Dickey v. Rapier et al

Filing 9

MEMORANDUM OPINION & ORDER by Senior Judge Thomas B. Russell on 4/19/2017; Misty Burkhead and Martha Knox terminated. A separate scheduling order shall enter.cc:Plaintiff pro se, defendants, Bullitt County Attorney (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
TRAVIS G. DICKEY

PLAINTIFF

v.

CIVIL ACTION NO. 3:16-CV-P712-TBR

JOE RAPIER et al.

DEFENDANTS
MEMORANDUM OPINION AND ORDER

Plaintiff, Travis G. Dickey, proceeding pro se and in forma pauperis, initiated this 42
U.S.C. § 1983 action. 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 following reasons, the complaint will be
dismissed in part and allowed to continue in part.
I. SUMMARY OF CLAIMS
Plaintiff is currently incarcerated at the Fulton County Detention Center. His allegations
concern his prior incarceration at the Bullitt County Detention Center (BCDC). He names as
Defendants BCDC Deputy Jailer Joe Rapier in his individual and official capacities; BCDC
Chief Jailer Martha Knox in her official capacity; and BCDC Captain Misty Burkhead in her
individual capacity.
Plaintiff alleges that on May 26, 2016, Defendant Rapier illegally strip-searched him
without probable cause. Plaintiff alleges that this conduct violated his Fourth Amendment rights.
In particular, he alleges that Defendant Rapier violated his rights
when he illegally searched me for the second time. Officer Rapier stated ‘he
thought I had been a victim of rape.’ This was an unreasonable search nor did he
have probable cause to strip search me for the second time. He stated that he
wanted to have me checked out by medical staff which never happened. Officer
Rapier went outside his professional guidelines as a jail deputy and used abusive
official conduct.

Plaintiff next alleges that in June 2016 a friend came to the jail to speak to Defendant
Knox about the issues of sexual harassment Plaintiff had been facing, stating that Plaintiff did
not want to release the deputy’s name for fear of retaliation. After this meeting, Defendant Knox
pulled Plaintiff from his cell, and Plaintiff told her about an officer who had been stalking him on
his Facebook page and had made comments about Plaintiff’s profile picture in front of his entire
cell. He also told Defendant Knox about the strip search. Plaintiff alleges that Defendant Knox
was “very unprofessional,” became mad at him, and told him that she could not help him if he
did not give her the name of the officer. Plaintiff states that Defendant “tried and tried to coerce”
Plaintiff into telling her the officer’s name. He alleges that this conduct was a violation of his
Fifth and Fourteenth Amendment rights.
Plaintiff states that his friend gave Defendant Knox the name of the officer (Defendant
Rapier). Plaintiff alleges that Defendant Knox stated that she would look into it but would not
tell Defendant Rapier of the allegations against him.
Plaintiff states that on July 4, 2016, Defendant Rapier, along with other officers,
conducted a cell search. During the search, Defendant Rapier told the officer patting down
Plaintiff “‘to pat that mother f***er down and keep him away from [Defendant Rapier] and to
make sure he’s on camera when he pats me down.’” This remark indicated to Plaintiff that
Defendant Knox had told Defendant Rapier about Plaintiff’s allegations despite being warned of
the danger to Plaintiff. He alleges that Defendant Rapier retaliated against him on July 12, 2016,
by leaving Plaintiff in segregation, where Plaintiff was told that he had been placed “due to ‘no
bed space.’” He alleges that being placed in segregation was a “Violation of 8th Amendment
cruel and unusual punishment.” Plaintiff states that he was told two days later that he was now
in segregation “per Captain Burkhead until further notice which completely contradicts 1st shifts

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story of me being in disciplinary segregation due to no bed space because Captain Burkhead
works 3rd shift and oversees all disciplinary actions.” Plaintiff states that he spoke to Defendant
Burkhead on July 15 and was told she had no knowledge of “anything in regards to me or why I
was in segregation.”
Plaintiff states that grievances he filed regarding Defendant Rapier received no response.
He further states that he requested to speak to the Prison Rape Elimination Act (PREA) officer,
Defendant Burkhead; explained to her the situation with Defendant Rapier; and requested to be
moved to another hall to be away from Defendant Rapier. Defendant Burkhead told Plaintiff that
she would start a PREA investigation. However, Plaintiff states that when he was released from
segregation he still had contact with Defendant Rapier. Plaintiff states that he wrote a grievance
stating that he did not feel safe and did not want Defendant Rapier to search his belongings
without Plaintiff being present. Defendant Burkhead advised him that this was not a grievable
issue. Defendant Burkhead told him that if he did not feel safe his only option was to be placed
into administrative segregation, which Plaintiff alleges is “[a] violation of my 8th Amendment
cruel and unusual punishment.”
Plaintiff states that on July 25, he asked Defendant Burkhead to stop her investigation,
hand it over to outside authorities, and have an advocate come and speak to Plaintiff. He states
that she ignored his request.
As relief, Plaintiff asks for punitive damages.
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

