Wireman v. Commonwealth of Kentucky et al
Filing
7
MEMORANDUM OPINION & ORDER: (1) pla's complaint is DISMISSED WITHOUT PREJUDICE as prematurely filed; pla is free to refile this complaint &/or a habeas corpus petition after he has exhausted his state judicial remedies; (2) this case is DISMISSED & STRICKEN from the docket; (3) the court will enter a judgment. Signed by Judge Joseph M. Hood on 5/4/15.(KJR)cc: COR, Wireman (US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
SHELTON WIREMAN,
)
)
)
)
)
)
)
)
)
Plaintiff,
V.
COMMONWEALTH OF KENTUCKY,
et al.,
Civil No. 5:14-CV-456-JMH
MEMORANDUM OPINION
AND ORDER
Defendants.
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****
****
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Shelton Wireman is an inmate confined in the Clark County
Detention Center in Winchester, Kentucky.
Proceeding pro se,
Wireman has filed a civil rights action pursuant to 42 U.S.C. §
1983, against the following named defendants: Commonwealth of
Kentucky,
Center.
Clark
[R.
conviction
allegedly
1]
in
County,
Kentucky,
Wireman’s
Clark
received
complaint
Circuit
from
and
Court
other
Clark
County
concerns
his
and
inmates
Detention
underlying
the
treatment
in
the
Clark
he
has
County
Detention Center.
Because Wireman is asserting claims against the government
and is an inmate proceeding in forma pauperis, the Court is
required to conduct a preliminary review of his complaint.
U.S.C.
§§
1915(e)
(2)(B),
1915A.
Since
Wireman
is
28
not
represented by an attorney, the Court liberally construes his
claims and accepts his factual allegations as true.
Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555-56 (2007).
As explained below, the Court
determines that, at this juncture, Wireman’s complaint fails to
state a claim for relief which can be granted by this Court.
Wireman must first request the relief he seeks from the state
court.
Wireman’s complaint will be dismissed without prejudice.
BACKGROUND
On July 11, 2014, Wireman was convicted in Clark Circuit
Court for possession or viewing of matter portraying a sexual
performance by a minor, a violation of Kentucky Revised Statute
(“K.R.S.”) § 531.335.
The indictment charged that this offense
was committed on August 2, 2013.
v.
Wireman
Shelton,
No.
See Commonwealth of Kentucky
13-CR-00095
(Clark
Cir.
Ct.
Wireman received a five-year sentence of imprisonment.
2013).
Wireman
had an initial parole hearing on September 15, 2014, barely more
than two months after his conviction on July 11, 2014.
was deferred for twelve months.
Parole
His next parole eligibility
date is September 1, 2015.1
1
This information was obtained from the Kentucky Online Offender
Lookup
(“KOOL”)
feature
of
the
Kentucky
Department
of
Corrections’
official
website.
See
http://kool.corrections.ky.gov/KOOL/Details/354146 (last visited
on April 30, 2015).
2
ALLEGATIONS OF THE COMPLAINT
Wireman’s complaint is a mixed bag.
Wireman first states
that due to the nature of his conviction, he has been harassed
and is still being harassed and subjected to name-calling, such
as “baby raper” and “child molester,” inter alia, by inmates at
the jail.
[R. 1, Page ID# 2]
He also states that he has been
subjected to various other forms of harassment by inmates and
that they have ostracized him, all because of the nature of his
conviction.
Wireman appears to claim that by reason of the
treatment he has received from jail inmates, he has been the
victim of a hate crime, in violation of K.R.S. § 532.031, and he
appears
to
seek
a
declaratory
judgment
that
these
unnamed
inmates have also violated Kentucky’s harassment statute, K.R.S.
525.070.
Second,
Wireman
claims
that
he
received
ineffective
assistance of counsel with respect to his underlying criminal
conviction in that his counsel failed to interview witnesses and
verify his alibi.
