Little v. Carl et al

Filing 8

MEMORANDUM OPINION & ORDER: It is ordered 1) Claims against Terry Carl, Jailer, Kenton County Detention Center, individually and in his official capacity are DISMISSED WITH PREJUDICE and Terry Carl is dismissed as a party to this action; 2) Plf' ;s claims for monetary relief against the remaining named defendants, Boyle, Bell and Landrum in their official capacities are DISMISSED WITH PREJUDICE; 3) Plf's claims against Boyle, Bell, and Landrum in their individual capacities shall procee d; 4) Clerk shall prepare documents for service on Boyle, Bell, Landrum; 5) Clerk shall prepare Service packet; 6) Clerk shall provide service packet to USMS in Covington, KY. 7) Service to be conducted by USMS Covington, KY; 8) Plf shall notify cler k of any change in mailing address, Court will disregard any correspondence sent directly to judge's chambers and plf shall include certificate of service. The court will disregard any notice or motion that does not include this certification. Signed by Judge William O. Bertelsman on 3/10/2014.(TED)cc: COR, Timothy Ray Little via U.S. Mail

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

TIMOTHY RAY LITTLE,

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Plaintiff,
V.
TERRY CARL, et al.,
Defendants.
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No. 13-CV-154-WOB

MEMORANDUM OPINION
AND ORDER

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Plaintiff Timothy Ray Little is an inmate presently confined in the Little Sandy
Correctional Complex (“LSCC”) located in Sandy Hook, Kentucky. Proceeding without an
attorney, Little has filed a civil rights complaint asserting claims under 42 U.S.C. § 1983
concerning certain events alleged to have transpired while he was confined at the Kenton County
Detention Center (“KCDC”) in Covington, Kentucky. Little has named as defendants Jailer
Terry Carl, Deputy Jailer Kathy Boyle, Sgt. Bell, and Sgt. Landrum, each in their individual and
official capacity. [R. 1] Little appears to claim that the defendants (1) violated his due process
rights by removing him from his job at the jail; (2) retaliated against him for submitting
grievances; and (3) failed to protect him from an assault by other inmates at the jail. He seeks
compensatory damages of $250,000, punitive damages of $250,000, release on parole to obtain
proper medical treatment, and his medical expenses.
The Court must conduct a preliminary review of Little’s 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 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. McGore v. Wrigglesworth,
114 F.3d 601, 607-08 (6th Cir. 1997). The Court evaluates Little’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
Little’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).
FACTUAL BACKGROUND
Little’s complaint concerns several different matters: being removed from a job in the
jail laundry doing uniforms, his placement in a disciplinary cell, being injured in an assault by
another inmate, filing grievances, and alleged retaliation by jail personnel for submitting
grievances. [R. 1] Little claims that in early January 2013, Deputy Jailer Kathy Boyle removed
him from his job in the jail’s laundry and directed that he stay on his bunk. On January 9, 2013,
Little states he filed a grievance against Deputy Boyle for removing him from his prison job and
submitted a follow-up grievance against her on January 11, 2013. [R. 1, p. 4] Little filed
another grievance on January 16, 2013, but later tore it up after talking to Sgt. Landrum,
believing that the matter was settled. [R. 1, p. 6]
Shortly thereafter, Little states that Sgt. Bell placed him in a disciplinary cell where he
remained for six weeks before being placed in Cell 152, which houses 16 inmates with the most
severe charges and temperaments. Little claims that given the charges against him, he was

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inappropriately placed in Cell 152, that such placement endangered his health and well-being,
and that he voiced his concern over being there to Lt. Spang.1 Subsequently, Little claims he
was attacked by another inmate and sustained a black eye, a broken finger, and various cuts and
bruises. [R. 1, pp. 6-7]
DISCUSSION
To assert a viable claim under § 1983, a plaintiff must establish that his constitutional
rights were violated by one acting color of state law. Plaintiff does not specify which of his
constitutional or statutory rights the defendants have allegedly violated. Liberally construing his
complaint, it appears that plaintiff’s claims are confined to claims arising solely under federal
law and that plaintiff’s complaint contains no state law claims.
A.

Claims Against Defendants in their Official Capacities
As a matter of law, plaintiff’s claims against the defendants in their official capacities are

considered to be claims against the office they represent, viz., KCDC, which is, in turn for all
purposes Kenton County. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70-71 (1989)
(“[A] suit against a state official in his or her official capacity is not a suit against the official but
rather is a suit against the office.”). The Court, therefore, must determine “(1) whether plaintiff’s
harm was caused by a constitutional violation, and (2) if so, whether the [municipality] is
responsible for that violation.” Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992).
Supervisory liability under 42 U.S.C. § 1983 arises from the Supreme Court’s opinion
in Rizzo v. Goode, 423 U.S. 362 (1976). In Rizzo, the Court found that the mayor, city managing

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Lt. Spang is not named as a defendant.
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director, and police commissioner were not liable for the constitutional violations by the city’s
police officers because “there was no affirmative link between the occurrence of the various
incidents of police misconduct and the adoption of any plan or policy by [the defendants]-express
or otherwise-showing their authorization or approval of such misconduct.” Id. at 371. The
Court rejected the idea that supervisory liability under section 1983 could attach on the basis of
respondeat superior, holding that the mere failure to act was not a sufficient basis for liability.
Instead, officials should be personally liable in damages only for their own unconstitutional
behavior.
Thus, “a local government cannot be sued under § 1983 for an injury inflicted solely by
its employees or agents.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978); Leary v.
Daeschner, 349 F.3d 888, 903 (6th Cir. 2003) (citing Taylor v. Mich. Dep’t of Corr., 69 F.3d 76,
81 (6th Cir. 1995)) (“[Section] 1983 liability cannot be premised on a theory of respondeat
superior.”). It is only when the “execution of a government’s policy or custom, whether made
by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy,
inflicts the injury that the government as an entity is responsible under § 1983.” Id. In order to
show a policy or custom, plaintiff “must (1) identify the municipal policy or custom, (2) connect
the policy to the municipality, and (3) show that [his] particular injury was incurred due to the
execution of that policy.” Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003) (numbers in
original) (citation omitted). Further, “a plaintiff may be able to prove the existence of a
widespread practice that, although not authorized by written law or express municipal policy,
is ‘so permanent and well settled as to constitute a custom or usage’ with the force of law.” City

