Farlough v. Huskic et al

Filing 20

MEMORANDUM AND OPINION by Judge David J. Hale on 1/20/15; The Court will by separate Order dismiss Plaintiffs claims.cc:counsel, Pro Se Plaintiff, Marion County Attorney (TLG)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:14-CV-P721-DJH
CHARLES PHILLIP DOZIER

PLAINTIFF

v.
MARION COUNTY, KENTUCKY et al.

DEFENDANTS

MEMORANDUM OPINION
Plaintiff, Charles Phillip Dozier, filed a pro se 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), overruled on other grounds by Jones v. Bock, 549
U.S. 199 (2007). For the reasons set forth below, the action will be dismissed.
I. SUMMARY OF CLAIMS
Plaintiff, who was incarcerated at the Marion County Detention Center (MCDC) at the
relevant time, sues Marion County, Kentucky, and, in their individual and official capacities,
MCDC Jailer Barry Brady and Lt. Guard Robert Martell. Plaintiff alleges that he was sexually
assaulted on November 16, 2013. Plaintiff states that on that date he was working as a trustee,
cleaning up the captain’s office. He states that he was bending over, on his hands and knees,
cleaning under a desk with the top of his buttocks exposed over the top of his pants when
Defendant Martell “grabbed a broom handle and poked Dozier in his buttocks.” Plaintiff states
that he turned around and said, “'You know that is sexual assault.’” According to Plaintiff, an
investigation by other staff members began the next day which resulted in Defendant Brady
terminating Defendant Martell’s employment.
Plaintiff alleges that Defendant Brady acted as an official of the County when he
established and implemented security procedures for the jail and for supervising trustees working

at the jail. Plaintiff further alleges that Defendant Brady had a duty to protect Plaintiff from
sexual assault by his staff, “had a sufficiently culpable state of mind[,] and was deliberately
indifferent to Dozier’s health and safety in violation of the Eighth Amendment.”
Plaintiff alleges that Marion County is liable under § 1983 because its failure to properly
train jail guards and staff “amounts to deliberate indifference to rights of Dozier . . . whom the
guards held in detention and supervised as a trustee, and where specific deficiency in training is
moving force behind the constitutional injury which created conditions posing substantial risk to
Dozier’s health and safety,” thereby violating the Eighth Amendment. As relief, Plaintiff
requests monetary and punitive damages.
Plaintiff attaches to his complaint a statement dated the day after the incident. That
statement details, in pertinent part:
I had the broom stick off of the broom to hand sweep under a desk
and Lt. Martell poked me on the top of my butt crack which was
exposed from my shirt and pants from me being on my hands and
knees cleaning. When Lt. Robert Martell poked me, I made a
statement and after I was poked I turned and said, you know that is
sexual assault.
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 the factual contentions are clearly baseless. Id. at 327. When determining whether a
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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).
Eighth Amendment claim relating to alleged sexual assault
Plaintiff alleges that Defendant Martell violated his Eighth Amendment rights when he
sexually assaulted him with a broom handle. In the attachment to the complaint, Plaintiff states
that he was “poked” on the top of his “butt crack which was exposed from my shirt and pants
from me being on my hands and knees cleaning.”
Not “every malevolent touch by a prison guard gives rise to a[n Eighth Amendment]
cause of action.” See Hudson v. McMillian, 503 U.S. 1, 9 (1992). “[B]ecause the sexual
harassment or abuse of an inmate by a corrections officer can never serve a legitimate
penological purpose and may well result in severe physical and psychological harm, such abuse
can, in certain circumstances, constitute the ‘unnecessary and wanton infliction of pain’
forbidden by the Eighth Amendment.” Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997)
(internal citations omitted). “To prevail on a constitutional claim of sexual harassment, an
inmate must therefore prove, as an objective matter, that the alleged abuse or harassment caused
‘pain’ and, as a subjective matter, that the officer in question acted with a sufficiently culpable
state of mind.” Id. (citing Hudson, 503 U.S. at 8).
Minor, isolated incidents of sexual touching do not rise to the level of an Eighth
Amendment violation. See, e.g., Jackson v. Madery, 158 F. App’x 656, 661-62 (6th Cir. 2005)

