Hermansen v. Kentucky Department of Corrections et al
MEMORANDUM OPINION AND ORDER by Judge John G. Heyburn, II on 8/9/2013; 9 Motion to Dismiss is SUSTAINED; complaint is DISMISSED WITH PREJUDICE. cc:counsel (TLB)
Hermansen v. Kentucky Department of Corrections et al
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 3:13-CV-00189-H
ERIC LLOYD HERMANSON
KENTUCKY DEPARTMENT OF
CORRECTIONS, ET AL.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants’, Kentucky Department of Corrections and individual
employees of the Kentucky State Reformatory (“KSR”)1, motion to dismiss the two count
complaint of Plaintiff, Eric Lloyd Hermanson. Pursuant to 42 U.S.C. § 1983, Plaintiff alleges
that Defendants violated his First Amendment right of expression to assist other inmates in filing
grievances when it transferred him from KSR to the Kentucky State Penitentiary. Plaintiff
additionally asserts a state law claim of intentional infliction of emotional distress (“IIED”). The
Court reviewed Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A and found that it survived
the initial screening. Now with the benefit of briefing, the Court will evaluate Defendants’
motion to dismiss.2
The individual Defendants are: Cookie Crews, Warden of KSR; Jennifer Tracy, Classification Branch Manager of
KSR; Laura Simpson, Grievance Coordinator of KSR; and James M. Ford, Brian K. Ward, and Alicia J. Bloyd,
members of KRS’s Unit B Classification Committee.
When a plaintiff seeks redress from a governmental entity or employee of a governmental entity, the court must
conduct a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A. In that initial screening, courts must
dismiss the action if it determines it “(1) is frivolous, malicious, or fails to state a claim upon which relief may be
granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). In
its cursory review of Plaintiff’s complaint, the court found that the complaint did not have an obvious defect to
warrant preliminary dismissal. ECF No. 3. With briefs from the parties better elaborating the issues in the case and
providing the Court with more information, the Court can now better evaluate whether the pleadings state a claim
upon which relief may be granted.
While incarcerated at KSR, Plaintiff was involved in a handful of legal actions. For
instance, Plaintiff alleges he took part in a 2010 federal case involving parole standards.
Additionally, Plaintiff partook in a federal case before this Court concerning the establishment of
a kosher meal plan for KSR inmates of the Jewish faith, which was substantively resolved in
2011. He claims other inmates in KSR depended on him for legal assistance in filing grievances,
but admits that “other inmate legal aid” is available to those inmates. ECF No. 1 at ¶ 13.
On or about February 20, 2012, Defendants ordered that Plaintiff be transferred from
KSR to the Kentucky State Penitentiary. Defendants maintain that this transfer was a simple
relocation, and Plaintiff did not suffer any added restrictions as a result. Plaintiff counters that
Defendants ordered the transfer to prevent him from rendering legal assistance to other inmates.
According to Plaintiff, as a result of the transfer Defendants subjected him to intentional
retaliation for having exercised his constitutional right of expression. After the transfer, Plaintiff
filed this action alleging one federal law § 1983 claim for a violation to his First Amendment
right of expression and one state law claim for IIED. Defendants have moved to dismiss the
To survive a motion to dismiss, a plaintiff “must plead ‘enough factual matter’ that, when
taken as true, ‘state[s] a claim to relief that is plausible on its face.’” Fabian v. Fulmer Helmets,
Inc., 628 F.3d 278, 280 (6th Cir. 2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007)). “Plausibility requires showing more than the ‘sheer possibility’ of relief but less than a
‘probab[le]’ entitlement to relief.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Accordingly, a complaint cannot “plead facts that are ‘merely consistent with’ a defendant’s
liability.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Moreover, a complaint
cannot satisfy its pleading burden through “labels and conclusions”, or “a formulaic recitation of
the elements of a cause of action.” Twombly, 550 U.S. at 555. However, in reviewing a
defendant’s motion to dismiss, the Court will construe the complaint in the light most favorable
to the plaintiff and accept factual allegations as true. See Logsdon v. Hains, 492 F.3d 334, 340
(6th Cir. 2007).
Plaintiff seeks injunctive relief and damages from the individual Defendants, who are all
state employees of the KSR. Construing the complaint liberally, he seems to assert these claims
against the individual Defendants in their official and individual capacities.