Third, Wireman states that he was unjustly denied parole
and that an agreement should be reached that would also include
his release from confinement. [R. 1, Page ID# 6].
3
Fourth, Wireman requests that this Court consider reducing
his
charge
to
conviction.
a
Class
“A”
misdemeanor
or
overturning
his
[R. 1, Page ID# 6]
Wireman
seeks
unspecified
compensatory
damages
for
the
mental duress he has endured.
ANALYSIS
A.
Treatment from and/or harassment by unnamed jail inmates
Giving a liberal interpretation to Wireman’s statements
that he has been called various derogatory names by other jail
inmates,
encompass
these
a
statements
might
constitutional
be
claim
broadly
of
considered
“cruel
and
to
unusual
punishment,” in violation of the Eighth Amendment of the U.S.
Constitution.
In
its
prohibition
of
“cruel
and
unusual
punishment,” the Eighth Amendment imposes duties on prison
officials to provide humane conditions of confinement.
v. Brennan, 511 U.S. 825, 832 (1994).
Farmer
Even so, verbal abuse,
harassment, arbitrariness, and racist comments, made by prison
officials, without more, do not constitute cruel and unusual
punishment, Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987)
(per curiam), and “[t]he use of racially derogatory language,
while
unprofessional
Constitution.”
and
deplorable,
does
not
violate
the
DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir.
2000); see also see also Wingo v. Tenn. Dep't of Corr., 499 F.
4
App’x 453, 455 (6th Cir. 2012) (“Verbal harassment or idle
threats
by
a
state
actor
do
not
create
a
constitutional
violation and are insufficient to support a section 1983 claim
for relief.”); Johnson v. Unknown Dellatifa, 357 F.3d 539, 546
(6th Cir. 2004) (holding “harassment and verbal abuse ... do
not constitute the type of infliction of pain that the Eighth
Amendment prohibits”); Jackson v. Hopkins Cnty. Det. Ctr., No.
4:12CV-P82-M, 2012 WL 5472024, at *6 (“[W]hile reprehensible
and not condoned, racial epithets and verbal abuse alone are
insufficient
to
state
a
constitutional
violation
under
§
1983.”).
The foregoing body of case law points out that derogatory
comments made by jail employees or officials to an inmate
cannot
form
the
basis
of
a
valid
Eighth
Amendment
claim.
Likewise, derogatory comments and/or name-calling made by jail
inmates, who are private actors, not state actors, cannot form
the basis of a valid Eighth Amendment claim.
Such a claim is
without merit.
B.
Violation
statutes
of
Kentucky’s
hate
crimes
and/or
harassment
To the extent Wireman may be requesting a declaratory
judgment that he has been the victim of a hate crime and/or
has been harassed in violation of Kentucky law, this Court is
5
unable to afford Wireman any relief on that request.
This
matter, being an alleged violation of Kentucky law, must be
prosecuted in a Kentucky state court.
Wireman has simply
asserted this claim in the wrong forum.
This claim fails to
state a claim for which relief can be granted in this Court.
C.
Ineffective assistance of counsel
Wireman
claims
that
his
counsel
was
ineffective
for
various reasons in defending him in the underlying criminal
case in Clark Circuit Court.
Before a federal court would be
in a position to consider this claim of ineffective assistance
of counsel, Wireman must show that he has exhausted his state
court remedies as to this claim.
The record, as is, does not
reflect that he has exhausted his state judicial remedies;
therefore,
this
court
presently
has
no
jurisdiction
to
entertain this claim.
It is well settled that one may not seek federal habeas
corpus
relief
remedies.
until
one
has
exhausted
his
state
judicial
Morris v. Wingo, 421 F.2d 651 (6th Cir. 1970).
