Lacy v. Spearman et al
Filing
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MEMORANDUM AND OPINION by Chief Judge Joseph H. McKinley, Jr on 12/6/12; The Court will dismiss this action by separate order. cc:HCA, Defendants, Plaintiff (pro se) (JBM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
DANIEL SCOTT LACY
v.
PLAINTIFF
CIVIL ACTION NO. 3:12CV-P575-M
TONY SPEARMAN et al.
DEFENDANTS
MEMORANDUM OPINION
Plaintiff Daniel Scott Lacy filed a pro se, in forma pauperis complaint pursuant to 42
U.S.C. § 1983. This matter is before the Court for screening 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
action will be dismissed.
I. SUMMARY OF CLAIMS
Plaintiff was a pretrial detainee at the Hardin County Detention Center (HCDC) at the
time he filed suit. He sues Tony Spearman1 and, in his individual and official capacities, Hardin
County Jailer Danny Allen. He alleges that HCDC had installed “the Keefe Commissary Inmate
VizVox Closed Circuit television system for inmate visitation.” He explains that closed-circuit
kiosks are located in each general pod areas and that the kiosks are visible by all inmates in that
pod. He states that during a visit all inmates assigned in the pod can view another inmate’s
visitor and hear their conversation; also, the visitor can view all inmates within camera view. He
alleges that on July 26, 2012, his fiancee came to visit and, while there, another inmate exposed
his genitals within view of the camera. According to the complaint, Plaintiff’s fiancee did not
tell him of the exposure until three days later because she feared that Plaintiff “would seek
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The complaint does not explain who Defendant Spearman is. The summons form
Plaintiff submitted for Defendant Spearman identifies him as “Tony Spearman; visitation.”
reprisal against the inmate and face possible additional criminal charges.” Plaintiff alleges that
his fiancee was embarrassed, humiliated, and suffered emotional and mental damages. He states
that upon being informed he immediately notified the on-duty shift commander and lodged a
grievance requesting the VizVox system be relocated outside the general pod areas. He alleges
that placing the VizVox system within the view of other inmates and placing other inmates in
view of the visitor violates “Plaintiff’s right to privacy, freedom of speech, cruel and unusual
punishment, equal protection, and other civil rights.” He also alleges that Defendants’ negligent
placement of the VizVox system has caused him severe emotional and mental pain, loss of
affection from his fiancee, and loss of companionship. He further alleges that Defendants’
actions constitute a facilitation to commit indecent exposure, a violation of Kentucky’s criminal
code. Plaintiff asks for compensatory damages and declaratory and injunctive relief.
Plaintiff attaches to his complaint a copy of a grievance he filed regarding the incident.
The response noted on that grievance is as follows: “Your grievance is so noted and has been
turned over to the Jail Administration and Internal Affairs for review and investigation.”
II. ANALYSIS
When a prisoner initiates a civil action seeking redress from a governmental entity,
officer, or employee, the trial court must review the complaint and dismiss the action, 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) and (2). 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
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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 Plaintiff and accept all of the factual allegations as true. Prater v. City of
Burnside, Ky., 289 F.3d 417, 424 (6th Cir. 2002). 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).
Claims brought on behalf of others
It appears from the face of the complaint that it was Plaintiff’s fiancee who suffered
humiliation, embarrassment, and mental and emotional damages from having viewed another
inmate’s genitalia. As Plaintiff alleges in his complaint, he did not know that the exposure
occurred until several days later when his fiancee told him. Plaintiff may only assert claims
which are personal to him. Warth v. Seldin, 422 U.S. 490, 499 (1975); see also Coal Operators
& Assoc., Inc. v. Babbitt, 291 F.3d 912, 915-16 (6th Cir. 2002). Thus, to the extent that Plaintiff
seeks to assert a claim on behalf of his fiancee, he lacks standing to do so. Therefore, the claim
brought on behalf of his fiancee will be dismissed as frivolous for lack of subject matter
jurisdiction. Babbitt, 291 F.3d at 915 (“[S]tanding to sue . . . is a jurisdictional requirement.”).
Moreover, the complaint states that Plaintiff wishes to bring this action on behalf of all
other inmates similarly situation. As a pro se litigant, Plaintiff may act as his own counsel in this
matter. See 28 U.S.C. § 1654. However, he is not authorized to represent others in federal court.
See, e.g., Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (“pro se” means to appear for
one’s self; thus, one person may not appear on another person’s behalf in the other’s cause).
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Thus, to the extent that Plaintiff wishes to bring a claim on behalf of other inmates, he may not
do so.
