Griffin v. Womack et al

Filing 7

MEMORANDUM OPINION by Senior Judge Thomas B. Russell on 12/31/2012. For the foregoing reasons, the Court will by separate Order dismiss Plaintiff's complaint.cc: Plaintiff (pro se), Defendants, Warren County Attorney (TJD)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT BOWLING GREEN
ANTHONY GRIFFIN
v.

PLAINTIFF
CIVIL ACTION NO. 1:12CV-P195-R

ROGER WOMACK et al.

DEFENDANTS

MEMORANDUM OPINION
Plaintiff, Anthony Griffin, filed a pro se, in forma pauperis complaint pursuant to 42
U.S.C. § 1983.1 This matter is before the Court for screening pursuant to 28 U.S.C. § 1915A and
McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). For the reasons set forth below, the
action will be dismissed.
I. SUMMARY OF CLAIMS
Plaintiff, a federal pretrial detainee at the Warren County Regional Jail (WCRJ), sues the
WCRJ and Southern Health Partners, Inc. (SHP), and, in their individual and official capacities,
the following WCRJ employees: Correction Officer Roger Womack; Captain William Baker;
and Chief Deputy Misse Edmonds. He alleges that on October 30, 2012, from 7:45 am to 9:30
am, Defendant Baker and another officer locked him and other inmates out of their cells
resulting in Plaintiff having to sit on the floor “which cause[d] an already inflicted back and hip
injury that was done by Southern Health Partners” apparently on September 10, 2012. He states
that “Lt. Whitaker, Baker, Edmonds along with Womack has subjected me and others in my pod
with unnecessary rigor and harsh strict or severe treatment that presented a substantial risk of

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Although Plaintiff states in his complaint that this is “a 1983 U.S.C. Bivens [Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 390-97 (1971)] action
filed by Anthony Griffin a Federal pre-trial detainee,” because he is suing county officials, not
persons who acted under color of federal law, his claims are governed by § 1983.

serious injury or harm for which there was no justification for.” He alleges that his Fourth and
Fourteenth Amendment rights were violated by an illegal search and seizure. He also states, that
on November 1, 2012, from 9:30 am to 10:50 pm he and other inmates were locked out of their
cells with “no showers, no personal supplies, no toilet paper or soap to wash our hand before we
ate.”
Plaintiff further alleges, “Cap. Baker inflicted serious physicological [sic] damage on me
by defamation of character by demonstrating that he is a racist as he shouted racial slurs . . . .”
He also alleges that Defendant Baker threatened to use his taser while Defendant Womack
searched Plaintiff inappropriately, groped him, grabbed his crotch and penis and looked at his
penis as three other officers watched and nine other inmates were in view. He alleges that the
medical staff has harassed and assaulted him and denied him medical attention for pain caused
by the staff. He also alleges denial of due process in the grievance procedure. He further alleges
the torts of assault, battery, negligence, physical and emotional abuse, and defamation. Plaintiff
asks for monetary and punitive damages.
II. ANALYSIS
When a prisoner initiates a civil action seeking redress from a governmental entity,
officer, or employee, the trial court must review the complaint and dismiss the action, if the court
determines that it 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. See 28
U.S.C. §§ 1915A(b)(1) and (2). A claim is legally frivolous when it lacks an arguable basis
either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). The court may, therefore,
dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where

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the factual contentions are clearly baseless. Id. at 327. When determining whether a plaintiff
has stated a claim upon which relief can be granted, the court must construe the complaint in a
light most favorable to Plaintiff and accept all of the factual allegations as true. Prater v. City of
Burnside, Ky., 289 F.3d 417, 424 (6th Cir. 2002). While a reviewing court must liberally
construe pro se pleadings, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam), to avoid
dismissal, a complaint must include “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Claims against WCRJ and official-capacity claims
Plaintiff sues the WCRJ. WCRJ is not a “person” subject to suit under § 1983 because
municipal departments, such as jails, are not suable under § 1983. Compare Rhodes v.
McDannel, 945 F.2d 117, 120 (6th Cir. 1991) (holding that a police department may not be sued
under § 1983); see also Marbry v. Corr. Med. Serv., No. 99-6706, 2000 WL 1720959, at *2 (6th
Cir. Nov. 6, 2000) (holding that a jail is not an entity subject to suit under § 1983). In this
situation, it is Warren County that is the proper defendant. Smallwood v. Jefferson Cnty. Gov’t,
743 F. Supp. 502, 503 (W.D. Ky. 1990) (construing claims brought against the Jefferson County
Government, the Jefferson County Fiscal Court, and the Jefferson County Judge Executive as
claims against Jefferson County itself). Further, Warren County is a “person” for purposes of
§ 1983. Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). The Court will therefore construe
the claims against WCRJ as brought against Warren County. Similarly, the claims against the
named officers of WCRJ in their official capacities are considered to be brought against Warren
County. See Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994).
When a § 1983 claim is made against a municipality, a court must analyze two distinct

