Mallory v. Smith et al

Filing 6

MEMORANDUM OPINION AND ORDER signed by Senior Judge Charles R. Simpson, III on 8/11/2017. Official-capacity claims against all Defendants for monetary damages are DISMISSED. Individual-capacity claims relating to access to legal materials, equal pr otection, threats by Defendant Schank, and mail tampering are DISMISSED. Court is DIRECTED to terminate Captain Joshua Schank as a party. The Court will allow Plaintiff's claims regarding the conditions of confinement and the due process claim related to being placed in CPTU to continue against Defendants Smith, Valentine, Coyne and Ballard. cc: Plaintiff, pro se; Defendants; General Counsel J&PSC (RLK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
JAMES CALVIN MALLORY
a.k.a. Saddiq Al-Rahman Muhammad
v.

PLAINTIFF
CIVIL ACTION NO. 3:17-CV-P253-CRS

WARDEN AARON SMITH et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Plaintiff, James Calvin Mallory, a.k.a. Saddiq Al-Rahman Muhammad, 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 an inmate housed at the Kentucky State Reformatory in the Corrections
Psychiatric Treatment Unit (CPTU).1 He names as Defendants Warden Aaron Smith, Deputy
Warden Anna Valentine, Deputy Warden James Coyne, Captain Joshua Schank, and
Commissioner Rodney Ballard. He sues each Defendant in his or her individual and official
capacities.
Plaintiff states that Defendants Smith, Valentine, Coyne, and Ballard placed him in the
CPTU on April 5, 2017. He states that in the CPTU he has no access to his legal work and that
he has no sheets, socks, family photos, toothbrush, toothpaste, or comb “in retaliation of racial
profiling.” He also states that his cell is dirty, with feces on the wall, as well as blood on the wall
and mattress.

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Plaintiff states that he is a convicted inmate on the § 1983 complaint form, but it appears that he is also a pretrial
detainee because he references pending charges against him.

Plaintiff alleges that Defendant Schank came to his cell and threatened Plaintiff with
“high power O.C. spray if I didn’t stop asking for my property legal.” According to Plaintiff,
Defendant Schank also told him that he would “form a move team to come in my cell in beat me
to death.” He also alleges that on April 17, Defendant Schank called him a “no good ratting
nigger and if he had his way they would beat me shitless.”
Plaintiff states that on April 5, 2017, all Defendants forced him to shower in a shower
with various bodily fluids in it and that this practice has continued three times per week.
Plaintiff alleges that there is no reason that he should be housed in a psychiatric ward
around mentally ill patients who yell and bang on their doors “24/7.”
Plaintiff further alleges that all Defendants have tampered with his incoming and
outgoing mail.
Plaintiff requests compensatory, punitive, and injunctive relief.
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
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

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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
“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 are employees 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). Additionally, the Eleventh Amendment acts as a
bar to claims for monetary damages against these state-employee Defendants in their official
capacities. Kentucky v. Graham, 473 U.S. at 169. Thus, Plaintiff’s claims against Defendants
for money damages in their official capacities fail to allege a cognizable claim under § 1983 and
will be dismissed.
The only injunctive relief Plaintiff seeks is release from CPTU. Such a claim is
prospective and therefore is not barred by the Eleventh Amendment. Ex parte Young, 209 U.S.
123, 159-60 (1908); Doe v. Wigginton, 21 F.3d 733, 737 (6th Cir. 1994). Under Ex parte Young,
Plaintiff may sue a state official in his or her official capacity for injunctive relief. McKay v.
Thompson, 226 F.3d 752, 757 (6th Cir. 2000) “[T]he Eleventh Amendment permits prospective