Concerning the official capacity claims, suits against state employees in their official
capacities are deemed claims against the Commonwealth of Kentucky itself. See Kentucky v.
Graham, 473 U.S. 159, 166 (1985). To state a § 1983 claim, a plaintiff must allege that a
“person” acting under color of state law deprived the plaintiff of a right secured by the
Constitution or federal law. “States, state agencies, and state officials sued in their official
capacity for money damages are not ‘persons’ subject to suit under § 1983.” Sublett v. White,
2012 WL 5400078, *2 (W.D. Ky. Nov. 5, 2012) (citing Will v. Mich. Dep’t of State Police, 491
U.S. 58, 71 (1989)). Accordingly, the court will dismiss the § 1983 claims for monetary relief
against the individual Defendants in their official capacity.3
However, Plaintiff may pursue injunctive relief against the individual Defendants in their official capacities. As
this Court explained,
the Supreme Court [in Will] noted that officials still may be sued for injunctive relief under
§ 1983 because “‘official capacity’ actions for prospective relief are not treated as actions
against the State.” Will, 481 U.S. at 71 n.10. The Sixth Circuit, in McKay v. Thompson,
226 F.3d 752 (6th Cir. 2000), followed this approach. There, the Sixth Circuit noted, “the
Eleventh Amendment permits prospective injunctive relief, but not damage awards, for
suits against individuals in their official capacities under 42 U.S.C. § 1983.” Id. at 757.
Now turning to the individual capacity claims, to survive a motion to dismiss claim under
§ 1983, “the plaintiff must properly allege two elements: (1) the defendant[s] [were] acting under
color of state law, and (2) the offending conduct deprived the plaintiff of rights secured under
federal law.” Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005). Plaintiff alleges that the
individual Defendants retaliated against Plaintiff for exercising his First Amendment right of
expression. Specifically, Plaintiff contends that Defendants transferred his place of confinement
to effectively terminate his ability to assist inmates in challenging the conditions at KSR.
“Retaliation based upon a prisoner’s exercise of his or her constitutional rights violates
the Constitution.” Silverburg v. Seeley, 2009 WL 5197870, *3 (W.D. Ky. Dec. 23, 2009). To
maintain a claim for retaliation, a plaintiff must establish the following elements:
(1) that the plaintiff was engaged in a constitutionally protected activity; (2)
that the defendant's adverse action caused the plaintiff to suffer an injury
that would likely chill a person of ordinary firmness from continuing to
engage in that activity; and (3) that the adverse action was motivated at least
in part as a response to the exercise of the plaintiff's constitutional rights.
Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998).
With respect to the first element, Plaintiff alleges that he engaged in the protected activity
of filing grievances and making complaints on behalf of other inmates. “Prisoners have a First
Amendment right to file grievances and access the courts without suffering retaliation for so
doing.” Rodgers v. Hawley, 14 F. App’x 403, 409 (6th Cir. 2001). Courts most often recognize
this right in the context of inmates filing their own grievances. See, e.g., Herron v. Harrison,
203 F.3d 410, 415 (6th Cir. 2000) (holding that an inmate has an “undisputed First Amendment
right to file grievances against prison officials on his own behalf”). With respect to an inmate
Sublett, 2012 WL 5400078, at *2. Since this Court ultimately finds that the Plaintiff did not suffer a constitutional
violation, this claim for an injunctive relief claim against the individual Defendants fails.
filing grievances on behalf of other inmates, he or she has “no First Amendment right to
represent other inmates in presenting their grievances absent a showing that ‘the inmate[s]
receiving the assistance would otherwise be unable to pursue legal redress.’”
Martin, 48 F. App’x 517, 519 (6th Cir. 2002) (quoting Herron, 203 F.3d at 415). In Plaintiff’s
complaint he admits that “other inmate legal aid” is available to assist inmates in filing
grievances. See ECF No. 1 at ¶ 13. This admission is fatal to his retaliation claim. See
Vandiver, 48 F. App’x at 519 (holding that the inmate failed to establish the protected conduct
element of his retaliation claim because he had “not demonstrated that the inmates he represented
on the warden’s forum could not have been represented by another inmate, or that they could not
bring any concerns they may have to the attention of prison officials without [his] assistance”).
