McKinney v. Napier et al
Filing
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MEMORANDUM OPINION AND ORDER by Judge David J. Hale. Claims against Defendant Ballard and Wilkerson are dismissed. Clerk to terminate Defendants Ballard and Wilkerson from this action. Retaliation claims against Defendants Napier and Wagiel will proceed. Legal mail claim against Wagiel will proceed. cc: plaintiff pro se, Gen Counsel Justice & Pub Saf Cab (JAC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
ROBERT WILLIS MCKINNEY,
Plaintiff,
v.
Civil Action No. 3:17-cv-P28-DJH
Defendants.
ANGELA NAPIER et al.,
* * * * *
MEMORANDUM OPINION AND ORDER
Plaintiff Robert Willis McKinney, an inmate incarcerated at Northpoint Training Center
(hereinafter NTC), filed a pro se complaint under 42 U.S.C. § 1983 (DN 1). This matter is
before the Court for initial review of the complaint pursuant to 28 U.S.C. § 1915A and McGore
v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997), overruled on other grounds by Jones v.
Bock, 549 U.S. 199 (2007). For the reasons that follow, the Court will allow (1) the retaliation
claims against Defendants Napier and Wagiel based on their filing of false disciplinary charges
against Plaintiff and (2) the legal mail claim against Defendant Wagiel to proceed. All other
claims and Defendants will be dismissed from this action.
I. SUMMARY OF CLAIMS
Plaintiff names the following four Defendants in this action: (1) Angela Napier, a former
Correctional Officer at NTC; (2) Michelle Wagiel, an Officer at NTC; (3) Charles Wilkerson, the
Prison Rape Elimination Act (hereinafter PREA) Coordinator for the Kentucky Department of
Corrections (hereinafter KDOC); and (4) Rodney Ballard, the Commissioner for the KDOC.
Plaintiff sues Defendants only in their individual capacities. As relief, Plaintiff seeks monetary
and punitive damages against Defendants Napier and Wagiel. As to Defendants Wilkerson and
Ballard, he seeks the Court to declare that Plaintiff “has a state created ‘Liberty Interest’ in the
CPP (Corrections Policies and Procedures) 3.22 and CPP 14.7 to be protected and treated as any
PREA, 2003 victim.” Further, he seeks the Court to declare that CPP 3.22 and CPP 14.7 create
“a ‘LIBERTY INTEREST’ for all Kentucky inmates.”
According to Plaintiff, Defendant Napier, while she was employed as a Correctional
Officer at NTC, had a relationship with an inmate. Such relationship, Plaintiff states, was
against “policy due to the fact she was a Correctional Officer and he an State Inmate.” Plaintiff
believes that Defendant Napier
had reason to believe Plaintiff was aware of her actions and had started to take
action against Plaintiff by filing false Displinary Reports and making unfounded
claims concerning Plaintiff, thus attempting to have Plaintiff placed into
segregation or try have his movement restricted from the area that she and [the
inmate] preformed thier actions at, (LEGAL LIBRARY) in an attempt to hide her
actions from the Plaintiff. She would call the Plaintiff offensive names, make fun
of him for being an homosexual, deny him materials available to other inmates.
She would yell at and disrespect Plaintiff on a daily basis. Her discrimination of
the Plaintiff caused mental problems and caused pain due to the PTSD Plaintiff
suffers from and is being treated for by method of medications and therpy.
Plaintiff states that he filed a complaint about the improper relationship between
Defendant Napier and the inmate with Stephine Hughes, the Unit Administrator and the PREA
monitor for NTC. Plaintiff’s allegation, he represents, was confirmed through “video recorded
evidence” resulting in Defendant Napier being “dismissed as a Correctional Officer due to the
violation of the policy CPP 3.22 & CPP 14.7.” According to Plaintiff, Ms. Hughes “made sure
the Displinary Reports was removed from Plaintiff’s record.” Plaintiff states that Ms. Hughes
“filed the report as inmate requested as a [PREA] violation.” Plaintiff states that “this request
was later DENIED,” and “Plaintiff filed a ‘Grievance’ concerning the failure to comply with
Policy CPP 14.7 and CPP 3.22.”
Plaintiff asserts that CPP 14.7 and CPP 3.22 were created by the state in compliance with
the PREA. Plaintiff states that the policies grant him “a ‘liberty interest’ in the ‘State Created
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Rights’ contained within.” Plaintiff states that denial of the protections contained in these
policies violated the Fifth and Fourteenth Amendments. Plaintiff states that Warden Bottoms
denied his grievance regarding this matter and that Defendant Ballard denied the appeal of the
grievance.
