Violett v. Dowden et al

Filing 21

MEMORANDUM OPINION AND ORDER by Senior Judge Thomas B. Russell on 2/26/2018. The Court will enter a separate Order Regarding Service and Scheduling Order to govern the development of the proceeding claims.cc: Plaintiff, pro se; Counsel of Record; Defendants Turner, Domalewski, Lefebvre, and Royalty (MNM)

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, a prisoner incarcerated at Kentucky State Reformatory
(KSR), filed a pro se complaint (DN 1). Subsequently he filed two motions to amend
(DNs 7 & 11), which the Court granted. On November 29, 2017, the Court performed initial
review of the complaint and amendments (DN 12). Upon initial review, the Court allowed 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 allowed Plaintiff 30 days to file an
amended complaint as to 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 (RHU); and (3) the Eighth Amendment claim regarding Plaintiff
slipping and falling because he was denied the use of his walker and assistance.
On December 19, 2017, Plaintiff filed an amended complaint (DN 16). The amended
complaint is now before the Court for 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 allow the following claims raised in
the amended complaint to proceed: (1) the official-capacity claims under Title II of the ADA
against Defendants Lefebvre and Royalty; and (2) the Eighth Amendment claim regarding the
conditions of his confinement while Plaintiff was housed in the RHU against Defendant
Valentine in her individual capacity for monetary damages. The following claims will be
dismissed: (1) the claim under Title I of the ADA; (2) the Eighth Amendment claim regarding
slipping and falling; (3) the Eighth Amendment claims against Defendants Lefebvre and Royalty
regarding the conditions of confinement while Plaintiff was housed in the RHU; (4) the claim
regarding Defendants using inmates as hit men; and (5) the retaliation claims.
I. 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

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baseless. Id. at 327. In order to survive dismissal for failure to state a claim, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
“[A] district court must (1) view the complaint in the light most favorable to the plaintiff
and (2) take all well-pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC,
561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)
(citations omitted)). “But the district court need not accept a ‘bare assertion of legal
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).
II. SUMMARY AND ANALYSIS OF CLAIMS
In the “Parties” section of the amended complaint, Plaintiff names the same five
Defendants that he named in his original complaint and amendments: Dowden, Turner, Hall,
Valentine, and Domalewski. He indicates that he sues Defendants Dowden, Hall, and Turner in
their individual and official capacities. He indicates that he sues Defendant Domalewski in his
individual capacity only, and he fails to state in what capacity he sues Defendant Valentine.

