Violett v. Dowden et al

Filing 12

MEMORANDUM OPINION AND ORDER signed by Senior Judge Thomas B. Russell on 11/28/17; granting 7 Motion to Amend/Correct granting 11 Motion to Amend Complaint and Add Additional Defendants: The Clerk of Court is DIRECTED to add LPN Domalewski as a Defendant to the docket of this case. Within 30 days from the entry date of this Memorandum Opinion and Order, Plaintiff may file an amended complaint as to the following claims: The claim brought under Title II of the ADA; The retaliation claim re garding being placed in the Restricted Housing Unit; and the Eighth Amendment claim regarding Plaintiff slipping and falling because he was denied the use of his walker and assistance. The Clerk of Court is DIRECTED to place the instant case number and the word Amended on a § 1983 complaint form and send it, along with two summons forms, to Plaintiff for his completion. cc: Plaintiff(pro se), Defendants, General Counsel (DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
DONALD R. VIOLETT
v.

PLAINTIFF
CIVIL ACTION NO. 3:17CV-P531-TBR

CASEY DOWDEN et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Plaintiff Donald R. Violett,1 a prisoner presently incarcerated at Kentucky State
Reformatory (KSR), filed a pro se complaint (DN 1) alleging discrimination and constitutional
violations. Subsequent to the filing of the complaint, Plaintiff filed a “Motion to Amend
Complaint and Add Additional Defendants” (DN 7). In this motion, he seeks to add CorrectCare Solution (CCS) as a new Defendant to this action, and he asserts claims of retaliation,
discrimination, and violations of the Eighth Amendment. Thereafter, Plaintiff filed a “Motion to
Name Specific Defendant And Submit Proof Of Retaliation” (DN 11). Therein, Plaintiff seeks to
add LPN Domalewski as a Defendant and asserts a claim of retaliation and a claim of deliberate
indifference as to Plaintiff’s safety against this Defendant. Upon consideration, IT IS
ORDERED that Plaintiff’s motions to amend (DNs 7 & 11) are GRANTED.
The complaint and amendments are before the Court for initial review 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 that follow, the Court will
1

In the caption of the complaint, “Donald R. Violett, and Others Similar Situation” are listed as
Plaintiffs. The Court considers Donald R. Violett as the only Plaintiff as he is unable to
represent anyone other than himself. See Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir.
2002) (“Although 28 U.S.C. § 1654 provides that ‘[i]n all courts of the United States the parties
may plead and conduct their own cases personally or by counsel,’ that statute does not permit
plaintiffs to appear pro se where interests other than their own are at stake.”); Gonzales v. Wyatt,
157 F.3d 1016, 1021 (5th Cir. 1998) (“[I]n federal court a party can represent himself or be
represented by an attorney, but cannot be represented by a nonlawyer.”).

allow the following claims to proceed: (1) the claim against Defendant Turner in her individual
capacity alleging that she retaliated against Plaintiff by filing a disciplinary report; (2) the claim
against Defendants Dowden, Turner, Hall, and Valentine in their individual capacities alleging
that they retaliated against Plaintiff by barring him from the law library and the use of computers
to draft legal documents; (3) the claim against Defendant Domalewski in his individual capacity
for retaliation by filing a false report; (4) the equal protection claim against Defendants Dowden,
Turner, Hall, and Valentine in their individual capacities; (5) the access-to-courts claim against
Defendants Dowden, Turner, Hall, and Valentine in their individual capacities; and (6) the
Eighth Amendment claim against Defendant Domalewski in his individual capacity for
deliberate indifference to Plaintiff’s safety. Further, the Court will allow Plaintiff to amend the
following three claims: (1) the claim brought under Title II of the Americans with Disabilities
Act (ADA); (2) the retaliation claim regarding being placed in the Restricted Housing Unit; and
(3) the Eighth Amendment claim regarding Plaintiff slipping and falling because he was denied
use of his walker and assistance. The remaining claims will be dismissed.
I. SUMMARY OF CLAIMS
Plaintiff names four Defendants in his complaint and two additional Defendants in his
amendments. He identifies the six Defendants as follows: (1) Casey Dowden, a Case Worker at
KSR; (2) Teresa Turner, a Case Worker at KSR; (3) John Hall, a Unit Administrator at KSR;
(4) Anna Valentine, a Deputy Warden at KSR; (5) CCS; and (6) Mr. Domalewski, an LPN with
CCS. Plaintiff asserts claims of retaliation; claims under the Fifth, Eighth, and Fourteenth
Amendments; and claims under the Americans with Disabilities Act (ADA). Plaintiff sues
Defendants in their individual capacities. As relief, Plaintiff seeks monetary damages, an order