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issues: (1) whether the 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,
Tex., 503 U.S. 115, 120 (1992). The Court will address the issues in reverse order.
“[A] municipality cannot be held liable solely because it employs a tortfeasor – or, in
other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.”
Monell, 436 U.S. at 691 (emphasis in original); Searcy v. City of Dayton, 38 F.3d 282, 286 (6th
Cir. 1994); Berry v. City of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994). “[T]he touchstone of
‘official policy’ is designed ‘to distinguish acts of the municipality from acts of employees of the
municipality, and thereby make clear that municipal liability is limited to action for which the
municipality is actually responsible.’” City of St. Louis v. Praprotnik, 485 U.S. 112, 138 (1988)
(quoting Pembaur v. Cincinnati, 475 U.S. 469, 479-80 (1986)) (emphasis in Pembaur).
A municipality cannot be held responsible for a constitutional deprivation unless there is
a direct causal link between a municipal policy or custom and the alleged constitutional
deprivation. Monell, 436 U.S. at 691; Deaton v. Montgomery Cnty., Ohio, 989 F.2d 885, 889
(6th Cir. 1993). Simply stated, the plaintiff must “identify the policy, connect the policy to the
city itself and show that the particular injury was incurred because of the execution of that
policy.” Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993) (quoting Coogan v.
City of Wixom, 820 F.2d 170, 176 (6th Cir. 1987), overruled on other grounds, Frantz v. Village
of Bradford, 245 F.3d 869 (6th Cir. 2001)). The policy or custom “must be ‘the moving force of
the constitutional violation’ in order to establish the liability of a government body under
§ 1983.” Searcy, 38 F.3d at 286 (quoting Polk Cnty. v. Dodson, 454 U.S. 312, 326 (1981)
(citation omitted)); Bd. of Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 404

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(1997) (indicating that plaintiff must demonstrate “deliberate conduct”). Here, Plaintiff has not
identified a policy or custom of Warren County resulting in the alleged constitutional violations.
Consequently, the claims against WCRJ and its employees in their official capacities will be
dismissed.
Claims against SHP
A private corporation, like Southern Health Partners, “is not liable under § 1983 for torts
committed by its employees when such liability is predicated solely upon a theory of respondeat
superior.” Austin v. Paramount Parks, Inc., 195 F.3d 715, 728 (4th Cir. 1999). Rather, a private
corporation is liable under § 1983 only when an official policy or custom of the corporation
causes the alleged deprivation of federal rights. See Street v. Corr. Corp. of Am., 102 F.3d 810,
817 (6th Cir. 1996). The complaint does not allege that a policy or custom of SHP was the
moving force behind any constitutional violations. Consequently, the claims against Defendant
SHP will likewise be dismissed.
Individual-capacity claims
1. Claim regarding being locked out of cell
Plaintiff claims that on October 30, 2012, from 7:45 am until 9:30 am Defendant Baker
and another officer locked Plaintiff and other inmates out of their cells. He also alleges that on
November 1, 2012, he was locked out of his cell from 9:30 am until 10:50 pm and during that
time he was “eating and sleeping on the floor in which these c/o’s and her knew I got a medical
stomach mesh implant”; it also resulted in Plaintiff having to sit on the floor “which cause[d] an
already inflicted back and hip injury that was done by Southern Health Partners.” He further
alleges that during the lockout from 9:30 am until 10:50 pm on November 1, 2012, there were

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“no showers, no personal supplies, no toilet paper or soap to wash our hand before we ate.”
For a pretrial detainee like Plaintiff, “[d]ue process requires that a pretrial detainee not be
punished. A sentenced inmate, on the other hand, may be punished, although that punishment
may not be ‘cruel and unusual’ under the Eighth Amendment.” Bell v. Wolfish, 441 U.S. 520,
537 n.16 (1979). The Cruel-and-Unusual-Punishments Clause does not apply to pretrial
detainees. Spencer v. Bouchard, 449 F.3d 721, 727 (6th Cir. 2006) (abrogated on other grounds
by Jones v. Bock, 549 U.S. 199 (2007)). However, pretrial detainees are shielded from cruel and
unusual punishment by the Due-Process Clause of the Fourteenth Amendment, which provides
similar if not even greater protection than the Cruel-and-Unusual-Punishments Clause. Id.
The Eighth Amendment prohibits a punishment that violates civilized standards of
decency or reflects unnecessary and wanton infliction of pain. Estelle v. Gamble, 429 U.S. 97,
102-03 (1976). A viable Eighth Amendment claim has both an objective and a subjective
component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The objective component requires
that the pain be sufficiently serious within the context of “contemporary standards of decency.”
Hudson v. McMillian, 503 U.S. 1, 8 (1992) (internal quotation marks and citation omitted). The
subjective component requires a plaintiff to show that the defendant acted with deliberate
indifference to the inmate’s health or safety, i.e., the plaintiff must show that prison officials had
a “sufficiently culpable state of mind,” where the officials were aware of and disregarded an
excessive risk to an inmate’s health or safety. Farmer, 511 U.S. at 834 (internal quotation marks
and citation omitted).
First, since it has been held that requiring prisoners to sleep on the floor does not violate
the Eighth Amendment, it must follow that Plaintiff’s complaint about having to sit on the floor

