Butts v. Harmon et al

Filing 9

MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers on 1/11/2018. Plaintiff's due process and PREA claims are dismissed for failure to state a claim upon which relief may be granted. Individual-capacity claims against Defendants Harmon and Causey are also DISMISSED. The Court will enter a separate Order Regarding Service and Scheduling Order. cc:Plaintiff, pro se; Defendants; Warren County Attorney (JWM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT BOWLING GREEN
COREY JAMES BUTTS

PLAINTIFF

v.

CIVIL ACTION NO. 1:17-CV-P183-GNS

STEPHEN HARMON et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This is a pro se civil rights action brought by a pretrial detainee pursuant to 42 U.S.C.
§ 1983. The Court has granted Plaintiff Corey James Butts leave to proceed in forma pauperis.
This matter is before the Court for screening pursuant to 28 U.S.C. § 1915A. For the reasons set
forth below, the action will be dismissed in part and allowed to continue in part.
I. SUMMARY OF COMPLAINT
Plaintiff, a pretrial detainee, was formerly incarcerated at the Warren County Regional
Jail (WCRJ). He brings this 42 U.S.C. § 1983 action against nine WCRJ officials in both their
official and individual capacities – Captain Laura Vance; Captain Kim James; Lieutenant Deputy
Douglas Miles; Sergeant Deputy Amir Ziga; Lieutenant Deputy Jeff Bryant; Sergeant Deputy
Irina Avakova; Deputy Megan Sundel; Jailer Stephen Harmon; and Chief Deputy Jailer Misse
Causey.
Plaintiff first alleges that Defendants Vance and James violated his constitutional rights
by putting him in a “restraint chair” for over 4 hours “without medical attention, drinking water,
and restroom privilege.” Plaintiff claims that as a result of this incident he sustained “prolonged
injury to [his] shoulder, arm/nerve damage.” He then writes: “This is cruel and unusual
punishment.” Plaintiff also claims that he was denied due process because he was not allowed to
file a complaint against these Defendants.

Plaintiff next alleges that Defendants Miles and Ziga “conducted a strip search on me,
made me bend over and squat and [Defendant] Miles called me a rapeist and slapped me on my
right butt cheek so hard that it left a bruised hand print and [Defendant] Ziga was holding my
head down to where I could not move.” Plaintiff then writes: “This was cruel and unusual
punishment along with physical assault.” Plaintiff then states that his due process rights were
also violated because he was not allowed to “file a PREA with an outside agency until almost 1
month later.”
Plaintiff next claims that Defendants Bryant and Avakova “left [him] in the restraint chair
for 10 hours without drinking water, medical attention, or restroom use.” He further states that
he was mentally and physically abused by both of these Defendants and that he sustained
“prolonged injuries as a result.” Plaintiff again states that this constituted cruel and unusual
punishment.
Plaintiff then claims that Defendant Sandel violated his constitutional rights by retaliating
against him for filing a grievance. He claims she made a false report against him “which is now
in outside court, terroristic threatening, 3rd degree.”
Finally, Plaintiff claims that Defendants Harmon and Causey “knew about the wrong
doing but did not try to stop the abuse or even fix the problem. They also failed to oversee the
people who caused the wrongdoing, such as by hiring unqualified people and failing to
adequately train their staff.” Plaintiff continues: “The Warren County Regional Jail created a
policy or custom that has allowed wrongdoing to occur to the helpless inmates. Due to this
situation, my life was in danger I was mentally and physically abused by the deputies and I have
also sustained a life time of ‘nerve damage’ and ‘kidney problems.’”
As relief, Plaintiff seeks compensatory and punitive damages.