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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 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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
A. Official-capacity claims
Plaintiff’s official-capacity claims against Defendants Rapier and Knox must be
dismissed.
If an action is brought against an official of a governmental entity in his or her official
capacity, the suit should be construed as brought against the governmental entity. Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 71 (1989). Therefore, in the case at bar, Plaintiff’s claims
against the employees of Bullitt County in their official capacities are actually brought against
the Bullitt County government. See Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994).
When a § 1983 claim is made against a municipality, a court must analyze two distinct
issues: (1) whether the plaintiff’s harm was caused by a constitutional violation; and (2) if so,
whether the municipality is responsible for that violation. Collins v. City of Harker Heights,
Tex., 503 U.S. 115, 120 (1992). The Court will address the issues in reverse order.

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“[A] municipality cannot be held liable solely because it employs a tortfeasor – or, in
other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.”
Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978) (emphasis in original);
Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994); Berry v. City of Detroit, 25 F.3d
1342, 1345 (6th Cir. 1994). “[T]he touchstone of ‘official policy’ is designed ‘to distinguish acts
of the municipality from acts of employees of the municipality, and thereby make clear that
municipal liability is limited to action for which the municipality is actually responsible.’” City
of St. Louis v. Praprotnik, 485 U.S. 112, 138 (1988) (quoting Pembaur v. Cincinnati, 475 U.S.
469, 479-80 (1986)) (emphasis in Pembaur).
A municipality cannot be held responsible for a constitutional deprivation unless there is
a direct causal link between a municipal policy or custom and the alleged constitutional
deprivation. Monell, 436 U.S. at 691; Deaton v. Montgomery Cty., Ohio, 989 F.2d 885, 889 (6th
Cir. 1993). Simply stated, the plaintiff must “identify the policy, connect the policy to the city
itself and show that the particular injury was incurred because of the execution of that policy.”
Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993) (quoting Coogan v. City of
Wixom, 820 F.2d 170, 176 (6th Cir. 1987), overruled on other grounds, Frantz v. Village of
Bradford, 245 F.3d 869 (6th Cir. 2001)). The policy or custom “must be ‘the moving force of
the constitutional violation’ in order to establish the liability of a government body under
§ 1983.” Searcy, 38 F.3d at 286 (quoting Polk Cty. v. Dodson, 454 U.S. 312, 326 (1981)
(citation omitted)); Bd. of Cty. Comm’rs of Bryan Cty., Okla. v. Brown, 520 U.S. 397, 404 (1997)
(indicating that plaintiff must demonstrate “deliberate conduct”).
Here, Plaintiff has not identified a policy or custom that was the moving force behind the
alleged constitutional violations. Thus, the official-capacity claims fail to state a claim.

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B. Individual-capacity claims
Defendant Rapier
Plaintiff alleges that Defendant Rapier illegally strip-searched him in violation of his
Fourth Amendment rights. Plaintiff also alleges that Defendant Rapier retaliated against him and
violated his Eighth Amendment right to be free from cruel and unusual punishment by leaving
Plaintiff in segregation.


Strip search

The strip search of an inmate is not necessarily a constitutional violation.
“‘[P]articularized searches where objective circumstances indicate such searches are needed to
maintain institutional security’ [are] permissible . . . .” Jackson v. Herrington, 393 F. App’x 348,
355 (6th Cir. 2010) (per curiam) (citation omitted). For example, a strip search of inmates after a
handcuff key is reportedly missing (whether that belief turned out to be mistaken or not) would
not violate the Fourth Amendment. Patton v. Kentucky, No. 1:12CV-P86-M, 2012 WL 3096618,
at *4 (W.D. Ky. July 30, 2012).
While the complaint suggests that the strip search occurred because Defendant Rapier
thought that Plaintiff had been raped, it is not clear whether such a search would be an objective
circumstance where a strip search would be needed. Additionally, Plaintiff alleges that
Defendant Rapier stated that he would have Plaintiff checked out by medical staff, which would
be a reasonable next step to take if rape really were suspected; but, according to Plaintiff, no
such examination by medical staff occurred. Therefore, the Court will allow to go forward
Plaintiff’s claim regarding the strip search against Defendant Rapier in his individual capacity.