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restraining Defendants from retaliating against him, restoration of his right to use program
computers to prepare legal documents, and costs.
In his complaint, Plaintiff states that he is designated by the KSR “medical department to
be handicap, having to use a rolling walker, at all times during the incidents” about which he
complains. Plaintiff states that he uses the walker because of problems with numbness in his feet
and legs and because he “is subject to falls, causing serious pain and suffering, and has had a
heart attack and surgery.” Plaintiff states that up until April 7, 2016, he was “involved in the
work assignment program as an assigned legal aide, in the [KSR] legal office, having been in
that program since 2006.” Plaintiff asserts that because of his handicap, he is not to use the steps
to the building where the KSR legal office is located, but he is to use “only the designated
handicap door to enter or exi[t] that building, as the Plaintiff is subject [to] fall trying to carry the
rolling walker up or down the steps.” Plaintiff states that the KSR Fire & Safety Coordinator,
Mr. Hillebrandt, gave Plaintiff a direct order to “use the designated handicap door to enter or
exi[t] the building where the [KSR] legal office is located.”
Plaintiff states that prior to April 6, 2016, he “had multiple problems with [KSR] staff
locking the designated handicap door so handicap people could not enter or exi[t] the building
where the [KSR] legal office is located.” According to Plaintiff, when he tried to report to the
KSR legal office on April 6, 2016, the “designated handicap door was locked.” Plaintiff had to
enlist someone to get a KSR staff member to unlock the door “so he and other handicap people
could enter the building.” The staff member who unlocked the door informed Plaintiff that she
had been told to keep the door locked and that Plaintiff and others need to “use the regular door
to enter the building.” Shortly thereafter, Plaintiff states, he tried to exit the building to go to the
canteen. According to Plaintiff, when he tried to do so, the “designated handicap door” was

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locked, and he needed to get a staff member to open the door so he could exit. Again, according
to Plaintiff, when he tried to return to the legal office, the same thing happened. Plaintiff states
that locking the door violated KSR “post orders to keep the designated handicap door unlocked
when there are handicap people in the building.”
Plaintiff states that on April 7, 2016, he was transported to the University of Louisville
Hospital for tests for heart problems. According to Plaintiff, when he returned to KSR he was
called to the legal office and told that he “was released from his work assignment program
because the Plaintiff complained about the designated handicap door being locked on April 6,
2016 four [4] times.” Plaintiff states that when he tried to file a grievance about the locking of
the handicap door on this same date, Defendant Turner “said she would issue a disciplinary
report against [him] if he filed a grievance, as she had decided the designated handicap door was
to stay locked at all times.” Plaintiff states that he was not permitted to file a grievance until
April 21, 2016. According to Plaintiff, on April 22, 2016, a disciplinary report was issued
against him for using “disrespectful[] language toward staff when complaining about the
designated handicap door being locked on April 6, 2016.” According to Plaintiff, the
disciplinary report was dismissed on April 24, 2016.
Plaintiff alleges that Defendant Turner and Defendant Hall worked ‘in collusion to bar
the Plaintiff from having access to the legal library so the plaintiff could work on his criminal
case and prepare legal pleadings to file a collateral attack against Plaintiff’s illegal conviction,
causing the Plaintiff to miss deadline . . . .” Plaintiff states that Defendant Turner was replaced
by Defendant Dowden “who then work[ed] in collusion with [Defendant] Valentine and
[Defendant] Hall to remove specific computers from the KSR legal library so the Plaintiff could
not prepare any typed legal pleadings collaterally attacking his criminal conviction . . . .”

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According to Plaintiff, in June 2017, all legal work he had stored in a certain computer was
destroyed so Plaintiff could not have copies; however, Defendants “permitted others to type,
copy, their prepared legal pleadings and only the Plaintiff is not allowed to type on computers,
because the Plaintiff is handicapped with mental illness issues.” According to Plaintiff,
Defendants “are working in the collusion to prevent the Plaintiff to participate in a program
enjoyed by non-handicap or mental illness inmates.” Plaintiff continues, “In short, the named
Defendants are working in collusion with other inmates to stop the sex offenders from preparing
legal pleadings while non-sex offenders enjoy the right to use program computers to prepare,
type, copy legal work and this has caused irreparable injuries to the Plaintiff.”
Plaintiff asserts that “[s]ex offenders are considered to have mental health issues.”
Plaintiff states that they receive mental health treatment and, if convicted after 1998, are required
to complete the Sex Offender Treatment Program. According to Plaintiff, “[t]his is what makes
a sex offender ‘handicap’ because he has a mental health illness issue.” Plaintiff alleges that
Defendants do “not give a sex offender the same legal aid assistance as a non-sex offender.”
Further, Plaintiff states that since Defendant Dowden replaced Defendant Turner, Defendants
have “only hired non handicap people to work in the assigned programs as Legal Aides,
grievance Aides, [and] legal clerks.” Plaintiff alleges that Defendants are discriminating against
him because he is handicapped by not allowing him to participate in state-run programs. Further,
Plaintiff alleges that Defendants retaliated against him because he exercised his right to complain
about an ADA violation about the lack of access to a building where a state-run program was
conducted.
In Plaintiff’s first amendment to the complaint (DN 7), he states that “Defendants and
others retaliated [against him] by locking him up in Restricted Housing Unit (the Hole) and

