Miles v. Kentucky Department of Corrections et al
Filing
36
MEMORANDUM OPINION & ORDER: (1) all claims set forth in Miles' Proposed Amended Complaint & response are DISMISSED; (2) Miles' claims of discrimination in violation of the Equal Protection Clause is DISMISSED; (3) Miles' claims for th e intentional infliction of emotional distress is DISMISSED; (4) Miles' claims for failure to protect in violation of the 8th Amendment & retaliation in violation of the 1st Amendment against Officer Bridgette Gillihand, Warden Don Bottom & KDOC Commissioner LaDonna Thompson are DISMISSED; (5) the deputy clerk shall prepare a service pack for Administrative Secretary Supervisor Brad Adams, Deputy Warden Rick Rowlette, Deputy Warden Gary Prestigianacomo, Unit Administrator Craig Hughes, Unit Administrator Earl Walls, Unit Administrator Mendalyn Cochran, Unit Administrator Jack Godbey, Unit Administrator Stephanie Hughes & Lieutenant Crain; service packet shall include, summons, 2nd Amd Cmp, this order & USM form; (6) clerk shall deliver the service packets to the USM & note the date of delivery; (7) USM shall personally service the packets upon the dfts by hand delivery. Signed by Judge Joseph M. Hood on 5/3/16.(KJR)cc: COR, USM,Miles (US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
DARRELL L. MILES,
)
)
)
)
)
)
)
)
)
Plaintiff,
V.
DON BOTTOM, Warden, et al.,
Defendants.
****
This
matter
is
****
before
Civil No. 5: 15-CV-126-JMH
MEMORANDUM OPINION
AND ORDER
****
the
****
Court
to
conduct
an
initial
screening of the second amended complaint filed by inmate Darrell
Miles pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A.
I
Miles
is
presently
confined
Penitentiary in Eddyville, Kentucky.
on
May
7,
2015,
Miles
filed
a
at
the
Kentucky
State
Proceeding without counsel,
motion
seeking
a
preliminary
injunction to compel prison officials at the Northpoint Training
Center (“NTC”) where he was then confined to house him in a twoman cell to prevent other inmates from placing feces in his mouth
while he slept.
[R. 1]
The Court construed Miles’s motion as a
civil rights complaint pursuant to 42 U.S.C. § 1983, granted his
motion to proceed in forma pauperis, and ordered NTC Warden Don
Bottom to be served with process to address his claims.
Miles filed an amended complaint on May 22, 2015.
[R. 5, 7]
[R. 10]
Shortly after Miles was transferred to the Little Sandy
Correctional Complex (“LSCC”) on June 5, 2015 [R. 12], Warden
Bottom filed a motion to dismiss the original complaint [R. 13].
Miles
responded
by
filing
a
“Proposed
Amended
Complaint
and
Response Memorandum,” a 17-page document that included both legal
arguments in response to the motion to dismiss and new allegations
and legal claims against new defendants.
[R. 18-1]
Miles filed
with his motion/response a new complaint that corrected numbering
errors in the original, but which did not include any of the new
claims which his motion/response suggested he wanted to assert.
[R. 18-2]
On October 28, 2015, the Court entered an Order granting
Miles’s motion to file his second amended complaint, denying Warden
Bottom’s motion to dismiss without prejudice, and accepting the
warden’s invitation [R. 24] to conduct a screening of Miles’s
second amended complaint pursuant to 28 U.S.C. §§ 1915(e)(2),
1915A, before proceeding. [R. 27] In doing so, the Court directed
the Clerk to file the complaint Miles actually tendered into the
record [R. 18-2] as his Second Amended Complaint.
[R. 27 at 6]
However, it is now clear that the document Miles tendered [R. 182]
is
substantively
identical
in
all
respects
to
his
prior
complaint [R. 10], and that he failed to file his proposed second
amended complaint as a single document containing all of his
2
allegations and claims as he should have.