In
the Sixth Circuit, a habeas petitioner is usually required to
present his habeas claims to the state’s highest court (in this
case
the
Kentucky
Supreme
Court)
available state judicial remedies.
in
order
to
exhaust
his
Silverburg v. Evitts, 993
F.2d 124 (6th Cir. 1993); Hafley v. Sowders, 902 F.2d 485 (6th
6
Cir. 1990).
consider
As a matter of comity, a federal court should not
a
petitioner's
constitutional
claim
petitioner has an available state forum.
as
long
as
the
Rose v. Lundy, 455
U.S. 509 (1982); Newcombe v. Bordenkircher, 602 F.2d 128 (6th
Cir. 1978).
To exhaust his state judicial remedies, Wireman would
first need to present this claim to the trial court in his
criminal case in the form of a motion to vacate, set aside or
correct sentence, filed pursuant to Rule 11.42 of the Kentucky
Rules of Criminal Procedure (“RCr 11.42").
If denied relief
on that RCr 11.42 motion, Wireman would then need to appeal
that denial to the Kentucky Court of Appeals, and then, if
necessary,
Court.
this
seek
further
relief
from
the
Kentucky
Supreme
If the Kentucky courts deny him the relief he seeks on
claim
Wireman’s
of
next
ineffective
step,
after
assistance
exhausting
of
his
counsel,
state
then
judicial
remedies, would be to raise this same claim of ineffective
assistance of counsel in a habeas corpus petition, filed in
federal court, pursuant to 28 U.S.C. § 2254.
Wireman’s claim of ineffective assistance of counsel will
be dismissed without prejudice to renew in a § 2254 habeas
petition after he has exhausted his state judicial remedies.
7
D.
Denial of parole
Wireman states that he was unjustly denied parole and that
an
agreement
should
be
reached
that
would
also
include
his
release from confinement. [R. 1, Page ID# 6]
Based on the information obtained from the KDOC’s official
website,
http://kool.corrections.ky.gov/KOOL/Details/354146
(last visited on April 30, 2015), Wireman was arrested on August
2, 2013, was convicted on July 11, 2014, and received a fiveyear sentence.
His initial parole hearing was September 15,
2014, and his parole was deferred for a period of twelve months.
His next parole eligibility date is September 1, 2015.
Similar to his claim of ineffective assistance of counsel,
Wireman would first need to seek relief from the Kentucky courts
before presenting this claim to a federal court for review.
There is no indication of record in this case that he has done
that.
Consequently, Wireman’s claim regarding the denial of
parole will also be dismissed without prejudice to his right to
renew after he has exhausted his state court remedies.
E.
Reduction of charge to a Class “A” misdemeanor
To
reiterate,
Wireman
was
charged
with
possession
or
viewing of matter portraying a sexual performance by a minor, a
violation
felony.
of
K.R.S.
§
531.335.
offense
is
Wireman pled guilty to the charged offense.
8
This
a
Class
D
Wireman
requests
that
this
Court
consider
reducing
his
charge to a Class “A” misdemeanor or overturning his conviction.
[R. 1, Page ID# 6].
At this juncture, the federal court is not authorized to
interfere
with
the
Commonwealth
of
Kentucky’s
prosecution
of
Wireman.
Again, Wireman would first need to seek relief from
the Kentucky courts before presenting this claim to a federal
court for review.
There is no indication of record in this case
that he has done that.
Consequently, Wireman’s request for this
Court to consider reducing his charge to a Class “A” misdemeanor
or overturning his conviction will be denied.
CONCLUSION
Accordingly, IT IS ORDERED as follows:
(1)
to
42
Plaintiff Shelton Wireman’s complaint filed pursuant
U.S.C.
§
prematurely filed.
1983,
is
DISMISSED
WITHOUT
PREJUDICE
as
Plaintiff is free to refile this complaint
and/or a habeas corpus petition, filed pursuant to 28 U.S.C. §
2254, after he has exhausted his state judicial remedies.
(2)
All
claims
having
been
resolved,
this
case
is
DISMISSED and STRICKEN from the docket.
(3)
The Court will enter a judgment contemporaneously with
this order.
9
This the 4th day of May, 2015.
10
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