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

Segregation

Plaintiff claims that Defendant Rapier violated his Eighth Amendment rights when he left
him in segregation. However, because placement in segregation is a routine discomfort that is a
part of the penalty that criminal offenders pay for their offenses against society, it is insufficient
to support an Eighth Amendment claim. See Hudson v. McMillian, 503 U.S. 1, 9 (1992); see
also Estep v. Million, No. 98-6322, 1999 WL 776202, at *1 (6th Cir. 1999) (finding that 21
extra days in segregation did not violate the Eighth Amendment); Kelly v. Hursh, No. 2:09-cv19, 2010 WL 1052664, at *7 (W.D. Mich. Mar. 22, 2010) (finding that six-months of
administrative segregation did not violate the Eighth Amendment). As such, Plaintiff fails to
state a claim upon which relief may be granted.


Retaliation

Plaintiff alleges that Defendant Rapier retaliated against him on July 12, 2016, by leaving
him in segregation. It appears that Plaintiff is alleging that the alleged retaliation was in
response to Plaintiff having told Defendant Knox about Defendant Rapier’s alleged harassment
of him.
Retaliation based upon a prisoner’s exercise of his constitutional rights violates the
Constitution. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). In order to set
forth a First Amendment retaliation claim, Plaintiff must establish that: (1) he was engaged in
protected conduct; (2) an adverse action was taken against him that would deter a person of
ordinary firmness from engaging in that conduct; and (3) the adverse action was motivated, at
least in part, by the protected conduct. Id.
“A transfer to administrative segregation would be considered a sufficiently adverse
action.” Jones v. Michigan, 698 F. Supp. 2d 905, 916 (E.D. Mich. 2010) (citing Thaddeus-X v.

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Blatter, 175 F.3d at 396). The Court will assume for purposes of this initial screening that
Plaintiff was engaged in protected conduct in reporting Defendant Rapier and thereby initiating a
PREA investigation. Pickard v. Hardy, No. 3:15-CV-P305-DJH, 2016 WL 865327, at *5 (W.D.
Ky. Mar. 2, 2016); cf. Alverto v. Dep’t of Corr., No. C11-5572 RJB/KLS, 2012 WL 6025617, at
*27 (W.D. Wash. Nov. 15, 2012), report and recommendation adopted, No. C11-5572 RJB,
2012 WL 6023868 (W.D. Wash. Dec. 4, 2012), and report and recommendation adopted, No.
C11-5572 RJB, 2012 WL 6150043 (W.D. Wash. Dec. 11, 2012). Plaintiff has alleged that the
retaliatory conduct was motivated by the protected conduct. The Court will allow this claim to
go forward against Defendant Rapier in his individual capacity.
Defendant Knox
Plaintiff does not sue Defendant Knox in her individual capacity. However, there is no
need to allow Plaintiff to amend the complaint to name her in her individual capacity because
Plaintiff’s allegations against her fail to state a claim. Plaintiff alleges that Defendant Knox
violated his Fifth and Fourteenth Amendment rights when she questioned him about the name of
the officer who had strip-searched him and looked at his Facebook profile picture. He also
alleges that, after Defendant Knox was told Defendant Rapier’s name, she failed to protect
Plaintiff and placed him in “substantial risk of serious harm.”


Questioning

Defendant Knox’s questioning of Plaintiff did not violate the Fifth or Fourteenth
Amendment.
The Fifth Amendment, applicable to a state arrestee like Plaintiff through the Fourteenth
Amendment, see, e.g., Wilson v. Wilkinson, 608 F. Supp. 2d 891, 900 (S.D. Ohio 2007), protects
one accused of a crime from being compelled to be a witness against himself. Hiibel v. Sixth

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Judicial Dist. Court of Nev., 542 U.S. 177, 189 (2004). Here, at the relevant time, Plaintiff was
already incarcerated. He was not charged with a new crime or subject to a criminal action, nor
was he compelled to make a self-incriminating statement in a criminal proceeding. Plaintiff,
therefore, fails to state a claim under the Fifth Amendment. See Fox v. Smith, No. 1:06CV637,
2006 WL 3446505, at *3 (W.D. Mich. Nov. 28, 2006).