Plaintiff states that Defendant Napier has a son that works for Aramark Food Service and
a cousin who is a Unit Administrator at NTC. Plaintiff asserts that because of these relatives
working at the Kentucky prisons “retaliation monitoring and completing the investigation would
have been appropriate.” Plaintiff states that the inmate involved in the sexual relationship with
Defendant Napier was transferred to another facility, but Plaintiff requested he be placed on a
no-contact list so that Plaintiff would not run the risk of being assaulted by him in the future, but
this request was denied.
Plaintiff also alleges wrongdoing by Defendant Wagiel. Plaintiff states that he went to
the legal library to pick up some legal mail. Plaintiff represents that he stood in a long line, but
when he got to the front of the line, Defendant Wagiel “announced she had to use the rest room
and shut down the legal mail give out line.” When she returned, Plaintiff states that he got back
in the line. According to Plaintiff, Defendant Wagiel had him sign the receipt indicating that he
had received the legal mail. Plaintiff states that Defendant Wagiel
opened one letter and gave [Plaintiff] the letter that was enclosed and retained the
envelope and stated [Plaintiff] was not allowed to have the envelope that the
address was printed on the letter it’s self, second letter from [Plaintiff’s] attorney
she had [Plaintiff] to sign [Plaintiff] had received it and she opened the letter in
front of [Plaintiff], started to pull the content out and part way she seen the name
‘NAPIER’ printed very large and stopped pulling it out, she looked at [Plaintiff]
and stated she didn’t have time to give it to [Plaintiff] and that [Plaintiff] would
be able to get it tomorrow, [Plaintiff] protested that it was privledged mail and she
had [Plaintiff] to sign [Plaintiff] had already received it and that it was open now,
why do you not hand it to [Plaintiff]. She refused. This was just days after
[Defendant] Napier had been fired . . . . [Defendants] Napier and Wagiel work
posts that was side by side and was around each other alot and it would not be a
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stretch of circumstances to state they had become to know each other and was
friendly toward each other. [Defendant] Wagiel had become very harassive
toward [Plaintiff] in the days after [Defendant] Napier had been dismissed, in fact
she had lodged a displinary report against [Plaintiff] earlier in the day concerning
a another service she had denied [Plaintiff] with no reason, this report was later
dismissed due to being found untruthful. The disrespectful manner in her
treatment towards [Plaintiff] continued. . . . In this time frame she had made
comments and slurs concerning homosexuals “minding their own business”, made
[Plaintiff] feel threatened due to the fraudulent actions she attempted to take
against [Plaintiff] that would have deprived [Plaintiff] of freedom and good time
loss if an PREA INVESTIGATOR had not took the time to look at the camera
footage that confirmed [Plaintiff’s] statement.
Plaintiff contends that Defendant Wagiel wanted to read Plaintiff’s legal mail when she saw the
name Napier on the document. Plaintiff states that he filed a grievance about this matter and that
the grievance committee chairman “fraudulently stated [Defendant Wagiel] had followed the
legal mail policy CPP 14.4.” Plaintiff states that the retaliatory actions against him caused him
“real fear, personal humiliation, mental anguish and suffering.” Plaintiff states that her actions
violated the First, Fifth, and Fourteenth Amendments as well as the liberty interest created by
28 C.F.R. § 115.67, CPP 14.7, and CPP 3.22.
Plaintiff asserts that Defendant Wilkerson failed to properly train and instruct the
“local/institutional level PREA staff to lawfully maintain claims and reporting policies, and
monitoring.” Plaintiff states that Defendant Wilkerson “fails to follow the Federal Program, he
manipulates the state reports to the Federal Administrator of the Grant to the state by training the
investigators at the local level to not follow the program requirements to create the illusion that
there are fewer Staff on Inmate PREA accounts than there actually are in reality.” Plaintiff states
that Defendant Wilkerson is the one who “made the final decision to refuse the retaliation
monitoring in both case[s]” that Plaintiff had requested. He further states that “[t]he retaliation is
clear due to [him] filing a grievance on the matter.” Plaintiff asserts that Defendant Ballard “by
his responses and lack of action shows he has a clear negligent indifference to this issue.”