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However, in the original complaint, Plaintiff sued Defendant Valentine in her individual
capacity; thus, the Court construes Plaintiff’s amended complaint as suing her in her individual
capacity. Additionally, in the body of the amended complaint, Plaintiff seeks to add Sgt.
Lefebvre and Sgt. Royalty as additional Defendants; he provides summonses for these two
Defendants. Plaintiff states that he sues Defendants Lefebvre and Royalty in their official
capacities only. As relief, Plaintiff seeks monetary damages, legal expenses, and to be “restored
to state run programs.”
In the amended complaint, Plaintiff sets forth facts that he set forth in the complaint and
amendments that have already been reviewed by the Court. In the present review, the Court will
not address these repeated allegations. As to these matters, the Court’s prior Memorandum
Opinion and Order (DN 12) remains in effect unless altered herein. The Court will only address
the claims it gave Plaintiff an opportunity to amend and any new claims asserted by Plaintiff.
A. Claim under Title I of the ADA
In the amended complaint, Plaintiff asserts a new claim under Title I of the ADA. It is
difficult to ascertain what Plaintiff is alleging as a violation of Title I of the ADA. He states that
he seeks to bring a claim under Title I and Title II of the ADA against Defendants Lefebvre and
Royalty because he, a “designated handicapped” individual, was denied access to a walker while
in the RHU “because the gate is too small for walkers and wheelchairs to go through.” 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). As set out by the statute, Title I provides:
No covered entity shall discriminate against a qualified individual on the basis of
disability in regard to job application procedures, the hiring, advancement, or
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discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment
.
42 U.S.C. § 12112(a). It does not appear that Plaintiff is asserting a claim that he lost his
employment as a result of discrimination by Defendants Lefebvre and Royalty.
Accordingly, Plaintiff’s claim under Title I of the ADA against Defendants Lefebvre and
Royalty will be dismissed.
B. Claims under Title II of the ADA
In the original complaint and amendments, Plaintiff alleged that Defendants
discriminated against him by denying him access to the law library and computers to draft
documents. He brought those claims against Defendants in their individual capacities. Since the
Sixth Circuit has held that the ADA does not permit public employees or supervisors to be sued
in their individual capacities, the Court dismissed the individual-capacity claims and allowed
Plaintiff an opportunity to name Defendants in their official capacities as to the Title II claims, if
he so chose.
In the amended complaint, Plaintiff makes assertions regarding being denied access to the
law library and computers, but he does so only in the context of retaliation. This retaliation
claim was allowed to proceed in the Court’s November 29, 2017, Memorandum Opinion and
Order (DN 12).
The only reference Plaintiff makes to Title II of the ADA in his amended complaint is
that Defendants Lefebvre and Royalty denied him access to a walker while in the RHU. Title II
of the ADA prohibits a public entity from discriminating against disabled 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
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“public entity” is defined, in relevant part, as “any State or local government.” 42 U.S.C.
§ 12131(1)(A). The Supreme Court has held that Title II of the ADA applies to state prisons and
inmates. Penn. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210-12 (1998) (noting that the phrase
“services, programs, or activities” in § 12132 includes recreational, medical, educational, and
vocational prison programs). In addition, the Commonwealth of Kentucky (acting through its
employees at KSR) is not necessarily immune from Plaintiff’s claims under Title II of the ADA.
The ADA “validly abrogates state sovereign immunity” for “conduct that actually violates the
Fourteenth Amendment[.]” United States v. Georgia, 546 U.S. 151, 159 (2006); see also Mingus
v. Butler, 591 F.3d 474, 482 (6th Cir. 2010). If conduct violates the ADA but not the Fourteenth
Amendment, then the Court must determine whether the ADA validly abrogates state sovereign
immunity. Id. At this stage of the proceedings, the Court will presume that the ADA validly
abrogates state sovereign immunity for Plaintiff’s ADA claims.
Upon review, therefore, the Court concludes that Plaintiff’s allegations are sufficient to
warrant service of Plaintiff’s official-capacity ADA claims against Defendants Lefebvre and
Royalty. Accordingly, the official-capacity claims under Title II of the ADA against Defendants
Lefebvre and Royalty will proceed.
C. The Eighth Amendment Claim Regarding Slipping and Falling
In his original complaint and amendments, Plaintiff alleged that on September 19, 2017,
after being removed from his cell for 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 failed to state which
Defendants, if any, were involved in these alleged wrongful acts. Rather than dismissing this
claim, the Court gave Plaintiff an opportunity to amend his complaint to name which specific

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Defendants were involved in these alleged actions and to describe the facts surrounding how
each Defendant allegedly violated his rights.
In the amended complaint now before the Court, Plaintiff fails to address this claim. He
provides no facts regarding this claim nor does he indicate which Defendants were involved in
this alleged wrongdoing. 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). Plaintiff failed to connect this
alleged wrongdoing to any Defendant even after the Court gave him an opportunity to amend the
claim.
Accordingly, the Eighth Amendment claim regarding slipping and falling will be
dismissed for failure to state a claim upon which relief may be granted.
D. Eighth Amendment Claim Regarding Conditions in the RHU
Plaintiff asserts an Eighth Amendment claim regarding the conditions under which he
was housed while in the RHU. According to Plaintiff, he was housed in the RHU for 11 days.
Plaintiff states that during his time in the RHU, his cell had no running water, no working
plumbing, and no electricity for Plaintiff to use his CPAP machine, and he had no water to drink
or wash his body. Plaintiff states that it was Defendants Valentine, Lefebvre, and Royalty who
were involved in placing him in the RHU cell.
Plaintiff sues Defendants Lefebvre and Royalty only in their official capacities. Title 42,
United States Code, Section 1983 creates no substantive rights, but merely provides remedies for
deprivations of rights established elsewhere. As such, it has two basic requirements: (1) the
deprivation of federal statutory or constitutional rights by (2) a person acting under color of state
law. West v. Atkins, 487 U.S. 42, 48 (1988); Flint v. Ky. Dep’t of Corr., 270 F.3d 340, 351

