Snelling v. Gregory et al
Filing
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MEMORANDUM OPINION by Judge Greg N. Stivers on 6/14/2017. For the reasons set forth in this Memorandum Opinion, the Court will dismiss this action by separate Order.cc:Plaintiff, pro se; Defendants; Logan County Attorney (JWM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT BOWLING GREEN
DANIEL SNELLING
v.
PLAINTIFF
CIVIL ACTION NO. 1:17-CV-P41-GNS
PHIL GREGORY et al.
DEFENDANTS
MEMORANDUM OPINION
This is a pro se civil rights action brought by a former convicted prisoner pursuant to 42
U.S.C. § 1983. The Court has granted Plaintiff Daniel Snelling leave to proceed in forma
pauperis. This matter is before the Court for screening pursuant to 28 U.S.C. § 1915(e) and
McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), overruled on other grounds by Jones v.
Bock, 549 U.S. 199 (2007). For the reasons set forth below, the action will be dismissed.
I. SUMMARY OF COMPLAINT
Plaintiff brings this action against the Logan County Detention Center (LCDC) and four
LCDC officers in both their official and individual capacities – Jailer Phil Gregory, Chief Deputy
Benny Kinney, Lieutenant Deputy Evan White, and Deputy Frank Sankara.
Plaintiff first alleges that on August 27, 2016, Defendant Sankara “entered the shower
stall where [Plaintiff] was showering nude.” Plaintiff next alleges that on August 29, 2016,
Defendant Sankara “pull back bathroom curtain while [Plaintiff] was exposed while sitting on
the toilet” and told Plaintiff “it was a matter of time before he got [Plaintiff].” Plaintiff states
that on September 1, 2016, he informed “jail staff” that he had a conflict with one of the deputies
and wanted to be transferred. He further states that he filed a Prison Rape Elimination Act
(PREA) complaint on September 6, 2016. Plaintiff states that on September 7, 2016, Defendant
Sankara came to his cell and intimidated Plaintiff “with hand gestures” and verbally
communicated to Plaintiff “that this was not over and that he would get [Plaintiff].” Plaintiff
alleges that Defendant Sankara then began to laugh and smile while giving Plaintiff “the thumbs
up.” Based upon these allegations, Plaintiff claims that Defendant Sankara “engaged in a pattern
of sexual harassment, threats, and intimidation.” Plaintiff further claims that “once accused and
exposed, [Defendant Sankara] attempted to harass, threaten, and intimidate [Plaintiff] into
submission.” Plaintiff writes: “This is direct violation of my civil rights under the 14
Amendment and 8th Amendment, i.e. cruel and unusual punishment.”
As to Defendants Jailer Gregory, Deputy Chief Kinney, and Lt. White, Plaintiff writes
that they failed to protect him “after being made aware of accusations. They allowed behavior to
continue and allowed Accused to harass me after action to protect me was ‘FINALLY’ taken.”
As relief, Plaintiff seeks compensatory and punitive damages.
II. LEGAL STANDARD
Because Plaintiff is proceeding in forma pauperis, but is no longer incarcerated, the
Court must review this action under 28 U.S.C. § 1915(e). This statute requires a district court to
dismiss a case at any time if it 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).
In order to survive dismissal for failure to state a claim, “a complaint must 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)). “[A] pro se complaint, however inartfully pleaded, must be
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held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,
551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, while
liberal, this standard of review does require more than the bare assertion of legal conclusions.
See 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
Section 1983 creates no substantive rights but merely provides remedies for deprivations
of rights established elsewhere. Flint ex rel. Flint v. Ky. Dep’t of Corr., 270 F.3d 340, 351 (6th
Cir. 2001). Two elements are required to state a claim under § 1983. Gomez v. Toledo, 446 U.S.
635, 640 (1980). “A plaintiff must allege the violation of a right secured by the Constitution and
laws of the United States, and must show that the alleged deprivation was committed by a person
acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). “Absent either element,
a § 1983 claim will not lie.” Christy v. Randlett, 932 F.2d 502, 504 (6th Cir. 1991).
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A. Individual-Capacity Claims
1. Defendant Sankara
Plaintiff claims that Defendant Sankara’s actions toward him violated Plaintiff’s Eighth
and Fourteenth rights. The Court can discern no Fourteenth Amendment claim based upon
Plaintiff’s allegations, but will analyze whether Plaintiff has stated a claim against Defendant
Sankara for sexual harassment under the Eighth Amendment and retaliation under the First
Amendment.
a. Sexual Harassment
Plaintiff alleges that Defendant Sankara walked in on him once while he was showering
and once while he was sitting on the toilet “exposed.” On this second occasion, Plaintiff alleges
that Defendant Sankara told him that “it was a matter of time before he got [Plaintiff].” The
Court construes these allegations as claims of sexual harassment.
“[B]ecause the sexual harassment or abuse of an inmate by a corrections officer can never
serve a legitimate penological purpose and may well result in severe physical and psychological
harm, such abuse can, in certain circumstances, constitute the ‘unnecessary and wanton infliction
of pain’ forbidden by the Eighth Amendment.” Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir.
