons
relies exclusively as the source of his substantive claim, states only that "[t]he
enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people." This is merely an interpretive rule; it does
not convey substantive rights. Charles v. Brown, 495 F. Supp. 862, 863 (N.D. Ala.
1980) ("The Ninth Amendment does not specify any rights of the people, rather it
serves as a savings clause to keep from lowering, degrading or rejecting any rights
which are not specifically mentioned in the document itself.") Accordingly, it
cannot form the basis for a civil rights action under Section 1983. Strandberg v. City
of Helena, 791 F. 3d 744, 748 (9th Cir. 1986) ("The ninth amendment has never

been recognized as independently securing any constitutional right, for purposes of
pursuing a civil rights claim . . . The Supreme Court has repeatedly voiced concern
that a section 1983 claim be based on a specific constitutional guarantee.") Even
liberally construing Parsons' pro se complaint to assert a claim that he did not
actually press - a claim under the broad rubric of"due process" - a due process claim
cannot be based upon mere negligence. Daniels v. Williams, 474 U.S. 327, 328
7

(1986) ("the Due Process Clause is simply not implicated by a negligent act of an
official causing unintended loss of or injury to life, libe1iy, or property.")
Finally, Parson's complaint does not set forth an allegation of injury that is
compensable in this proceeding. While Parson seeks, as he did before the Kentucky
Board of Claims, compensation for the costs of airfare, motels and food incurred
during his family's visit, those expenses were incurred by his family, not Parsons,
and he lacks standing to seek their recove1y. And while Parsons doubtless suffered
frustration as a result of their improperly-shortened visit, he suffered no physical
injury as a result of the conduct about which he complains, precluding recovery. 42
U.S.C. § 1997e(e).
For all of these reasons, the Court must dismiss Parsons' complaint.
Accordingly, IT IS ORDERED that:

1.

Myron Parsons' complaint [D. E. No. l] ts DISMISSED WITH

PREJUDICE.
2.

The Court will enter an appropriate judgment.

3.

This matter is STRICKEN from the active docket.

This 15 11' day of June, 2017.

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Signed By:
Henrv R. WUholt. Jr.
United States District Judge