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According to Plaintiff, “failure to report a crime as these two have done in this case in others
seems to be a crime.” Plaintiff states that he has endured “retaliation, suffering, humiliation,
anguish and his lack of training or consorting to violate the directives of this Ferderal Program to
protect me and others has violated my FIRST, FIFTH AND FOURTEENTH § AMENDMENTS
as well as my Liberty Interest in the CPP 14.7, CPP 3.22.”
II. STANDARD OF REVIEW
Because Plaintiff is a prisoner seeking relief against governmental entities, officers,
and/or employees, this Court must review the instant action under 28 U.S.C. § 1915A. 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 at 608.
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] 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
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conclusions.’” Tackett v. M & G Polymers, USA, LLC, 561 F.3d at 488 (quoting Columbia
Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). The court’s duty “does not
require [it] to conjure up unpled allegations,” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979),
or to create a claim for a 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. ANALYSIS
A. Claims Against Defendant Ballard
As to Defendant Ballard, Plaintiff claims that he denied the appeals of Plaintiff’s
grievances. Plaintiff contends that by Defendant Ballard’s “responses and lack of action,” he has
shown a “clear negligent indifference to the issue.”
The doctrine of respondeat superior, or the right to control employees, does not apply in
§ 1983 actions to impute liability onto supervisors. Monell v. Dep’t of Soc. Servs. of N.Y.,
436 U.S. 658, 691-94 (1978); see also Cardinal v. Metrish, 564 F.3d 794, 802-03 (6th Cir. 2009)
(“[A] § 1983 claim must fail against a supervisory official unless the supervisor encouraged the
specific incident of misconduct or in some other way directly participated in it.”) (quotation
omitted); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984) (“Section 1983 liability will not
be imposed solely upon the basis of respondeat superior.”). Additionally, “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 Cty. Bd. of Educ., 76 F.3d 716, 728 (6th Cir. 1996)).
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Moreover, “[t]he ‘denial of administrative grievances or the failure to act’ by prison
officials does not subject supervisors to liability under § 1983.” Grinter v. Knight, 532 F.3d 567,
576 (6th Cir. 2008) (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)). “The mere
denial of a prisoner’s grievance states no claim of constitutional dimension.” Alder v. Corr.
Med. Servs., 73 F. App’x 839, 841 (6th Cir. 2003). A plaintiff’s claim is against the subjects of
his grievances, not those who merely decided whether to grant or deny the grievances. See
Skinner v. Govorchin, 463 F.3d 518, 525 (6th Cir. 2006) (“Skinner’s complaint regarding
Wolfenbarger’s denial of Skinner’s grievance appeal, it is clear, fails to state a claim.”); Lee v.
Mich. Parole Bd., 104 F. App’x 490, 493 (6th Cir. 2004) (“Section 1983 liability may not be
imposed simply because a defendant denied an administrative grievance or failed to act based
upon information contained in a grievance.”); Simpson v. Overton, 79 F. App’x 117, 120
(6th Cir. 2003) (“[T]he denial of an appeal cannot in itself constitute sufficient personal
involvement to state a claim for a constitutional violation.”). Rather, “a plaintiff must plead that
each Government-official defendant, through the official’s own individual actions, has violated
the Constitution.” Ashcroft v. Iqbal, 556 U.S. at 676; see also Shehee v. Luttrell, 199 F.3d at 300
(stating that supervisory liability “must be based on active unconstitutional behavior and cannot
be based upon ‘a mere failure to act’”) (quoting Salehpour v. Univ. of Tenn., 159 F.3d 199, 206
(6th Cir. 1998)).
Here, Plaintiff=s § 1983 claims against Defendant Ballard are based upon the actions or
inactions of other Defendants. Nothing in the complaint sets forth any action taken on the part of
Defendant Ballard or shows how this Defendant was personally involved in the alleged wrongful
conduct. Therefore, Plaintiff’s § 1983 claims against Defendant Ballard will be dismissed for
failure to state a claim upon which relief may be granted.
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B. PREA Claims
To the extent Plaintiff seeks to bring claims under the PREA, such claims fail. Although
not addressed in the Sixth Circuit, several district courts, including the Western District of
Kentucky, have found that the PREA, 42 U.S.C. § 15601 et seq., “does not create a private cause
of action which can be brought by an individual plaintiff.” Sublett v. Henson, No. 5:16CV-P184TBR, 2017 WL 1660126, at *5 (W.D. Ky. Apr. 27, 2017); see also Dickey v. Rapier, No. 3:16CV-P712-TBR, 2017 WL 1424803, at *5 (W.D. Ky. Apr. 19, 2017) (finding that the PREA does
not create a private cause of action that can be brought by an individual); Peterson v. Burris,
No. 14-cv-13000, 2016 WL 67528, at *2 (E.D. Mich. Jan. 6, 2016) (finding that the magistrate
judge “did not err in her determination that the PREA does not provide prisoners with a private
right of action”); Chapman v. Willis, No. 7:12-CV-00389, 2013 WL 2322947, at *4 (W.D. Va.