Nonetheless, because
Miles is proceeding pro se, the Court will consider both his
existing complaint [R. 28] and that portion of his “Proposed
Amended Complaint and Response Memorandum” [R. 18-1] which sets
forth his new allegations and claims as collectively constituting
his second amended complaint for purposes of conducting an initial
screening.
II
Miles
alleges
that
on
May
1,
2014,
he
was
placed
in
segregation pending investigation of a claim by Officer Sara
Buckingham that he had shown her a note in an attempt to convince
her to participate in an illegal scheme.
[R. 28 at 4, 31-33]
The
note was never found, and although it is unclear if Miles was
charged
or
convicted
of
segregation on May 27, 2014.
misconduct,
he
was
released
from
[R. 28 at 5, 19]
Miles was assigned to Dorm 4, B-side, the same location where
Officer Buckingham was assigned to work.
On June 19, 2014, Miles
filed a grievance claiming that Officer Buckingham’s assignment to
his prison wing placed him at risk of again being accused of
misconduct – falsely, he contends – by Officer Buckingham.
Senior
Captain Bridgette Gillihand denied that grievance on July 1, 2014;
Warden Don Bottom denied Miles’s appeal on July 21, 2014; and
LaDonna
Thompson,
Commissioner
of
3
the
Kentucky
Department
of
Corrections (“KDOC”) denied his final appeal on August 1, 2014.
[R. 28 at 5-9, 32-33]
Miles alleges that beginning in July 2014 his “mail started
coming up missing.”
[R. 28 at 5]
He further alleges that starting
in August 2014 he began to be “attacked” with feces. Specifically,
Miles explains that each of these “attacks” involved other inmates
placing human feces in his mouth after he fell asleep, and in some
instances touching his buttocks.
Miles also contends without
explanation
were
that
these
attacks
orchestrated
by
“the
defendants” as part of a conspiracy to retaliate against him for
filing his grievance.
[R. 28 at 6-7, 10-11]
Miles further alleges that he told officers Earl Walls, Brad
Adams, and Craig Hughes about the attacks in October 2014, by
letter and in person, but that Walls and Hughes refused to transfer
him to a different wing.
Miles states that Hughes told him that
he had reviewed footage from security cameras, but saw nothing to
indicate that Miles was being attacked in his sleep.
9]
[R. 28 at 7-
After Miles again complained of such attacks in late January
2015, Lt. Epperson transferred him to Dorm 2 Side A on January 28,
2015.
Miles therefore claims that Warden Bottom and officers
Adams, Hughes, and Walls were deliberately indifferent to his
safety by failing to transfer him to a different portion of the
prison.
[R. 28 at 9-10]
4
Miles further alleges that the attacks continued to occur
every night even after he was transferred.
He indicates that
Officer Godbey was advised of the attacks on February 11, 2015,
but took no action to prevent them.
[R. 28 at 10-11]
Miles
requested protective custody from Officer Mendalyn Cochran on
February 24, 2015.
However, Officer Stephanie Hughes returned
Miles to the general population eight days later because the cell
was needed.
[R. 28 at 11]
Miles alleges that his television had
been stolen from the property room during this time, an act he
characterizes
as
“another
[protective custody].”
form
of
retaliation
for
requesting
[R. 28 at 11-12]
Miles alleges that as a result of ingesting feces on a nightly
basis, he suffered soreness in his throat, neck, joints, kidneys,
and shoulder, as well as weight loss, headaches, and vomiting.
Miles separately claims that the medical care provided by staff
under the direction of Rick Rowlette was “most inefficacious.”
[R. 28 at 11]
On March 11, 2015, Miles sent Officer Cochran a
letter identifying specific times that he alleged he had been
attacked.
Miles was again offered protective custody, but he
declined.
Miles alleges that he sought medical attention on March
13, 2015 to remove dog feces from his throat; he indicates that he
was treated for a bacterial infection, but was not given anything
5
to remove the feces, and was only told to gargle.
[R. 28 at 12-
13]
Miles sought protective custody on March 14, 2015, and Lt.
Crain was assigned to investigate his claims. However, after Crain
reviewed video footage from surveillance videos, Miles alleges
that “he didn’t report what he saw in the video.”
