Malone v. Harrington et al

Filing 12

MEMORANDUM OPINION AND ORDER by Chief Judge Joseph H. McKinley, Jr.: On initial review of the complaint pursuant to 28 U.S.C. § 1915A, the Eighth Amendment excessive-force claim will proceed against Defendant K9 Lt. Rolley in his individual ca pacity for damages, and all other claims will be dismissed. The Clerk of Court is DIRECTED to terminate Defendants Jailer Herrington, Lt. Buckman, Captains Ackerman and Floyd, and Col. Gibson from this action. cc: Plaintiff, pro se; Defendants; Henderson Co. Atty. (JLS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT OWENSBORO
BRAD LEE MALONE

PLAINTIFF

v.

CIVIL ACTION NO. 4:15CV-P29-JHM

RON HERRINGTON et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on initial review of Plaintiff Brad Lee Malone’s pro se
complaint pursuant to 28 U.S.C. § 1915A. For the reasons that follow, the Eighth Amendment
excessive-force claim will proceed against Defendant K9 Lt. Rolley in his individual capacity for
damages, and all other claims will be dismissed.
I. SUMMARY OF CLAIMS
Plaintiff is currently incarcerated at the Warren County Regional Jail. The claims in the
complaint, however, concern his detention at the Henderson County Detention Center (HCDC).
He brings this 42 U.S.C. § 1983 action against the following HCDC Defendants in both their
individual and official capacities: Henderson County Jailer Ron Herrington,1 K9 Lt. Rolley,
Captain Ackerman, Captain Floyd, Col. Gibson, and Lt. Buckman.
As his first claim, Plaintiff alleges that while in the HCDC between noon and 2:00 p.m.
on January 22, 2015, he was escorted to an isolation cell as a result of a “verbal altercation” with
two other inmates. He reports that the cell was 8' x 11', had only one metal bunk, and already
had another inmate residing therein. “My only two options on where to place my mattress to
sleep,” maintains Plaintiff, “are up against the toilet (when the other inmate gets up to use the
restroom the toilet water would splash all over me) or directly in front of the door. which would
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Plaintiff sues Henderson County Jailer Ron “Harrington.” The Court takes judicial notice, however, of the correct
spelling of the Jailer’s name, “Herrington,” and will use that spelling throughout the opinion.

block the exit in the event of an emergency.” He advises that he further noticed that the isolation
cell in which he was placed “had no fire sprinkler system in it. Further causing a fire hazard.”
Plaintiff reports expressing his concerns to Defendant Lt. Buckman, who responded, “‘Thats
good enough for you.’” Plaintiff asserts that as jailer, Defendant Herrington “is fully aware of
the inadiquite fire prevention system’s and the substandard living space in the isolation cells in
which inmates are housed.”
As his second claim, Plaintiff alleges an excessive-force incident involving Defendant K9
Lt. Rolley. Plaintiff claims that later in the day at about 5:00 p.m. on January 22, 2015,
I started to kick my cell door. K9 Lt. Rolley responded with several other
officers. K9 Lt. Rolley told me to sit down. My response to this request
was “F*** sitting down, spray me, taze me, what the f*** ever.” I then
started to back away from the cell door. I turned looking for the stool in
this cell to sit down. The video . . . will show that when K9 Lt. Rolley
made entry to this cell my hands were down by my sides and I made no
threating movements of any kind towards the officers. K9 Lt. Rolley then
grabbed me up and slammed me onto the corner of the metal bunk in this
cell. My forehead struck the corner of this bunk opening a 4” to 5” gash on
my forehead all the way down to my skull. I also suffered a deep laceration
to my right cheek . . . . I was dazed, all the anger and anything else was
gone. K9 Lt. Rolley then placed his knee into by back and his hand on the
back of my head grinding it into the mattress that was folded into the corner
making my injuries worse. . . . Medical was notified . . . . I was transported
to the local hospital emergency room for treatment. I was given a cat-scan,
I received 2 stitches inside my forehead, 12 stitches to the outside of my
forehead, and 2 stitches to the cut on my right cheek. I was then cleared by
the hospital medical doctor and released.
Third, Plaintiff claims that when he returned to HCDC, he was written up for several
different rule violations. He reports that a month earlier on December 22, 2014, he was written
up for several infractions from a different incident and that Defendants Captains Floyd and
Ackerman lied on the write ups. According to Plaintiff, after Plaintiff received the new

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January 22, 2015, write up, Defendant Col. Gibson “changed the offical charges on that
previouse write up to best suit the needs of this new write up.”
As relief, Plaintiff seeks monetary and punitive damages and the following injunctive
relief: transferring him to another facility and requiring all Defendants to resign.
II. STANDARD OF REVIEW
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, 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, 490 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 face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556). “[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