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II. LEGAL STANDARD
Because Plaintiff is a prisoner seeking relief against governmental entities, officers,
and/or employees, this Court must review the instant action under 28 U.S.C. § 1915A. Under
§ 1915A, the trial court must review the complaint and dismiss the complaint, or any portion of
the complaint, 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 § 1915A(b)(1), (2); McGore v. Wrigglesworth, 114 F.3d 608 (6th Cir. 1997),
overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007).
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 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 held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89
(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

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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).
A. Procedural Due Process Claims
Plaintiff claims his due process rights were violated because he was not allowed to file a
“complaint” against certain Defendants for violating his rights. While it is not clear what
Plaintiff means when he refers to a complaint, the Court presumes that he is alleging that he was
not allowed to file a prison grievance against certain individuals. However, Plaintiff has no due
process right to file a prison grievance. Indeed, the courts repeatedly have held that there exists
no constitutionally protected due process right to an effective prison grievance procedure. See
Hewitt v. Helms, 459 U.S. 460, 467 (1983); Walker v. Mich. Dep’t of Corr., 128 F. App’x 441,

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445 (6th Cir. 2005); Argue v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003); Young v. Gundy,
30 F. App’x 568, 569-70 (6th Cir. 2002). Thus, Plaintiff’s claims based upon a violation of his
due process rights must be dismissed for failure to state a claim upon which relief may be
granted.
B. PREA Claim
Plaintiff also claims that his rights were violated because he not allowed to file a Prison
Rape Elimination Act (PREA) complaint for one month. The PREA “does not create a right of
action that is privately enforceable by an individual civil litigant.” Porter v. Louisville Jefferson
Cty. Metro Gov’t, No. 3:13CV-923-H, 2014 U.S. Dist. LEXIS 168669, at *8 (W.D. Ky. Dec. 5,
2014) (quoting LeMasters v. Fabian, No. 09-702 DSD/AJB, 2009 U.S. Dist. LEXIS 53016 (D.
Minn. Apr. 17, 2009), and collecting cases); see also Hill v. Hickman Cty. Jail, No. 1:15-cv-71,
2015 U.S. Dist. LEXIS 110865 (M.D. Tenn. Aug. 21, 2015); Simmons v. Solozano, No. 3:14CVP354-H, 2014 U.S. Dist. LEXIS 129249 (W.D. Ky. Sept. 16, 2014). As stated by another district
court:
The PREA confers no private right of action. The PREA is intended to address
the problem of rape in prison, authorizes grant money, and creates a commission
to study the issue. 42 U.S.C. § 15601 et seq. The statute does not grant prisoners
any specific rights. In the absence of “an ‘unambiguous’ intent to confer
individual rights,” such as a right to sue, courts will not imply such a right in a
federal funding provision.
Chinnici v. Edwards, 1:07-CV-229, 2008 U.S. Dist. LEXIS 119933, at *7-8 (D.C. Ver.
July 23, 2008) (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 279-80 (2002)).
Like the cited courts, this Court concludes that the PREA creates no private right of
action. Therefore, to the extent the complaint might be construed as bringing a claim under
the PREA, such claim must be dismissed for failure to state a claim upon which relief may be
granted.
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C. Official-Capacity Claims
Plaintiff sues all Defendants in their official capacities. “[O]fficial-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, 166 (1985) (quoting Monell v. New York City
Dep’t of Soc. Servs., 436 U.S. 658, 691 n.55 (1978)). Thus, Plaintiff’s official-capacity claim
against Defendants, as employees of the WCRJ, are actually against their employer, Warren
County. See, e.g., 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 or private corporation is responsible for that violation.
Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992). The municipality is only
liable 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, 818 (6th Cir. 1996) (“Monell
involved a municipal corporation, but every circuit to consider the issue has extended the holding
to private corporations as well.”). Municipalities cannot be held 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).
Here, Plaintiff alleges that Defendants Harmon and Causey, the WCRJ Jailer and Chief
Deputy Jailer, “failed to oversee the people who caused the wrongdoing, such as by hiring
unqualified people and failing to adequately train their staff.” Plaintiff continues: “The Warren
County Regional Jail created a policy or custom that has allowed wrongdoing to occur to the
helpless inmates. Due to this situation, my life was in danger I was mentally and physically