Failure to protect

Plaintiff alleges that Defendant Knox failed to protect him after she learned the name of
Plaintiff’s alleged harasser, Defendant Rapier.
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). An Eighth Amendment claim also requires an inmate to plead and prove that he
suffered some non-de minimis physical injury. Wilson v. Yaklich, 148 F.3d 596, 600-01 (6th Cir.
1998). Because Plaintiff alleges no injury, he fails to state a claim upon which relief may be
granted. Wells v. Jefferson Cty. Sheriff Dep’t, 159 F. Supp. 2d 1002, 1010 (S.D. Ohio 2001)
(finding failure-to-protect claim failed because plaintiff did not plead that he suffered any
physical injury). This reasoning also applies where, as here, Plaintiff’s claims are for punitive
damages. See Dyer v. Hardwick, No. 10-CV-10130, 2011 WL 4036681, at *8 (E.D. Mich.
Aug. 1, 2011), report and recommendation adopted, No. 10-CV-10130, 2011 WL 3918412 (E.D.
Mich. Sept. 7, 2011).
Defendant Burkhead
Plaintiff states that Defendant Burkhead was the PREA officer. Plaintiff alleges that she
stated that she would begin a PREA investigation but did not make sure that Plaintiff was
removed from contact with Defendant Rapier. When Plaintiff filed a grievance stating that he

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did not feel safe and that he did not want Defendant Rapier to search his belongings outside of
his presence, Defendant Burkhead allegedly responded that this was not a grievable issue. She
also told him that, if he did not feel safe, his only option was to be placed into administrative
segregation, which Plaintiff alleges is “[a] violation of my 8th Amendment cruel and unusual
punishment.” Plaintiff also alleges that when he asked Defendant Burkhead to stop her
investigation, to hand it over to outside authorities, and to have an advocate come and speak to
Plaintiff, she ignored his request.


Failure to protect

Plaintiff alleges that Defendant Burkhead did not remove him from contact with
Defendant Rapier and told him that, if he did not feel safe, his only option was to be put into
administrative segregation.
As discussed above, Plaintiff fails to state an Eighth Amendment claim because he does
not allege that he suffered some non-de minimis physical injury from Defendant Burkhead’s
failure to protect him. Wilson v. Yaklich, 148 F.3d at 600-01. Therefore, this claim will be
dismissed.


Grievances

Plaintiff has no right to an effective grievance procedure. Ishaaq v. Compton, 900 F.
Supp. 935, 940-41 (W.D. Tenn. 1995); Flowers v. Tate, Nos. 90-3742, 90-3796, 1991 WL 22009
(6th Cir. Feb. 22, 1991). Therefore, being told by Defendant Burkhead that the issue he wished
to grieve was not a grievable issue does not state a constitutional claim. See Ishaaq v. Compton,
900 F. Supp. at 940-41; Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982).

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

Segregation

As already discussed, placement in administrative segregation is no more than a routine
discomfort and is insufficient to support an Eighth Amendment claim. See Estep v. Million,
1999 WL 776202, at *1. Thus, Defendant Burkhead’s suggestion to Plaintiff that he could enter
segregation if he wished to avoid contact with Defendant Rapier did not violate Plaintiff’s
constitutional rights.


PREA

Plaintiff alleges that when he asked Defendant Burkhead to stop her PREA investigation,
to hand it over to outside authorities, and to have an advocate come and speak to Plaintiff, she
failed to do so. The PREA does not create a private cause of action which can be brought by an
individual plaintiff. See Montgomery v. Harper, No. 5:14CV-P38-R, 2014 WL 4104163, at *3
(W.D. Ky. Aug. 19, 2014) (“[T]his Court concludes that the PREA creates no private right of
action.”). Thus, Plaintiff’s allegations relating to Defendant Burkhead’s actions not conforming
to PREA’s requirements fail to state a claim upon which relief may be granted.
III. ORDER
For the foregoing reasons, the following claims are DISMISSED pursuant to 28 U.S.C.
§ 1915A(b)(1) for failure to state a claim: all claims against Defendants Knox and Burkhead; the
official-capacity claims against Defendant Rapier; and the individual-capacity claim against
Defendant Rapier involving being kept in segregation.
The Clerk of Court is DIRECTED to terminate as parties to this action, the following:
Defendants Martha Knox and Misty Burkhead.
The Court will enter a separate Scheduling Order to govern the development of the
remaining claims, i.e., the claims against Defendant Rapier in his individual capacity regarding

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the strip search and retaliation. In allowing those claims to proceed, the Court expresses no
opinion as to the ultimate merit of those claims.
Date:

April 19, 2017

cc:

Plaintiff, pro se
Defendants
Bullitt County Attorney
4413.009

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