[R. 28 at 13]
Miles indicates that on March 27, 2015, Officers Gary Prestigiacomo
and Stephanie Hughes ordered that he be removed from protective
custody and returned to the general population notwithstanding the
continuing risk to his health and safety.
[R. 28 at 13-14]
Miles contends that when Deputy Warden Rick Rowlette denied
a grievance Miles filed on April 1, 2015, he acted with deliberate
indifference in violation of Miles’s Eighth Amendment rights and
retaliated against Miles for filing the grievance in violation of
his First Amendment rights. [R. 28 at 14, 15] He further contends
that by refusing to protect him from these nightly attacks, the
defendants are intentionally inflicting emotional distress upon
him.
[R. 28 at 16]
In his second amended complaint, Miles asserts four claims in
three counts.
In his first count, he contends that the defendants
acted with deliberate indifference to his health and safety in
violation of the Eighth Amendment by failing to protect him from
these
attacks
while
he
slept.
6
He
separately
contends
that
defendant Rowlette failed to examine him for signs of disease and
responded to his health grievance in an arbitrary manner.
at 17-18]
[R. 28
Miles’s Count II includes two separate claims:
(1)
that the defendants retaliated against him in violation of the
First Amendment by failing to protect him from the attacks after
he filed an inmate grievance requesting separation from Officer
Buckingham, and (2) that the defendants’ failure to protect him
was the result of unlawful discrimination in violation of the
Fourteenth Amendment, either on the basis of race or as a “class
of one.”
[R. 28 at 19-22]
Count III of Miles’s complaint claims
that the defendants’ actions constitute the intentional infliction
of emotional distress under Kentucky law.
[R. 28 at 23-25]
The additional claims in Miles’s second amended complaint are
derived from a portion of his “Proposed Amended Complaint and
Response Memorandum.”
actions
of
the
[R. 27-1 at 1-11]
defendants
violated
Miles claims that the
numerous
federal
criminal
statutes, including those prohibiting hate crimes, assault with
dangerous weapon, and sexual abuse of a federal inmate.
at 1, 8, 11 (citing 18 U.S.C. §§
[R. 27-1
113, 242, 249, 2243, 2246]
Miles
also claims that because the Clerk of the Court never sent him a
notice that the complaint he mailed to the Court on May 19, 2015,
was
received,
Officer
Sandra
Helm
must
have
confiscated
or
destroyed it, thus interfering with his right of access to the
7
courts and obstructing mail in violation of 18 U.S.C. § 1701.
[R. 27-1 at 2-3]
Miles also alleges that psychologist Angela
Caudill and psychiatrist Dr. Meeks conducted an examination of him
in December 2014 and January 2015, and that psychologist Courtney
Welsh ordered that he be placed in an observation cell and held
there for three days in June 2015.
He characterizes this as
inhumane treatment in violation of the Eighth Amendment [R. 27-1
at 2-5, 8-9], but he does not allege that he suffered any resulting
harm.
Finally, Miles alleges that in June 2015 psychologist Welsh
“placed a psychological override” on him, which had the effect of
keeping him in a higher security facility than was warranted by
his security scores.
[R. 27-1 at 6-7]
III
The Court’s screening of Miles’s complaint requires it to
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.
630 F. 3d 468, 470-71 (6th Cir. 2010).
Hill v. Lappin,
The Court affords the
plaintiff’s pro se complaint 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).
8
First, Miles’s claims that the defendants violated various
federal criminal statutes must be dismissed.
Because a private
citizen lacks a judicially cognizable interest in the criminal
prosecution of another, Linda R.S. v. Richard D., 410 U.S. 614,
619 (1973), a civil plaintiff has no standing to assert a claim
arising under a criminal statute.
Chrysler Corp. v. Brown, 441
U.S. 281, 316 (1979) (“This Court has rarely implied a private
right of action under a criminal statute, and where it has done so
‘there was at least a statutory basis for inferring that a civil
cause of action of some sort lay in favor of someone.’”).
