Mize et al v. United States Marshal Service et al

Filing 6

MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers. On initial screening of the complaint pursuant to 28 U.S.C. § 1915(e)(2), IT IS ORDERED that all of Plaintiff Sandra's claims are DISMISSED for failure to state a claim upon which reli ef may be granted. The Clerk of Court is DIRECTED to terminate Plaintiff Sandra Mize as a party to this action. IT IS FURTHER ORDERED that within 30 days of entry of this Order Plaintiff Corey Mize may file an amended complaint (see Order for speci fics). The Clerk of Court is DIRECTED to send to Plaintiff Corey Mize a § 1983/Bivenscomplaint form with this case number affixed thereto. Plaintiff Corey is WARNED that failure to comply with this Order within the allotted time will result in dismissal of this action. cc: Plaintiffs, pro se; Defendants; Warren County Attorney; U.S. Attorney (JLS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT BOWLING GREEN
SANDRA L. MIZE et al.

PLAINTIFFS

v.

CIVIL ACTION NO. 1:14-CV-171-GNS

UNITED STATES MARSHAL SERVICE et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Plaintiffs, Sandra L. Mize and Corey Mize, filed a pro se, in forma pauperis complaint on
a general complaint form. This matter is before the Court for screening pursuant to 28 U.S.C.
§ 1915(e)(2) and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), overruled on other
grounds by Jones v. Bock, 549 U.S. 199 (2007).
I. SUMMARY OF CLAIMS
It appears that the genesis of this complaint occurred while Plaintiff Corey was in the
custody of the Warren County Regional Jail (WCRJ) and/or the United States Marshals Service
(USMS). As grounds for filing this case in federal court, the complaint refers to 42 U.S.C.
§ 1983; the Eighth and Fourteenth Amendments; various sections of Title 18 of the U.S. Code;
various Kentucky statutes; a Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971), decision from the federal Eleventh Circuit Court of Appeals; the Geneva
Convention; the American Bar Association (ABA) standards on treatment of prisoners; and
various state tort causes of action (“infliction of emotional distress [and] emotional distress thru
negligence”). Plaintiffs name the following as Defendants: the U.S. Marshals Service for the
Western District, Jackie Strode, Tom Maxwell, Eddie Pendelton, Chip Olney, Kim James, Tosha
Glaung, Irina Avakova, Misse Causey, William Baker, Allen White, John Gereski, Russ Parsons,

Kevin Harrod, Mike White, Matt Norris, Chad Young, and the WCRJ. Plaintiffs do not specify
in which capacity they are suing the individual Defendants.
According to the complaint, Plaintiff Sandra received a call on December 3, 2013, from
Defendant Strode to tell her that she should go to the Medical Center ICU but that he could not
tell her what was wrong. She states that when she arrived at ICU, she was “intercepted” by
Defendant Allen White, who told her she could not be there. She states that after about 15
minutes she was taken to see her son, Plaintiff Corey, but no one was allowed to tell her what his
injuries were or what his prognosis was. Plaintiff Corey’s brothers and grandparents were not
allowed in. She states that “through the help of an attorney” on December 5, 2013, all the family
members were allowed to be together and to “get answers as to what his injuries were. The
officers at the hospital and lack of information did greatly hinder a speedy action on the part of
the hospital.”
The complaint states that Plaintiff Corey “had been assaulted with great physical harm [i]n
the custody and care of USMS, WCRJ, staff at jail and lack of proper supervision caused severe
emotional, physical, financial, social and cognitive deficits.” As relief, Plaintiffs want the
payment of medical bills; “restitution for any lost wages, past, present or future for Plaintiffs”;
compensation for physical, emotional and financial damages; and for the “courts to dissolve any
and all charges pending against Corey Mize in federal, state or local court.” Attached to the
complaint is a state-court appointment of guardianship of Sandi Mize for Corey Mize signed on
February 14, 2014.
II. ANALYSIS
Because Plaintiffs are proceeding in forma pauperis, this Court must review the instant
action. See 28 U.S.C. § 1915(e)(2); McGore v. Wrigglesworth, 114 F.3d at 604-05. Upon

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review, this Court must dismiss a case at any time if the Court determines that the action 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. § 1915(e)(2)(B).
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 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 the
plaintiff and accept all of the factual allegations as true. Prater v. City of Burnside, Ky., 289 F.3d
417, 424 (6th Cir. 2002). A complaint, or portion thereof, should be dismissed for failure to state
a claim upon which relief may be granted “only if it appears beyond a doubt that the plaintiff can
prove no set of facts in support of his claim that would entitle him to relief.” Brown v. Bargery,
207 F.3d 863, 867 (6th Cir. 2000). 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).
Criminal charges
Plaintiffs cite to provisions of Title 18 of the United States Code. However, that title of
the U.S. Code contains federal criminal statutes. Plaintiffs as private citizens may not enforce
the federal criminal code. Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (per curiam); Abner v.
Gen. Motors, 103 F. App’x 563, 566 (6th Cir. 2004). “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