May 28, 2013) (“There is no basis in law for a private cause of action under § 1983 to enforce a
PREA violation.”); Holloway v. Dep’t of Corr., No. 3:11VCV1290(VLB), 2013 WL 628648, at
*2 (D. Conn. Feb. 20, 2013) (“There is nothing in the PREA that suggests that Congress intended
it to create a private right of action for inmates to sue prison officials for non-compliance to the
Act.”); Faz v. N. Kern State Prison, No. CV-F-11-0610-LJO-JLT, 2011 WL 4565918, at *5
(E.D. Cal. Sept. 29, 2011) (“The PREA was enacted to study the problem of prison rape.
Nothing in the Act suggests that it created a private right of action. Accordingly, the PREA does
not create a private right of action . . . .”) (citation omitted); Woodstock v. Golder, No. 10-cv00348-ZLW-KLM, 2011 WL 1060566, at *9 (D. Colo. Feb. 7, 2011) (“PREA provides no
private right of action.”) (citation omitted).
The PREA is intended to address the problem of rape in prison, authorizes grant money,
and creates a commission to study the issue. 42 U.S.C. § 15601 et seq. The statute does
not grant prisoners any specific rights. In the absence of “an ‘unambiguous’ intent to
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confer individual rights,” such as a right to sue, courts will not imply such a right in a
federal funding provision.
Chinnici v. Edwards, No. 1:07-cv-229, 2008 WL 3851294, at *3 (D. Vt. Aug. 12, 2008) (quoting
Gonzaga Univ. v. Doe, 536 U.S. 273, 279-80 (2002)); see also Jones v. Schofield, No. 1:08-CV-7
(WLS), 2009 WL 902154, at *2 (M.D. Ga. Mar. 30, 2009) (“A reading of the Prison Rape
Elimination Act makes clear that its goal is to lessen the occurrence of rapes in prisons across
this Country. Its focus concentrates on statistics, standards, developing information, and
regulating federal funding in an effort to lessen prison rapes. Nowhere in the language of the Act
can It be interpreted to create a private right which may be enforced in a § 1983 action.”).
Upon consideration, this Court also concludes that the PREA creates no private right of
action. Plaintiff’s claims brought under the PREA must, therefore, be dismissed.
C. Claims Based on Violations of Corrections Policies and Procedures
Plaintiff alleges that Defendants Napier and Wilkerson violated CPP 3.22 and 14.7, and
he seeks to bring claims for these violations asserting that these policies created a liberty interest
that was violated. Failure of prison officials to follow institutional procedures or policies does
not give rise to a constitutional claim. Sandin v. Conner, 515 U.S. 472, 481-82 (1995); Smith v.
City of Salem, Ohio, 378 F.3d 566, 578 (6th Cir. 2004) (“[S]tate law, by itself, cannot be the
basis for a federal constitutional violation.”); Rimmer-Bey v. Brown, 62 F.3d 789, 791 (6th Cir.
1995) (rejecting inmate’s argument that prison failed to follow Michigan prison regulations in
putting him in segregation); McVeigh v. Bartlett, No. 94-23347, 1995 WL 236687, at *1 (6th Cir.
Apr. 21, 1995) (failure to follow policy directive does not rise to the level of a constitutional
violation because policy directive does not create a protectable liberty interest). Section 1983 is
addressed to remedying violations of federal law, not state law. Lugar v. Edmondson Oil Co.,
457 U.S. 922, 924 (1982); Laney v. Farley, 501 F.3d 577, 580-81 (6th Cir. 2007).
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Accordingly, Plaintiff’s claims based on violations of CPP 3.22 and CPP 14.7 will be
dismissed.
D. Claims Against Defendant Wilkerson
As to Defendant Wilkerson, Plaintiff alleges that he failed to properly train PREA
coordinators. He alleges that Defendant Wilkerson trained “investigators at the local level to not
follow the program requirements to create the illusion that there are fewer Staff on Inmate PREA
accounts than there actually are in reality.” As to this Defendant, Plaintiff also alleges that he
improperly denied Plaintiff’s request for retaliation monitoring based on Plaintiff’s concern that
relatives of Defendant Napier work in the prison and may retaliate against him.
