Elliott v. Causey et al

Filing 18

MEMORANDUM OPINION by Senior Judge Thomas B. Russell; For the reasons set forth, the Court will dismiss the action by separate Order.cc:Plaintiff, pro se; Defendants; Warren County Attorney (EM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT BOWLING GREEN
KEENAN ELLIOTT
v.

PLAINTIFF
CIVIL ACTION NO. 1:13CV-P174-R

MISSE CAUSEY et al.

DEFENDANTS
MEMORANDUM OPINION

Pro se Plaintiff, Keenan Elliott, proceeding in forma pauperis filed an action under
42 U.S.C. § 1983 (DN 1). This matter is before the Court for screening pursuant to 28 U.S.C.
§ 1915A and McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997), overruled on other
grounds by Jones v. Bock, 549 U.S. 199 (2007). For the reasons set forth below, this action will
be dismissed.
I. SUMMARY OF CLAIMS
Plaintiff is currently incarcerated at the Luther Luckett Correctional Complex [LLCC].
The allegations in his complaint, however, concern his detention while incarcerated in the
Warren County Regional Jail [WCRJ]. Plaintiff names two Defendants in this action. He lists
them as follows: 1) Misse Causey, Chief Deputy at WCRJ; and 2) Jackie Strode, Jailer at
WCRJ. Plaintiff states that he sues Defendants in their individual and official capacities. As
relief, Plaintiff seeks monetary and punitive damages. Further, Plaintiff states that Defendants
should be “charged” for tampering with physical evidence.
Plaintiff begins his complaint by stating “Due Process Rights, Im Writing to Show Were
Misse Causey Should be charged as well As Jackie Strode Jailer charged for Letting Misse
Causey Tamper With Physical Evidence.” Thereafter, he states that “[t]hese DATES will show
That These Shoes Have Been in The Jail During The Whole Time I’ve wanted them, then when I

Filed the lawsuit they Disapeared.”1 Thereafter, Plaintiff sets forth a somewhat difficult to
follow chronology regarding a $200.00 pair of brown “Air Jordans” he wore to jail that he wants
returned to him.
According to Plaintiff, a January 17, 2012, “Pink Reciept Says [he] can wear [his] Shoes
at all Times.” Plaintiff states that on July 5, 2013, a Sgt. Jackson informed him that his “shoes
are still there.” Plaintiff states that on July 8, 2013, the “D.O.C. lady said the Jail can make their
Rules as they go.” According to Plaintiff, on July 11, 2013, Defendant Causey informed him
that his shoes had been thrown away “[s]ince the 6th of 7-11-13, Because Sgt. Jackson went to
Search the 6th Friday nite at 11:30pm He said your shoes are in Property in a green bag.” On
“7-11-13 and Dec 2012 Misse said The Jail is not Gonna pay For my shoes, I told Her Im still
wanting them.” Plaintiff represents that on July 13, 2013, Sgt. Jackson checked on the shoes and
sent a message to Plaintiff that his “Brown Jordans are confermed their in property.” On July 15,
2013, “CO Josh Johnson said shoes in property.”
Plaintiff states that on July 16, 2013, he spoke with Defendant Causey and asked that his
girlfriend be allowed to pick up his shoes. According to Plaintiff, Defendant Causey informed
Plaintiff that his shoes had been disposed of and that he should “[g]et your attorney to Subpoena
them.” She further informed him that the shoes belong to the jail, “its Jail property now.” The
following day, according to Plaintiff, Defendant Causey again informed him that the shoes were
jail property and he could not have anyone pick them up; however, his girlfriend could come
pick up his license. Plaintiff continues stating that on this same date, July 17, 2013, he again

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Plaintiff states that he has another action pending in the Western District of Kentucky, Civil
Action No. 1:13CV-106, “[a]bout [his] shoes being destroyed.”