1997) (quoted cases omitted). Circuit courts, however, consistently have held that sexual
harassment, absent contact or touching, does not satisfy the objective requirement because such
conduct does not constitute the unnecessary and wanton infliction of pain. See Morales v.
Mackalm, 278 F.3d 126, 132 (2d Cir. 2002) (allegations that prison guard asked prisoner to have
sex with her and to masturbate in front of her and other female staffers did not rise to level
of Eighth Amendment violation); Barney v. Pulsipher, 143 F.3d 1299, 1311 n.11 (10th Cir.
1998) (allegations that county jailer subjected female prisoners to severe verbal sexual
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harassment and intimidation was not sufficient to state a claim under the Eighth
Amendment); Howard v. Everett, No. 99-1277EA, 2000 U.S. App. LEXIS 3685, at *3 (8th Cir.
March 10, 2000) (holding that sexual comments and gestures by prison guards did not constitute
unnecessary and wanton infliction of pain); Zander v. McGinnis, No. 97-1484, 1998 U.S. App.
LEXIS 13533, at *5 (6th Cir. June 19, 1998) (verbal abuse of mouthing “pet names” at prisoner
for ten months failed to state an Eighth Amendment claim); Murray v. U.S. Bureau of Prisons,
No. 95-5204, 1997 U.S. App. LEXIS 1716, at *8 (6th Cir. Jan. 28, 1997) (magistrate judge
correctly held that verbal abuse in the form of offensive remarks regarding a transsexual
prisoner’s bodily appearance, transsexualism, and presumed sexual preference cannot state
an Eighth Amendment claim).
Some courts have held that even minor, isolated incidents of sexual touching coupled
with offensive sexual remarks do not rise to the level of an Eighth Amendment violation. See,
e.g., Solomon v. Mich. Dep’t of Corr., 478 F. App’x 318, 320-21 (6th Cir. 2012) (two “brief”
incidents of physical contact during pat-down searches, including touching and squeezing the
prisoner’s penis, coupled with sexual remarks, do not rise to the level of a constitutional
violation); Jackson v. Madery, 158 F. App’x 656, 661 (6th Cir. 2005) (corrections officer’s
conduct in allegedly rubbing and grabbing prisoner’s buttocks in degrading manner was
“isolated, brief, and not severe” and so failed to meet Eighth Amendment standards); Johnson v.
Ward, No. 99-1596, 2000 U.S. App. LEXIS 11463, at *4 (6th Cir. May 11, 2000) (male
prisoner’s claim that a male officer placed his hand on the prisoner’s buttock in a sexual manner
and made an offensive sexual remark did not meet the objective component of the Eighth
Amendment); Boddie v. Schneider, 105 F.3d 857, 859-61 (2d Cir. 1997) (court dismissed as
inadequate prisoner’s claim that female corrections officer made a pass at him, squeezed his
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hand, touched his penis, called him a “sexy black devil,” pressed her breasts against his chest,
and pressed against his private parts).
Based upon the above-cited case law, the Court concludes that Plaintiff’s allegations fail
to state a claim under the Eighth Amendment. See, e.g., Cosgrove v. Burke, No. 2:16-cv-110,
2016 U.S. Dist. LEXIS 139698, at *33 (W.D. Mich. Oct. 7, 2016) (setting forth cases discussed
above and dismissing a sexual harassment claim under the Eighth Amendment where the
plaintiff alleged that a prison official made sexual comments to him while he was in the shower
but did not allege that the prison official touched him). As such, the Court will dismiss
Plaintiff’s Eighth Amendment sexual harassment claim for failure to state a claim upon which
relief may be granted.
b. Retaliation
Plaintiff also alleges that after he filed a PREA complaint against Defendant Sankara,
Defendant Sankara went to Plaintiff’s cell and intimidated Plaintiff “with hand gestures” and
verbally communicated to Plaintiff “that this was not over and that he would get [Plaintiff].”
Plaintiff claims that this was an attempt to “harass, threaten, and intimidate [Plaintiff] into
submission.” Although it is not entirely clear what Plaintiff intends, the Court will construe this
as a retaliation claim.
In the Sixth Circuit:
A retaliation claim essentially entails three elements: (1) the plaintiff engaged in
protected conduct; (2) an adverse action was taken against the plaintiff that would
deter a person of ordinary firmness from continuing to engage in that conduct;
and (3) there is a causal connection between elements one and two -- that is, the
adverse action was motivated at least in part by the plaintiff's protected conduct.
Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc).
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The Court finds that Plaintiff’s claim falls short with regard to the second element. A
specific threat of harm may satisfy the adverse-action requirement if it would deter a person of
ordinary firmness from exercising his or her First Amendment rights. See, e.g., Pasley v.
Conerly, 345 F. App’x 981, 985 (6th Cir. 2009) (threats to have a prisoner moved out of the unit
so that he would lose his job and transferred to another institution far from his family constitute
adverse action); Smith v. Yarrow, 78 F. App’x 529, 542 (6th Cir. 2003) (threat to change drug
test results constitutes an adverse action); Thaddeus-X, 175 F.3d at 396, 398 (threat of specific
physical harm constitutes an adverse action).
