Martinez v. Bolton et al

Filing 10

MEMORANDUM OPINION AND ORDER by Judge David J. Hale on 7/13/2017. The claims against Defendants Mark Bolton and Nicholas Espinoza are DISMISSED and the Clerk of Court is DIRECTED to terminate these individuals as parties to this action. Plainti ff shall have 90 days in which to move to amend his complaint or show cause for his failure to do so. Plaintiff should complete a separate summons for each newly named Defendant within this same time period. Clerk of Court is DIRECTED to send Pla intiff a blank 1983 form and four summons forms with the words "second amended" and this case number written upon them, and also to send Plaintiff a Pro Se Prisoner Handbook. cc: Plaintiff, pro se; Defendant Bolton; Jefferson County Attorney (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
MAURICIO MARTINEZ,

Plaintiff,

v.

Civil Action No. 3:17-cv-P265-DJH

MARK BOLTON et al.,

Defendants.
* * * * *
MEMORANDUM OPINION AND ORDER

Pro se Plaintiff Mauricio Martinez, a pretrial detainee at Louisville Metro Department of
Corrections (LMDC), initiated this 42 U.S.C. § 1983 action by filing a complaint (DN 1). Upon
review, the Court directed Plaintiff to file a more specific and detailed amended complaint
(DN 6), which Plaintiff has now filed (DN 7). The complaint and amended complaint are now
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 reasons set forth below, the action will be dismissed in part, but Plaintiff will be allowed
to amend his complaint.
I. SUMMARY OF COMPLAINTS
Based upon a combined reading of Plaintiff’s complaint and amended complaint, it
appears that Plaintiff is suing Mark Bolton, in both his individual and official capacities;1
“LMDC Security;” and fellow inmate Nicholas Espinoza.

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The Court takes judicial notice of the fact that Defendant Mark Bolton is the Director of Louisville Metro
Department of Corrections (LMDC).

In his amended complaint, Plaintiff writes as follows in the section titled Statement of
Claim(s):
I am in protective custody on H6-S1-#12 this morning 1-20-17. I was asleep in
my bed and was attacked by another inmate outside of P.C. fro East walk from
admis. Seg. 2 Separate Gates were left unlocked to allow me to be assaulted.
Nicholas Espinoza came through both gates and into my cell and attacked me,
punching me multiple times on my mouth and eye. I have a loose tooth and a blur
eye. I am suppose to be protected while in P.C. but I was assaulted while
asleep by someone outside of P.C. because of a lack of proper protection
from LMDC personnel. I feel my life is in jeopardy while here in LMDC I’m
still having dreams of being attack by inmates that is housed around me. All this
whole incident was on DVR. Around the whole South 1 of H6 every minute was
recorded on that date which was ones again 1-20-17 time was 7:45/9:45 between
that time. I feel for my life and safety in the LMDC jail. I been tryin get the
names of the C.O.’s who was working that day they tell me they can’t.
(emphasis added). In his complaint, Plaintiff also writes: “This was a set up on behalf
of LMDC which is ran by Mark Bolton.” (emphasis added).
As relief, Plaintiff seeks compensatory and punitive damages.
II. LEGAL STANDARD
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 604. 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)).

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“[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] pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89
(2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, while liberal, this
standard of review does require more than the bare assertion of legal conclusions. See 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
Section 1983 creates no substantive rights but merely provides remedies for deprivations
of rights established elsewhere. Flint ex rel. Flint v. Ky. Dep’t of Corr., 270 F.3d 340, 351 (6th
Cir. 2001). Two elements are required to state a claim under § 1983. Gomez v. Toledo, 446 U.S.
635, 640 (1980). “A plaintiff must allege the violation of a right secured by the Constitution and
laws of the United States, and must show that the alleged deprivation was committed by a person
acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). “Absent either element,
a § 1983 claim will not lie.” Christy v. Randlett, 932 F.2d 502, 504 (6th Cir. 1991).

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A. Mark Bolton
1. Official-Capacity Claim
Plaintiff sues LMDC Director Mark Bolton in both his official and individual 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)). Thus, Plaintiff’s
official-capacity claim against Defendant Bolton is actually against the Louisville Metro
Government. See Lambert v. Hartman, 517 F.3d 433, 440 (6th Cir. 2008) (stating that civil
rights suit against county clerk of courts in his official capacity was equivalent of suing clerk’s
employer, the county).
When a § 1983 claim is made against a municipality such as the Louisville Metro
Government, this Court must analyze two distinct issues: 1) whether 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). “[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, 436 U.S. at 691;
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 original). To demonstrate municipal liability, a plaintiff
“must (1) identify the municipal policy or custom, (2) connect the policy to the municipality, and