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injunctive relief, but not damage awards, for suits against individuals in their official capacities
under 42 U.S.C. § 1983.”).
Because, as discussed below, the Court will allow Plaintiff’s claims related to the
conditions of confinement in the CPTU and for having been placed there to continue, the Court
will allow the official-capacity for injunctive relief against Defendants Smith, Valentine, Coyne
and Ballard to go forward.
B. Individual-capacity claims
1. Denial of access to legal materials
Plaintiff alleges that, in the CPTU, he has no access to his legal work.
Prison officials may violate a prisoner’s First Amendment right of access to the courts by
confiscating and/or destroying a prisoner’s legal materials or papers. See Simmons v. Dickhaut,
804 F.2d 182, 183-84 (1st Cir. 1986) (per curiam) (collecting cases). In order to state a viable
claim for interference with his access to the courts under the First Amendment, Plaintiff must
show “actual injury.” Lewis v. Casey, 518 U.S. 343, 349 (1996); see also Talley-Bey v. Knebl,
168 F.3d 884, 886 (6th Cir. 1999). In other words, a plaintiff must plead and demonstrate that
lack of legal materials have hindered, or are presently hindering, his efforts to pursue a
nonfrivolous legal claim. Lewis, 518 U.S. at 351-53; see also Pilgrim v. Littlefield, 92 F.3d 413,
416 (6th Cir. 1996).
An inmate must make a specific claim in the complaint that he was adversely affected or
that the litigation was prejudiced. Harbin-Bey v. Rutter, 420 F.3d 571, 578 (6th Cir. 2005).
“Examples of actual prejudice to pending or contemplated litigation include having a case
dismissed, being unable to file a complaint, and missing a court-imposed deadline.” Id. (citing

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Jackson v. Gill, 92 F. App’x 171, 173 (6th Cir. 2004)). Here, Plaintiff makes no such claim.
Therefore, this claim will be dismissed.
2. Equal protection claim
Plaintiff alleges that in the CPTU he has no access to his legal work and he has no sheets,
socks, family photos, toothbrush, toothpaste, or comb “in retaliation of racial profiling.”
Plaintiff’s complaint does not explain what race he is, although given the racial epithet he
alleges was used against him, the Court will assume that he is African American. However,
Plaintiff’s wholly conclusory assertion that he suffered “retaliation” because of “racial profiling”
cannot support an equal-protection claim. Harden-Bey v. Rutter, 524 F.3d 789, 796 (6th Cir.
2008) (affirming dismissal of prisoner’s equal-protection claim which said “only that his
placement in administrative segregation was ‘created on Religious Bias.’”). This claim will be
dismissed for failure to state a claim.
3. Threats from Defendant Schank
Plaintiff alleges that Defendant Schank threatened Plaintiff with “high power O.C. spray
if I didn’t stop asking for my property legal” and with “a move team” to beat him to death. He
also alleges that, on one occasion, Defendant Schank called him a “no good ratting nigger and if
he had his way they would beat me shitless.”
Harassing or degrading language by a prison official, while unprofessional and
despicable, does not amount to a constitutional violation. Johnson v. Unknown Dellatifa, 357
F.3d 539, 546 (6th Cir. 2004); Violett v. Reynolds, 76 F. App’x 24, 27 (6th Cir. 2003) (“[V]erbal
abuse and harassment do not constitute punishment that would support an Eighth Amendment
claim.”); Ivey v. Wilson, 832 F.2d 950, 954-55 (6th Cir. 1987) (per curiam); see also McDonald
v. Sullivan Cty. Jail, No. 2:08-CV-280, 2010 WL 2010834, at *3 (E.D. Tenn. May 18, 2010)