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for less than two hours one day and for 13 and one-half hours another day does not rise to the
level of a constitutional violation. See Schroeder v. Kaplan, No. 93-17123, 1995 WL 398878, at
*2 (9th Cir. July 7, 1995) (requiring prisoner to sleep on floor for a four-week period without use
of mattress does not violate the Eighth Amendment); Bodman v. Dennis, No. 1:11-cv-600, 2011
WL 3739033, at *7 (W.D. Mich. Aug. 24, 2011) (finding that having to sleep on the floor for
eight days does not implicate the Eighth Amendment).
Moreover, Plaintiff does not allege that any injury occurred because he sat on the floor.
The Court is not sure what Plaintiff means by his statement that sitting on the floor “cause[d] an
already inflicted back and hip injury that was done by Southern Health Partners.” Here, reading
Plaintiff’s complaint liberally, at best it appears that Plaintiff alleges that having to sit on the
floor aggravated “an already inflicted back and hip injury.” The Sixth Circuit has repeatedly
found Eighth Amendment claims for monetary relief precluded by 42 U.S.C. § 1997e(e) absent a
showing of physical injury. See Jennings v. Weberg, No. 2:06-CV-235, 2007 WL 80875, at *3
(W.D. Mich. Jan. 8, 2007) (collecting cases). The physical injury need not be significant, but it
must be more than de minimis for an Eighth Amendment claim to proceed. See Adams v.
Rockafellow, 66 F. App’x 584, 586 (6th Cir. 2003) (citing Siglar v. Hightower, 112 F.3d 191,
193 (5th Cir. 1997)). There is nothing in Plaintiff’s complaint to suggest that if he did suffer
injury by being required to sit on the floor it was anything other than de minimis. See Jarriett v.
Wilson, 162 F. App’x 394, 401 (6th Cir. 2005) (finding de minimis injury where a prisoner
complained that his legs were swollen, he suffered pain while standing, and he had severe
cramps in his thighs when trying to sit); Siglar, 112 F.3d at 193 (5th Cir. 1997) (finding that
prisoner who alleged that he had a bruised ear for three days did not meet § 1997(e) standard).

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During the longer lockout, Plaintiff alleges that he was denied certain hygiene items like
soap and toilet paper. The denial of basic hygiene items may give rise to an Eighth Amendment
claim but not in so short a time as the approximately 13 and one-half hour lockout on
November 1, 2012. See, e.g., Flanory v. Bonn, 604 F.3d 249, 254 (6th Cir. 2010) (“Courts have
not found the objective component satisfied where the deprivation of hygiene items was
temporary.”); Matthews v. Murphy, No. 90–35458, 1992 WL 33902, at *4 (9th Cir. Feb. 25,
1992) (noting that while “it has been held that ‘the eighth amendment forbids deprivation of the
basic elements of hygiene,’” the deprivation of a towel, toothbrush, toothpowder, comb, soap,
and other personal hygiene items for approximately 34 days did not rise to the level of an Eighth
Amendment violation); Crump v. Janz, No. 1:10-cv-583, 2010 WL 2854266, at *4 (W.D. Mich.
July 19, 2010) (holding complaint failed to plead an Eighth Amendment violation where inmate
asserted “lack of deodorant, toothbrushes, toothpaste, postage, typing and carbon paper, and
legal envelopes for 35 days”); Gilland v. Owens, 718 F. Supp. 665, 685 (W.D. Tenn. 1989)
(“Short term deprivations of toilet paper, towels, sheets, blankets, mattresses, toothpaste,
toothbrushes and the like do not rise to the level of a constitutional violation.”). Accordingly,
the claims Plaintiff alleges arising from being locked out of his cell will be dismissed.
2. Claim regarding illegal search and seizure and denial of medical attention
Plaintiff simply states in a conclusory manner that he was illegally searched and
subjected to an illegal search and seizure. Plaintiff also alleges conclusorily that various
correctional officers “along with the medical staff has harassed and assaulted me and denial of
medical attention for the pain caused by this staff.” Some factual basis for each claim must be
set forth in the pleadings. Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir. 1986). The