See
Kafele v. Frank & Wooldrige Co., 108 F. App’x 307 (6th Cir. 2004)
(no private cause of action under 18 U.S.C. § 242).
Courts have
uniformly found that there is no private right of action which a
civil plaintiff may assert under criminal statutes such as those
Miles identifies here.
Cf. Hopson v. Louisville Metro Police, No.
3:13-CV-188-H, 2013 WL 3563164, at *2 (W.D. Ky. July 11, 2013)
(dismissing
civil
claim
under
18
U.S.C.
§
249
for
lack
of
standing); Jermano v. Taylor, No. 11-10739, 2012 WL 4021115, at *6
(E.D. Mich. July 30, 2012) (same).
The Sixth Circuit has held that under rare circumstances a
civil plaintiff may sue under 18 U.S.C. § 113 for an assault.
Chumney v. Nixon, 615 F. 3d 389, 391-95 (6th Cir. 1980).
But that
statute only applies to assaults committed “within the special
9
maritime and territorial jurisdiction of the United States,” 18
U.S.C. § 113(a), and ordinary state land does not qualify.
18
U.S.C. § 7; United States v. Moradi, 706 F. Supp. 2d 639, 624 (D.
Md. 2010); see also United States v. Gabrion, 517 F. 3d 839, 852
(6th Cir. 2008).
These claims will therefore be dismissed with
prejudice.
Second, Miles’s claim that Officer Sandra Helm confiscated or
destroyed the complaint he mailed to the Court on May 19, 2015
[R. 27-1 at 2-3] is factually meritless: the complaint was received
and filed on May 22, 2015.
[R. 10]
Third, Miles’s claims against psychologist Angela Caudill,
psychiatrist Dr. Meeks, and psychologist Courtney Welsh [R. 27-1
at 2-9] will be dismissed for failure to state a claim.
While
Miles characterizes their evaluation of him as “inhumane,” he
offers no explanation why this is so.
These claims must be
dismissed because Miles has failed to allege anything more than
labels and conclusions.
Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“Threadbare recitals of the elements of a cause of action,
supported
by
mere
conclusory
statements,
do
not
suffice.”).
Further, “... because such [a psychological] evaluation is not an
atypical or significant hardship, it cannot amount to cruel or
unusual punishment.”).
Molesky v. Walter, 931 F. Supp. 1506, 1512
10
(E.D. Wash. 1996) (citing In Keenan v. Hall, 83 F.3d 1083 (9th
Cir. 1996)).
Miles also does not allege that he suffered any
resulting harm, and thus fails to satisfy the physical injury
requirement of 42 U.S.C. § 1997e(e). Jackson v. Hill, 569 F. App’x
697 (11th Cir. 2014) (inmate’s claim that he was required to
undergo “undue psychological screening and evaluation” failed to
satisfy § 1997e(e)); Mitchell v. Brown & Williamson Tobacco Corp.,
294 F.3d 1309, 1312-13 (11th Cir. 2002) (“[T]o avoid dismissal
under § 1997e(e), a prisoner’s claims for emotional or mental
injury must be accompanied by allegations of physical injuries
that are greater than de minimis.”).
that
a
“psychological
Further, Miles’s complaint
override”
affected
his
security
classification fails to state a claim of constitutional dimension.
Molesky, 931 F. Supp. at 1512.
Fourth, Miles’s claim in Count III that the defendants’
conduct
constituted
the
intentional
infliction
of
emotional
distress under Kentucky law [R. 28 at 23-25] must be dismissed for
failure
to
state
a
claim.
The
Kentucky
Supreme
Court
has
repeatedly held that the tort of outrage is a “gap-filler” tort
that will not lie if a more traditional tort applies. Cf. Childers
v. Geile, 367 S.W.3d 576, 581-83 (Ky. 2012) (citing Rigazio v.
Archdiocese of Louisville, 853 S.W.2d 295 (Ky. App. 1993)).
Here,
Miles contends that the officers committed a constitutional tort
11
under the Eighth Amendment by failing to protect him from the
nighttime attacks.