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spoke to Defendant Causey and made it clear to her that he did not want the shoes in his cell, but
that he was trying to “get them Home.” Plaintiff states that Defendant Causey informed him that
the shoes had been “disposed of.” Later that same day, Plaintiff represents, he inquired of Lt.
Tim and Lt. Joseph Blair about the status of his shoes. According to Plaintiff, they asked
whether the shoes were involved in an investigation and when Plaintiff stated they were not, they
agreed with Plaintiff that his shoes should be released. Plaintiff states that Lt. Tim commented
that something was “weird about sHes not letting you or your family Have them.” According to
Plaintiff, on August 8, 2013, Lt. Doug Miles informed Plaintiff that his Air Jordans were “in
property.” Further, states Plaintiff, on October 9, 2013, he had a legal aide notarize a letter to
Defendant Causey in which he raised various issues, one of which was his shoes. According to
Plaintiff, Defendant Causey responded to the letter but would not discuss his shoes. Plaintiff
ends his complaint with a question, “THESE SHOES ARE WHERE?”
II. STANDARD OF REVIEW
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 complaint, or any
portion of it, if it determines that the complaint 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. 28 U.S.C. § 1915A; McGore v. Wrigglesworth, 114 F.3d at 604. 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 trial court may, therefore, dismiss a claim as frivolous where it is
based on an indisputably meritless legal theory or where the factual contentions are clearly
baseless. Id. at 327. In order to survive dismissal for failure to state a claim, “a complaint must

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contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
“[A] district court must (1) view the complaint in the light most favorable to the plaintiff
and (2) take all well-pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC,
561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)
(citations omitted)). “But the district court need not accept a ‘bare assertion of legal
conclusions.’” Tackett v. M & G Polymers, USA, LLC, 561 F.3d at 488 (quoting Columbia
Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). The court’s duty “does not
require [it] to conjure up unpled allegations,” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979),
or to create a claim for a plaintiff. Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169
(6th Cir. 1975). To command otherwise would require the Court “to explore exhaustively all
potential claims of a pro se plaintiff, [and] would also transform the district court from its
legitimate advisory role to the improper role of an advocate seeking out the strongest arguments
and most successful strategies for a party.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985).
III. ANALYSIS
A. Due Process Claim
The Supreme Court has held that where adequate remedies are provided by state law, the
negligent or intentional loss or destruction of personal property does not state a claim cognizable
under the Fourteenth Amendment’s Due Process Clause. Hudson v. Palmer, 468 U.S. 517, 533
(1984); Parratt v. Taylor, 451 U.S. 527 (1981), overruled on other grounds by Daniels v.

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Williams, 474 U.S. 327 (1986). In order to assert a claim for deprivation of property without due
process pursuant to 42 U.S.C. § 1983, a plaintiff must allege that the state post-deprivation
procedures are inadequate to remedy the deprivation. Parratt v. Taylor, 451 U.S. at 543-44.
Similarly, the Sixth Circuit has stated, “in section 1983 damage suits claiming the
deprivation of a property interest without procedural due process of law, the plaintiff must plead
and prove that state remedies for redressing the wrong are inadequate.” Victory v. Walton, 721
F.2d 1062, 1066 (6th Cir. 1983). The Sixth Circuit has found that Kentucky’s statutory remedy
for such losses is adequate within the meaning of Parratt. See Wagner v. Higgins, 754 F.2d 186,
191-92 (6th Cir. 1985). The same rationale applies to claims under the Fifth Amendment
Takings Clause; that is, no taking has occurred absent a showing that available remedies have
been pursued and have failed to provide adequate compensation. Hudson v. Palmer, 468 U.S. at
539 (O’Connor, J., concurring).
As explained by Justice O’Connor,
[A] mere allegation of property deprivation does not by itself state a constitutional
claim under either [the Due Process or Takings] Clause. The Constitution requires
the Government, if it deprives people of their property, to provide due process of law
and to make just compensation for any takings. The due process requirement means
that Government must provide to the inmate the remedies it promised would be
available. Concomitantly, the just compensation requirement means that the
remedies made available must adequately compensate for any takings that have
occurred. Thus, in challenging a property deprivation, the claimant must either avail
himself of the remedies guaranteed by state law or prove that the available remedies
are inadequate. When adequate remedies are provided and followed, no
uncompensated taking or deprivation of property without due process can result.
Id. (citations omitted). Plaintiff has failed to demonstrate an inadequacy of state remedies in the
case at bar. Consequently, Plaintiff’s claim related to the loss or destruction of his shoes must be
dismissed.