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taking the Plaintiff’s walker away so he could not have any assisted way to walk or get around.”
Plaintiff states that he was placed in restricted housing on September 17, 2017. According to
Plaintiff, the toilet in his restricted housing cell did not work, and he could not “use the toilet or
clean himself” until September 19, 2017, when he was removed from the restricted housing cell
“so staff could dry up the rain water and sewer water that was on the cell floor.” Plaintiff
represents that when he was instructed to return to his cell, he attempted to do so without the
assistance of a walker or a staff member, and he “fell in water, hitting his head, elbow, and hip
on steel bars and concrete floor.” Plaintiff contends that this was an “act of delirate indifference
and overt act of retaliation and discrimination to deny a handicap person assistance to walk
without fear of additional injury.”
According to Plaintiff, KSR staff called Defendant CCS “to give aid to Plaintiff because
[he] was knocked out and bleeding from his right elbow.” Plaintiff states that CCS staff was
unable to put him in a wheelchair because he was “knocked-out and hurt in his back.” Further,
Plaintiff states that the door was too small for a wheelchair. According to Plaintiff, this was
“[a]nother A.D.A. violation.” Plaintiff continues by stating that CCS staff placed him on a back
board, but dropped him back onto the concrete floor causing him additional injury. Plaintiff
states that KSR staff then called the “KSR medical ambulance,” and Plaintiff was transported to
the hospital “[f]or proper medical care.”
In this first amendment to the complaint, Plaintiff alleges the “named Defendants”
retaliated and discriminated against him. He further asserts an Eighth Amendment violation
alleging that the conditions in the restricted housing cell contributed to his fall and being dropped
from the back board.

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In Plaintiff’s second amendment to the complaint (DN 11), he begins by stating that his
prior allegations are “covered under [the] American[s] with Disabilities Act.” He states that
Defendants use “known ‘hit-men’ inmates to assault the Plaintiff, causing physical injury to
Plaintiff then Defendants awards the hit-men for their actions.” Plaintiff states that since the
filing of his complaint, he was injured “when he was denied access to his rolling walker and
fell.” Further, he alleges he was dropped by a CCS employee “face-first into the concrete floor
while Plaintiff was belly-handicapped and strapped to a back board, causing a neck, elbow and
hip injury to the Plaintiff.” Plaintiff continues,
Now, in retaliation for filing this complaint, one of the [CCS] employees has filed
a false report by not telling the truth why Plaintiff was injured. LPN Domalewski
is not qualified to state if Plaintiff has internal injuries to the Plaintiff’s neck,
elbow or hip after LPN Domalewski did not report he dropped the Plaintiff while
Plaintiff was strapped to the back board. KSR staff witnessed the deliberate
indifference to the Plaintiff’s medical care, and KSR-EMT staff told LPN
Domalewski he was not qualified to move or try to transport the Plaintiff on a
back board.
II. STANDARD OF REVIEW
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 complaint, or any
portion of it, if it determines that the complaint 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. 28 U.S.C. § 1915A; McGore v. Wrigglesworth, 114 F.3d at 604. A claim is
legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams,
90 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
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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
conclusions.’” Tackett v. M & G Polymers, USA, LLC, 561 F.3d at 488 (quoting Columbia Nat.
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 district 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. LEGAL ANALYSIS
A. Claims Pursuant to Title II of the ADA
Plaintiff alleges that Defendants discriminated against him by denying him access to the
law library and computers to draft documents. The ADA “forbids discrimination against persons
with disabilities in three major areas of public life: employment, which is covered by Title I of
the statute; public services, programs, and activities, which are the subject of Title II; and public
accommodations, which are covered by Title III.” Tennessee v. Lane, 541 U.S. 509, 516-17
(2004). Title II of the ADA prohibits a public entity from discriminating against disabled