As previously discussed, the PREA “does not create a private cause of action which can
be brought by an individual plaintiff.” Sublett v. Henson, 2017 WL 1660126, at *5. Also, as
previously discussed, failure of prison officials to follow institutional procedures or policies does
not give rise to a constitutional claim. Sandin v. Conner, 515 U.S. at 481-82; Smith v. City of
Salem, Ohio, 378 F.3d at 578 (“[S]tate law, by itself, cannot be the basis for a federal
constitutional violation.”). Thus, Defendant Wilkerson’s alleged failure to properly train
investigators regarding the PREA and the institution’s policies and his alleged denial of the
requested retaliation monitoring would also not give rise to a constitutional claim.
Accordingly, the claims against Defendant Wilkerson will be dismissed.
E. Retaliation Claims
Retaliation based upon a prisoner’s exercise of his or her 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, a 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
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ordinary firmness from engaging in that conduct; and (3) “there is a causal connection between
elements one and two-that is, the adverse action was motivated, at least in part, by the plaintiff’s
protected conduct.” Id.
Plaintiff states that he was retaliated against by Defendants Napier and Wagiel for
reporting the inappropriate relationship Defendant Napier was having with another inmate. It
appears that Plaintiff states that it was filed as a PREA report but later filed as a grievance
regarding failure to comply with Corrections Policies and Procedures. The filing of a nonfrivolous grievance is protected conduct. Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000).
For purposes of initial screening, the Court also will assume that reporting the inappropriate
conduct of Defendant Napier and thereby initiating a PREA investigation was protected conduct
for purposes of a First Amendment retaliation claim. See Dickey v. Rapier, No. 3:16-CV-P712TBR, 2017 WL 1424803, at *4 (W.D. Ky. Apr. 20, 2017) (where the Court assumed for
purposes of initial screening that plaintiff was engaged in protected conduct in reporting and
initiating a PREA investigation).
The Court must next determine if the alleged adverse action taken against Plaintiff would
deter a person of ordinary firmness from engaging in the conduct. Not every action is
constitutionally cognizable. Ingraham v. Wright, 430 U.S. 651, 674 (1977); see also Thaddeus-X
v. Blatter, 175 F.3d at 396 (“It is not necessarily true, however, that ever action, no matter how
small, is constitutionally cognizable.”). “There is, of course a de minimis level of imposition
with which the Constitution is not concerned.” Ingraham v. Wright, 430 U.S. at 674. The
adverse action necessary to state a constitutional violation must be such that it would “‘deter a
person of ordinary firmness’ from the exercise of the right at stake.” Thaddeus-X v. Blatter,
175 F.3d at 396 (quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982)). This standard is an
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objective inquiry which is flexible enough to accommodate the various circumstances in which
retaliation claims arise and capable of screening the most trivial of actions. Id. at 398.
Plaintiff alleges that Defendant Napier called him offensive names, made fun of him for
being a homosexual, yelled at him, and was disrespectful to Plaintiff on a daily basis. He also
alleges that Defendant Wagiel made comments and slurs concerning homosexuals and was
disrespectful toward him. As alleged, these comments and slurs are inappropriate and profane.
Yet, the law is clear that verbal harassment and minor threats are not adverse actions that would
deter a person of ordinary firmness or rise to the level of a constitutional violation. See Smith v.
Craven, 61 F. App’x 159, 162 (6th Cir. 2003) (failing to find that verbal harassment and minor
threats were adverse actions that could deter a person of ordinary firmness from engaging in
protected conduct); Carney v. Craven, 40 F. App’x 48, 50 (6th Cir. 2002) (failing to find that
verbal harassment and minor threats were adverse actions that could deter a person of ordinary
firmness from engaging in protected conduct); Thaddeus-X v. Blatter, 175 F.3d at 398 (stating
that “certain threats or deprivations are so de minimis that they do not rise to the level of being
constitutional violations . . .”); see also Zander v. McGinnis, No. 97-1484, 1998 WL 384625,
at *2 (6th Cir. June 19, 1998) (holding verbal abuse of mouthing “pet names” at prisoner for ten
months failed to rise to the level of a constitutional violation); Murray v. United States Bureau of
Prisons, No. 95-5204, 1997 WL 34677, at *3 (6th Cir. Jan. 28, 1997) (per curiam) (holding that
verbal abuse in the form of offensive remarks regarding a transsexual prisoner’s bodily
appearance, transsexualism, and presumed sexual orientation cannot state an Eighth Amendment
claim); Searcy v. Gardner, Civil No. 3:07-0361, 2008 WL 400424, at *4 (M.D. Tenn. Feb. 11,
2008) (“A claim under 42 U.S.C. § 1983 cannot be based on mere threats, abusive language,
racial slurs, or verbal harassment by prison officials.”).