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B. Official-Capacity Claims
“Official-capacity suits . . . ‘generally represent [] another way of pleading an action
against an entity of which an officer is an agent.’” Kentucky v. Graham, 473 U.S. 159, 165
(1985) (quoting Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658, 690 n.55
(1978)). Suing Defendants in their official capacities is the equivalent of suing their employer,
Warren County. See Lambert v. Hartman, 517 F.3d 433, 439-40 (6th Cir. 2008) (stating that
civil rights suit against county clerk of courts in his official capacity was equivalent of suing
clerk’s employer, the county). When a § 1983 claim is made against a municipality, this Court
must analyze two distinct issues: (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, Tex., 503 U.S. 115, 120 (1992).
Regarding the second issue, i.e., whether the municipality is responsible for the alleged
constitutional violation, “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 v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. at 691; accord
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). “The ‘official policy’ requirement was intended 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.”
Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986).
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 v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. at 694; see Deaton v.
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Montgomery Cnty., Ohio, 989 F.2d at 889 (“Congress did not intend § 1983 liability to attach
where causation is absent.”). Simply stated, “a 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 by
Frantz v. Vill. 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 v. City of Dayton, 38 F.3d at 286 (quoting Polk Cnty. v. Dodson,
454 U.S. 312, 326 (1981) (citation omitted)).
In the instant case Plaintiff has not alleged that a municipal policy or custom caused his
alleged harm. Plaintiff’s complaint appears to contain allegations of an isolated occurrence
affecting only Plaintiff. See Fox v. Van Oosterum, 176 F.3d 342, 348 (6th Cir. 1999) (“No
evidence indicates that this was anything more than a one-time, isolated event for which the
county is not responsible.”). As nothing in the complaint demonstrates any purported
wrongdoing occurred as a result of a policy or custom implemented or endorsed by Warren
County, the complaint fails to establish a basis of liability against the municipality, and it fails to
state a cognizable § 1983 official-capacity claim.
C. Individual-Capacity Claim Against Defendant Strode
The doctrine of respondeat superior, or the right to control employees, does not apply in
§ 1983 actions to impute liability onto supervisors. Monell v. Dep’t of Soc. Servs. of the City of
N.Y., 436 U.S. at 691; Cardinal v. Metrish, 564 F.3d 794, 802-03 (6th Cir. 2009); Bellamy v.
Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Additionally, “simple awareness of employees’
misconduct does not lead to supervisor liability.” Leary v. Daeschner, 349 F.3d 888, 903 (6th
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Cir. 2003) (citing Lillard v. Shelby Cnty. Bd. of Educ., 76 F.3d 716, 728 (6th Cir. 1996)).
Moreover, “[t]he ‘denial of administrative grievances or the failure to act’ by prison officials
does not subject supervisors to liability under § 1983.” Grinter v. Knight, 532 F.3d 567, 576 (6th
Cir. 2008) (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)). Rather, “a plaintiff
must plead that each Government-official defendant, through the official’s own individual
actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. at 676; see also Shehee v.
Luttrell, 199 F.3d at 300 (stating that supervisory liability “must be based on active
unconstitutional behavior and cannot be based upon ‘a mere failure to act’”) (quoting Salehpour
v. Univ. of Tenn., 159 F.3d 199, 206 (6th Cir. 1998)). To state a claim for relief, Plaintiff must
show how each Defendant is accountable because that Defendant was personally involved in the
acts about which Plaintiff complains. Rizzo v. Goode, 423 U.S. 362, 375-76 (1976).
Here, Plaintiff’s § 1983 claim against Defendant Strode in his individual capacity appears
to be based upon the actions of Defendant Causey. Nothing in the complaint sets forth any
action taken on the part of Defendant Strode or shows how this Defendant was personally
involved in the alleged wrongful conduct. Thus, as to the § 1983 claim, Plaintiff has failed to
state a claim upon which relief may be granted against Defendant Strode in his individual
capacity.
D. Request for Criminal Action
“It is well settled that the question of whether and when prosecution is to be instituted is
within the discretion of the Attorney General.” Powell v. Katzenbach, 359 F.2d 234, 235 (D.C.
Cir. 1965). The Court does not have the power to direct that criminal charges be filed against
anyone as Plaintiff requests. Peek v. Mitchell, 419 F.2d 575, 577–78 (6th Cir. 1970); Fleetwood
v. Thompson, 358 F. Supp. 310, 311 (N.D. Ill. 1972). To the extent Plaintiff seeks criminal
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charges be brought against Defendants, he fails to state a claim upon which relief may be
granted.
IV. CONCLUSION
Plaintiff having failed to state a claim upon which relief may be granted, the Court will
enter a separate Order dismissing this case pursuant to 28 U.S.C. § 1915A(b)(1).
Date:

March 10, 2014

cc:

Plaintiff, pro se
Defendants
Warren County Attorney
4413.003

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