However, certain threats or deprivations are so de minimis that they do not rise to the
level of being constitutional violations. Thaddeus-X, 175 F.3d at 398; Smith, 78 F. App’x at
542. Along this line, courts have generally held that vague threats of unspecified harm do not
constitute adverse actions. See, e.g., Hunter v. Palmer, No. 1:17-cv-109, 2017 U.S. Dist. LEXIS
53181, at *31 (W.D. Mich. Apr. 6, 2017) (threat that “complaining would get [the plaintiff] into
a lot of trouble” does not constitute an adverse action); Smith v. Mohr, No. 2:15-cv-1264, 2016
U.S. Dist. LEXIS 45995, at *25 (S.D. Ohio Apr. 5, 2016) (vague allegation of “threatened
retaliatory punishment” insufficient to constitute an adverse action); Downing v. Greer, 2011
U.S. Dist. LEXIS 93961, at *3, 27 (W.D. Mich. Aug. 23, 2011) (the defendant’s comment “looks
like it’s going to be a long stay” in response to the plaintiff’s question regarding when he could
expect to get out of jail too vague to constitute an adverse action).
Here, the Court similarly finds Plaintiff’s allegation that Defendant Sankara
communicated to him that “this was not over and that he would get [Plaintiff]” is too vague to
constitute an adverse action. Thus, the Court will dismiss Plaintiff’s retaliation claim for failure
to state a claim upon which relief may be granted.
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2. Defendants Gregory, Kinney, and White
Finally, the Court turns to Plaintiff’s claim that Defendants Gregory, Kinney, and White
failed to protect him from Defendant Sankara. Plaintiff specifically alleges that he informed “jail
staff” on September 1, 2016, that he had a “conflict” with Defendant Sankara, and that he filed a
PREA report against Defendant Sankara on September 6, 2016. The only action that Plaintiff
alleges Defendant Sankara took after Plaintiff made these reports is that Defendant Sankara came
to Plaintiff’s cell on September 7, 2016, and “intimidated [Plaintiff] with hand gestures and
verbally communicated to [Plaintiff] ‘that this was not over and that he would get [Plaintiff].’”
The Eighth Amendment imposes a duty on corrections officers to take reasonable
measures “to protect prisoners from violence at the hands of other prisoners.” Farmer v.
Brennan, 511 U.S. 825, 832 (1994) (citation omitted). However, not “every injury suffered by
one prisoner at the hands of another . . . translates into constitutional liability for prison officials
responsible for the victim’s safety.” Id. at 834. Rather, to maintain an Eighth Amendment claim
based on a failure to prevent harm, an inmate must prove both an objective and subjective
component. Id. With regard to the objective component, the plaintiff “must show that he [was]
incarcerated under conditions posing a substantial risk of serious harm.” Id. The subjective
component requires the plaintiff to prove that the defendant acted with “deliberate indifference”
to that risk. Id. To be deliberately indifferent, an “official must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists, and he must
also draw the inference.” Id. at 837.
The Court finds that it need to not determine whether Defendants were deliberately
indifferent because Plaintiff’s allegations regarding being harassed and threatened by Defendant
Sankara do not permit a reasonable inference that Plaintiff was subject to a substantial risk of
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serious harm. Plaintiff does not allege that Defendant Sankara ever physically harmed him in
any way or took any action in furtherance of his alleged threat to Plaintiff. For these reasons, the
Court finds that Plaintiff has failed to state an Eighth Amendment failure to protect claim against
Defendants Gregory, Kinney, and White. See, e.g., Ryan v. Watkins, No. 1:14-cv-510, 2014 U.S.
Dist. LEXIS 97046, at *10 (W.D. Mich. July 17, 2014) (holding no Eighth Amendment claim
because “[a]bsent additional circumstances indicating that Defendant [] was likely to actually
harm Plaintiff, Defendant’s verbal harassment and threatening statement are not sufficient to
demonstrate a substantial risk to Plaintiff’s safety”).
B. LCDC and Official-Capacity Claims
Plaintiff’s claims against LCDC and and his official-capacity claims against the
individual Defendants are deemed claims against Logan County. This is because “[o]fficialcapacity 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, 166 (1985) (quoting Monell v.
Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 691 n.55 (1978)); see also Lambert v. Hartman, 517
F.3d 433, 440 (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).
Because the Court has concluded that there is no underlying constitutional violation upon
which municipal liability may be premised, the Court will dismiss Plaintiff’s claim against
LCDC and his official-capacity claims against the individual Defendants for failure to state a
claim upon which relief may be granted.
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IV. CONCLUSION
For the foregoing reasons, the Court will dismiss this action by separate Order.
Date:
June 14, 2017
Greg N. Stivers, Judge
United States District Court
cc:
Plaintiff, pro se
Defendants
Logan County Attorney
4416.011
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