8

individuals and states that “no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the services, programs,
or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C.
§ 12132. The term “public entity” is defined, in relevant part, as “any State or local
government.” 42 U.S.C. § 12131(1)(A). The Sixth Circuit has held that the ADA does not
permit public employees or supervisors to be sued in their individual capacities. Williams v.
McLemore, 247 F. App’x 1, 8 (6th Cir. 2007) (“We have held repeatedly that the ADA does not
permit public employees or supervisors to be sued in their individual capacities.”); Lee v. Mich.
Parole Bd., 104 F. App’x 490, 493 (6th Cir. 2004) (“[N]either the ADA nor the RA impose
liability upon individuals.”); Tanney v. Boles, 400 F. Supp. 2d 1027, 1044 (E.D. Mich. 2005)
(“[N]either the ADA nor the RA allows suits against government officials in their individual
capacity.”). Consequently, since Plaintiff brings his ADA claims against Defendants in their
individual capacities, these claims will be dismissed.
Accordingly, claims brought pursuant to Title II of the ADA against Defendants in their
individual capacities will be dismissed from this action.
However, “under Rule 15(a) a district court can allow a plaintiff to amend his complaint
even when the complaint is subject to dismissal under the PLRA [Prison Litigation Reform
Act].” LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013). The Court will allow Plaintiff
an opportunity to amend his complaint to name Defendants in their official capacities as to the
claim under Title II of the ADA, if he so chooses.
B. Claims Pursuant to Title III of the ADA
Plaintiff alleges that Defendants discriminated against him by denying him access to the
law library and computers to draft documents. Title III of the ADA prohibits discrimination in

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places of public accommodation against persons with disabilities. 42 U.S.C. § 12182(a). Title
III of the ADA defines “public accommodation” as follows:
The following private entities are considered public accommodations for purposes
of this subchapter, if the operations of such entities affect commerce(A) an inn, hotel, motel, or other place of lodging, except for an establishment
located within a building that contains not more than five rooms for rent or hire
and that is actually occupied by the proprietor of such establishment as the
residence of such proprietor;
(B) a restaurant, bar, or other establishment serving food or drink;
(C) a motion picture house, theater, concert hall, stadium, or other place of
exhibition or entertainment;
(D) an auditorium, convention center, lecture hall, or other place of public
gathering;
(E) a bakery, grocery store, clothing store, hardware store, shopping center, or
other sales or rental establishment;
(F) a Laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service,
shoe repair service, funeral parlor, gas station, office of an accountant or lawyer,
pharmacy, insurance office, professional office of a health care provider, hospital,
or other service establishment;
(G) a terminal, depot, or other station used for specified public transportation;
(H) a museum, library, gallery, or other place of public display or collection;
(I) a park, zoo, amusement park, or other place of recreation;
(J) a nursery, elementary, secondary, undergraduate, or postgraduate private
school, or other place of education;
(K) a day care center, senior citizen center, homeless shelter, food bank, adoption
agency, or other social service center establishment; and
(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise
or recreation.
42 U.S.C. § 12181(7). Title III applies only to private entities operating public accommodations
and services. It expressly does not apply to public entities such as cities, counties, and states or
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to the departments and agencies thereof. See 42 U.S.C. §§ 12131(1), 12181(6); see also Watson
v. Cobb, No. 14-1034-JDT-egb, 2015 WL 502314, at *3 n.7 (W.D. Tenn. Feb. 5, 2015) (Title III
“expressly does not apply to public entities such as cities, counties, and states or to the
departments and agencies thereof.”); Collazo v. Corr. Corp. of Am., No. 4:11CV1424, 2011 WL
6012425, at *4 (N.D. Ohio Nov. 30, 2011) (“A jail or prison facility does not constitute a place
of ‘public accommodation’ as defined in the applicable statutory provisions.”); Wattleton v. Doe,
No. 10-11969-JGD, 2010 WL 5283287, at *2 (D. Mass. Dec. 14, 2010) (concluding that federal
prison does not constitute a place of public accommodation under Title III of ADA). Plaintiff
complains about alleged discrimination in a state prison facility, an entity not covered by Title
III.
Further, any claim for monetary relief under Title III of the ADA also is barred because
only injunctive relief is available under Title III of the ADA. See Southwell v. Summit View of
Farragut, LLC, 494 F. App’x 508, 512 (6th Cir. 2012) (“Title III of the ADA provides only
injunctive relief, not monetary damages to successful plaintiffs.”); Powell v. Nat’l Bd. of Med.
Exam’rs, 364 F.3d 79, 86 (2d Cir. 2004) (“A private individual may only obtain injunctive relief
for violations of a right granted under Title III; he cannot recover damages.”); Smith v. Wal-Mart
Stores, Inc., 167 F.3d 286, 293 (6th Cir. 1999) (recognizing that Title III enforcement statute,
42 U.S.C. § 12188, which incorporates the remedies of 42 U.S.C. § 2000a-3(a), does not include
money damages); Ajuluchuku v. Yum! Brand, Inc., No. 3:05CV826-H, 2006 WL 1523218, at *1
(W.D. Ky. May 23, 2006) (“[I]t is well established that Title III of the ADA does not provide for
a private cause of action for damages.”).
For these reasons, the claims brought against Defendants under Title III of the ADA will
be dismissed from this action.

