Sublett v. Bryant

Filing 9

MEMORANDUM OPINION & ORDER: 1) Pla's motion for leave to file a supplemental complaint 8 is GRANTED & Sublett's Amended Complaint attached thereto [8-1] SHALL BE FILED. 2) Sublett's claims for violations of the Prison Rape Elimination Act are DISMISSED for failure to state claim for which relief can be granted. 3) Sublett's First Amendment retaliation claims asserted against Sgt. Justin T. Bryant, NTC Staff (2) Brad Adams, NTC staff, (3) Jamie Morelan d, NTC Staff & (4) Michael D. Long, NTC staff shall proceed. 4) Clerk shall prepare documents necessary for service upon: a. Sgt. Justin T. Bryant, Correctional Officer, Northpoint Training Center; b. Brad Adams, Correctional Officer, Northpoint Tra ining Center; c. Jamie Moreland, Correctional Officer, Northpoint Training Center; d. Michael D. Long, Correctional Officer, Northpoint Training Center. 5) Clerk shall prepare a "Service Packet" consisting of following; a. completed summo ns form; b. complaint & amended complaint; c. this Order & d. completed USM Form 285. 6) Clerk shall provide service packets to US Marshal in Lexington. 7) Service of process upon dfts Sgt. Justin T. Bryant, Brad Adams, Jamie Moreland & Michael D. Long shall be conducted by USMS by serving a service packet personally upon each of them thru arrangements made with Northpint Training Center. USMS is responsible for ensuring each dft is successfully served w/process. If attempt at s ervice is unsuccessful USMS shall make further attempts & ascertain information as is necessary to ensure successful service. 8) Clerk directed to serve a copy of this Order upon Ky. Dept of Corrections & note the service in the docket sheet. 9) Pla shall: (see items a thru c). Signed by Judge Joseph M. Hood on 5/20/2015. (RKT) cc: Damien A. Sublett via US mail; Kentucky Department of Corrections via US mail & US Marshal w/service packets.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

DAMIEN A. SUBLETT,

)
)
)
)
)
)
)
)
)

Plaintiff,
V.
SGT. JUSTIN T. BRYANT, et al.,
Defendants.
**

**

Civil Action No. 15-016-JMH

MEMORANDUM OPINION
AND ORDER

**

**

**

Damien A. Sublett is an inmate in custody of the Kentucky
Department

of

Northpoint

Corrections

Training

and

Center

is

presently

(“NTC”)

in

confined

Burgin,

in

the

Kentucky.

Proceeding pro se, Sublett has filed a civil rights complaint
pursuant
Justin

to

T.

42

U.S.C.

Bryant,

a

§

1983,

prison

alleging

official

at

that
NTC,

defendant
violated

Sgt.
his

constitutional right of access to the court and his right to
file grievances without incurring retaliation for such action.
[R. 1] Based on alleged events that have occurred subsequent to
the

filing

of

the

original

complaint,

as

previously

supplemented, Sublett has also filed a second motion for leave
to file a supplemental complaint, naming three additional NTC
prison officials as defendants to this action: (1) Brad Adams,
NTC staff, (2) Jamie Moreland, NTC staff, and (3) Michael D.
Long, NTC staff.

[R. 8] Sublett submitted his proposed Amended

Complaint with this motion. [R. 8-1] Sublett seeks compensatory
and punitive damages.
Prior

to

the

present

supplemental

complaint,

complaint,

was

as

motion

Sublett

permitted

by

for

leave

previously

Fed.

R.

to

file

amended

Civ.

P.

a
his

15(a)

(1).

Additional amendments to a complaint are permitted “only with
the opposing party’s written consent or the court’s leave.” Fed.
R. Civ. P. 15(a)(2).

This rule further provides that the “court

should freely give leave when justice so requires.”
decision

as

to

whether

justice

requires

the

Id.

amendment

committed to the sound discretion of the trial court.
Radio

Corp.

V.

Hazeltine

Research,

Inc.,

401

U.S.

