Fantuzzo v. Thompson et al

Filing 16

MEMORANDUM OPINION AND ORDER by Judge John G. Heyburn, II; IT IS ORDERED that Plaintiff's claim against Defendant Grubb; claims for injunctive relief; and individual-capacity claims against Defendants Thompson, Crews, and Young are DISMISSED. IT IS FURTHER ORDERED that Plaintiff's official-capacity claims against all Defendants for monetary damages are DISMISSED. The Clerk of Court is DIRECTED to terminate Defendants Grubb, Thompson, Crews, and Young as parties to this action. The Court will enter a separate Order governing the claims that have been permitted to proceed. cc:Plaintiff, pro se; Defendants; General Counsel, JPSC (ERH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
JOSEPH P. FANTUZZO

PLAINTIFF

v.

CIVIL ACTION NO. 3:13CV-P409-H

LADONNA THOMPSON et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Plaintiff Joseph P. Fantuzzo, a released prisoner, filed the instant pro se 42 U.S.C. § 1983
action proceeding in forma pauperis. This matter is before the Court on initial review of the
action pursuant to 28 U.S.C. § 1915(e).1 For the reasons stated below, the Court will allow
Plaintiff’s failure-to-protect claims to proceed and dismiss the remaining claims.
At the outset, the Court notes that the docket sheet list two complaints (DNs 1 and 7).
Plaintiff apparently sent in a second copy of his complaint, and the Clerk of Court opened a
separate civil action, No. 3:13CV-P419-R. Upon review of both complaints, the Honorable
Senior Judge Thomas B. Russell entered an Order dismissing the second-filed action as
duplicative of this action. For the purposes of initial review, the Court considers DN 7 to be a
duplicate copy of DN 1.
I.
Plaintiff’s allegations concern his previous incarceration as a convicted inmate at the
Kentucky State Reformatory (KSR). He sues the following Defendants: LaDonna Thompson,
Kentucky Department of Corrections (KDOC) Commissioner; Cookie Crews, whom he

1

Because Plaintiff was released from incarceration before the Court conducted initial
review, the Court will review the action under § 1915(e), rather than § 1915A, which applies to
“a civil action in which a prisoner seeks redress from a governmental entity or officer or
employee of a governmental entity.” § 1915A(a). However, the outcome is the same under
either standard.

identifies as the KSR Warden; Daniel Grubb, a prisoner at KSR; Stephanie Roby and Tanya
Young, psychologists at KSR; William Palmer and Travis St. Clair, Unit Administrators at KSR;
Mary Durrett, a case worker at KSR; and John Doe, an officer at KSR. Plaintiff sues each
Defendant in both his or her individual and official capacities.2
Plaintiff states that in December 2011 non-Defendant Aarron Perkinson asked him to be
his “Clerk for the dorm.” Plaintiff performed a number of tasks as Clerk, including sanitation
duties, unit requisition, filling out work assignments, keeping up with inmate job changes, and
payroll sign in and out sheets. Plaintiff avers that he “was taking initiative in his rehabilitation”
and allowing Perkinson more time to focus on security. Plaintiff contends that this “is when
immediate ‘heat’ was placed” on him “for even working for the officers.” Plaintiff reports that
other inmates told him that “there were ‘hits’ out on him.” He states that he became so stressed
and worried about these threats that he lost 55 pounds over a five-month period. On February
24, 2012, he addressed his concerns with a non-Defendant nurse, who referred him to “‘Psych.’”
On February 29, 2012, Plaintiff reports that he took part in a conference call with his
appointed post-conviction counsel in the office of Defendant Durrett. Plaintiff made his counsel
“aware of the ‘threats’ he was under and the institutions inability to care or do anything about
it.” He states that Defendant Durrett sat in during the call. Plaintiff avers that after ten to fifteen
minutes of advising his counsel of the threats against him, Defendant Durrett signaled to Plaintiff