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C. 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
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 alleges four claims of retaliation.
1. Disciplinary-Report Claim
Plaintiff alleges that Defendant Turner filed a disciplinary report against him in
retaliation for filing a grievance about the “handicap door” being locked. An inmate has a First
Amendment right to file a grievance against prison officials. Herron v. Harrison, 203 F.3d 410,
415 (6th Cir. 2000). However, that right is protected only if the grievance is not frivolous. Id.
“In other words, an inmate’s pursuit of grievances against prison officials can constitute
protected conduct for purposes of a retaliation claim, but ‘only to the extent that the underlying
claims ha[ve] merit.’” Clark v. Johnston, 413 F. App’x 804, 812 (6th Cir. 2011) (quoting
Herron v. Harrison, 203 F.3d at 415).
Upon consideration, the Court will allow Plaintiff’s claim alleging that Defendant Turner
filed a disciplinary report against him in retaliation for filing a grievance to procced against
Defendant Turner in her individual capacity.
2. Claim Regarding Being Barred from the Legal Library
Plaintiff asserts that Defendants Dowden, Turner, Hall, and Valentine barred him from
access to the law library and use of the computers to prepare legal documents to collaterally

12

attack his criminal conviction in retaliation for complaining about the ‘handicapped door” being
locked.
Upon consideration, the Court will allow this claim to proceed.
3. Claim Regarding Being Placed in the Restricted Housing Unit
Plaintiff alleges that “[a]fter Plaintiff’s complaint was filed, the named Defendants and
others retaliated [against him] by locking him up in Restricted Housing Unit (the Hole) and
taking the Plaintiff’s walker away so he could not have any assisted way to walk or get around.”
Plaintiff states that he was placed in restricted housing on September 17, 2017. According to
Plaintiff, the toilet in his restricted housing cell did not work, and he could not use the “toilet or
clean himself” until September 19, 2017, when he was removed from the restricted housing cell
“so staff could dry up the rain water and sewer water that was on the cell floor.”
As to this action, Plaintiff states that “Defendants and others” were responsible for these
alleged wrongful actions. Plaintiff does not state which Defendants were responsible, and he
does not state how any Defendant was directly involved in these alleged wrongful actions.
While the Court has a duty to construe pro se complaints liberally, Plaintiff is not absolved of his
duty to comply with the Federal Rules of Civil Procedure by providing Defendants with “fair
notice of the basis for [his] claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002).
Federal Rule of Civil Procedure 8(a) requires a pleading to contain “a short and plain statement
of the claim showing that the pleader is entitled to relief[.]” To state a claim for relief, Plaintiff
must plead “factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 56 U.S. at 678. Plaintiff fails
to state in the complaint the facts for seeking relief against any particular Defendant, and this
claim against “Defendants and others” is therefore subject to dismissal.

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Rather than dismissing this claim at this time, the Court will allow Plaintiff an
opportunity to amend his complaint to name which specific Defendants were involved in these
alleged actions and to describe the facts surrounding how each Defendant allegedly violated his
rights.
4. Claim Against Defendant Domalewski Regarding Filing a False Report
Plaintiff alleges that in retaliation for filing this action, Defendant Domalewski filed a
“false Report” in which he failed to state that he had dropped Plaintiff off the back board.
Upon consideration, the Court will allow this claim to proceed.
D. Equal Protection Claim
Plaintiff asserts an equal protection claim against Defendants Dowden, Turner, Hall, and
Valentine. He asserts that non-sex offenders are allowed access to the law library and computers
to prepare legal documents, but that he, a sex offender, which he describes as a mental illness,
was denied access to the law library and computers. The Equal Protection Clause of the
Fourteenth Amendment provides that a state may not “deny to any person within its jurisdiction
the equal protection of the laws,” which essentially means that all persons similarly situated
should be treated alike. U.S. Const., amend. XIV; City of Cleburne, Tex. v. Cleburne Living
Ctr., 473 U.S. 432, 439 (1985). The Equal Protection Clause does not forbid all classifications,
but simply prevents governmental decision makers from treating differently persons who are
similarly situated in all relevant respects. City of Cleburne, Tex. v. Cleburne Living Ctr., 473
U.S. at 439; F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920); Richland Bookmart,
Inc. v. Nichols, 278 F.3d 570, 574 (6th Cir. 2002) (the Clause “protects against arbitrary
classifications, and requires that similarly situated persons be treated equally.”).