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(6th Cir. 2001). The official-capacity claims for damages against Defendants Lefebvre and
Royalty will be dismissed on two bases. First, these Defendants, as state officials and employees
sued in their official capacity for damages, are absolutely immune from § 1983 liability under the
Eleventh Amendment to the United States Constitution. Will v. Mich. Dep’t of State Police,
491 U.S. 58, 71(1989); see also Kentucky v. Graham, 473 U.S. 159, 169 (1985) (“This [Eleventh
Amendment] bar remains in effect when State officials are sued for damages in their official
capacity.”). Second, these Defendants are not “persons” subject to suit within the meaning of
§ 1983 when sued in their official capacity for monetary damages. Will v. Mich. Dep’t of State
Police, 491 U.S. at 71 (concluding that a state, its agencies, and its officials sued in their official
capacities for monetary damages are not considered persons for the purpose of a § 1983 claim);
Burrell v. Sumner, No. 97-3705, 1998 WL 786979, at *1 (6th Cir. Oct. 29, 1998) (finding that
state employees sued in their official capacity are not persons who may be sued for damages
under § 1983).
Consequently, the § 1983 official-capacity claims for monetary damages against
Defendants Lefebvre and Royalty will be dismissed. Although a claim for injunctive relief
would be allowed to proceed, Plaintiff makes no claim for injunctive relief as to this claim.
However, Plaintiff also brings this claim against Defendant Valentine in her individual
capacity. Upon consideration, the Court will allow the Eighth Amendment claim regarding the
conditions of his confinement while housed in the RHU to proceed against Defendant Valentine
in her individual capacity for monetary damages.
E. Claim Regarding Using Inmates as Hit Men
Plaintiff states that Defendants use known hit-men inmates to assault Plaintiff and that
Defendants award the hit men for their actions. Plaintiff made similar statements in his original

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complaint and amendments. He has failed to provide any specific facts regarding this allegation
in his amended complaint, as he did in his complaint. Plaintiff still does not state which
Defendants he alleges used hit-men inmates to assault him, and he does not state how any
Defendant was directly involved in this alleged wrongful action. 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.
As to this claim regarding the use of hit men, Plaintiff fails to state the facts for seeking
relief against any particular Defendant, and this claim against “Defendants” will therefore be
dismissed.
F. Retaliation Claims
According to Plaintiff, he had an inmate job called “CPTU Watcher.” Plaintiff states that
on September 17, 2017, inmate Edwards assaulted Plaintiff after Plaintiff refused to bring razor
blades and coffee into the RHU. Plaintiff states that Defendants “tried to get [Plaintiff] to be a
rat and tell on the other CPTU Watchers, involved in bring[ing] illegal contraband into the
[Restricted Housing Unit].” According to Plaintiff, when he refused to be a rat, he was issued a
disciplinary report which charged him with hindering an investigation. Plaintiff was found guilty
of the charge and was given 11 days in the RHU and loss of 60 days good-time credits. Plaintiff
states that he also lost his job as a CPTU Watcher and was removed from the legal aide program.

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In his Amended Complaint, Plaintiff appears to be asserting three retaliation claims
arising from these facts. First, Plaintiff asserts that Defendants Lefebvre and Royalty’s filing of
a disciplinary report against him for hindering an investigation when he refused to rat out other
inmates was an unlawful retaliatory act. Second, Plaintiff alleges that his placement in the RHU
as a result of being found guilty of the disciplinary charge was a retaliatory act. Plaintiff states
that it was Defendants Valentine, Lefebvre, and Royalty who were involved in placing Plaintiff
in the RHU cell. Third, Plaintiff claims that his refusal to be a rat resulted in Defendants Turner,
Hall, Dowden, and Valentine retaliating against him by removing him from the legal aide
program and in Defendant Valentine retaliating against him by suspending him from the CPTU
Watcher program. Plaintiff asserts that he was released from these two programs as a result of
being found guilty of the disciplinary charge brought against him.
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.
“The first step in [Plaintiff’s] retaliation claim is to determine whether [he was] engaged
in protected conduct at all. Absent protected conduct, [Plaintiff] cannot establish a constitutional
violation.” Thaddeus-X v. Blatter, 175 F.3d at 395. Plaintiff alleges that the protected conduct
he was engaged in was his refusal to serve as an informant. It is questionable as to whether such
conduct is protected for purposes of a retaliation claim. See Sheppard v. Moore, 16 F. App’x

