Montgomery v. Routt et al
Filing
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MEMORANDUM OPINION AND ORDER by Judge John G. Heyburn, II on 8/10/2011; re 1 Complaint filed by Christopher D. Montgomery ; for the reasons set forth herein, IT IS ORDERED that Plaintiff's official-capacity claims against Routt and Allen are D ISMISSED. IT IS FURTHER ORDERED that Plaintiff's individual-capacity claim against Routt and his claims against the Hardin County Jail and Southern Health Partners are DISMISSED because no claims remain against them. The Clerk of Court is DIRE CTED to terminate them from the action. IT IS FURTHER ORDERED that Plaintiff's claim for injunctive relief and claim for replacement of his Toyota Tundra are DISMISSED. IT IS FURTHER ORDERED that Plaintiff's claim for denial of his right to exercise his religion will be allowed to proceed against Defendant Allen in his individual capacity for damages. The Court will enter a separate Scheduling Order governing the development of the remaining claim.cc:Plaintiff, pro se; Defendants; Hardin County Attorney (SC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:11CV-P303-H
CHRISTOPHER D. MONTGOMERY
PLAINTIFF
v.
SGT. RICKY ROUTT et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
Plaintiff Christopher D. Montgomery filed this pro se civil rights action under 42 U.S.C.
§ 1983. He is proceeding in forma pauperis. This matter is before the Court on the initial
review of the complaint pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth, 114 F.3d
601 (6th Cir. 1997). For the reasons set forth below, the Court will dismiss all of Plaintiff’s
claims except for his individual-capacity claim against Jailer Danny Allen for damages for the
alleged denial of his right to exercise his religion.
I.
In the complaint, filed on May 11, 2011,1 Plaintiff states that he was a pre-trial detainee
at the Hardin County Jail. He sues Sgt. Ricky Routt and Jailer Danny Allen in their individual
and official capacities, the Hardin County Jail, and Southern Health Partners. Plaintiff states that
on May 3, 2011, Routt “made a threat towards me that if I didn’t go and sit on my da** rack that
he would come in my cell and that he would beat my a** and put me on my rack.” He further
states that Allen violated his “right to Religion such as Church Bible study, having a bible. This
has been going on since I’ve been in Hardin County Jail.” Plaintiff also states that Southern
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Under the “prison mailbox rule,” “a pro se prisoner’s complaint is deemed filed when it
is handed over to prison officials for mailing to the court.” Brand v. Motley, 526 F.3d 921, 925
(6th Cir. 2008). Plaintiff certifies that the original complaint was delivered to the prisoner mail
system for mailing on May 11, 2011.
Health Partners denied his right to receive “Proper Health treatment and access to a Hospital.
This has been going on since April 8, 2011 till now.” Plaintiff states that the Hardin County Jail
violated his “right to send and receive mail and my right to access the law library also my right
to go out to rec this has been going on since I’ve been here in Hardin County Jail and have not
filed my request or complaints.” Finally, Plaintiff states that the Hardin County Jail violated his
“right to communitcate with the outside such as my soon to be wife my mom . . . [and] my Right
to receive Rec, such as outside, t.v. Telephone.”
As relief, Plaintiff seeks $6.5 million in money damages, $2.5 million in punitive
damages, injunctive relief in the form of release from the Hardin County Detention Center and
dismissal of the charges, and replacement of his 2007 Toyota Tundra.
II.
When a prisoner initiates a civil action against a governmental entity, officer, or
employee, the trial court must review the complaint and dismiss the complaint, or any portion of
it, 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
28 U.S.C. §§ 1915A(b)(1), (2); McGore, 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 contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
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Ashcroft v. Iqbal, -- U.S. -- , 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[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, 561 F.3d at 488
(quoting Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). “A
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555,
557).
Although this Court recognizes that pro se pleadings are to be held to a less stringent
standard than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519 (1972), the
duty does not require the Court “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).
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III.
A.
Official-capacity claims against Routt and Allen
“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, 166
(1985) (quoting Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 n.55 (1978)).
