Balcar v. Smith et al

Filing 22

MEMORANDUM OPINION AND ORDER by Judge David J. Hale. For the reasons herein, on initial review of Plaintiff's 1 complaint and 7 supplemental complaint pursuant to 28 U.S.C. § 1915A, IT IS ORDERED that the 42 U.S.C. § 1983 official -capacity claims for damages are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1) and (2) and that the due process claims arising out of Plaintiff's December 2015 disciplinary conviction are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1); that other claims shall proceed; and that two other claims may be amended within 30 days from entry of this Order. The Clerk of Court is DIRECTED to send Plaintiff a § 1983 form with this case number and "Amended" written in its caption for his use should he choose to file an amended complaint. cc: Plaintiff, pro se; Defendants; General Counsel, J&PSC; James M. Mooney (JLS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
YALE LARRY BALCAR,

Plaintiff,

v.

Civil Action No. 3:16-cv-P1-DJH

KENTUCKY STATE REFORMATORY
WARDEN AARON SMITH et al.,

Defendants.
* * * * *

MEMORANDUM OPINION AND ORDER
This matter is before the Court on initial review of Plaintiff Yale Larry Balcar’s pro se
complaint (DN 1) and supplemental complaint (DN 7) pursuant to 28 U.S.C. § 1915A. For the
reasons that follow, the Court will dismiss a portion of the claims, allow other claims to proceed,
and allow Plaintiff to amend two claims.
I. SUMMARY OF CLAIMS
Plaintiff is a state prisoner currently incarcerated in the Kentucky State Reformatory
(KSR). He brings suit under 42 U.S.C. § 1983 and Title II of the Americans with Disabilities
Act (ADA) against the following Defendants: KSR Warden Aaron Smith; KSR Lt. Deanna
Hawkins; KSR Sergeant (Sgt.) Kelley; KSR Parole Officer C. Porter; and “Correctional Care
Solution – Med” (CorrectCare). He sues Defendants Lt. Deanna Hawkins, Sgt. Kelly, and Parole
Officer Porter in their individual capacities and sues Warden Smith in his individual and official
capacities. In the supplemental complaint, Plaintiff also sues Defendant Lt. Deanna Hawkins in
her official capacity and adds Capt. Patrick Hawkins as a Defendant, suing him in his individual
and official capacities.

In the complaint, Plaintiff describes an assault that occurred on December 13, 2015, by
Defendants Lt. Deanna Hawkins, Sgt. Kelley, and Parole Officer C. Porter. He claims that on
that date, Defendant Lt. Deanna Hawkins went to his cell door to read a write-up to him and that
when he asked her how to file a harassment complaint against another corrections officer, “she
lost her temper and push Plaintiff back in his cell and started beating him with her Handcuff on
his right hand 6-8 time until he was Bleeding and right hand was mark with Hand cuff mark.”
Then, claims Plaintiff, Defendant Porter came into his cell and “put a choke Hole around
plaintiff neck” and that Sgt. Kelley sprayed him with “OC Spray.” Plaintiff asserts that there
“was no need to spray [him] because he was cooperating” and that “She did not get medical
approve to spray.” He alleges that he “fear[s ] Guard Assault and Beating at any time.”
Plaintiff reports that after the assault he was taken to the prison infirmary for treatment of
OC spray exposure, chest pain, and difficulty breathing, but that “Two Nurses Denied treatment
. . . [and] they refuse to wash OC Spray out his eye and face.” He claims that the nurses were not
trained to respond to his emergencies and did not know how to treat him.
Additionally, Plaintiff reports that on December 13, 2015, he was placed in punitive
segregation and denied a handicapped cell and that his wheelchair was taken for three days by
segregation guards. He further reports that on December 17, 2015, he was served with a
disciplinary charge for assault on staff and that non-defendant Lt. Jayne Hogan took a picture of
his right hand “cut and marks” and “took complaint of Assault and then to Intern Affair and was
Denied Due Process.” Plaintiff then states, “[non-defendant] Lt. Weltzel done my Disciplinary
Hear stating, that Plaintiff was ‘Guilty as charged based on Staff statements,’ and sentencing the
plaintiff to a cat 7-01 150 days segregation to run consecutive 60 days of which to be placed on
the shelf for 180 Days, 365 days Non-Restorable Good time Days.” Plaintiff reports filing an