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574, 574 (9th Cir. 2001) (“Sheppard was unable to establish that he was engaging in
constitutionally protected conduct when refusing to serve as an informant.”); Erwin v. Marberry,
No. 04-CV-72620, 2007 WL 4098201, at *6 (E.D. Mich. Nov. 16, 2007) (“[A] prisoner’s refusal
to serve as an informant is not constitutionally protected conduct, and therefore cannot be used as
a basis to substantiate a retaliation claim.”).
Further, no adverse action for purposes of retaliation was taken against Plaintiff. The
Sixth Circuit has held that prisoners are precluded from collaterally attacking prison misconduct
hearings or underlying disciplinary convictions by alleging retaliation under 42 U.S.C. § 1983.
See McMillan v. Fielding, 136 F. App’x 818, 820 (6th Cir. 2005) (“A prisoner found guilty in a
prison disciplinary hearing cannot use § 1983 to collaterally attack the hearing’s validity or the
conduct underlying the disciplinary conviction.”); see also Jackson v. Madery, 158 F. App’x
656, 662 (6th Cir. 2005) (“A finding of guilt [on the misconduct charge] based upon some
evidence of a violation of prison rules ‘essentially checkmates [a] retaliation claim.’”) (citing
Henderson v. Baird, 29 F.3d 464, 469 (8th Cir. 1994)); Lewis v. Pendell, 90 F. App’x 882, 883
(6th Cir. 2004) (holding that a § 1983 claim was not cognizable because a favorable ruling on the
plaintiff’s retaliation claim would imply the invalidity of his disciplinary conviction); Norwood
v. Mich. Dep’t of Corr., 67 F. App’x 286, 288 (6th Cir. 2003) (“Norwood cannot evade Heck’s
bar on § 1983 challenges . . . by labeling his cause of action a retaliation claim.”); Ruiz v.
Bouchard, 60 F. App’x 572, 574 (6th Cir. 2003) (finding that the claim of retaliatory filing of
misconduct is barred by the prisoner’s conviction on the misconduct charge); Denham v. Shroad,
56 F. App’x 692, 693 (6th Cir. 2003) (“Because a favorable ruling on Denham’s Eighth
Amendment claim [alleging excessive use of force by prison officials] would imply the
invalidity of his disciplinary conviction, this claim is not cognizable.”); Anthony v. Ranger,

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No. 08-CV-11436-DT, 2010 WL 1268031 (E.D. Mich. Mar. 30, 2010) (dismissing a retaliation
claim against an officer who filed misconduct charge because it was barred under the habeas
exception to § 1983).
Moreover, the official-capacity claims against Defendants Turner, Hall, Dowden,
Lefebvre, and Royalty are barred. First, these Defendants, as state officials and employees sued
in their official capacity for damages, are absolutely immune from § 1983 liability under the
Eleventh Amendment to the United States Constitution. Will v. Mich. Dep’t of State Police,
491 U.S. at 71; see also Kentucky v. Graham, 473 U.S. at 169 (“This [Eleventh Amendment] bar
remains in effect when State officials are sued for damages in their official capacity.”). Second,
these Defendants are not “persons” subject to suit within the meaning of § 1983 when sued in
their official capacity for monetary damages. Will v. Mich. Dep’t of State Police, 491 U.S. at 71
(concluding that a state, its agencies, and its officials sued in their official capacities for
monetary damages are not considered persons for the purpose of a § 1983 claim); Burrell v.
Sumner, 1998 WL 786979, at *1 (finding that state employees sued in their official capacity are
not persons who may be sued for damages under § 1983).
Accordingly, the retaliation claims will be dismissed.
III. ORDER
For the reasons set forth more fully above, and the Court being otherwise sufficiently
advised,
IT IS ORDERED as follows:
(1) The claim under Title I of the ADA against Defendants Lefebvre and Royalty is
DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief
may be granted;

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(2) The Eighth Amendment claim regarding slipping and falling is DISMISSED
pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be
granted;
(3) The Eighth Amendment claims against Defendants Lefebvre and Royalty regarding
the conditions of confinement while Plaintiff was housed in the RHU are DISMISSED pursuant
to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be granted and
28 U.S.C. § 1915A(b)(2) for seeking monetary relief from a defendant who is immune from such
relief;
(4) The claim regarding Defendants using inmates as hit men 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) The retaliation claims are DISMISSED 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 official-capacity claims under Title II of the ADA against Defendants Lefebvre
and Royalty will proceed; and
(2) The Eighth Amendment claim regarding the conditions of confinement while
Plaintiff was housed in the RHU will proceed against Defendant Valentine in her individual
capacity for monetary damages.
The Clerk of Court is DIRECTED to add Sgt. Lefebvre and Sgt. Royalty as Defendants
to the docket of this action.

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The Court passes no judgment on the merits or ultimate outcome of this case. The Court
will enter a separate Order Regarding Service and Scheduling Order to govern the development
of the proceeding claims.
Date:

February 26, 2018

cc:

Plaintiff, pro se
Counsel of Record
Defendants Turner, Domalewski, Lefebvre, and Royalty
4413.003

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