Plaintiff’s official-capacity claims against Routt and Allen, therefore, are actually claims against
their employer, Hardin County. See 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). The Court will first address 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, 436 U.S. at 691; 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). “[T]he touchstone of ‘official policy’ is
designed ‘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.’” City of St. Louis v. Praprotnik, 485 U.S. 112, 138 (1988) (quoting
Pembaur v. Cincinnati, 475 U.S. 469, 479-480 (1986)) (emphasis in original).
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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, 436 U.S. at 691; Deaton v. Montgomery County, Ohio, 989 F.2d 885, 889
(6th Cir. 1993). Simply stated, the 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, 363-64 (6th Cir. 1993) (quoting Coogan
v. City of Wixom, 820 F.2d 170, 176 (6th Cir. 1987), overruled on other grounds by Frantz v.
Village 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, 38 F.3d at 286 (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 the plaintiff must demonstrate “deliberate conduct”).
In the instant case, Plaintiff has not alleged that either Routt or Allen acted pursuant to a
municipal policy or custom in causing his alleged harm. Plaintiff’s complaint appears to allege
isolated occurrences affecting only him, i.e., that Routt threatened him and that Allen would not
allow him to attend church, Bible study, or have a Bible. 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 that Routt’s or Allen’s actions occurred as a result of a policy or custom
implemented or endorsed by Hardin County, the complaint fails to establish a basis of liability
against the municipality and fails to state a cognizable § 1983 claim against it. Accordingly, the
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official-capacity claims against Routt and Allen will be dismissed for failure to state a claim
upon which relief may be granted.
B.
Hardin County Jail
The Hardin County Jail is not a “person” subject to suit under § 1983 because municipal
departments, such as jails, are not suable under § 1983. Marbry v. Corr. Med. Servs., No.
99-6706, 2000 U.S. App. LEXIS 28072, at *2 (6th Cir. Nov. 6, 2000) (holding that a jail is not
an entity subject to suit under § 1983); see also Rhodes v. McDannel, 945 F.2d 117, 120 (6th Cir.
1991) (holding that a police department may not be sued under § 1983). In this situation, it is
Hardin County that is the proper defendant. Smallwood v. Jefferson County 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, Hardin County is a “person” for purposes of § 1983. Monell v.
Dept. of Soc. Servs., 436 U.S. 658 (1978). The Court therefore construes the claim against the
Hardin County Jail as brought against Hardin County. Plaintiff’s claim against Hardin County
fails for the reasons discussed above. Therefore, Plaintiff’s claim against the Hardin County Jail
will dismissed for failure to state a claim upon which relief.
C.
Individual-capacity claims against Routt
Plaintiff claims that Routt “threaten[ed]” that if Plaintiff did not sit down on his rack that
Routt would “beat my a** and put me on my rack.” Although reprehensible and not condoned,
verbal abuse, harassment, and threats are insufficient to state a constitutional violation under
§ 1983. See Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987); see also Miller v. Wertanen, 109
F. App’x 64, 65 (6th Cir. 2004) (finding guard’s threat of sexual assault did not violate plaintiff’s
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constitutional rights); Clark v. Turner, No. 96-3265, 1996 U.S. App. LEXIS 33113, at *2 (6th
Cir. Dec. 13, 1996) (“Verbal harassment or idle threats are generally not sufficient to constitute
an invasion of an inmate’s constitutional rights.”). Therefore, Plaintiff’s individual-capacity
claim against Routt based on alleged verbal threats will be dismissed for failure to state a claim
upon which relief may be granted.
D.
Individual-capacity claim against Allen
Plaintiff claims that Allen denied his “right to religion such as Church Bible Study,
having a bible.” Upon review, the Court will allow this claim to proceed. In doing so, the Court
does not pass judgment on the ultimate merit of this claim.
E.
Southern Health Partners
“A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an
inmate violates the Eighth Amendment.”2 Farmer v. Brennan, 511 U.S. 825, 828 (1994). In
order for a claim to rise to the level of an Eighth Amendment/Fourteenth Amendment violation,
“a prison official must know of and disregard an excessive risk to inmate health or safety; the
official must both be aware of the 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 837-38.