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(3) show that his particular injury was incurred due to execution of that policy.” Alkire v. Irving,
330 F.3d 802, 815 (6th Cir. 2003) (citing Garner v. Memphis Police Dep't, 8 F.3d 358, 364 (6th
Cir. 1993)).
In the instant case, Plaintiff has not alleged that any Louisville Metro Government policy,
custom, or practice caused the deprivation of his rights. As such, the Court will dismiss
Plaintiff’s official-capacity claim against Defendant Bolton for failure to state a claim upon
which relief may be granted.
2. Individual-Capacity Claim
Plaintiff seems to sue Defendant Bolton in his individual capacity for his role as director
of LMDC. However, “[r]espondeat superior is not a proper basis for liability under § 1983.”
McQueen v. Beecher Cmty. Sch., 433 F.3d 460, 470 (6th Cir. 2006). “Nor can the liability of
supervisors be based solely on the right to control employees, or simple awareness of employees’
misconduct.” Id. (internal quotations omitted). Indeed, “[i]n order for supervisory liability to
attach, a plaintiff must prove that the official ‘did more than play a passive role in the alleged
violation or showed mere tacit approval of the goings on.’” Loy v. Sexton, 132 F. App’x 624,
626 (6th Cir. 2005) (quoting Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999)). In other
words, “liability under §1983 must be based on active unconstitutional behavior.” Shehee v.
Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). “A supervisor’s awareness of allegations of
unconstitutional conduct and failure to act are not a basis for liability.” McCurtis v. Wood, 76 F.
App’x 632, 634 (6th Cir. 2003).
Thus, because Plaintiff has failed to allege Defendant Bolton engaged in any active
unconstitutional conduct, the individual-capacity claim against him will also be dismissed for
failure to state a claim upon which relief may be granted.

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B. Nicholas Espinoza
Plaintiff also names Nicholas Espinoza, the inmate who attacked him, as a Defendant in
this § 1983 action. With regard to private individuals, the Sixth Circuit has held as follows:
To state a claim under § 1983, a plaintiff must show that he was deprived of a
right secured by the Constitution or laws of the United States and that the
deprivation was at the hands of a person acting under the color of state
law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S. Ct. 1729, 56 L. Ed. 2d
185 (1978); Am. Postal Workers Union v. City of Memphis, 361 F.3d 898, 905, 86
Fed. Appx. 137 (6th Cir. 2004). Section § 1983 is not a vehicle for proceeding
against a private party “‘no matter how discriminatory or wrongful’ the party’s
conduct.’” Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003) (quoting Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S. Ct. 977, 143 L. Ed. 2d 130
(1999)). However, private persons, by their actions, can become state actors for
purposes of liability under § 1983. Adickes v. S.H. Kress & Co., 398 U.S. 144,
152, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). That is, private persons may be
held liable under § 1983 if they willfully participate in joint activity with state
agents. Am. Postal Workers Union, 361 F.3d at 905 (citing, inter alia, Dennis v.
Sparks, 449 U.S. 24, 27-28, 101 S. Ct. 183, 66 L. Ed. 2d 185 (1980)).
Cramer v. City of Detroit, 267 F. App’x 425, 427 (6th Cir. 2008).
Here, neither Plaintiff’s complaint nor amended complaint contains allegations of joint
activity or conspiracy between Defendant Espinoza and any state actor. For this reason, the
Court will dismiss Plaintiff’s § 1983 claim against Defendant Espinoza for failure to state a
claim upon which relief may be granted. See also Simonton v. Tennis, 437 F. App’x 60, 62 (3d
Cir. 2011) (dismissing claim against inmate who attacked the plaintiff because no evidence that
inmate had conspired with state actors); Williams v. Anderson, No. CIV S-11-0431 JAM CMK P,
2011 U.S. Dist. LEXIS 43790, at *3 (E.D. Cal. Apr. 22, 2011) (an inmate is not a “state actor”
for purposes of § 1983 unless he has conspired with state officials to deprive a plaintiff of his
constitutional rights).

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C. LMDC Security
Finally, the Court considers Plaintiff’s claim against “LMDC Security.” The Court first
notes that “LMDC Security” is not actually an entity which can be sued under § 1983. However,
the Court construes Plaintiff’s claim against “LMDC Security” as claims against the unknown
LMDC officers who allegedly failed to protect him from being attacked by Defendant Espinoza.
In his amended complaint, Plaintiff specifically states that he has attempted to learn the names of
these officers, but that no one will provide him with their names. Upon carefully reviewing and
broadly construing Plaintiff’s complaint and amended complaint, the Court will give Plaintiff the
opportunity to identify these unknown LMDC correctional officers through discovery and to
name them as Defendants in this action.
IV. CONCLUSION AND ORDER
For the foregoing reasons, IT IS HEREBY ORDERED as follows:
1) The claims against Defendants Mark Bolton and Nicholas Espinoza 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 these individuals as
parties to this action.
2) Plaintiff shall have 90 days in which to move to amend his complaint to name the
individual LMDC correctional officers who allegedly failed to protect him as Defendants
and to explain how each was personally involved in the failure to protect him or show cause
for his failure to do so.2 Plaintiff should complete a separate summons for each newly
named Defendant within this same time period.

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“If a defendant is not served within 90 days after the complaint is filed, the court - on motion or on its
own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order
that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate period.” Fed. R. Civ. P. 4(m).

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3) The Clerk of Court is DIRECTED to send Plaintiff a blank § 1983 form and four
summons forms with the words “second amended” and this case number written upon
them, and also to send Plaintiff a Pro Se Prisoner Handbook.
5) Plaintiff’s failure to comply with this Order will result in DISMISSAL of this
action pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief
may be granted.
Date:

cc:

July 13, 2017

Plaintiff, pro se
Defendant Bolton
Jefferson County Attorney
4415.011

David J. Hale, Judge
United States District Court

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