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abused by the deputies and I have also sustained a life time of ‘nerve damage’ and ‘kidney
problems.’”
The Court construes these allegations as stating a claim against Warren County for
having a custom or policy of failing to train and supervise the individual Defendants which
resulted in the violation of Plaintiff’s constitutional rights. Based upon these allegations, the
Court will allow Plaintiff’s official-capacity claims against all Plaintiffs to proceed at this time.
D. Individual-Capacity Claims
1. Defendants Harmon and Causey
Plaintiff alleges that Defendants Harmon and Causey “knew about the wrong doing
[alleged in the complaint] but did not try to stop the abuse or even fix the problem.” The Court
construes this allegation as attempting to state a claim against Defendants Harmon and Causey
based upon supervisory liability. However, under 42 U.S.C. § 1983, “[g]overnment officials
may not be held liable for the unconstitutional conduct of their subordinates under a theory
of respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); see also Bellamy v.
Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Rather, a plaintiff must “plead that each
Government-official defendant, through the official’s own official actions, violated the
Constitution.” Iqbal, 556 U.S. at 676. Thus, for supervisors, such as Defendants Harmon and
Causey to be held liable under § 1983, they must have had personal involvement in the alleged
unconstitutional conduct in order to be held liable for the conduct about which the plaintiff
complains. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999).
Further, a prison official cannot be held liable under § 1983 either for denying
administrative grievances or for failing to remedy alleged unconstitutional behavior, because
such actions are not equivalent to “approv[ing] or knowingly acquiesc[ing] in the

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unconstitutional conduct,” for which supervisors can be liable. Shehee, 199 F.3d at 300. This
concept holds true even if the supervisors have actual knowledge of the alleged constitutional
violation, and even if the supervisors were involved in denying a grievance which raised the
alleged constitutional violations. Id.; see also Horton v. Martin, 137 F. App’x 773, 775 (6th Cir.
2005) (“[Plaintiff] merely alleged that Martin failed to remedy the situation after he had been
informed of the problem via [plaintiff’s] grievance. [This] allegation does not state a claim
because the doctrine of respondeat superior does not apply in § 1983 lawsuits to impute liability
onto supervisory personnel.”); Stewart v. Taft, 235 F.Supp.2d 763, 767 (N.D. Ohio 2002)
(“supervisory liability under § 1983 cannot attach where the allegation of liability is based upon
a mere failure to act”).
Thus, the Court concludes that Plaintiff has failed to state a claim against Defendants
Harmon and Causey in their individual capacities under § 1983.
2. Defendants Vance, James, Miles, Ziga, Bryant, & Avakova
With regard to Plaintiff’s claims against Defendants Vance, James, Miles, Ziga, Bryant,
and Avakova, Plaintiff claims that his constitutional rights were violated because they subjected
him to “cruel and unusual punishment.” Pretrial detainees held in jail are protected under
the Due Process Clause of the Fourteenth Amendment, which provides that “a detainee may not
be punished prior to an adjudication of guilt in accordance with due process of law.” Bell v.
Wolfish, 441 U.S. 520, 535 (1979). Thus, upon review, the Court will allow Plaintiff’s claims of
cruel and unusual punishment to proceed as claims under the Fourteenth Amendment against
Defendants Vance, James, Miles, Ziga, Bryant, and Avakova in their individual capacities.

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3. Defendant Sandel
In addition, the Court will also allow Plaintiff’s First Amendment retaliation claim to
proceed against Defendant Sandel in her individual capacity.
E. State-Law Claims
Based upon the allegations contained in the complaint, the Court will allow Plaintiff’s
state-law claims against Defendants Harmon and Causey for negligent hiring and supervision
and his state-law claims for assault against Defendants Miles and Ziga to proceed at this time.
IV. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s due process and
PREA claims are dismissed pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon
which relief may be granted.
IT IS FURTHER ORDERED that § 1983 claims individual-capacity claims against
Defendants Harmon and Causey are also DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1)
for failure to state a claim upon which relief may be granted.
The Court will enter a separate Order Regarding Service and Scheduling Order consistent
with this Memorandum Opinion and Order to govern the development of the continuing claims.
Date:

January 11, 2018

Greg N. Stivers, Judge
United States District Court
cc:

Plaintiff, pro se
Defendants
Warren County Attorney
4416.011

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