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appeal with Defendant Warden Smith “pointing out that the camera show Lt Hawkin and Porter
went into Plaintiff cell unauthor and do not know who Assault How.”
In the supplemental complaint, Plaintiff describes an incident on January 24, 2016,
involving Defendant Lt. Deanna Hawkins and her husband, Defendant Capt. Patrick Hawkins.
He alleges that on that date, Lt. Deanna Hawkins, Capt. Patrick Hawkins, and the SWAT team
“came to Plaintiffs’ Cell Door and said cuff up or handicuff and Plaintiff ask what going on her
and Lt Hawkin use a hole Big Can of OC spray on Plaintiff for no reason at all.” He continues
that Defendant Lt. Deanna Hawkins “threaten Plaintiff and said I am going to kill Balcar with the
OC Spray very soon.” Plaintiff reports that he uses a wheelchair and is “Handicap, also he has
COPD and shortness of Breath and a Bad Heart.” He states, “Plaintiff was assaut by Mrs. Lt
Hawkins and all officers, had my clothes ripped off and were throw naked in a strip cell without
ever getting a hearing.” He continues that he “was place on a 15 min watch and his wheel-chair
was taking for 4 Day.”
As relief in the complaint, Plaintiff seeks compensatory and punitive damages;
declaratory relief; for “treatment directed by such medical practitioner”; and for Defendant
Warden Smith to release him from segregation and place him in general population with
restoration of all rights and privileges and to expunge his disciplinary convictions from his
institutional records. As relief in the supplemental complaint, Plaintiff seeks compensatory and
punitive damages and for the Court to “Issue a Restraining Order on Lt. Deanne Hawkins and
Capt Patrick Hawkins.”

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II. STANDARD OF REVIEW
Under § 1915A, the trial court must review the complaint and dismiss the complaint, or
any portion of the complaint, 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 § 1915A(b)(1), (2); McGore v. Wrigglesworth, 114 F.3d 601, 604
(6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007).
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.’” 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)). “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, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555, 557).

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III. ANALYSIS
A. Section 1983 Official-Capacity Claims for Damages
Plaintiff sues Defendants Warden Smith, Lt. Deanna Hawkins, and Capt. Patrick
Hawkins in their official 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 Defendants Warden Smith, Lt. Deanna Hawkins, and Capt.
Patrick Hawkins are 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 in their
official capacities, he fails to allege cognizable claims against them 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.
Therefore, Plaintiff’s official-capacity claims against Defendants Warden Smith,
Lt. Deanna Hawkins, and Capt. Patrick Hawkins 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.
B. Excessive Force Incidents
Upon review, the Court will allow the § 1983 Eighth Amendment claims of excessive
force and state-law claims of assault and battery to proceed against Defendants Lt. Deanna
Hawkins, Sgt. Kelley, and Officer Porter with respect to the December 13, 2015, incident and

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will allow the § 1983 Eighth Amendment claims of excessive force and state-law claims of
assault and battery to proceed against Defendants Lt. Deanna Hawkins and Capt. Patrick
Hawkins with respect to the January 24, 2016, incident.
Plaintiff also brings claims against Defendant Warden Smith under the Eighth
Amendment based on the Warden’s alleged failure to take disciplinary or other action “to curb
the know pattern of physical abuse of inmates” by Defendants. Upon review, the Court will
allow Plaintiff’s § 1983 claim of deliberate indifference to safety and state-law claims of assault
and battery to proceed against Defendant Warden Smith .
C. Strip Cell Incident
Plaintiff alleges that following the January 24, 2016, assault by Lt. Deanna Hawkins and
Capt. Patrick Hawkins, his clothes were ripped off, he was thrown naked into a strip cell without
a hearing, he was placed on a 15 minutes watch, and his wheelchair was taken for four days.
Plaintiff asserts violations of the Fourth Amendment, Eighth Amendment, and Fourteenth
Amendment with respect to this incident. Upon consideration, the Court will allow these claims
to continue against Lt. Deanna Hawkins and Capt. Patrick Hawkins.
D. Medical Treatment
Plaintiff claims that two nurses did not treat him after the assault by officers because they
were not trained. The Court will allow a claim of failure to train to continue against
CorrectCare. Further, the Court will provide Plaintiff with an opportunity to amend the
complaint to name the two nurses allegedly responsible for his denied medical treatment; to sue
them in their individual capacities; and to describe the facts surrounding each nurses’
involvement in his claims. See LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013)

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(“[U]nder Rule 15(a) a district court can allow a plaintiff to amend his complaint even when the
complaint is subject to dismissal under the PLRA [Prison Litigation Reform Act].”).
E. Disciplinary Conviction
Plaintiff alleges a denial of due process in his December 2015 disciplinary proceeding,
wherein he was found guilty of assaulting staff and sentenced to 150 days of segregation and the
loss of 365 days of non-restorable good-time credits.
To state a Fourteenth Amendment due-process claim, an inmate must allege a deprivation
of a liberty interest protected by the Due Process Clause. To determine whether segregation of
an inmate from the general prison population involves the deprivation of a protected liberty
interest, the Court must determine if the segregation imposes an “atypical and significant”
hardship on the inmate “in relation to the ordinary incidents of prison life.” Sandin v. Conner,
515 U.S. 472, 483 (1995). Generally, no liberty interest in remaining free from disciplinary
segregation will be found. Id. at 484. Therefore, Plaintiff’s assignment to punitive segregation
does not state a Due Process Clause violation.
A restraint which “inevitably affect[s] the duration of [an inmate’s] sentence” creates a
liberty interest. Sandin v. Conner, 515 U.S. at 487. The loss of good-time credits affects the
length of Plaintiff’s prison sentence; thus he has a protected liberty interest in this regard. Id. at
477-78 (citing Wolff v. McDonnell, 418 U.S. 539 (1974)). Even if the Court concluded that
Plaintiff demonstrated liberty interests entitled to due-process protection, however, there is still a
barrier to his Fourteenth Amendment claim. A state prisoner may not file a § 1983 suit for
damages or equitable relief challenging his conviction or sentence if a ruling on his claim would
render the conviction or sentence invalid, until and unless the conviction or sentence has been
reversed on direct appeal, expunged by Executive Order, declared invalid by a state tribunal, or

