Odom v. Kelley et al

Filing 7

MEMORANDUM OPINION AND ORDER by Judge David J. Hale. Plaintiff's claims related to disciplinary proceedings and claims against Defendant Kelly in her official capacity are dismissed. Clerk to terminate Walter Wetzel, Deanna Hawkins and Aaron Smith as parties to this action. Separate Scheduling Order to be entered. cc: plaintiff pro se, GC - Justice & Pub Safety Cabinet Office Legal Cnsl (JAC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
GLENN D. ODOM, II,

Plaintiff,

v.

Civil Action No. 3:17-cv-P118-DJH

KIMBERLY KELLEY et al.,

Defendants.
* * * * *

MEMORANDUM OPINION AND ORDER
Plaintiff, Glenn D. Odom, II, 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.
I. SUMMARY OF CLAIMS
Plaintiff is a convicted inmate currently incarcerated at the Little Sandy Correctional
Complex. However, the allegations in his complaint concern his prior incarceration at the
Kentucky State Reformatory (KSR). He names as Defendants the following employees of KSR:
Sergeant Kimberly Kelley; Lieutenant Deanna Hawkins; Disciplinary Hearing Lieutenant Walter
Wetzel; and Warden Aaron Smith.
Plaintiff alleges that on January 30, 2016, Defendant Kelley sprayed him with Oleoresin
Capsicum (O.C.) spray when he dropped a cup of milk in his cell. He alleges that his eyes were
flushed with saline but he was not allowed to shower. He states that Defendant Kelley stripped
him of all of his clothing and put him in a “max. cell” with no mattress, clothing, or running
water. He alleges that he was “forced to be nude in front of female staff and nurses – as well as

[15] other inmates for several days.” He states that a disciplinary report was brought against him
stating that three employees were injured when they were hit by an unknown liquid (believed to
be semen and water). He alleges violations of his Eighth Amendment rights for being sprayed
with O.C. and for being left “naked for days permitting inmates and female staff to see,” as well
as violations of his Fourteenth Amendment due process rights and equal protection rights for
unlawful disciplinary proceedings.
Plaintiff attaches several documents as exhibits. Included is the disciplinary report form
regarding the incident in January 2016, in which Plaintiff was “found guilty of a category 7-01 –
physical action against an employee or non-Inmate.” That form noted that Plaintiff was assigned
to disciplinary segregation for 90 days and lost 180 days of good-time credit.
As relief, Plaintiff asks for: a declaration that the acts and omissions described in his
complaint violate his rights; compensatory and punitive damages against Defendant Kelley;
injunctive relief in the form of ordering Defendant Smith to allow inmates to shower after O.C.
contamination; and a dismissal of Plaintiff’s disciplinary conviction and report.
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 plaintiff

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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. Injunctive and declarative relief
Because Plaintiff has been transferred from KSR, his claims for injunctive and
declarative relief are moot. See Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996) (“[T]o the
extent Kensu seeks declaratory and injunctive relief his claims are now moot as he is no longer
confined to the institution that searched his mail.”).
Additionally, Plaintiff’s claims regarding the alleged unlawful disciplinary proceedings
would have to be dismissed even if Plaintiff was still housed at KSR. His allegations regarding
the disciplinary proceedings fail to state a claim for which relief may be granted because they are
not cognizable under Heck v. Humphrey, 512 U.S. 477 (1994). The Heck Court held:
in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,
a . . . plaintiff must prove that the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such a determination,
or called into question by a federal court’s issuance of a writ of
habeas corpus, 28 U.S.C. § 2254.
Id. at 486-87 (footnote omitted). The favorable-termination requirement of Heck applies to
prisoner allegations of due process violations in prison discipline hearings that result in the
deprivation of good-time credits. Edwards v. Balisok, 520 U.S. 641, 648 (1997). The Heck and