Where the facts alleged support a claim for a
traditional tort, with mental suffering merely providing support
for the measure of damages claimed, the claim for the tort of
outrage will not stand.
Id. at 582; Litsey v. Allen, 371 S.W.3d
786, 789 (Ky.App. 2012) (“Where an actor’s conduct amounts to the
commission of one of the traditional torts such as assault,
battery, or negligence for which recovery for emotional distress
is allowed, and the conduct was not intended only to cause extreme
emotional distress in the victim, the tort of outrage will not
lie.”) (citations omitted).
Because Miles’s allegations fall
squarely within the type of conduct supporting a failure to protect
claim, his tort of outrage claim must fail.
Fifth,
Miles’s
equal
protection
claim
for
unlawful
discrimination in violation of the Fourteenth Amendment will be
dismissed for failure to state a claim.
Miles claims that “the
defendants” – whom he does not identify - discriminated against
him based upon his race. [R. 28 at 19] But Miles does not describe
any conduct at all by the defendants that would support this legal
conclusion, and his allegations therefore fail to state a claim.
Grinter v. Knight, 532 F. 3d 567, 577 (6th Cir. 2008) (affirming
dismissal
of
inmate’s
claim
of
12
racial
discrimination
because
“plead[ing]
a
legal
conclusion
without
surrounding
facts
to
support the conclusion … fails to state a claim.”).
Miles’s assertion that he was discriminated against as a
“class of one” [R. 28 at 20-21] fares no better.
It is unclear in
the Sixth Circuit whether a plaintiff may assert a “class of one”
claim
where
he
separately
asserts
membership in a protected class.
discrimination
the
plaintiff
must
upon
Davis v. Prison Health Servs.,
679 F. 3d 433, 440-442 (6th Cir. 2012).
available,
based
Assuming such a claim is
allege
that
he
“has
been
intentionally treated differently from others similarly situated
and
that
there
treatment.”
(2000).
is
no
rational
basis
for
the
difference
in
Village of Willowbrook v. Olech, 528 U.S. 562, 564
But Miles does not state a “class of one” claim because
he does not support his naked allegation that others in his
situation were treated differently with facts.
Aldridge v. City
of Memphis, 404 F. App’x 29, 42 (6th Cir. 2010) (“To satisfy [the
Equal Protection Clause’s] threshold inquiry, [plaintiffs] must
allege
that
[they]
and
other
individuals
who
were
treated
differently were similarly situated in all material respects.”).
His conclusory legal assertion that he “was treated differently
from those similarly situated” does not suffice.
Iqbal, 556 U.S.
at 678 (“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
13
inference
that
the
defendant
is
liable
for
the
misconduct
alleged.”); Twombly, 550 U.S. at 555 (complaint must plead enough
facts
“to
raise
a
right
of
relief
above
the
speculative
level....”); Sensations, Inc. v. City of Grand Rapids, 526 F.3d
291, 295 (6th Cir. 2008).
What remains are Miles’s claims that all of the defendants
violated his rights under the Eighth Amendment by failing to
protect him from the attacks, and violated his rights under the
First Amendment because that failure was intentionally done in
retaliation for his filing of the June 19, 2014 grievance.
[R. 28
at 17-20]
These claims will be dismissed against Officer Gillihand,
Warden Bottom, and Commissioner Thompson.
None of these persons
was directly and personally involved in the conduct complained of;
instead, each only responded to Miles’s grievance regarding the
underlying events.
Merely responding to an inmate grievance is
not a basis to impose liability.
Shehee v. Luttrell, 199 F.3d
295, 300 (6th Cir. 1999); 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.”).
And
while Miles makes vague suggestions of a conspiracy against him,
“[i]t is well-settled that conspiracy claims must be pled with
some
degree
of
specificity
and
14
that
vague
and
conclusory
allegations unsupported by material facts will not be sufficient
to state such a claim under § 1983.”
Heyne v. Metro. Nashville
Public Schools, 655 F. 3d 556, 563 (6th Cir. 2011) (characterizing
this pleading standard as “relatively strict.”).