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the power to direct that criminal charges be filed. Peek v. Mitchell, 419 F.2d 575, 577-78 (6th
Cir. 1970); Fleetwood v. Thompson, 358 F. Supp. 310, 311 (N.D. Ill. 1972). Thus, to the extent
that Plaintiffs base their claims on provisions of Title 18, those claims must be dismissed for
failure to state a claim.
Geneva Convention
The Geneva Convention codifies the law of war, Kadic v. Karadzic, 70 F.3d 232, 242 (2d
Cir. 1995), and has no application to this case. Moreover, the Geneva Convention “does not
create a private right of action for private individuals to enforce its terms.” Nattah v. Bush, 770
F. Supp. 2d 193, 204 (D.D.C. 2011). Thus, any claims made by Plaintiffs based on the Geneva
Convention must be dismissed for failure to state a claim.
ABA claim
The complaint refers to the “American Bar Association Standards on Treatment of
Prisoners.” The ABA’s Criminal Justice Standards on Treatment of Prisoners are only
“persuasive authority” and do not create a cause of action. See O’Malley v. NaphCare, Inc., No.
3:12-cv-326, 2014 WL 806381, at *13 (S.D. Ohio Feb. 28, 2014). Thus, Plaintiffs fail to state a
claim upon which relief may be granted in reference to the ABA standards.
Request to dissolve charges
To the extent that Plaintiff Corey is asserting claims about an on-going state criminal
case, “a federal court should not interfere with a pending state criminal proceeding except in the
rare situation where an injunction is necessary to prevent great and immediate irreparable
injury.” Fieger v. Thomas, 74 F.3d 740, 743 (6th Cir. 1996) (citing Younger v. Harris, 401 U.S.
37 (1971)). “Younger abstention in civil cases requires the satisfaction of three elements.
Federal courts should abstain when (1) state proceedings are pending; (2) the state proceedings

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involve an important state interest; and (3) the state proceedings will afford the plaintiff an
adequate opportunity to raise his constitutional claims.” Hayse v. Wethington, 110 F.3d 18, 20
(6th Cir. 1997).
It is not clear if there is a state-court criminal case pending against Plaintiff Corey.
However, if there is, in light of the available avenues through which to raise a constitutional
challenge in state court, this Court will not interfere with an on-going Kentucky state-court
proceeding. Therefore, all claims related to any pending state-court criminal case will be
dismissed.
There is a criminal case pending in this Court against Corey Michael Mize. See United
States v. Mize, No. 1:13-CR-26-GNS. However, this civil action is not the appropriate avenue to
seek dismissal of those federal charges. Dismissal would have to be pursued in that criminal
action.
Intergovernmental Service Agreement
Plaintiffs reference negligence in speaking of the alleged breaching of the
Intergovernmental Service Agreement for housing of federal prisoners between the USMS and
the WCRJ and Defendant Strode. To the extent Plaintiffs are suing the USMS for the tort of
negligence, such a claim would have to be brought under the Federal Tort Claims Act (FTCA).
The FTCA is “the exclusive means for a plaintiff to sue the United States in tort.” Johnston v.
O’Neill, 130 F. App’x 1, 6 (6th Cir. 2005). Thus, no independent negligence claim against the
USMS under this purported agreement can exist.
The possibility that state-law negligence claims against WCRJ or Strode may continue
past initial review is discussed below.

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State tort law
To bring a state-law negligence claim, Plaintiffs must first allege the existence of a duty
of care. See Mullins v. Commonwealth Life Ins. Co., 839 S.W.2d 245, 247 (Ky. 1992) (noting
that in a negligence case, the claimant must prove (1) a duty on the part of Defendant; (2) a
breach of that duty; and (3) consequent injury). Plaintiff Sandra as the mother of an adult
incarcerated son cannot show that her adult son’s jailers had a duty to her.1 Therefore, she
cannot state a claim of negligence.
Whether or not the remainder of the state-law negligence claims will continue is
dependent on whether Plaintiff Corey states a constitutional claim relating to the assault and
injuries incurred therein because jurisdiction over the state-law claims would be dependent on
supplemental jurisdiction. See 28 U.S.C. § 1367(c) (district court may decline to exercise
supplemental jurisdiction over a state-law claim where the court has dismissed all claims over
which it has original jurisdiction).
Kentucky statutes
The complaint refers to several Kentucky statutes. Two of them deal with harassment.
Section 525.070 of the Kentucky Revised States is entitled “Harassment.” It provides in
pertinent part:
A person is guilty of harassment when, with intent to intimidate, harass, annoy, or
alarm another person, he or she:
(a) Strikes, shoves, kicks, or otherwise subjects him to physical contact;
(b) Attempts or threatens to strike, shove, kick, or otherwise subject the person to
physical contact;