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Upon consideration, the Court will allow the equal protection claim to proceed against
Defendants Dowden, Turner, Hall, and Valentine in their individual capacities.
E. Access-to-Courts Claim
Plaintiff alleges that Defendants Dowden, Turner, Hall, and Valentine denied him access
to the law library and computers to draft legal documents to prepare a collateral attack on his
criminal conviction. Plaintiff further alleges that this denial caused him to miss a deadline in his
case.
The courts have recognized repeatedly that there is no constitutionally protected right of
access to a law library. Lewis v. Casey, 518 U.S. 343, 351 (1996) “[P]rison law libraries and
legal assistance programs are not ends in themselves, but only the means for ensuring a
reasonably adequate opportunity to present claimed violations of fundamental constitutional
rights to the courts.” Id. (quotation omitted). However, prisoners have a constitutional right of
access to the courts. Bounds v. Smith, 430 U.S. 817, 821 (1977). This right of access to the
courts “is limited to direct criminal appeals, habeas corpus applications, and civil rights claims
challenging the conditions of confinement.” Courtemanche v. Gregels, 79 F. App’x 115, 117
(6th Cir. 2003). In order to state a claim for interference with access to the courts, a plaintiff
must show an actual injury. Thaddeus-X v. Blatter, 175 F.3d at 394. “[A]n inmate cannot
establish relevant actual injury simply by establishing that his prison’s law library or legal
assistance program is subpar in some theoretical sense. That would be the precise analog of the
healthy inmate claiming constitutional violation because of the inadequacy of the prison
infirmary.” Lewis v. Casey, 518 U.S. at 351. ‘“Meaningful access to the courts is the
touchstone,’ and the inmate therefore must go one step further and demonstrate that the alleged
shortcomings in the library or legal assistance program hindered his efforts to pursue a legal

15

claim.” Id. (internal citations omitted). “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.” Harbin-Bey v. Rutter, 420 F.3d 571, 578 (6th Cir. 2005).
Furthermore, the Supreme Court has held that “the underlying cause of action . . . is an
element that must be described in the complaint, just as much as allegations must describe the
official acts frustrating the litigation.” Christopher v. Harbury, 536 U.S. 403, 415 (2002). The
Court held in Christopher that, “[l]ike any other element of an access claim, the underlying cause
of action and its lost remedy must be addressed by allegations in the complaint sufficient to give
fair notice to a defendant.” Id. at 416.
Upon consideration, the Court will allow the access-to-courts claim to proceed.
F. Claim Regarding Destruction of Legal Documents
Plaintiff also appears to be alleging a claim regarding the destruction of his legal
documents. The Supreme Court has held that where adequate remedies are provided by state
law, the negligent or intentional loss or destruction of personal property does not state a claim
cognizable under the Due Process Clause. Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt
v. Taylor, 451 U.S. 527 (1981), overruled in part on other grounds, Daniels v. Williams,
474 U.S. 327 (1986). In order to assert a claim for deprivation of property without due process
pursuant to 42 U.S.C. § 1983, a plaintiff must allege that the state post deprivation procedures
are inadequate to remedy the deprivation. Parratt v. Taylor, 451 U.S. at 543-44; see also Laubis
v. Witt, 597 F. App’x 827, 831 (6th Cir. 2015) (“[I]n order to proceed in federal court with a
§ 1983 claim for deprivation of property without due process, ‘the plaintiff must attack the
state’s corrective procedure as well as the substantive wrong.’”) (citation omitted). The law of
this circuit is in accord. The Sixth Circuit held that “[i]n § 1983 damage suits claiming the