2

Plaintiff states in the caption that he is suing each Defendant in his or her individual
capacity, but he states in the body of the complaint that he is suing each Defendant in his or her
individual and official capacities. The Court will construe the complaint as suing Defendants in
both capacities.
2

to end the phone call and that his time was up and that she eventually “talked Plaintiff into
terminating the call.”
Plaintiff further reports that on March 2, 2012, he met with Defendant psychologist
Roby. He states, “On this date the pressure was building and nobody was listening.” He
informed Defendant Roby of the issues of the death threats and that he was concerned he was
being ignored. He avers that Defendant Roby told him “that he was a ‘very interesting person’
and referred him to another doctor. No protective custody was offered or signed by Plaintiff at
that time or prior.”
Plaintiff states that on April 23, 2012, he had been put in segregation because of a fight
on April 19, 2012. He sent a letter to Defendant Palmer advising him that “the ‘threats’ were
coming to fruition and that the ‘guys’ in seg were really giving the plaintiff ‘heat’ and calling
him a ‘rat’ and “Perkinson’s boy.’” Plaintiff also avers that on April 30, 2012, he sent
correspondence to Defendants Palmer and St. Clair stating that he “felt the ‘threats’ becoming
real and pointed out particular individuals” but he received no response to either letter. He also
states that on May 1, 2012, he sent correspondence to Defendant Roby, “trying to enlist
‘someone’s’ help” and that he received no response.
Plaintiff states that on May 4, 2012, he came out of his cell for recreation. He avers that
the segregation walk has two sides and the walk is very narrow. He contends that “[f]or security
purposes it is policy and normal practice for the officer on duty to only open up one side of the
seg walk at a time per hour for recreation.” He states, “However, this day both sides were
conveniently left opened and Plaintiff was assaulted from behind and beaten on the ground from

3

behind by an inmate who gave him the most trouble, Daniel Grubb. Grubb additionally
attempted to choke Plaintiff out after he had suffered serious laceration and blood loss.”
Plaintiff reports that he was taken to the segregation nurse where he met non-Defendant
Lt. Sutherland and Defendant St. Clair. He states, “Their main focus was catching who did this,
asking Plaintiff to help them out. Plaintiff reminded them, ‘They already think I am a rat, if you
all go right up and get someone they will know.’ ‘Use your electric eyes!’” That day he
received seven staples in the back of his head. Plaintiff avers that he was released from
segregation on May 8, 2012, “with no disciplinary action in the aforementioned situation.”
On May 10, 2012, Plaintiff states that he “was offered and signed his first and only
protective custody refusal form.” He avers that on May 14, 2012, the inmate who assaulted him
was released from segregation and “placed back out onto the compound without offering
Plaintiff a ‘conflict.’” He states that since 2012 Defendant Grubb has been transferred to another
facility and that the “video footage could have possibly been destroyed.” Plaintiff further states
that the “officer who worked Seg 4 on May 4, 2012[,]” who the Court construes to be Defendant
Doe, “may no longer work for Kentucky State Reformatory or the Department of Corrections.”
He states that Defendants Palmer and St. Clair “claim to have not gotten ‘parts’ of the letters I
sent them, but however other parts were scanned to ‘internal affairs.’”
Plaintiff contends that Defendants Roby, Young, Palmer, St. Clair, and Durrett violated
his Eighth Amendment rights by failing to protect him from a substantial risk of serious harm
and were deliberately indifferent to his need for safety. He states that Defendants Thompson and
Crews violated his Eighth Amendment rights “because they are legally responsible for the
welfare of each inmate.” Plaintiff states that Defendants Doe and Grubb violated his Eighth

4

Amendment rights by “eventually following through with ‘threat’ and causing serious physical
injury.” As relief, Plaintiff seeks compensatory and punitive damages and declaratory and
injunctive relief.
II.
Because Plaintiff is proceeding in forma pauperis, this Court must review the instant
action. 28 U.S.C. § 1915(e); McGore v. Wrigglesworth, 114 F.3d 601, 608-09 (6th Cir. 1997),
overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). Upon review, this Court
must dismiss a case at any time if it determines that an action 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. § 1915(e)(2)(B).
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 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