Right to privacy
Plaintiff alleges that his right to privacy has been violated because he was not able to
visit with his fiancee in private. Prisoners do not have a fundamental right to visitation arising
directly from the Constitution. See Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989)
(denial of prison access to particular visitor is well within the nature of restriction associated
with a prison sentence). “Rather, prison officials necessarily enjoy broad discretion in
controlling visitor access to a prisoner . . . .” Peterson v. Shanks, 149 F.3d 1140, 1145 (10th Cir.
1998). The U.S. Constitution allows prison officials to impose reasonable restrictions upon
visitation, even visitation with family members. Overton v. Bazzetta, 539 U.S. 126, 131 (2003).
“As long as the conditions or degree of confinement to which the prisoner is subjected is
within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due
Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial
oversight.” Montanye v. Haymes, 427 U.S. 236, 242 (1976). However, a State may create a
liberty interest. “Stated simply, ‘a State creates a protected liberty interest by placing
substantive limitations on official discretion.’” Thompson, 490 U.S. at 462 (citing Olim v.
Wakinekona, 461 U.S. 238, 249 (1983)). Plaintiff points to no regulation giving him an interest
in completely private visitation. Consequently, this claim will be dismissed for failure to state a
claim.
Right to free speech
Plaintiff alleges that his right to free speech has been violated. “Any form of involuntary
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confinement, whether incarceration or involuntary commitment, may necessitate restrictions on
the right to free speech.” Martyr v. Bachik, 755 F. Supp. 325, 328 (D. Or. 1991) (citing Jones v.
N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 125 (1977)). For example, “[a] prisoner has
no right to unlimited phone use.” Benzel v. Grammar, 869 F.2d 1105, 1108 (8th Cir. 1989).
Moreover, here Plaintiff has not alleged that his right to free speech has been hindered. His
allegations are not that he was not allowed to talk with his visitor. Rather, he alleges that the
inmate visitation system allows other inmates to be in view and earshot of his visitor. As already
discussed, no violation of a right to privacy has occurred. This claim likewise will be dismissed
Cruel and unusual punishment
The Eighth Amendment protects prisoners from cruel and unusual punishment. The
Fourteenth Amendment due-process rights of pretrial detainees, like Plaintiff, are analogous to
the Eighth Amendment rights of convicted prisoners. Barber v. City of Salem, Ohio, 953 F.2d
232, 235 (6th Cir. 1992). An Eighth Amendment claim has both an objective and subjective
component: (1) a sufficiently grave deprivation of a basic human need; and (2) a sufficiently
culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 298 (1991). A prison’s conditions of
confinement are sufficiently grave if they fall beneath “the minimal civilized measure of life’s
necessities” as measured by a “contemporary standard of decency.” Rhodes v. Chapman, 452
U.S. 337, 347 (1981).
Although a complete and permanent ban on all visitation might implicate the
Constitution, a failure to provide a completely private venue for visitation does not fall below
“the minimal civilized measure of life’s necessities.” Cf. Overton, 539 U.S. at 137 (holding that
regulations which ban visitation for two years for inmates with two substance-abuse violations is
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not cruel and unusual punishment). This claim will be dismissed for failure to state a claim.
Equal protection claim
To sustain an equal protection claim, a plaintiff must allege, in part, that the defendant
intentionally discriminated against him because he was a member of a protected class.
McCleskey v. Kemp, 481 U.S. 279, 292 (1987); Purisch v. Tenn. Tech. Univ., 76 F.3d 1414, 1424
(6th Cir. 1996). Plaintiff has not alleged that he is a member of any protected class. Nor has he
claimed that the alleged wrongful conduct was intentionally taken against him because of his
membership in a protected class. Therefore, Plaintiff’s claim for relief for violation of the Equal
Protection Clause is fatally flawed, and will be dismissed.
Negligence claim
Because the Court will dismiss Plaintiff’s federal claims, the Court will decline to
exercise supplemental jurisdiction over Plaintiff’s state-law negligence claim. That claim will be
dismissed without prejudice.
State criminal claim
Plaintiff alleges that Defendants’ actions facilitated a violation of Kentucky criminal law
regarding indecent exposure. “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 the power to direct
that criminal charges be filed against anyone. Peek v. Mitchell, 419 F.2d 575, 577-78 (6th Cir.
1970); Fleetwood v. Thompson, 358 F. Supp. 310, 311 (N.D. Ill. 1972). That claim will likewise
be dismissed.
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III. CONCLUSION
For the foregoing reasons, the Court will by separate Order dismiss the instant action.
Date:
December 6, 2012
cc:
Plaintiffs, pro se
Defendants
Hardin County Attorney
4414.009
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