The
is

Zenith
321,

330

(1971); Foman v. Davis, 371 U.S. 178, 182 (1962).
In this case, Sublett’s complaint has yet to be served to
any

of

the

defendants,

as

his

complaint

is

subject

screening required by 28 U.S.C. §§ 1915(e)(2), 1915A.

to

the

Thus, at

this juncture, neither the originally-named defendant nor the
three

proposed

amendment

to

new

the

defendants

complaint.

will
Upon

be

prejudiced

consideration,

by

any

Sublett’s

second motion to file a supplemental complaint [R. 8] will be
granted, and his proposed Amended Complaint [R. 8-1] will be
filed, and its screening is incorporated herein.
The Court screens civil rights complaints pursuant to 28
U.S.C. § 1915A.

McGore v. Wrigglesworth, 114 F.3d 601, 607-08
2 

(6th Cir. 1997), overruled on other grounds by Jones v. Bock,
549 U.S. 199 (2007).

This is a pro se complaint and, as such,

it is held to less stringent standards than those drafted by
attorneys.
Kerner,

404

See Cruz v. Beto, 405 U.S. 319 (1972); Haines v.
U.S.

519

(1972).

The

allegations

in

a

pro

se

complaint must be taken as true and construed in favor of the
plaintiff.
1983).

See Malone v. Colyer, 710 F.2d 258, 260 (6th Cir.

Under

28 U.S.C. § 1915(e)(2), a district court has

authority to dismiss a case at any time if it determines either
that the action is frivolous or malicious, or if it fails to
state a claim upon which relief can be granted.
CLAIMS ASSERTED
Sublett’s

complaint

stems

from

an

alleged

incident

occurring while he was naked in the bathroom during the evening
of January 9, 2015.

Sublett claims that Ms. Parret, a female

correctional officer, stopped in the bathroom doorway and stared
at his penis while he was using the bathroom.

Specifically,

Sublett states:
. . . as he entered the Bathroom in the second stall
closes[t] to the entry of the doorway, Ms. Parret stop
[sic] at the entrance of the bathroom doorway and
starred
at
Sublett’s
penis
while
Sublett
was
urinating.
Ms. Parret then took a step closer until
she broke the threshold of the bathroom door, without
completely entering the bathroom, at this ______, Ms.
Sublett was about a foot and a half from Mr. Sublett’s
arm reach. On 3 different occasions while making her
rounds between count and 30 minute walks, each time
3 

Ms. Parret would stop and look at Mr. Sublett’s penis
same position, when Sublett used the bathroom.
[R. 1, pp. 2-3]
After

this

incident,

Sublett

states

that

he

spoke

with

Officer Bryant about filing a grievance against Ms. Parret for
staring at him while he was naked in the bathroom and using the
bathroom, and that Officer Bryant told him he could not file
that grievance because Ms. Parret had stated, and the camera
would show, that she only looked at him for a couple of seconds
on three different occasions and that she did not stare at him.
In short, Sublett claims that Officer Bryant told him that if he
filed a grievance against Ms. Parret, “he would write Sublett
up.” [R. 4, p. 4]
Sublett
resulted

in

filed
his

a

being

grievance
“written

against
up

complaint on Ms. Parret on 1-9-15.”

for
Id.

Ms.
file

Parret,
[sic]

an

which
[sic]

Sublett claims that he

filed a grievance against Ms. Parret because she had violated
his Fourth Amendment right to privacy and that Officer Bryant
issued a disciplinary report1 against him “to curtail plaintiff
from filing an [sic] grievance and filing a civil action under
1983.

The motivation behind the write-up was predicated on

1

Sublett
was
charged
with
obtaining
money/goods/privileges/services w/ false pretenses. [R. 1-1,
Page ID# 32] It is unknown to the Court whether Sublett was
convicted of or acquitted of this offense or perhaps a lesser
offense. 
4 

Sublett’s

4th

Amendment

right

to

privacy.”

[R.

1,

p.