Miles has failed
to plead sufficient facts necessary to state a claim against these
defendants.
These claims will also be dismissed against the KDOC and
against each of the defendants in his or her official capacity.
An “official capacity” claim against a state officer is not a claim
against the officer arising out of his or her conduct as an
employee of the state, but is actually a claim directly against
the state agency which employs them.
Lambert v. Hartman, 517 F.3d
433, 439-40 (6th Cir. 2008); Alkire v. Irving, 330 F.3d 802, 810
(6th Cir. 2003) (“While personal-capacity suits seek to impose
personal liability upon a government official for actions he takes
under color of state law, individuals sued in their official
capacities stand in the shoes of the entity they represent.”)
(internal quotation marks omitted).
The official capacity claims
are therefore civil rights claims against KDOC.
However, the KDOC is not subject to suit under § 1983 in
federal court, both because a state agency is not a “person”
subject to liability under Section 1983, and because the Eleventh
Amendment
deprives
federal
district
15
courts
of
subject
matter
jurisdiction over a claim for money damages against a state and
its agencies.
Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &
Eddy, Inc., 506 U.S. 139, 687-88 (1993) (“Absent waiver, neither
a State nor agencies acting under its control may be subject to
suit in federal court.”) (internal quotation marks and citation
omitted)); Scott v. Kentucky Department of Corrections, No. 08CV-104-HRW, 2008 WL 4083002, at *2 (E.D. Ky. Aug. 29, 2008) (“the
Eleventh Amendment has also been interpreted to extend immunity to
State employees sued for damages in their official capacities.”).
The Court therefore will dismiss the claims against KDOC and the
defendants in their official capacities.
The Court concludes that the remaining defendants should be
served with process to address Miles’s surviving claims that they
failed to protect him from the nighttime attacks he describes and
did so in retaliation for his filing of a grievance.
Because the
Court has granted Miles pauper status [R. 7], the Lexington Clerk’s
Office and the United States Marshals Service (“USMS”) will serve
the remaining defendants with a summons and copy of the Second
Amended Complaint on his behalf.
Fed. R. Civ. P. 4(c)(3) and 28
U.S.C. § 1915(d).
Accordingly, IT IS ORDERED that:
1.
All
claims
set
forth
in
Miles’s
“Proposed
Amended
Complaint and Response Memorandum” [R. 27-1 at 1-11] are DISMISSED.
16
2.
Miles’s claims of discrimination in violation of the
Equal Protection Clause [R. 28 at 19-22] is DISMISSED.
3.
Miles’s
emotional
distress
claims
under
for
the
Kentucky
intentional
infliction
of
law
at
is
[R.
28
23-25]
DISMISSED.
4.
Miles’s claims for failure to protect in violation of
the Eighth Amendment and retaliation in violation of the First
Amendment against Officer Bridgette Gillihand, Warden Don Bottom,
and KDOC Commissioner LaDonna Thompson are DISMISSED.
5.
A Deputy Clerk in the Lexington Clerk’s Office shall
prepare a “Service Packet” for:
(a)
Administrative Secretary Supervisor Brad Adams;
(b)
Deputy Warden Rick Rowlette;
(c)
Deputy Warden Gary Prestigiacomo;
(d)
Unit Administrator Craig Hughes;
(e)
Unit Administrator Earl Walls;
(f)
Unit Administrator Mendalyn Cochran;
(g)
Unit Administrator Jack Godbey;
(h)
Unit Administrator Stephanie Hughes; and
(i)
Lieutenant Crain.
Each Service Packet shall include:
(a)
a completed summons form;
(b)
the Second Amended Complaint [R. 28];
17
(c)
(d)
6.
this Order; and
a completed USM Form 285.
The Lexington Deputy Clerk shall deliver the Service
Packets to the USMS in Lexington, Kentucky and note the date of
delivery in the docket.
7.
The USMS shall personally serve the Service Packets upon
each of the defendants by hand delivery at the Northpoint Training
Center, 710 Walter Reed Road, Danville, Kentucky, 40310.
This 3rd day of May, 2016.
18
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