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Court is not required to accept conclusory and unsupported statements. Dellis v. Corr. Corp. of
Am., 257 F.3d 508, 511 (6th Cir. 2001). Plaintiff has not provided any factual basis for these
claims. As such, these claims will be dismissed.
3. Claim regarding being groped
Plaintiff alleges that on November 1, 2012, Defendant Womack conducted a search while
Defendant Baker “threaten to use his taser as he had his hand on the trigger.” Plaintiff states,
“[w]hile Womack was searching me he inappropriately groped me, and grab my crocth [sic] and
penis and look at my penis as the other 3 c/o’s watched and the 9 other inmates in this pod saw
this.”
“Minor, isolated incidents of touching . . . do not rise to the level of an Eighth
Amendment violation.” Solomon v. Mich. Dep’t of Corr., 478 F. App’x 318, 320 (6th Cir. 2012)
(citing Boddie v. Schnieder, 105 F.3d 857, 859-61 (2d Cir. 1997)); see also Young v. Poff, No.
04-CV-320, 2006 WL 1455482, at *4 (W.D.N.Y. May 22, 2006) (holding that a single groping
incident did not amount to an Eighth Amendment violation); see also Jackson v. Madery, 158 F.
App’x 656, 661-62 (6th Cir. 2005) (holding that allegation of rubbing and grabbing of prisoner’s
buttocks in a degrading manner did not amount to an Eighth Amendment violation). This claim
will be dismissed for failure to state a claim.
4. Claim regarding grievance procedure
Plaintiff alleges “violation of the Due Process Clause in denying me due process in
connection with the grievance proceedings of the 14th Amendment to the Constitution of the
U.S.” He states elsewhere in his complaint that Defendant Baker and other officers will not give
him a grievance form when he asks.

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An inmate grievance procedure within the prison system is not constitutionally required.
See United States ex rel. Wolfish v. Levi, 439 F. Supp. 114, 163 (S.D.N.Y. 1977), aff’d sub nom,
Wolfish v. Levi, 573 F.2d 118 (2nd Cir. 1978), rev’d on other grounds, Bell v. Wolfish, 441 U.S.
520 (1979); Spencer v. Moore, 638 F. Supp. 315 (E.D. Mo. 1986); O’Bryan v. Cnty. of Saganaw,
437 F. Supp. 582, 601 (E.D. Mich. 1977). If the prison provides a grievance process, violations
of its procedures do not rise to the level of a federal constitutional right. Spencer, 638 F. Supp.
at 316. Because Plaintiff has no right to an effective grievance procedure, Ishaaq v. Compton,
900 F. Supp. 935, 940-41 (W.D. Tenn. 1995); Flowers v. Tate, Nos. 90-3742, 90-3796, 1991 WL
22009 (6th Cir. Feb. 22, 1991), a failure to follow the grievance procedures does not give rise to
a § 1983 claim. Id.; Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982). Thus, Plaintiff’s
claim relating to the lack of an adequate grievance procedure must be dismissed.
5. Claim regarding racial slur
Plaintiff alleges that Defendant Baker inflicted serious damage when “he shouted racial
slurs.” Plaintiff’s allegation regarding Defendant Baker’s racial slurs does not rise to the level of
a constitutional violation. The Sixth Circuit has held that harassing or degrading language by a
prison official, although unprofessional and despicable, does not amount to a constitutional tort.
Johnson v. Unknown Dellatifa, 357 F.3d 539, 546 (6th Cir. 2004); Violett v. Reynolds, 76 F.
App’x 24, 27 (6th Cir. 2003) (“[V]erbal abuse and harassment do not constitute punishment that
would support an Eighth Amendment claim.”); Ivey v. Wilson, 832 F.2d 950, 954-55 (6th Cir.
1987); see also Searcy v. Gardner, Civil No. 3:07-0361, 2008 WL 400424, at *4 (M.D. Tenn.
Feb. 11, 2008) (“A claim under 42 U.S.C. § 1983 cannot be based on mere threats, abusive
language, racial slurs, or verbal harassment by prison officials.”). This claim will be dismissed

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as well.
6. State-law claims
Because Plaintiff’s federal-law claims will be dismissed, the Court declines to exercise
its supplemental jurisdiction over Plaintiff’s state-law claims. See 28 U.S.C. § 1367(c)(3).
Those claims will be dismissed without prejudice.
III. CONCLUSION
For the foregoing reasons, the Court will by separate Order dismiss Plaintiff’s complaint.
Date:

December 31, 2012

cc:

Plaintiff, pro se
Defendants
Warren County Attorney
4413.009

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