5]

In

essence, Sublett claims that he was “written up” in retaliation
for filing a grievance against Ms. Parret, in violation of his
First Amendment right to file a grievance and access the Court
without suffering retaliation. Id.
Subsequently,
describes

as

on

a

March

3,

2015,

PREA-grievance2

Sublett

against

filed
another

what

he

female

correctional officer, Dusty McKinny, alleging in part that: “c/o
Dusty McKinny came to his bed area and stared at his crotch
while he was lying in bed wearing only boxer shorts.” [R. 8-1,
p. 1] Sublett requested:

“To exercise my right to privacy and

to file grievance be it a PREA Complaint verbally or on paper
with[out] fear of reprisal for utilizing my 1st Amendment right,
as well as the filing of this grievance.”

Id.

Sublett claims that on March 4, 2015, the day after he had
filed a grievance against c/o Dusty McKinny, Lt. Michael Long
issued a disciplinary report against him for being loud when
talking to Lt. Long about McKinny and for not complying with Lt.
Long’s directive to stop speaking. [R. 8-1, p. 2] Thereafter,
Sublett claims that on March 12, 2015, Officer Brad Adams filed

2

With Sublett’s use of the acronym PREA, he is referring to the
Prison Rape Elimination Act, codified at 42 U.S.C. § 15601, et
seq.

5 

a disciplinary report against him for filing a grievance against
c/o

Dusty

McKinny

because,

as

charged

in

the

disciplinary

report, Sublett’s grievance against her was based on a falsified
claim, and the incident was unfounded. [R. 8-1, p. 2]
Thereafter,

Sublett

states

that

on

April

7,

2015,

c/o

Carroll, a Special Management Unit (“SMU”) security official,
came

to

his

cell

classification.

and

told

him

to

get

dressed

to

go

to

Sublett responded that he had not received any

prior notice of being scheduled to meet with classification and
that he will not get his yearly reclassification until May of
2015.

Sublett states that after that conversation, c/o Carroll

left.
On April 9, 2015, two days later, Sublett states that CTO
Jamie Moreland came to his cell in the SMU and harassed him for
filing PREA-grievances and law suits and told him he would “make
sure you never leave SMU, . . . .” [R. 8-1, p. 3] Two days
later, on April 11, 2015, Sublett states that CTO Jamie Moreland
issued a disciplinary report against him for refusing to attend
classification

committee,

when

he

had

been

informed

of

the

classification meeting on 4-7-15. [R. 8-1, p. 4] Sublett appears
to have been sanctioned with a 30-day loss of good time credit
for this offense.

Id.

To summarize, the gravamen of Sublett’s claims is that the
defendants

have

violated

his

constitutional
6 

rights

to

file

grievances and his right of access to the courts by charging him
with bogus disciplinary offenses in retaliation for his filing
grievances against female prison officials who he believes have
violated

his

privacy

rights.

For

the

reasons

explained

hereafter, the Court will allow a portion of Sublett’s claims to
proceed and require a response from the defendants.
DISCUSSION
To assert a viable claim under § 1983, a plaintiff must
establish that his constitutional rights were violated by one
acting color of law.

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.

Retaliation
Sublett claims that all of the disciplinary reports issued

against him were done in retaliation for his filing grievances
against the female prison officers for violating his privacy
rights

and/or

his

filing

a

lawsuit

concerning

violations of his constitutional rights.

these

alleged

Thus, his retaliation

claim is based on his First Amendment right to petition the
government for a redress of grievances.
A

prisoner

inconsistent
legitimate

retains

with

his

penological

First

Amendment

status

as

objectives

a
of

rights

prisoner
the

7 

or

are

not

with

the

corrections

See Pell v. Procunier, 417 U.S. 817, 822 (1974).

that

system.

Retaliation

based upon a prisoner's exercise of his or her constitutional
rights violates the Constitution.

See Thaddeus-X v. Blatter,

175 F.3d 378, 394 (6th Cir. 1999) (en banc).

To establish a

First Amendment retaliation claim, the plaintiff must prove: (1)
that

the

plaintiff

was

engaged

in

constitutionally

protected

conduct; (2) that the defendant’s adverse action would deter a
person of ordinary firmness from continuing to engage in that
conduct; and (3) a causal connection between elements one and
two, i.e., the adverse action was motivated at least in part by
the plaintiff's protected conduct.
Muhammad

v.