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The complaint refers to “infliction of emotional distress.” To the extent that Plaintiffs may be
alleging the tort of infliction of emotional distress, under Kentucky law, negligent infliction of
emotional distress is analyzed in accordance with common-law negligence, requiring, among
other things, proof of a duty owed to the claimant. See Osborne v. Keeney, 399 S.W.3d 1, 17
(Ky. 2012). Thus, Plaintiff Sandra cannot state a claim for this state tort either.
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(c) In a public place, makes an offensively coarse utterance, gesture, or display, or
addresses abusive language to any person present;
(d) Follows a person in or about a public place or places;
(e) Engages in a course of conduct or repeatedly commits acts which alarm or
seriously annoy such other person and which serve no legitimate purpose[.]
Ky. Rev. Stat. § 525.070(1). None of the conduct of Defendants described in the complaint
meets the parameters of this statute. Therefore, Plaintiffs have failed to state a claim under this
statute.
Section 525.080 of the Kentucky Revised Statutes is entitled “Harassing
communications.” It provides in pertinent part:
A person is guilty of harassing communications when, with intent to intimidate,
harass, annoy, or alarm another person, he or she:
(a) Communicates with a person, anonymously or otherwise, by telephone,
telegraph, mail, or any other form of written communication in a manner which
causes annoyance or alarm and serves no purpose of legitimate communication;
(b) Makes a telephone call . . . with no purpose of legitimate
communication[.]
Ky. Rev. Stat. § 525.080(1). The only communication mentioned in the complaint is the phone
call from Defendant Strode telling Plaintiff Sandra to go to the Medical Center ICU. This
communication fails to allege a violation of § 525.080 because Defendant Strode clearly had a
legitimate reason to call Plaintiff Sandra – to inform her that her son was in the ICU.
Consequently, Plaintiffs fail to state a claim based on this statute.
The other Kentucky statutes referred to in the complaint, Ky. Rev. Stat. §§ 441.025,
441.055, 441.064, 441.070, and 441.085, have to do with regulation of jails. Those statutes do
not specifically provide a private cause of action. However, Ky. Rev. Stat. § 446.070 “creates a
private right of action in a person damaged by another person’s violation of any statute that is
penal in nature and provides no civil remedy, if the person damaged is within the class of persons
the statute intended to be protected.” Hargis v. Baize, 168 S.W.3d 36, 40 (Ky. 2005) (citations

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omitted). Accordingly, in order for Plaintiffs to maintain an action for the violation of these
statutes, they must be within the class of persons protected by the statute. Plaintiff Sandra, as the
mother of an incarcerated person, is not within the class of persons protected by the statutes
governing regulation of jails. Therefore, Plaintiff Sandra can bring no state-law claims based on
these statutes.
Constitutional claims
Due process
Plaintiffs allege that their due-process rights were violated. The Due Process Clause does
protect the right to familial relations between family members. See, e.g., Stanley v. Illinois, 405
U.S. 645, 651 (1972) (“The integrity of the family unit has found protection in the Due Process
Clause of the Fourteenth Amendment.”) (citing Meyer v. Nebraska, 262 U.S. 390, 399 (1923)).
However, only official conduct that “shocks the conscience” is cognizable as a due-process
violation. Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (citing Rochin v. California,
342 U.S. 165, 172-73 (1952)). The threshold question in such cases is “whether the behavior of
the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the
contemporary conscience.” Lewis, 523 U.S. at 847 n.8. The type of conduct which is most
likely to rise to the “conscience-shocking level” is “conduct intended to injure in some way
unjustifiable by any government interest.” Id. at 849. Conduct which was not intentional, but
rather was deliberately indifferent, may nevertheless rise to the conscience-shocking level in
some circumstances. Id. at 849-50.
Here, according to the complaint, when Plaintiff Sandra arrived at the ICU, she was
initially “intercepted” by Defendant Allen White and told that she could not be there. However,
she was taken to see her son 15 minutes later. Plaintiffs allege that, at that time, no one was