5

not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Iqbal, 556 U.S. at 678 (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, 520-21
(1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991), “[o]ur duty to be ‘less stringent’
with pro se complaints does not require us to conjure up unpled allegations.” McDonald v. Hall,
610 F.2d 16, 19 (1st Cir. 1979) (citation omitted). And this Court is not required to create a
claim for 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.
A.

Defendant Grubb
Section 1983 creates a cause of action against any person who, under color of state law,

causes the deprivation of a right secured by the Constitution or the laws of the United States. A
claim under § 1983 must therefore allege two elements: (1) the deprivation of federal statutory
or constitutional rights by (2) a person acting under color of state law. West v. Atkins, 487 U.S.
42, 48 (1988); Flint v. Ky. Dep’t of Corr., 270 F.3d 340, 351 (6th Cir. 2001). Absent either
element, no § 1983 claim exists. Christy v. Randlett, 932 F.2d 502, 504 (6th Cir. 1991).
Plaintiff alleges that Defendant Grubb, another inmate at KSR, violated the Eighth
Amendment by causing him serious physical injury. However, Defendant Grubb is a private

6

citizen. He was not employed by the state. Only when private citizens act in concert or
conspiracy with government officials may they be subjected to liability under § 1983. Dennis v.
Sparks, 449 U.S. 24, 27-28 (1980). In order to state a claim based on the existence of a
conspiracy under § 1983, a plaintiff must plead “with some degree of specificity.” Gutierrez v.
Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987). Plaintiff has not offered any factual support upon
which a conspiracy between Defendant Grubb and any KSR employee could be based.
Therefore, Plaintiff’s § 1983 claim against Defendant Grubb will be dismissed for failure to state
a claim upon which relief may be granted.
B.

Official-capacity claims for monetary damages
Plaintiff sues all other Defendants in both their official and individual capacities.

“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)). Because all
Defendants, except for Defendant Grubb, are employees or officers of the Commonwealth of
Kentucky, the claims brought against them in their official capacities are deemed claims against
the Commonwealth of Kentucky. See Kentucky v. Graham, 473 U.S. at 166. State officials sued
in their official capacities for money damages are not “persons” subject to suit under § 1983.
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Thus, because Plaintiff seeks money
damages from state officers or employees in their official capacities, he fails to allege cognizable
claims under § 1983. Additionally, the Eleventh Amendment acts as a bar to claims for
monetary damages against these Defendants in their official capacities. Kentucky v. Graham,
473 U.S. at 169.

7

Therefore, Plaintiff’s official-capacity claims for monetary damages will be dismissed for
failure to state a claim upon which relief can be granted and for seeking monetary relief from
Defendants who are immune from such relief.
C.

Injunctive relief
Plaintiff states in his complaint that he seeks injunctive relief but does not specify what

form of injunctive relief he seeks. Based on the allegations, the Court presumes that Plaintiff’s
injunctive-relief claim would pertain to his desire to be protected from other inmates. However,
Plaintiff has since been released from incarceration. An inmate’s claim for injunctive relief
regarding the conditions of his confinement becomes moot due to the inmate’s release from
confinement or transfer to another facility. See Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996)
(finding inmate’s request for injunctive relief moot as he was no longer confined to the
institution where the alleged wrongdoing occurred). Therefore, Plaintiff fails to state a claim for
injunctive relief, and his claims against all Defendants for injunctive relief will be dismissed.
D.