Close,

379

F.3d

413,

Thaddeus–X, 175 F.3d at 395;
416

(6th

Cir.

2004).

plaintiff has the burden of proof on all three elements.

The
See,

e.g., 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).
Moreover, the plaintiff must be able to prove that the
exercise of the right to engage in the protected conduct was a
substantial

or

motivating

retaliatory conduct.

factor

in

the

defendant’s

alleged

See Mount Healthy City Sch. Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274, 287 (1977); Smith v. Campbell, 250
F.3d 1032, 1037 (6th Cir. 2001).

If the plaintiff is able to

make such a showing, the burden of proof shifts to the defendant
to show that the defendant would have taken the same action in
the absence of the plaintiff's protected conduct.
250 F.3d at 1037; Thaddeus-X, 175 F.3d at 399.
8 

Id.; Smith,

The filing of non-frivolous grievances is protected conduct
under the First Amendment.
415

(6th

Cir.

2000)

Herron v. Harrison, 203 F.3d 410,

(“An

inmate

has

an

undisputed

First

Amendment right to file grievances against prison officials on
his

own

behalf”).

At

this

juncture,

the

Court

will

assume

arguendo that Sublett has established the first prong of the
prima

facie

case,

viz.,

that

with

the

filing

of

grievances

concerning (1) being stared at by a female correctional officer
while he was undressed in the bathroom and while urinating, and
(2) being stared at by a female correctional officer while lying
in bed in his cell and wearing only boxer shorts, he had engaged
in constitutionally-protected conduct.
The second element of the prima facie retaliation claim
concerns

the

defendant’s

adverse

action.

To

establish

the

second element of the prima facie retaliation claim, Sublett
would be required to show that the issuance of disciplinary
reports against him deterred him from continuing to engage in
constitutionally-protected conduct.
the

prima

facie

case,

Sublett

is

As to the third prong of
required

to

show

a

causal

connection between elements one and two.
Assuming

the

truthfulness

of

Sublett’s

claims,

and

construing the claims in his favor, as the Court must do at this
juncture, the Court concludes that he has arguably established a

9 

prima facie retaliation claim.

As such, the defendants must be

given an opportunity to rebut this claim.
B.

Prison Rape Elimination Act (“PREA”)
In his complaint and amended complaint, Sublett refers to

having

filed

a

“PREA-grievance”

against

the

two

female

correctional officers at NTC who he claims have violated his
privacy rights.

To the extent that Sublett may be attempting to

assert a PREA claim in this action, such claim is without merit
because the PREA does not provide a private right of action.
Where neither the text nor the structure of a statute indicate
that Congress intended to create new individual rights, “…there
is no basis for a private suit, whether under § 1983 or under an
implied right of action.”

Gonzaga Univ. v. Doe, 536 U.S. 273,

286

Circuit

(2002).

The

Sixth

Court

of

Appeals

has

not

addressed this issue, but many district courts (including our
sister court in the Western District of Kentucky) have found
that the PREA does not create a private cause of action which
can be brought by an individual plaintiff.

See, e.g., Simmons

v. Solozano, No, 3:14CV-P354-H, 2014 WL 4627278, at *4 (W.D. Ky.
Sept. 16, 2014) (dismissing prisoner’s § 1983 claim alleging
violations of the PREA, finding that the statute creates no
private right of action); Montgomery v. Harper, No. 5:14CV–P38–
R, 2014 WL 4104163, at *3 (W.D. Ky. Aug. 19, 2014) (“[T]his
Court

concludes

that

the

PREA
10 

creates

no

private

right

of

action.”);

Chapman

v.

Willis,

No.

7:12-CV-00389,

2013

WL

2322947, at *4 (W.D. Va. May 28, 2013) (“There is no basis in
law

for

a

private

cause

of

action

to

enforce

a

PREA

violation.”); Holloway v. Dep’t of Corr., No. 3:11-CV-1290(VLB),
2013

WL

628648,

at

*2

(D.