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deprivation of a property interest without procedural due process of law, the plaintiff must plead
and prove that state remedies for redressing the wrong are inadequate.” Vicory v. Walton,
721 F.2d 1062, 1066 (6th Cir. 1983). The Sixth Circuit has further found that Kentucky’s
statutory remedy for such losses is adequate within the meaning of Parratt. See Wagner v.
Higgins, 754 F.2d 186, 191-92 (6th Cir. 1985). The same rationale applies to claims under the
Fifth Amendment Takings Clause; that is, no taking has occurred absent a showing that available
remedies have been pursued and have failed to provide adequate compensation. Hudson v.
Palmer, 468 U.S. 517, 539 (1984) (O’Connor, J., concurring).
As explained by Justice O’Connor,
[A] mere allegation of property deprivation does not by itself state a constitutional
claim under either [the Due Process or Takings] Clause. The Constitution
requires the Government, if it deprives people of their property, to provide due
process of law and to make just compensation for any takings. The due process
requirement means that Government must provide to the inmate the remedies it
promised would be available. Concomitantly, the just compensation requirement
means that the remedies made available must adequately compensate for any
takings that have occurred. Thus, in challenging a property deprivation, the
claimant must either avail himself of the remedies guaranteed by state law or
prove that the available remedies are inadequate. When adequate remedies are
provided and followed, no uncompensated taking or deprivation of property
without due process can result.
Id. (citations omitted). Plaintiff has failed to demonstrate an inadequacy of state remedies in the
case at bar.
Accordingly, the claim regarding the destruction of Plaintiff’s legal documents will be
dismissed.
G. Conspiracy Claim
Plaintiff alleges that Defendants Dowden, Turner, Hall, and Valentine colluded together
to deprive Plaintiff of his rights. The Court construes this as an alleged civil-conspiracy claim.
Under § 1983 a civil conspiracy is “‘an agreement between two or more persons to injure another
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by unlawful action.’” Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th Cir. 2011) (quoting
Revis v. Meldrum, 489 F.3d 273, 290 (6th Cir. 2007)). “It is well-settled that conspiracy claims
must be pled with some degree of specificity and that vague and conclusory allegations
unsupported by material facts will not be sufficient to state such a claim under §1983.”
Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987). In order to state a claim of conspiracy,
Plaintiff must allege the elements that make up a conspiracy claim: that a single plan existed; that
the alleged coconspirators shared in the general conspiratorial objective to deprive Plaintiff of his
constitutional or federal statutory rights; and that an overt act was committed in furtherance of
the conspiracy that caused injury. Hooks v. Hooks, 771 F.2d 935, 944 (6th Cir. 1985).
A review of Plaintiff’s complaint reveals that he has failed to meet the pleading standard
needed to state a conspiracy claim. Plaintiff=s complaint is completely devoid of factual matter
that would allow the Court to draw a reasonable inference that the named Defendants engaged in
a conspiracy to impermissibly deny Plaintiff his constitutional rights. Plaintiff provides no
factual support of conspiracy other than the repeated recitation that these Defendants engaged in
collusion. “The ‘web of inference[s] is too weak’ on the alleged facts to permit a finding,
‘absent sheer speculation,’ that [Defendants] shared . . . [an] unlawful objective.” Bazzi v. City
of Dearborn, 658 F.3d at 603 (quoting United States v. Sliwo, 620 F.3d 630, 637 (6th Cir.
2010)). The complaint does not contain sufficient factual matter that, if accepted as true, states
“a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. at 570).
Accordingly, Plaintiff’s § 1983 conspiracy claim will be dismissed.

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H. Claim Against Defendant CCS
Plaintiff has named CCS as a Defendant in this case. Plaintiff alleges that an employee
of CCS, Defendant Domalewski, dropped Plaintiff while he was secured on a back board. He
further alleges that CCS has refused him medical care.
When a § 1983 claim is made against a municipality, 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] plaintiff must ‘identify the policy, connect the policy to the
[municipality] 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 by Frantz v. Vill.
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 v. City of Dayton, 38 F.3d at 286 (quoting Polk Cty. v. Dodson, 454 U.S. 312, 326
(1981) (citation omitted)). “The ‘official policy’ requirement was intended 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.”
Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986).
The same municipal-liability analysis applies to § 1983 claims against private
corporations like Defendant CCS. See Street v. Corr. Corp. of Am., 102 F.3d 810, 818 (6th Cir.
1996) (“‘Monell involved a municipal corporation, but every circuit to consider the issue has
extended the holding to private corporations as well.’”) (quoting Harvey v. Harvey, 949 F. 2d
1127, 1129 (11th Cir. 1992)); Detwiler v. S. Health Partners, No. 3:16-cv-P343-DJH, 2016 WL

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4083465, at *2 (W.D. Ky. Aug. 1, 2016) (“The Sixth Circuit has held that the analysis that
applies to a § 1983 claim against a municipality applies to a § 1983 claim against a private
corporation such as Southern Health Partners.” ) (citing Street v. Corr. Corp. of Am., 102 F.3d
at 818). CCS cannot be held liable on a respondeat superior basis for the actions of its
employees. Starcher v. Corr. Med. Sys., Inc., 7 F. App’x 459, 465 (6th Cir. 2001); Ruley v. S.
Health Partners, No. 4:10-CV-P34-M, 2011 WL 2214998, at *4 (W.D. Ky. June 6, 2011).
Liability must be based on a policy or custom of the contracted private entity or “the inadequacy
of [an employee’s] training.” Street v. Corr. Corp. of Am., 102 F.3d at 817; see also Starcher v.
Corr. Med. Sys., Inc., 7 F. App’x at 465 (“CMS’s [Correctional Medical Systems, Inc.,] liability
must also be premised on some policy that caused a deprivation of [plaintiff’s] Eighth
Amendment rights.”).
Plaintiff has not alleged that any policy or custom of CCS caused his alleged harm. He
makes a general statement that CCS refuses him medical care, but Plaintiff fails to connect this
to any CCS employee or provide dates or facts surrounding such alleged occurrence. Further, he
has not alleged that any inadequacy of its employees’ training caused his alleged harm.
Plaintiff’s complaint appears to contain allegations of an isolated occurrence affecting only
Plaintiff. See Fox v. Van Oosterum, 176 F.3d 342, 348 (6th Cir. 1999) (“No evidence indicates
that this was anything more than a one-time, isolated event for which the county is not
responsible.”). As nothing in the complaint demonstrates that any purported wrongdoing
occurred as a result of a policy or custom implemented or endorsed by Defendant CCS, Plaintiff
fails to establish a basis of liability against this entity and fails to state a cognizable § 1983 claim
as to CCS.
Accordingly, CCS and the claims against it will be dismissed from this action.