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allowed to tell Plaintiff Sandra what her son’s injuries were or what his prognosis was, and
Plaintiff Corey’s brothers and grandparents were not allowed in. However, two days later, all the
family members were allowed to be together and to “get answers as to what his injuries were.”
Thus, Plaintiff Sandra was delayed 15 minutes from seeing her son. Two days later all of the
family was allowed to see Plaintiff Corey, and everyone’s questions about his injuries were
answered. The Court finds that none of Plaintiffs’ allegations concerning interference with
familial relations rise to the conscience-shocking level and therefore fail to state a due-process
claim.
Constitutional claims related to the assault
According to the complaint, Plaintiff Corey was “assaulted with great physical harm.” It
is not clear from the complaint whether Plaintiff Corey was assaulted by another inmate or an
officer. The complaint does not identify which Defendant(s) was/were responsible for the
assault either directly or through a failure to protect. Thus, Plaintiff fails to put Defendants on
notice of the claim(s) against them as required by the Federal Rules of Civil Procedure. See Fed.
R. Civ. P. 8(a)(2) (“A pleading that states a claim for relief must contain . . . a short and plain
statement of the claim showing that the pleader is entitled to relief.”). Without such notice, the
claims are subject to dismissal. However, the Court will allow Plaintiff Corey an opportunity to
amend. See LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013) (“[U]nder Rule 15(a) a
district court can allow a plaintiff to amend his complaint even when the complaint is subject to
dismissal under the PLRA.”).
The Court notes that merely naming the WCRJ and the USMS as Defendants does not
suffice in this context. 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

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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 would be
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. New York City Dept. of Soc. Servs., 436 U.S. 658 (1978).
However, a municipality, like Warren County, 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. Id. 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 [county] 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. 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 282, 286 (6th Cir. 1994)
(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 (1997) (indicating that plaintiff
must demonstrate “deliberate conduct”). The complaint does not allege the existence of a
Warren County policy or custom.

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With regard to the USMS, a Bivens action cannot be maintained against a federal agency,
like the USMS.2 McCloskey v. Mueller, 446 F.3d 262, 271-72 (1st Cir. 2006). It is not clear
from the complaint whether Plaintiff Corey is alleging the violation of his constitutional rights by
a federal official in his/her individual capacity. Clarification as to whether any of the named
individuals are employees of the USMS and are alleged to be responsible for the assault is
needed.
FTCA
To the extent that the complaint alleges negligence on behalf of any federal official, the
FTCA is a waiver by Congress of the sovereign immunity of the United States for claims arising
out of torts committed by federal employees. See 28 U.S.C. § 1346(b)(1); Snyder v. United
States, 590 F. App’x, 505, 509 (6th Cir. 2014). The waiver effected by the FTCA is narrow.
Snyder v. United States, 590 F. App’x, at 509. Those terms include both an administrative
exhaustion requirement and a limitations period for filing suit after a final denial of the
administrative complaint. See Garrett v. United States, 640 F.2d 24, 26 (6th Cir. 1981) (per
curiam). An administrative claim must be “presented in writing to the appropriate Federal
agency within two years after such claim accrues.” 28 U.S.C. § 2401(b).
Here, it is not clear from the complaint which if any of the named Defendants are federal
officials Plaintiff Corey is alleging was/were negligent. If so, Plaintiff Corey has not indicated if
he has administratively exhausted those claims. Therefore, Plaintiff Corey has not alleged the
prerequisites of an FTCA claim. The Court will, therefore, provide Plaintiff Corey with an

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The complaint cites to a decision of the Eleventh Circuit Court of Appeals, Caldwell v.
Warden, FCI Talladega, 748 F.3d 1090 (11th Cir. 2014), in which a federal prisoner who was
assaulted by his cellmate brought constitutional claims against a federal corrections officer for
his failure to protect under Bivens.
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opportunity to amend to advise whether he has exhausted FTCA remedies and to identify any
defendant(s) alleged to have violated the FTCA.
III. CONCLUSION AND ORDER
Because Plaintiff Sandra’s claims under federal and state law fail to state a claim,
IT IS ORDERED that all of Plaintiff Sandra’s claims are DISMISSED for failure to
state a claim upon which relief may be granted. The Clerk of Court is DIRECTED to terminate
Plaintiff Sandra Mize as a party to this action.
IT IS FURTHER ORDERED that within 30 days of entry of this Order Plaintiff Corey
Mize may file an amended complaint. In the amended complaint, Plaintiff Corey must provide
greater detail as to the facts surrounding the assault; identify the Defendant(s) involved in the
assault and/or who failed to protect him; indicate whether those Defendants work for WCRJ or
the USMS; and indicate if and when Plaintiff Corey filed an administrative claim with the
USMS. The Clerk of Court is DIRECTED to send to Plaintiff Corey Mize a § 1983/Bivens
complaint form with this case number affixed thereto.
Plaintiff Corey is WARNED that failure to comply with this Order within the allotted
time will result in dismissal of this action.
Date:

April 30, 2015

Plaintiffs, pro se
Defendants
Warren County Attorney
U.S. Attorney
4416.009
cc:

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