Conn.

Feb.

20,

2013)

(“There

is

nothing in the PREA that suggests that Congress intended it to
create

a

private

right

of

action

for

inmates

to

sue

prison

officials for non-compliance to the Act.”).3
Given this considerable authority, this Court agrees with
the Western District and concludes that the PREA creates no
private right of action.

Therefore, to the extent that Sublett

is

PERA

asserting

correctional

claims

of

officers,

those

violations
claims

must

by
be

two

female

NTC

dismissed

for

failure to state a claim upon which relief can be granted.

3

See also, Faz v. N. Kern State Prison, No. CV-F-11-0610-LJOJLT, 2011 WL 4565918, at *5 (E.D. Cal. Sept. 29, 2011) (“[T]he
PREA does not create a private right of action....”);
Woodstock v. Golder, No. 10-CV-00348-ZLW–KLM, 2011 WL 1060566,
at *9 (D. Colo. Feb. 7, 2011) (“PREA provides no private right
of action.”) (citation omitted).
“The PREA is intended to
address the problem of rape in prison, authorizes grant money,
and creates a commission to study the issue.... The statute
does not grant prisoners any specific rights.”
Chinnici v.
Edwards, No. 1:07-CV-229, 2008 WL 3851294, at *3 (D. Vt. Aug.
12, 2008). 

11 

CONCLUSION
Accordingly, for the reasons stated above, IT IS ORDERED as
follows:
(1)
a

Plaintiff Damien A. Sublett’s motion for leave to file

supplemental

complaint

[R.

8]

is

GRANTED,

and

Sublett’s

Amended Complaint attached thereto [R. 8-1] SHALL BE FILED.
(2)

Sublett’s

Elimination

Act

claims

(“PREA”)

for
42

violations
U.S.C.

§

of

the

15601,

et

Prison
seq.,

Rape
are

DISMISSED for failure to state a claim for which relief can be
granted.
(3)

Sublett’s First Amendment retaliation claims asserted

against Sgt. Justin T. Bryant, NTC staff, (2) Brad Adams, NTC
staff, (3) Jamie Moreland, NTC staff, and (4) Michael D. Long,
NTC staff, shall proceed.
(4)

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

Sgt.

Justin

T.

Bryant,

Correctional

Officer,

Northpoint Training Center;
b.

Brad

Adams,

Correctional

Officer,

Northpoint

Training Center;
c.

Jamie Moreland, Correctional Officer, Northpoint

Training Center, and
d.

Michael D. Long, Correctional Officer, Northpoint

Training Center.
12 

(5)

The Clerk shall prepare a “Service Packet” consisting

of the following documents for service of process upon these
defendants:
a.

a completed summons form;

b.

the Complaint and Amended Complaint

c.

this Order; and

d.

a completed United States Marshal’s Service

[R. 1; R. 6;

R. 8-1];

(“USMS”) Form 285.
(6)

The Clerk shall provide the Service Packet(s) to the

United States Marshal’s Office in Lexington, Kentucky.
(7)

Service

of

Process

upon

Defendants

Sgt.

Justin

T.

Bryant, Brad Adams, Jamie Moreland, and Michael D. Long, shall
be conducted by the USMS by serving a Service Packet personally
upon each of them, through arrangements made with Northpoint
Training Center.
The USMS is responsible for ensuring that each defendant is
successfully served with process.

In the event that an attempt

at service upon a defendant is unsuccessful, the USMS shall make
further

attempts

and

shall

ascertain

such

information

as

is

necessary to ensure successful service.
(8)

The Clerk is further directed to serve a copy of this

Order on the Kentucky Department of Corrections, and to note the
service in the docket sheet;
13 

(9)

The plaintiff SHALL:
a.

Immediately

advise

the

Clerk’s

change in his current mailing address.

Office

of

any

Failure to do so may

result in dismissal of this case.
b.
or

motions

Communicate with the court solely through notices
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)

mailing.

The court will disregard any notice or motion which

does not include this certification.
This the 20th day of May, 2015.

14 

and

state

the

date

of