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(finding prison guard’s threat to kill plaintiff “may be petty, oppressive, and unprofessional, [but]
it is not unconstitutional”); Miles v. Tchrozynski, No. 2:09-CV-11192, 2009 WL 960510, at *1
(E.D. Mich. Apr. 7, 2009) (“Even verbal threats by a corrections officer to assault an inmate do
not violate an inmate’s Eighth Amendment rights.”); Searcy v. Gardner, 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.”).
The claims against Defendant Schank in his individual capacity will be dismissed for
failure to state a claim upon which relief may be granted. Because the only injunctive relief
Plaintiff seeks is release from CPTU, and because Plaintiff does not allege that Defendant
Schank was responsible for his placement there, Defendant Schank will be dismissed from the
lawsuit.
4. Tampering with mail
Plaintiff alleges that “all Defendants are tampering with all my outgoing [and] incoming
mail.”
Prisoners have a First Amendment right to communicate with the outside world by
sending and receiving mail, although it is subject to prison policies that are reasonably related to
legitimate penological interests. Thornburg v. Abbott, 490 U.S. 401, 407 (1989); Turner v.
Safely, 482 U.S. 78, 85, 89 (1987). Plaintiff, however, does not specifically allege how any of
the named Defendants were involved in tampering with his mail, which is a basic pleading
requirement. Harris v. Scott, No. 1:15-CV-550, 2015 WL 7722030, at *4 (W.D. Mich. Nov. 30,
2015).
Moreover, Plaintiff does not allege that he has not received any of his mail or that he has
been prevented from mailing any correspondence. His conclusory allegations of unconstitutional

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conduct without specific factual allegations fail to state a claim under § 1983. See Ashroft v.
Iqbal, 556 U.S. 662, 678-69 (2009); Twombly, 550 U.S. at 555. The claim related to mailtampering will be dismissed.
5. Conditions of confinement
Plaintiff alleges that, in the CPTU, he has no sheets, socks, family photos, toothbrush,
toothpaste, or comb; that the cell is dirty and contaminated with feces and blood; and that he is
forced to shower in a shower with various bodily fluids in it. He alleges that Defendants Smith,
Valentine, Coyne, and Ballard are responsible for his placement in CPTU.
The Court notes that according to the complaint, Plaintiff was placed in CPTU on
April 5, 2017, and he signed his complaint on April 19, 2017, i.e., two weeks later.
“Due process requires that a pretrial detainee not be punished. A sentenced inmate, on
the other hand, may be punished, although that punishment may not be ‘cruel and unusual’ under
the Eighth Amendment.” Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). “Although the Eighth
Amendment’s protections apply specifically to post-conviction inmates, the Due Process Clause
of the Fourteenth Amendment operates to guarantee those same protections to pretrial detainees
as well.” Miller v. Calhoun Cty., 408 F.3d 803, 812 (6th Cir. 2005) (internal citation omitted).
Thus, it matters not for purposes of initial screening in this case that the question of whether
Plaintiff is a prisoner or a pretrial detainee is unclear because the Sixth Circuit applies the Eighth
Amendment standard to pretrial detainees. Norris v. Jackson, No. 1:12CV-P167-M, 2012 WL
4857832, at *3 (W.D. Ky. Oct. 11, 2012) (citing Spencer v. Bouchard, 449 F.3d 721, 727 (6th
Cir. 2006)); Roberts v. City of Troy, 773 F.2d 720, 723 (6th Cir. 1985) (“[T]he eighth
amendment rights of prisoners are analogized to those of detainees under the fourteenth

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amendment, to avoid the anomaly of extending greater constitutional protection to a convict than
to one awaiting trial.”).
“Extreme deprivations are required to make out a conditions-of-confinement claim”
under the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 9 (1992). “Not every
unpleasant experience a prisoner might endure while incarcerated constitutes cruel and unusual
punishment within the meaning of the Eighth Amendment.” Ivey v. Wilson, 832 F.2d at 955.
The length of confinement is important in determining whether conditions of confinement meet
constitutional standards. Hutto v. Finney, 437 U.S. 678, 686-87 (1978) (“[T]he length of
confinement cannot be ignored in deciding whether the confinement meets constitutional
standards. A filthy, overcrowded cell and a diet of “grue” might be tolerable for a few days and
intolerably cruel for weeks or months.”); see also Ziegler v. Michigan, 59 F. App’x 622, 624 (6th
Cir. 2003) (holding that allegations of overcrowded cells and denials of daily showers and outof-cell exercise do not rise to constitutional magnitude where a prisoner is subjected to the
purportedly wrongful conditions for six days one year and ten days the next year); Metcalf v.
Veita, No. 97-1691, 1998 WL 476254, at *2 (6th Cir. Aug. 3, 1998) (holding that an eight-day
denial of showers, trash removal, cleaning, and laundry did not result in serious pain or offend
contemporary standards of decency under the Eighth Amendment); Whitnack v. Douglas Cty., 16
F.3d 954, 958 (8th Cir. 1994) (holding that deplorably filthy and patently offensive cell with
excrement and vomit not unconstitutional because conditions lasted only for 24 hours); Bass v.
Strode, 1:12CV-P182-R, 2012 WL 5834123, at *3-4 (W.D. Ky. Nov. 16, 2012) (finding that
isolation for 72 hours in which plaintiff was forced to eat and sleep on the floor without cleaning
supplies was not a constitutional violation); compare Braswell v. Corr. Corp. of Am., 419 F.
App’x 622, 627 (6th Cir. 2011) (finding an Eighth Amendment issue of fact in a § 1983 action