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has been called into question by a federal court’s issuance of a writ of habeas corpus under 28
U.S.C. § 2254. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). If a ruling on a claim would
necessarily render the duration of Plaintiff’s confinement invalid, the claim must be dismissed
because it is simply not cognizable until the challenged confinement has been remedied by some
other process. Id. at 487.
In Edwards v. Balisok, 520 U.S. 641 (1997), the Supreme Court extended the application
of Heck to prison disciplinary proceedings. If the inmate’s allegations would “necessarily imply
the invalidity of the punishment imposed” the claim is not cognizable in a civil action under
§ 1983. Id. at 648. Furthermore, in Wilkinson v. Dotson, 544 U.S. 74 (2005), the Supreme Court
reemphasized that “a state prisoner’s § 1983 action is barred (absent prior invalidation)—no
matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit
(state conduct leading to conviction or internal prison proceedings)—if success in that action
would necessarily demonstrate the invalidity of confinement or its duration.” Id. at 81-82.
In the instant action, Plaintiff seeks damages, release from punitive segregation,
restoration of all rights and privileges, and expungement of his conviction from his disciplinary
record. Success on Plaintiff’s claims concerning his prison disciplinary conviction would
necessarily imply the invalidity of his confinement and therefore cannot be brought under
§ 1983. Accordingly, Plaintiff’s due process claims concerning his prison disciplinary
proceedings and conviction will be dismissed for failure to state a claim.
F. Denied Handicapped Cell and Wheelchair
Plaintiff alleges that he was denied a handicapped cell and wheelchair in segregation in
violation of Title II of the ADA. “[T]he ADA does not provide for personal liability for
defendants sued in their individual capacities.” Williams v. McLemore, 247 F. App’x 1, 8 (6th

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Cir. 2007). The Court will allow the official-capacity ADA claims to proceed against Defendant
Warden White.
The Court also will construe Plaintiff’s claim that he has been denied a handicapped cell
and wheelchair as being brought under the Eighth Amendment and will provide Plaintiff with an
opportunity to amend those claims to name those individuals who allegedly denied him a
handicapped cell and wheelchair and to provide more facts surrounding those claims, including
the length of time he was denied a handicapped cell and whether he is still being denied a
handicapped cell.
IV. ORDER
For the foregoing reasons, IT IS ORDERED as follows:
(1) The § 1983 official-capacity claims for damages are DISMISSED pursuant to 28
U.S.C. § 1915A(b)(1) and (2), respectively, for failure to state a claim upon which relief may be
granted and for seeking damages from Defendants immune from such relief.
(2) The due process claims arising out of Plaintiff’s December 2015 disciplinary
conviction are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim
upon which relief may be granted.
(3) The following claims shall proceed: the § 1983 Eighth Amendment claims of
excessive force and the state-law claims of assault and battery against Defendants Lt.
Deanna Hawkins, Sgt. Kelley, Officer Porter, and Capt. Patrick Hawkins; the § 1983
Eighth Amendment claim of deliberate indifference to safety and state-law claims of assault
and battery to proceed against Defendant Warden Smith; the § 1983 Fourth, Eighth, and
Fourteenth Amendment claims concerning the strip cell incident against Defendants Lt.
Deanna Hawkins and Capt. Patrick Hawkins; the § 1983 failure-to-train claim against

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CorrectCare; and the ADA claim against Defendant Warden Smith in his official capacity.
In allowing these claims to continue, the Court passes no judgment on the merit and ultimate
outcome of these claims. The Court will enter a separate Order Directing Service and
Scheduling Order to govern the development of these continuing claims.
(4) Within 30 days from the entry date of this Memorandum Opinion and Order,
Plaintiff may file an amended complaint (1) to name the two nurses allegedly responsible for his
denied medical treatment; to sue them in their individual capacities; and to describe the facts
surrounding each nurses’ involvement in his claims; and (2) to name those individuals who
allegedly denied him a handicapped cell and wheelchair and to provide more facts surrounding
those claims, including the length of time he was denied a handicapped cell and whether he is
still being denied a handicapped cell.
(5) The Clerk of Court is DIRECTED to send Plaintiff a § 1983 form with this case
number and “Amended” written in its caption for his use should he choose to file an amended
complaint.
Date:

July 14, 2016

David J. Hale, Judge
United States District Court
cc:

Plaintiff, pro se
Defendants
General Counsel, Justice & Public Safety Cabinet, Office of Legal Counsel
James M. Mooney, 110 North Main Street, Nicholasville, KY 40356
4415.005

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