Therefore, to prove a prison official is liable under the Eighth Amendment for denial of medical
2
The Eighth Amendment “was designed to protect those convicted of crimes” and does
not protect pretrial detainees. Ingraham v. Wright, 430 U.S. 651, 664 (1977). Plaintiff states
that he is a pretrial detainee. For the purposes of initial review, however, this is largely a
distinction without a difference because the Due Process Clause of the Fourteenth Amendment
provides pretrial detainees with rights analogous to those under the Eighth Amendment. See
Watkins v. City of Battle Creek, 273 F.3d 682, 685 (6th Cir. 2001). Therefore, the Court will
review Plaintiff’s claims to determine whether he has properly alleged violations of the
Fourteenth Amendment.
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treatment, the prisoner must first demonstrate the existence of a “sufficiently serious” medical
need. Miller v. Calhoun County, 408 F.3d 803, 812 (6th Cir. 2005). The prisoner must also
demonstrate that the prison official subjectively possessed “‘a sufficiently culpable state of mind
in denying medical care.’” Id. (quoting Farmer, 511 U.S. at 834). “The prison official’s state of
mind must evince ‘deliberateness tantamount to intent to punish.’” Id. (quoting Horn v. Madison
County Fiscal Court, 22 F.3d 653, 660 (6th Cir. 1994)). “‘Knowledge of the asserted serious
needs or of circumstances clearly indicating the existence of such needs, is essential to a finding
of deliberate indifference.’” Id. (quoting Horn, 22 F.3d at 660).
Plaintiff fails to state in his complaint what his medical condition was or why he sought
treatment. Therefore, he fails to meet the standard for pleading an Eighth Amendment/
Fourteenth Amendment claim. While a court must liberally construe pro se pleadings, Boag v.
MacDougall, 454 U.S. 364, 365 (1982) (per curiam), it cannot create a claim for Plaintiff. Clark
v. Nat’l Travelers Life Ins. Co., 518 F.2d at 1169. Therefore, Plaintiff’s claim against Southern
Health Partners for denial of medical treatment will be dismissed for failure to state a claim upon
which relief may be granted.
F.
Relief
In his prayer for relief, Plaintiff seeks release from the Hardin County Detention Center
and dismissal of charges. Release from custody and dismissal of charges are not available forms
of relief under § 1983. When a state prisoner “seeks . . . a determination that he is entitled to
immediate release or a speedier release from . . . imprisonment, his sole federal remedy is a writ
of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Therefore, Plaintiff’s claim
for injunctive relief will be dismissed for failure to state a claim upon which relief may be
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granted. Moreover, Plaintiff seeks replacement of his Toyota Tundra. Plaintiff fails to state any
grounds in his complaint for seeking this form of relief, and the Court cannot discern any. As
such, that claim for relief will also be dismissed.
IV.
For the reasons set forth herein, and the Court being otherwise sufficiently advised, IT IS
ORDERED that Plaintiff’s official-capacity claims against Routt and Allen 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 Plaintiff’s individual-capacity claim against Routt
and his claims against the Hardin County Jail and Southern Health Partners are DISMISSED
pursuant to 28 U.S.C. §§ 1915A(b)(1) for failure to state a claim upon which relief may be
granted. Because no claims remain against Routt, Hardin County Jail, and Southern Health
Partners, the Clerk of Court is DIRECTED to terminate them from the action.
IT IS FURTHER ORDERED that Plaintiff’s claim for injunctive relief and claim for
replacement of his Toyota Tundra are DISMISSED pursuant to 28 U.S.C. §§ 1915A(b)(1) for
failure to state a claim upon which relief may be granted.
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IT IS FURTHER ORDERED that Plaintiff’s claim for denial of his right to exercise his
religion will be allowed to proceed against Defendant Allen in his individual capacity for
damages. The Court will enter a separate Scheduling Order governing the development of the
remaining claim.
Date:
August 10, 2011
cc:
Plaintiff, pro se
Defendants
Hardin County Attorney
4412.010
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