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where for nine months, the prisoner had been left in a filthy, disgustingly unsanitary cell where
mold grew in the toilet and the cell floor was littered with food trays); Vinning-El v. Long, 482
F.3d 923, 924 (7th Cir. 2007) (per curiam) (where “[t]he floor of the cell was covered with
water, the sink and toilet did not work, and the walls were smeared with blood and feces [and
prisoner plaintiff] was forced to remain in the cell without a mattress, sheets, toilet paper, towels,
shoes, soap, toothpaste, or any personal property, for six days” district court should not have
granted summary judgment in favor of defendants); Lee v. Birkett, No. 09-cv-10723, 2010 WL
1131485, at *5 (E.D. Mich. Feb. 18, 2010) (discussing the possibility that allegations that
prisoners were forced to use common razors and be exposed to other unsanitary conditions for
two months could meet the objective component of the deliberate-indifference standard).
Because Plaintiff has alleged that he had to live in unsanitary conditions for at least two
weeks, the Court will allow the conditions-of-confinement claim to proceed against Defendants
Smith, Valentine, Coyne, and Ballard in their individual capacities.
6. Being placed in CPTU
Plaintiff alleges that on April 5, 2017, Defendants Smith, Valentine, Coyne, and Ballard
“made decisions to illegally place [Plaintiff] in C.P.T.U. at K.S.R.” He alleges that there is no
reason that he should be housed in a psychiatric ward around mentally ill patients who yell and
bang on their doors “24/7.” It appears that Plaintiff may be alleging a procedural due process
claim regarding being placed involuntary in the psychiatric unit. See Vitek v. Jones, 445 U.S.
480, 494-96 (1980); see also Sandin v. Conner, 515 U.S. 472, 479 n.4 (1995) (reaffirming Vitek).
The Court will allow this claim to continue.

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III. CONCLUSION AND ORDER
For the foregoing reasons,
IT IS ORDERED that the official-capacity claims against all Defendants for monetary
damages are DISMSISED pursuant to 28 U.S.C. § 1915A(b)(2).
IT IS FURTHER ORDERED that the individual-capacity claims relating to access to
legal materials, equal protection, threats by Defendant Schank, and mail tampering are
DISMISSED for failure to state a claim pursuant to 28 U.S.C. § 1915A(b)(1).
The Clerk of Court is DIRECTED to terminate Captain Joshua Schank as a party to this
action.
The Court will allow Plaintiff’s claims regarding the conditions of confinement and the
due process claim related to being placed in CPTU to continue against Defendants Smith,
Valentine, Coyne and Ballard for injunctive relief in their official capacities and for monetary
relief in their individual capacities. In allowing these claims to continue, the Court expresses no
opinion on their ultimate merit. The Court will enter a separate Order Regarding Service and
Scheduling Order to govern the development of the remaining claims.
Date:

August 11, 2017

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Plaintiff, pro se
Defendants
General Counsel, Justice & Public Safety Cabinet, Office of Legal Counsel
4411.009

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