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(per curiam) (correction officer’s conduct in allegedly rubbing and grabbing prisoner’s buttocks
in degrading manner was “isolated, brief, and not severe” and so failed to meet Eighth
Amendment standards); Johnson v. Ward, No. 99-1596, 2000 WL 659354, at *1 (6th Cir. May
11, 2000) (male prisoner’s claim that a male officer placed his hand on the prisoner’s buttock in
a sexual manner and made an offensive sexual remark did not meet the objective component of
the Eighth Amendment); Berryhill v. Schriro, 137 F.3d 1073, 1076 (8th Cir. 1998) (where
inmate failed to assert that he feared sexual abuse, two brief touches to his buttocks could not be
construed as sexual assault); Boddie v. Schneider, 105 F.3d 857, 859-61 (2d Cir. 1997) (court
dismissed as inadequate prisoner’s claim that female corrections officer made a pass at him,
squeezed his hand, touched his penis, called him a “sexy black devil,” pressed her breasts against
his chest, and pressed against his private parts); Reynolds v. Warzak, No. 2:09-cv-144, 2011 WL
4005477, at *7-8 (W.D. Mich. Sept. 8, 2011) (finding that an officer grabbing “Plaintiff’s butt
cheeks with both hands and spread[ing] them apart,” while asking “‘[h]ow’s that feel you little
bitch?’” did not state an Eighth Amendment claim even when the plaintiff stated that the officer
rubbed his chest, legs, and inner and outer thighs in a sexual manner during a pat down search on
a later date). Here, Plaintiff does not allege that Defendant Martell coupled his questionable
touching with any offensive sexual remarks. Moreover, Plaintiff does not suggest that he
experienced any physical or emotional injury as a result of the touching. Therefore, there was no
constitutional injury, and Plaintiff fails to state an Eighth Amendment claim related to the
incident.
Failure-to-protect claim
Prison officials may be held liable under the Eighth Amendment for failing to ensure an
inmate’s safety only if it is shown that (1) the inmate “was incarcerated under conditions posing

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a substantial risk of serious harm”; and (2) the prison officials acted with deliberate indifference
to the inmate’s safety or, in other words, knew the inmate “face[d] a substantial risk of serious
harm and disregard[ed] that risk by failing to take reasonable measures to abate it.” Farmer v.
Brennan, 511 U.S. 825, 834, 847 (1994). A prison official may be found to be deliberately
indifferent to inmate safety if he is aware that a prisoner is vulnerable to sexual assault and fails
to protect him. Bishop v. Hackel, 636 F.3d 757, 767 (6th Cir. 2011). Moreover, the Eighth
Amendment extends to provide protection even in cases where injury has not yet occurred.
Helling v. McKinney, 509 U.S. 25, 33-34 (1993) (citing with approval Ramos v. Lamm, 639 F.2d
559, 572 (10th Cir. 1980), which stated that “a prisoner need not wait until he is actually
assaulted before obtaining relief”).
First, as already discussed, what Plaintiff describes as a “sexual assault” -- one occasion
of being poked with a broom on the buttocks -- does not rise to the level of a constitutional
violation. Further, although Plaintiff conclusorily states in his complaint that Defendant Brady
“had a sufficiently culpable state of mind,” he does not allege that Defendant Brady knew that
Defendant Martell posed a risk. Additionally, there is no possibility of future injury from
Defendant Martell because it is clear from Plaintiff’s complaint that an investigation into the
incident began the next day resulting in Defendant Brady firing Defendant Martell, and, in any
event, Plaintiff is no longer housed at the Marion County Detention Center. Therefore, Plaintiff
fails to state a claim based on failure to protect.
Failure-to-train claim
Because there was no constitutional injury, Plaintiff cannot maintain a claim for
municipal liability based on a failure to train. The elements of municipal liability for failure to
train require that: (1) the training program is inadequate to the tasks that the municipal actor

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must perform; (2) the inadequacy is the result of the municipality’s deliberate indifference; and
(3) the inadequacy caused the plaintiff’s constitutional injury. Berry v. City of Detroit, 25 F.3d
1342, 1346 (6th Cir. 1994). Thus, without a constitutional injury, there is no claim for failure to
train. See Collins v. City of Harker Heights, Tex., 503 U.S. 115, 122 (1992) (emphasizing
“separate character of the inquiry into the question of municipal responsibility and the question
whether a constitutional violation occurred”).
III. CONCLUSION
For the foregoing reasons, the Court will by separate Order dismiss Plaintiff’s claims.
Date:

January 20, 2015

David J. Hale, Judge
United States District Court

cc:

Plaintiff, pro se
Defendants
Marion County Attorney
4415.009

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