Accordingly, Plaintiff fails to establish the first element.
Even if Plaintiff could somehow prove the first element of his retaliation claim, he cannot
establish that the transfer from KSR to the Kentucky State Penitentiary constitutes an adverse
action that would deter a person of ordinary fitness from engaging in the protected conduct. In
Silverburg, a case factually similar to the case sub judice, the Court permitted the inmate’s
retaliation claim based on alleged threats, physical harm and segregation to go forward, but
dismissed the retaliation claim based on his transfer to another facility. The Court reasoned that
a prisoner has no inherent constitutional right to be confined in a particular
prison. Olim v. Wakinekona, 461 U.S. at 245-46. Nor does a prisoner have
a retaliation claim when he is transferred from one prison to another:
“[T]ransfer from one prison cannot rise to the level of an adverse action
because it would not deter a person of ordinary firmness from the exercise
of his First Amendment rights.” Smith v. Yarrow, 78 F. App’x 529, 543
(6th Cir. 2003).
Silverburg, 2009 WL 5197870, at *3. Because Plaintiff alleges that the transfer was the sole
adverse action taken against him, a situation the Sixth Circuit expressly finds does not amount to
an adverse action, his retaliation claim must fail. Cf. Rodgers v. Hawley, 14 F. App’x 403, 410
(6th Cir. 2001) (finding adverse action when the inmate alleges that prison officials refused to
file the inmate’s grievances and that they “arranged to deprive him of an indigent store order for
postage stamps, hygiene items, and over-the-counter medicine”).
Plaintiff sues the Kentucky Department of Corrections for injunctive relief only.
However, as stated above, Plaintiff is not entitled to injunctive relief because he has suffered no
Consequently, Plaintiff’s § 1983 claim against the Kentucky
Department of Corrections likewise fails.
Lastly, Plaintiff brings a state law claim against Defendants for IIED. In Craft v. Rice,
671 S.W.2d 247 (Ky. 1984), the Kentucky Supreme Court adopted the Restatement (Second) of
Torts § 46 definition of IIED, which reads, “One who by extreme and outrageous conduct
intentionally and recklessly causes severe emotional distress to another is subject to liability for
such emotional distress, and if bodily harm to the other results from it, for such bodily harm.”
671 S.W.2d at 251. The elements of an IIED claim under Kentucky law are:
(1) the wrongdoer’s conduct must be intentional or reckless; (2) the conduct
must be outrageous and intolerable in that it offends against the generally
accepted standards of decency and morality; (3) there must be a causal
connection between the wrongdoer’s conduct and the emotional distress;
and (4) the emotional distress must be severe.
Humana of Ky., Inc. v. Seitz, 796 S.W.2d 1, 2-3 (Ky. 1990) (citing Craft, 671 S.W.2d at 249).
Defendants argue that Plaintiff cannot satisfy the second element of this tort as the transfer does
not constitute sufficiently outrageous conduct to establish IIED.
The standard for outrageous and intolerable conduct is stringent under Kentucky law, and
as explained by the Kentucky Supreme Court, “[l]iability has only been found where the conduct
has been so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.” Humana of Ky., 797 S.W.2d at 3 (quoting RESTATEMENT (SECOND) OF TORTS § 46
cmt. d (1965)). Plaintiff’s allegations as to Defendants’ conduct, even taken as true, is not the
kind of intentional conduct which a civilized society would view as intolerable and tantamount to
an intentional infliction of emotional distress.
Again, a transfer in and of itself is not a
constitutional violation. See Sublett, 2012 WL 5400078, at *2 (“A prisoner has no constitutional
right to remain in a particular institution or to be transferred from one institution to another.”)
(citing Ward v. Dyke, 58 F. 3d 271, 284 (6th Cir. 1995)). But even if Defendants transferred
Plaintiff with malicious intent, this decision does not rise to the level of egregiousness to be
actionable. Accordingly, Plaintiff’s state law IIED claim fails as a matter of law.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendants’ motion to dismiss is SUSTAINED.
Plaintiff’s complaint is DISMISSED WITH PREJUDICE.
This is a final order.
August 9, 2013
Counsel of Record
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