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Thus, the retaliation claims against Defendants Napier and Wagiel based on verbal
harassment and comments will be dismissed.
Plaintiff also alleges that Defendant Napier filed false disciplinary reports against him
attempting to have him placed in segregation and having his movement restricted. He alleges
that Defendant Wagiel filed a false disciplinary report against him. According to Plaintiff, these
disciplinary charges were dismissed. Despite the dismissal of the disciplinary charges, the Court
concludes that Plaintiff has sufficiently alleged an adverse action. See Brown v. Crowley,
312 F.3d 782, 789 (6th Cir. 2002) ( “Although Brown was already in administrative segregation
and a hearing officer ultimately found him not guilty, the issuance of the major misconduct
charge subjected him to the risk of significant sanctions . . . . A reasonable jury could conclude
that being subjected to the risk of such severe sanctions for raising a legitimate complaint ‘would
deter a person of ordinary firmness from continuing to engage in that [protected] conduct.’”)
(citations omitted).
Upon consideration, the Court will allow the retaliation claims against Defendants Napier
and Wagiel regarding the filing of false disciplinary charges against Plaintiff to proceed.
F. Legal Mail Claim
Plaintiff alleges that Defendant Wagiel opened a piece of incoming legal mail in front of
him and made him sign for it, but when she saw Defendant Napier’s name on the document, she
refused to give it to him until the following day. Plaintiff contends that this was because
Defendant Wagiel was friends with Defendant Napier and she wanted to read the document. The
Sixth Circuit has held that opening/reading inmates’ mail in an arbitrary or capricious fashion
may violate inmates’ First Amendment rights. Parrish v. Johnson, 800 F.2d 600, 604 (6th Cir.
1986) (finding that “a capricious interference with a prisoner’s incoming mail based upon a
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guard’s personal prejudices violates the First Amendment”); see also Reneer v. Sewell,
975 F.2d 258, 259-60 (6th Cir. 1992) (applying holding of Parrish to partially reverse district
court’s order granting summary judgment and stating that “if the mail was actually read, and this
action was motivated by retaliation as plaintiff alleges, such behavior by prison officials might
constitute the type of arbitrary action proscribed in Parrish, 800 F.2d at 604”).
Upon consideration, the Court will allow Plaintiff’s legal mail claim to proceed against
Defendant Wagiel.
IV. CONCLUSION AND ORDER
For the reasons set forth more fully above, and the Court being otherwise sufficiently
advised, IT IS ORDERED as follows:
(1) That the claims against Defendant Ballard are DISMISSED pursuant to 28 U.S.C.
§ 1915A(b)(1) for failure to state a claim upon which relief may be granted;
(2) There being no remaining claims against him, Defendant Ballard is DISMISSED
from this action;
(3) That the PREA claims are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1) for
failure to state a claim upon which relief may be granted;
(4) That the claims based on violations of Corrections Policies and Procedures are
DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief
may be granted;
(5) That the claims against Defendant Wilkerson are DISMISSED pursuant to 28 U.S.C.
§ 1915A(b)(1) ) for failure to state a claim upon which relief may be granted;
(6) There being no remaining claims against him, Defendant Wilkerson is
DISMISSED from this action; and
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(7) That the retaliation claims against Defendants Napier and Wagiel based on verbal
harassment and comments are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1) for failure to
state a claim upon which relief may be granted.
The Clerk of Court is DIRECTED to terminate Defendants Ballard and Wilkerson
as Defendants from the docket of this action.
IT IS FURTHER ORDERED that:
(1) The retaliation claims against Defendants Napier and Wagiel based on their filing
false disciplinary charges against Plaintiff will proceed; and
(2) The legal mail claim against Defendant Wagiel will proceed.
The Court passes no judgment on the merits or ultimate outcome of this case. The Court
will enter a separate Scheduling Order and Order Directing Service.
Date:
May 24, 2017
David J. Hale, Judge
United States District Court
cc:
Plaintiff, pro se
Defendants
General Counsel, Justice & Public Safety Cabinet, Office of Legal Counsel
4415.003
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