Supervisor liability
The only factual allegations against Defendants Thompson, Crews, and Young concern

their supervisory roles. Plaintiff alleges that Defendant Thompson is the Commissioner of the
KDOC; that Defendant Crews is the “Superintendent/Warden” of KSR; and that Defendant
Young is “the supervisor in chief and oversees all aspects of mental health.” While he alleges
that these Defendants, along with the other Defendants, violated his Eighth Amendment rights
and were legally responsible for his safety, these are legal conclusions which the Court is not
required to accept. See Tackett, 561 F.3d at 488.

8

Therefore, Plaintiff seeks to hold Defendants Thompson, Crews, and Young liable based
on their roles as supervisors. However, the doctrine of respondeat superior, or the right to
control employees, does not apply in § 1983 actions to impute liability onto supervisors. Monell,
436 U.S. at 691; Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 80-81 (6th Cir. 1995); Bellamy v.
Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Rather, to establish supervisory liability in a § 1983
action, “[t]here must be a showing that the supervisor encouraged the specific incident of
misconduct or in some other way directly participated in it.” Bellamy, 729 F.2d at 421 (citing
Hays v. Jefferson Cnty., Ky., 668 F.2d 869, 872-74 (6th Cir. 1982). “[L]iability of supervisory
personnel must be based on more than merely the right to control employees.” Hays, 668 F.2d at
872. “Likewise, simple awareness of employees’ misconduct does not lead to supervisor
liability.” Leary v. Daeschner, 349 F.3d 888, 903 (6th Cir. 2003) (citing Lillard v. Shelby Cnty.
Bd. of Educ., 76 F.3d 716, 728 (6th Cir. 1996)). Supervisory liability “must be based on active
unconstitutional behavior and cannot be based upon ‘a mere failure to act.’” Shehee v. Luttrell,
199 F.3d 295, 300 (6th Cir. 1999) (quoting Salehpour v. Univ. of Tenn., 159 F.3d 199, 206 (6th
Cir. 1998)).
Here, Plaintiff fails to allege facts which demonstrate that Defendants Thompson, Crews,
or Young “encouraged the specific incident of misconduct or in some other way directly
participated in it.” Bellamy, 729 F.2d at 421 (citing Hays, 668 F.2d at 872-74). He makes no
allegation of their role in the alleged unconstitutional conduct. Accordingly, the individualcapacity claims under § 1983 against Defendants Thompson, Crews, and Young will be
dismissed for failure to state a claim upon which relief may be granted.

9

E.

Failure to protect
In the prison context, the Eighth Amendment imposes a duty on prison officials to take

reasonable measures to guarantee the safety of inmates. See Farmer v. Brennan, 511 U.S. 825,
847 (1994). “Deliberate indifference of a constitutional magnitude may occur when prison
guards fail to protect one inmate from an attack by another.” Walker v. Norris, 917 F.2d 1449,
1453 (6th Cir. 1990). Construing the complaint broadly, as the Court is required to do at this
stage, Boag v. MacDougall, 454 U.S. 364 (1982) (per curiam), the Court will allow Plaintiff’s
failure-to-protect claims to proceed against Defendants Roby, Palmer, St. Clair, Durrett, and Doe
in their individual capacities.
IV.
For the reasons set forth herein, and the Court being otherwise sufficiently advised, IT IS
ORDERED that Plaintiff’s claim against Defendant Grubb; his claims for injunctive relief; and
his individual-capacity claims against Defendants Thompson, Crews, and Young are
DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which
relief may be granted.
IT IS FURTHER ORDERED that Plaintiff’s official-capacity claims against all
Defendants for monetary damages are DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii),
(iii) for failure to state a claim upon which relief may be granted and for seeking monetary relief
from a defendant who is immune from such relief.
The Clerk of Court is DIRECTED to terminate Defendants Grubb, Thompson, Crews,
and Young as parties to this action.

10

The Court will enter a separate Order governing the claims that have been permitted to
proceed.
Date:

November 7, 2013

cc:

Plaintiff, pro se
Defendants
General Counsel, Justice & Public Safety Cabinet, Office of Legal Counsel
4412.010

11