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Edwards bar applies no matter the relief sought. Wilkinson v. Dotson, 544 U.S. 74, 81-82
(2005).
It is clear that Plaintiff was found guilty after the disciplinary proceeding about which he
complains in the instant action. There is no evidence that Plaintiff’s disciplinary conviction has
been reversed on direct appeal, expunged by executive order, declared invalid by a tribunal, or
called into question by a federal court’s issuance of a writ of habeas corpus. Thus, his claims
related to the disciplinary proceedings would have to be dismissed for failure to state a claim
upon which relief may be granted even if he was still housed at KSR or had asked for monetary
relief related to the disciplinary proceedings.
B. Monetary relief
Because the requests for declarative and injunctive relief have been dismissed, the only
claims left are the ones against Defendant Kelley for compensatory and punitive damages. He
sues Defendant Kelley in both her official and individual capacities.
1. Official-capacity claims
“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 Defendant Kelley is an employee of the Commonwealth of Kentucky, the claims
brought against her in her official capacity 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 a state officer or employee in her official capacity, he fails to allege a cognizable claim

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under § 1983. Additionally, the Eleventh Amendment acts as a bar to claims for monetary
damages against Defendant in her official capacities. Kentucky v. Graham, 473 U.S. at 169.
Therefore, Plaintiff’s official-capacity claims against Defendant Kelley will be dismissed for
failure to state a claim upon which relief can be granted and for seeking monetary relief from a
defendant who is immune from such relief.
2. Individual-capacity claims
The Court will allow the individual-capacity claims against Defendant Kelley under the
Eighth Amendment regarding the use of O.C. spray to go forward.
The Court also will allow the Plaintiff’s Eighth Amendment claim that he was kept naked
for fifteen days in view of female staff and nurses and others to go forward. See Everson v.
Mich. Dep’t of Corr., 391 F.3d 737, 757 n.26 (6th Cir. 2004) (“[U]nder certain circumstances,
the invasion of an inmate’s bodily ‘privacy’ can violate the inmate’s Eighth Amendment
rights.”); Kent v. Johnson, 821 F.2d 1220, 1227-28 (6th Cir. 1987) (holding that inmate had
stated a claim under the Eighth Amendment by alleging that “female prison guards have allowed
themselves unrestricted views of his naked body in the shower, at close range and for extended
periods of time, to retaliate against, punish and harass him for asserting his right to privacy.”);
Semelbauer v. Muskegon Cty., No. 1:14-CV-1245, 2015 WL 9906265, at *4 (W.D. Mich.
Sept. 11, 2015) (noting that in Kent the Sixth Circuit analyzed an inmate’s cross-gender viewing
claim under both the Fourth and the Eighth Amendments).
Additionally, applying a liberal construction to Plaintiff’s complaint as this Court is
required to do, the Court also will allow Plaintiff’s claim related to being left naked in a cell for
fifteen days in view of female staff and nurses as well as other inmates to go forward under the
Fourth Amendment. The Sixth Circuit has recognized “that a convicted prisoner maintains some

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[Fourth Amendment] reasonable expectations of privacy while in prison, particularly where
those claims are related to forced exposure to strangers of the opposite sex, even though those
privacy rights may be less than those enjoyed by non-prisoners.” Sumpter-Bey v. Weatherford,
No. 3:10-1021, 2012 WL 1078919, at *5 (M.D. Tenn. Mar. 30, 2012) (quoting Cornwell v.
Dahlberg, 963 F.2d 912, 916 (6th Cir. 1992)); see also Hite v. Embry, No. CIV.A 4:09CV-P73M, 2010 WL 989158, at *4 (W.D. Ky. Mar. 12, 2010) (allowing a claim based on allegations that
Defendant allowed female guards to view prisoner on surveillance video while he was naked and
using the toilet to go forward under the Fourth Amendment even though Plaintiff did not
specifically allege a Fourth Amendment violation).
III. CONCLUSION AND ORDER
For the foregoing reasons,
IT IS ORDERED that Plaintiff’s claims related to the disciplinary proceedings and the
claims against Defendant Kelley in her official capacity are DISMISSED 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 pursuant to 28 U.S.C. § 1915A(b)(1) and (2).
The Clerk of Court is DIRECTED to terminate Deanna Hawkins, Walter Wetzel, and
Aaron Smith as parties to this action.
The Court will enter a separate Scheduling Order to govern the development of the
remaining claims. In allowing those claims to continue, the Court expresses no opinion on their
ultimate merit.
Date:

July 14, 2017

David J. Hale, Judge
Court

cc:

Plaintiff, pro se
United States District
Defendants
General Counsel, Justice & Public Safety Cabinet, Office of Legal Counsel
4415.009

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