O'Neal v. Rone et al

Filing 7

MEMORANDUM AND OPINION by Judge Jennifer B. Coffman on 3/24/09; The Court will enter a separate order of dismissal. cc:counsel, Plaintiff (pro se) (JBM)

UNITED STATES DISTRICT COURT W ESTERN DISTRICT OF KENTUCKY AT LOUISVILLE CIV IL ACTION NO. 3:08CV-P468-C ANTONIO DEVON O'NEAL v. G. RONE et al. DEFENDANTS PLAINTIFF

MEMORANDUM OPINION Unrepresent ed by counsel, the plaintiff filed this civil rights action under 42 U. S. C. § 1983 (" § 1983" ). The complaint is before the court for screening pursuant to 2 8 U.S.C. § 1915A and McGore v. Wrigglesw ort h, 114 F.3d 601 (6th Cir. 1997). For t he reasons set forth below , the court w ill dismiss all of the plaintiff' s claims.

I. SUMMARY OF CLAIMS The plaintiff, Antonio Devon O' Neal, an inmate at the Louisville-Metro Depart m ent of Corrections, has sued Officer G. Rone in his individual and official capacit ies and Director Tom Campbell in his official capacity. According to the plaintiff, on or about April 11, 2008, after being transferred to the County Jail, he w as subject ed to a " credit card sw ipe" search. As part of the search, the plaintiff alleges, Of f icer Rone ran his hand betw een the plaintiff' s buttocks. The plaintiff contends that t his w as sexually degrading and unnecessary. He alleges that this conduct violated his Fourt h, Fourteenth, and Eighth Amendment rights. The plaintiff is seeking monetary

and injunctive relief. II. STANDARD OF REVIEW W hen a prisoner initiates a civil action seeking redress from a governmental ent it y , officer or employee, the trial court must review the complaint and dismiss the act ion, if the court determines that it is frivolous or malicious, fails to state a claim upon w hich relief may be granted, or seeks monetary relief from a defendant w ho is im m une from such relief. See 28 U.S.C. § 1915A(b)(1), (2); McGore, 114 F.3d at 604. A claim is legally frivolous w hen 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 w here it is based on an indisputably meritless legal theory or w here t he factual contentions are clearly baseless. Id. at 327. In order to survive dismissal f or failure to state a claim, " [ f ] act ual allegations must be enough to raise a right to relief abov e the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Tw om bly , 550 U.S. 544,__, 127 S. Ct. 1955, 1965 (2007) (internal citations omitted). " [ A ] plaintiff' s obligation to prov ide the ` grounds' of his ` ent it le[ m ent ] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action w ill not do. " Tw om bly , 550 U.S. at __ , 127 S. Ct. at 1964-65 (citations omitted; alteration in Tw om bly ). In review ing a complaint under this standard, the court must construe the pleading in the light most favorable to the plaintiff. Bibbo v. Dean Witter Reynolds, Inc. , 151 F.3d 559, 561 (6th Cir. 1998). Although this court recognizes that pro se pleadings are to be held to a less st ringent standard than formal pleadings drafted by law y ers, Haines v. Kerner, 404 U.S.

519, 520-21 (1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991), " [ o] ur duty t o be ` less stringent' w it h pro se complaints does not require us to conjure up unpled allegat ions. " McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979) (citation omitted). And this court is not required to create a claim for the plaintiff. Clark v. Nat' l Travelers Lif e Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975). To command otherw ise w ould require the court " t o explore exhaustively all potential claims of a pro se plaintiff, [and] w ould 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 f or a party." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). III. ANALYSIS The Constitution protects prisoners and pretrial detainees from the " unnec essary and w ant on infliction of pain" that is " t ot ally w it hout penological justification." Hope v. Pelzer, 536 U.S. 730, 737 (2002). Only " c alculat ed harassment" or " m aliciously m ot iv at ed" conduct that is unrelated to institutional security is considered unconst it ut ional. Hudson v. Palmer, 468 U.S. 517, 530 (1984); Whitman v. Nesic, 3 6 8 F.3d 931, 934 (7th Cir. 2004). " It cannot be questioned that the body cavities of prisoners are capable of secreting a surprising array of objects, and that inmates are w illing to go to extreme lengths to obtain w eapons and illicit drugs." United States v. Oak ley , 731 F. Supp. 1363, 1370 (S.D. Ind. 1990). " The fact that prisoners are w illing to place such dangerous objects into body cavities that most people rarely display to others demonstrates as much about the guile and bravado of certain prisoners as it does about the government' s need to search, both visually and phy sically , such private areas of the body." Id. Indeed, the United States Supreme

Court has recognized that preventing contraband that can be smuggled through the alim ent ary canal or hidden in the rectal cavity is a legitimate penological concern. Bell

v . Wolfish, 441 U.S. 520, 559 (1979). Digital rectal searches are a legitimate means of maintaining order and do not violate the Eighth Amendment as long as they are conduct ed in a reasonable manner. Del Raine v. Williford, 32 F.3d 1024, 1039-42 (7th Cir. 1994) (upholding reasonableness of digital rectal search against Eighth Amendment challenge because there w as no evidence that officials undertook search in " m alic ious and sadistic fashion for the very purpose of causing harm" ) (citations omitted). Not hing in the plaintiff' s complaint suggests that Officer Rone' s search w as conduct ed for an illegitimate reason or performed in an intentionally abusive or brutal f ashion. The plaintiff complains only that the search made him feel " sex ually degraded" and w as unnecessary. There is no allegation that Officer Rone physically injured the plaint if f during the search, manipulated his fingers in any manner designed to cause the plaint if f injury, or conducted the search purely out of a desire to harass the plaintiff. Thus, the plaintiff has not show n a constitutional violation. Even if the plaintiff had established a violation of the Constitution he could still not recover in this case. The plaintiff has not alleged that the search caused him any signif icant physical injury. Rather, the plaintiff' s chief complaint is that the search hum iliat ed him. The plaintiff' s claim for emotional and mental damages is governed by 4 2 U.S.C. § 1997e(e), w hich states in part that " no federal action may be brought by a prisoner confined in a jail, or other correctional facility, for mental or emotional injury suf f ered w hile in custody w it hout a prior show ing of a physical injury." The physical

injury must be more than de minimis. Benson v. Carlton, No. 99-6433, 2000 U.S.

App. LEXIS 21202 at * 3 (6th Cir. 2000) (citing Siglar v. Hightow er, 112 F.3d 191, 1 9 3 (5th Cir. 1997)). Here, the plaintiff has not alleged a physical injury and, t heref ore, cannot recover for his alleged emotional injuries. The plaintiff has failed to st at e a cognizable claim for relief . Accordingly, the c ourt w ill ent er a separat e order of dismissal. The clerk of court is direct ed to send a c opy of this memorandum opinion and t he accompanying order t o t he plaint if f .

Signed on M a r c h 2 4 , 2 0 0 9