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of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (quoting Adickes v. S.H. Kress & Co., 398
U.S. 144 (1970)).
In the present case, plaintiff’s claims against the defendants in their official capacities,
recognized as claims against Kenton County, must fail as he has not identified a policy or custom
which inflicted his injury and which would make these defendants responsible under § 1983.
Little has not alleged that there exists any written law or express municipal policy of the Kenton
County Fiscal Court or the existence of a widespread practice at the KCDC that ultimately
caused his injury and which could subject the county to liability. In the absence of a municipal
policy or custom directing the actions of the defendants, Kenton County cannot be held liable
under 42 U.S.C. § 1983. Consequently, plaintiff’s claims against the defendants in their official
capacities will be dismissed for failure to state a claim for which relief can be granted.
B.

Claims Against Defendants in their Individual Capacities
1.

Jailer Terry Carl

In the caption of his complaint, Little names Jailer Terry Carl as a defendant; however,
he does not state what actions Jailer Carl took or identify any conduct by Jailer Carl that violated
his constitutional rights. In fact, the narrative statement of Little’s claim makes no reference
whatsoever to Jailer Carl. It appears that Little named Jailer Carl as a defendant due to his
supervisory position at the jail.

It is well settled that a supervisor is not liable under § 1983 solely because of his being
in a supervisory position. In other words, being a supervisor does not automatically entail

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liability § 1983; personal involvement of that supervisor is required. See Hays v. Jefferson, 668
F.2d 869, 872 (6th Cir. 1982) (“The law is clear that liability of supervisory personnel must be
based on more than merely the right to control employees.”). A supervisor’s liability must be
premised upon direct or personal involvement in the conduct complained of. Leach v. Shelby
County Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989). See also Carrie v. Rios, Civil Action No.
08-CV-13-KKC, 2008 WL 320329, at *2 (E.D. Ky. Feb. 4, 2008) (supervisor must “have at least
implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct”).
While Little named Jailer Carl in the Complaint, he did not allege that Jailer Carl was
directly involved in, encouraged, implicitly authorized, approved, knowingly acquiesced in, or
in any way orchestrated the alleged unconstitutional conduct of any other jail employees. Hays,
supra. Therefore, Little’s complaint against Jailer Carl will be dismissed because Little has
failed to state a claim against him for which relief can be granted.
2.

Defendants Kathy Boyle, Sgt. Bell, and Sgt. Landrum

Having conducted the initial screening required by 28 U.S.C. §§ 1915(e)(2)(B), 1915A,
the Court concludes that the complaint warrants a response from the remaining defendants
Boyle, Bell, and Landrum in their individual capacities. Because Little is proceeding in forma
pauperis, the Clerk of the Court and the United States Marshal’s Service (“USMS”) will serve
the defendants with a summons and a copy of the complaint and its attachments on Little’s
behalf. Fed. R. Civ. 4(c)(3); 28 U.S.C. § 1915(d).
CONCLUSION
Accordingly, it is ORDERED as follows:

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(1)

The claims against Terry Carl, Jailer, Kenton County Detention Center,

individually and in his official capacity, are DISMISSED WITH PREJUDICE, and Terry Carl
is dismissed as a party to this action.
(2)

Plaintiff’s claims for monetary relief asserted against the remaining named

defendants, Boyle, Bell, and Landrum, in their official capacities are DISMISSED WITH
PREJUDICE.
(3)

Plaintiff’s claims against defendants Boyle, Bell, and Landrum in their individual

capacities shall proceed.
(4)

The Clerk shall prepare the documents necessary for service of process upon:
a.
b.

Sargeant Bell, Kenton County Detention Center; and

c.
(5)

Kathy Boyle, Deputy Jailer, Kenton County Detention Center;

Sargeant Landrum, Kenton County Detention Center.

The Clerk shall prepare a “Service Packet” consisting of the following documents

for service of process upon these defendants:
a.
b.
c.
d.
(6)

a completed summons form;
the Complaint [R. 1];
this Order; and
a completed USMS Form 285.

The Clerk shall provide the Service Packet(s) to the USMS in Covington,

Kentucky.
(7)

Service of Process upon Defendants Kathy Boyle, Deputy Jailer, Kenton County

Detention Center; Sargent Bell, Kenton County Detention Center; and, Sargeant Landrum, Kenton
County Detention Center shall be conducted by the USMS in Covington, Kentucky, by serving
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a Service Packet personally upon each of them, through arrangements with the Kenton County
Detention Center.
(8)

The plaintiff SHALL:
a.

Immediately advise the Clerk’s Office of any change in his current mailing
address. Failure to do so may result in dismissal of this case.

b.

Communicate with the court solely through notices or motions filed with
the Clerk’s Office. The court will disregard correspondence sent
directly to the judge’s chambers.

c.

In every notice, motion, or paper filed with the court, certify in writing
that he has mailed a copy to every defendant (or his or her attorney) and
state the date of mailing. The court will disregard any notice or motion
which does not include this certification.

This the 10th day of March, 2014.

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