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I. Eighth Amendment Claims
1. Claim Against Defendant Domalewski
Plaintiff alleges that Defendant Domalewski placed Plaintiff on a back board, which he
was not qualified to do, and dropped Plaintiff face first into the concrete floor causing injury to
his neck, elbow, and hip. Plaintiff asserts that Defendant Domalewski’s actions violated the
Eighth Amendment. “[P]rison officials must ensure that inmates receive adequate food,
clothing, shelter, and medical care, and must ‘take reasonable measures to guarantee the safety of
the inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer,
468 U.S. at 526-27).
Upon consideration, the Court will allow the Eighth Amendment claim alleging
deliberate indifference to Plaintiff’s safety to proceed against Defendant Domalewski in his
individual capacity.
2. Claim Regarding Slipping and Falling in Water
Plaintiff alleges that on September 19, 2017, after being removed from his cell for the
water to be cleaned up, “KSR staff” instructed him to return to his cell without his walker or
assistance. Plaintiff states that when doing so, he fell in water, was “knocked-out,” and hurt his
head, elbow, and hip. Plaintiff fails to state which Defendants, if any, were involved in these
alleged wrongful acts. To state a claim for relief, Plaintiff must show how each Defendant is
accountable because the Defendant was personally involved in the acts about which he
complains. See Rizzo v. Goode, 423 U.S. 362, 375-76 (1976).
Rather than dismissing this claim at this time, the Court will allow Plaintiff an
opportunity to amend his complaint to name which specific Defendants were involved in these

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alleged actions and to describe the facts surrounding how each Defendant allegedly violated his
rights.
IV. ORDER
For the reasons set forth more fully above, and the Court being otherwise sufficiently
advised,
IT IS ORDERED as follows:
(1) The claims under Title II of the ADA brought against Defendants in their individual
capacities are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon
which relief may be granted;
(2) The claims under Title III of the ADA are DISMISSED pursuant to 28 U.S.C.
§ 1915A(b)(1) for failure to state a claim upon which relief may be granted;
(3) The claim regarding destruction of legal documents is DISMISSED pursuant to
28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be granted;
(4) The conspiracy claim is DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1) for
failure to state a claim upon which relief may be granted; and
(5) CCS and the claims against it are DISMISSED from this action pursuant to
28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED as follows:
(1) The claim against Defendant Turner in her individual capacity alleging that she
retaliated against Plaintiff by filing a disciplinary report will proceed;
(2) The claim against Defendants Dowden, Turner, Hall, and Valentine in their
individual capacities alleging that they retaliated against Plaintiff by barring him from the law
library and the use of computers to draft legal documents will proceed;

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(3) The claim against Defendant Domalewski in his individual capacity alleging that he
retaliated against Plaintiff by filing a false report will proceed;
(4) The equal protection claim against Defendants Dowden, Turner, Hall, and Valentine
in their individual capacities will proceed;
(5) The access-to-courts claim against Defendants Dowden, Turner, Hall, and Valentine
in their individual capacities will proceed; and
(6) The Eighth Amendment claim against Defendant Domalewski in his individual
capacity for deliberate indifference to Plaintiff’s safety will proceed.
The Clerk of Court is DIRECTED to add LPN Domalewski as a Defendant to the
docket of this case.
IT IS FURTHER ORDERED that within 30 days from the entry date of this
Memorandum Opinion and Order, Plaintiff may file an amended complaint as to the following
claims:
(1) The claim brought under Title II of the ADA;
(2) The retaliation claim regarding being placed in the Restricted Housing Unit; and
(3) The Eighth Amendment claim regarding Plaintiff slipping and falling because he was
denied the use of his walker and assistance.
As to these claims, Plaintiff shall state what Defendants were involved in these
alleged incidents, in what capacity he brings these claims against Defendants, and describe
the specific facts surrounding how each Defendant allegedly violated his rights.
The Clerk of Court is DIRECTED to place the instant case number and the word
“Amended” on a § 1983 complaint form and send it, along with two summons forms, to Plaintiff
for his completion.

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Plaintiff is WARNED that should he fail to file an amended complaint within
30 days, the Court will enter an Order dismissing the two claims Plaintiff is being allowed
to amend for the reasons stated herein.
Date:

November 28, 2017

cc:

Plaintiff, pro se
Defendants
General Counsel, Justice & Public Safety Cabinet, Office of Legal Counsel
4413.003

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