Blackman v. Hardin County Detention Center et al

Filing 6

MEMORANDUM OPINION AND ORDER by Judge David J. Hale on 7/23/2018 - The claims against Defendant HCDC and Defendant Elmore in his official capacity are DISMISSED for failure to state a claim on which relief may be granted pursuant to 28 U.S.C. § 1915A(b)(1). The individual-capacity claim regarding Defendant Elmore's use of racial slurs is DISMISSED for failure to state a claim on which relief may be granted pursuant to 28 U.S.C. § 1915A(b)(1). The Clerk of Court is DIRECTED to terminate HCDC as a Defendant in this action. A separate Order Directing Service and Scheduling Order will be entered to govern the development of the continuing claims. cc: Plaintiff, Defendants, and Hardin County Attorney (KD)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
JOVAN BLACKMON,

Plaintiff,

v.

Civil Action No. 3:18-cv-P159-DJH

HARDIN COUNTY DETENTION CENTER et al.,

Defendants.

* * * * *
MEMORANDUM OPINION AND ORDER
Plaintiff Jovan Blackmon filed a pro se, in forma pauperis complaint. This case 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, some claims will be dismissed, and some claims will be allowed to proceed.
I. SUMMARY OF CLAIMS
Plaintiff is a pretrial detainee incarcerated at the Hardin County Detention Center
(HCDC). He names as Defendants HCDC and Corrections Officer Elmore in his individual and
official capacities. He alleges that on February 28, 2017, another inmate began “picking at
[Plaintiff] because [Plaintiff] was the new guy in the cell,” calling him “‘monkey’” and “‘[nword].’” He states that while this was taking place, Defendant Elmore stood near the door,
watching, and allowing the other inmate to “disrespect [Plaintiff] in the most racist way.”
Plaintiff alleges that:
When I started to take up for myself for safety reasons only C.O. Elmore grabed
me put the cuffs on me threw me against the wall, force me up the hallway telling
me to stop resisting and I was never resisting. That’s when C.O. Lewis join the
party[,] grabed me as well and shove me in the drunk tank.

Plaintiff alleges that HCDC “is being run wrong, the C.O. here do and say whatever they
want.” He further alleges that Defendant Elmore “had no regard for my safety as I was getting
push down the hall way in [HCDC]. C.O. Elmore states that’s why I hate dealing with
monkeys[;] you gonn comply boy.” He states that Defendant Elmore was “overtly racist.” He
also states that ever since he “got this 1983 form I been in the hole. I almost had a form filled
out but when C.O. Elmore witness his name he put in the toilet off camera.”
As relief, Plaintiff requests monetary and punitive damages.
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
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).

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A. Official-capacity claims
Naming Defendant Elmore, an employee of Hardin County, in his official capacity is the
same as suing the county itself. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).
Therefore, Plaintiff’s official-capacity claims against Defendant Elmore are actually brought
against the Hardin County government. See Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir.
1994).
Plaintiff also sues HCDC. HCDC is not a “person” subject to suit under § 1983 because
municipal departments, such as jails, are not suable under § 1983. Rhodes v. McDannel, 945
F.2d 117, 120 (6th Cir. 1991) (holding that a police department may not be sued under § 1983);
see also Marbry v. Corr. Med. Serv., No. 99-6706, 2000 WL 1720959 at *2 (6th Cir. Nov. 6,
2000) (holding that a jail is not an entity subject to suit under § 1983). In this situation, it is
Hardin County that is the proper defendant in this case. Smallwood v. Jefferson Cty. Gov’t, 743
F. Supp. 502, 503 (W.D. Ky. 1990) (construing claims brought against the Jefferson County
Government, the Jefferson County Fiscal Court, and the Jefferson County Judge Executive as
claims against Jefferson County itself). Further, Hardin County is a “person” for purposes of
§ 1983. Monell v. N.Y.C. Dept. of Soc. Servs., 436 U.S. 658, 690 (1978). The Court will
therefore construe Plaintiff’s claims against HCDC as brought against Hardin County.
When a § 1983 claim is made against a municipality, like Hardin County, a court must
analyze two distinct issues: (1) whether the 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). The Court will address the issues in reverse
order.

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“[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 (emphasis in original); 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 Pembaur).
A municipality cannot be held responsible for a constitutional deprivation unless there is
a direct causal link between a municipal policy or custom and the alleged constitutional
deprivation. Monell, 436 U.S. at 691; Deaton v. Montgomery Cty., Ohio, 989 F.2d 885, 889 (6th
Cir. 1993). Simply stated, the plaintiff must “identify the policy, connect the policy to the city
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, 38 F.3d at 286 (quoting Polk Cty. v. Dodson, 454 U.S. 312, 326 (1981)
(citation omitted)); Bd. of Cty. Comm’rs of Bryan Cty., Okla. v. Brown, 520 U.S. 397, 404 (1997)
(indicating that plaintiff must demonstrate “deliberate conduct”).
The Court finds that Plaintiff has not alleged that a Hardin County custom or policy was
the moving force behind any of the alleged constitutional violations. Therefore, the Court will

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dismiss Plaintiff’s claims against HCDC and Defendant Elmore in his official capacity for failure
to state a claim.
B. Individual-capacity claims
1. Claim regarding racial slurs
Plaintiff does not state a claim against Defendant Elmore based on his racist comments.
Although Plaintiff alleges that Defendant Elmore was overtly racist and told him that he hated
dealing with “monkeys,” such conduct does not rise to the level of a constitutional violation.
The Sixth Circuit has held that harassing or degrading language by a prison official, although
unprofessional and despicable, does not amount to a constitutional tort. 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); see also
Searcy v. Gardner, Civil 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 Court will, therefore, dismiss Plaintiff’s
claim based on alleged racial slurs.
2. Claims of excessive force and retaliation
The Court will allow Plaintiff’s individual-capacity claims to go forward against
Defendant Elmore for alleged excessive force in removing Plaintiff from the cell and for
retaliating against Plaintiff for naming him in a § 1983 complaint by placing/keeping him in the
hole and flushing the § 1983 complaint form down the toilet.

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III. CONCLUSION AND ORDER
For the foregoing reasons,
IT IS ORDERED that the claims against Defendant HCDC and Defendant Elmore in his
official capacity are DISMISSED for failure to state a claim on which relief may be granted
pursuant to 28 U.S.C. § 1915A(b)(1).
IT IS FURTHER ORDERED that the individual-capacity claim regarding Defendant
Elmore’s use of racial slurs is DISMISSED for failure to state a claim on which relief may be
granted pursuant to 28 U.S.C. § 1915A(b)(1).
The Clerk of Court is DIRECTED to terminate HCDC as a Defendant in this action.
A separate Order Directing Service and Scheduling Order will be entered to govern the
development of the continuing claims, i.e., Plaintiff’s individual-capacity claims against
Defendant Elmore related to alleged excessive force under the Fourteenth Amendment and
retaliation in the form of disposing of Plaintiff’s § 1983 complaint in the toilet and
placing/keeping him in the hole under the First Amendment. In allowing those claims to
continue, the Court expresses no opinion as to their ultimate merit.
Date:

July 23, 2018

David J. Hale, Judge
United States District Court

cc:

Plaintiff, pro se
Defendants
Hardin County Attorney
4415.009

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