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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 pleading that
offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will
not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557).
Although courts are to hold pro se pleadings “to less stringent standards than formal
pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519 (1972), this duty to be less
stringent “does not require us 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 courts “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
A. Official-Capacity Claims
“Official-capacity suits . . . ‘generally represent [] another way of pleading an action
against an entity of which an officer is an agent.’” Kentucky v. Graham, 473 U.S. at 166
(quoting Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 n.55 (1978)).
Plaintiff’s official-capacity claims against the HCDC Defendants, therefore, are actually against
Henderson County. See Lambert v. Hartman, 517 F.3d 433, 440 (6th Cir. 2008) (stating that

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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, 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). The Court will address the issues in reverse order.
“[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 (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)).
None of the allegations in the complaint demonstrate that any alleged wrongdoing or
injury occurred as a result of a policy or custom implemented or endorsed by Henderson County.
Accordingly, the complaint fails to establish a basis of liability against the municipality and fails

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to state a cognizable § 1983 claim. Therefore, the official-capacity claims against all Defendants
will be dismissed.
B. Individual-Capacity Claims
1. Injunctive Relief
An inmate’s claim for injunctive relief regarding the conditions of his confinement
becomes moot due to his release from confinement or transfer to another facility. See Wilson v.
Yaklich, 148 F.3d 596, 601 (6th Cir. 1998) (holding that a prisoner’s claims for injunctive relief
became moot after he was transferred to another facility); Kensu v. Haigh, 87 F.3d 172, 175 (6th
Cir. 1996) (same). Here, Plaintiff asks the Court to direct his transfer to another facility and to
order Defendants’ resignation. Shortly after filing the complaint, however, Plaintiff was
transferred away from HCDC to the Bullitt County Detention Center, and he is now at the
Warren County Regional Jail. Because Plaintiff is no longer incarcerated at the HCDC, the
claim for injunctive relief will be dismissed as moot.
2. Damages
a. Jailer Herrington
Plaintiff claims that Defendant Jailer Herrington violated the following rights: “1) My
right to adiquit living space on 1-22-15 Jailer [] knowingly use inadiquit isolation cell’s. Two
inmates in one 8' x 11' cell”; “2) My right to live in a safe living environment. On 1-22-15
Blocking the Fire exit to the cell creating a fire hazard. And having no sprinkler system in this
isolation cell”; and “3) My right to live in a clean and healthy environment. Making me sleep
infront of the toilet on the floor. on 1-22-15.”

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An Eighth Amendment claim has both an objective and subjective component: (1) a
sufficiently grave deprivation of a basic human need; and (2) a sufficiently culpable state of
mind. Wilson v. Seiter, 501 U.S. 294, 298 (1991). A prison’s conditions of confinement are
sufficiently grave if they fall beneath “the minimal civilized measure of life’s necessities” as
measured by a “contemporary standard of decency.” Rhodes v. Chapman, 452 U.S. 337, 347
(1981). A prison official inflicting such conditions acts with a sufficiently culpable state of mind
if he does so with “deliberate indifference.” Wilson, 501 U.S. at 303.
Plaintiff complains of being in the isolation cell on one day (1-22-15) and for only a few
hours (from around noon to 5:00 p.m.). Plaintiff alleges no harm or injury resulting from the size
of the cell, the presence of another inmate in that cell, or the “inadiquite fire prevention
system’s.” Further, because Plaintiff has been transferred away from the HCDC, there is no
likelihood that he will be placed in that same isolation cell or in another cell with similar
conditions. He simply fails to allege facts that state an Eighth Amendment claim.
Moreover, because he claims that “[a]s jailer of the [HCDC] Ron Herrington is fully
aware” of the cell conditions, Plaintiff is attempting to hold Defendant Jailer Herrington
responsible based on his supervisory position. However, the doctrine of respondeat superior, or
the right to control employees, does not apply in § 1983 actions to impute liability onto
supervisors. Monell, 436 U.S. at 691; Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 80-81 (6th Cir.
1995); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). “Likewise, simple awareness of
employees’ misconduct does not lead to supervisor liability.” Leary v. Daeschner, 349 F.3d 888,
903 (6th Cir. 2003) (citing Lillard v. Shelby Cnty. Bd. of Educ., 76 F.3d 716, 728 (6th Cir.
1996)). Rather, “a plaintiff must plead that each Government-official defendant, through the

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official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676; Loy v.
Sexton, 132 F. App’x 624, 626 (6th Cir. 2005) (“In 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.’”) (quoting Bass v. Robinson, 167 F.3d 1041, 1048
(6th Cir. 1999)); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (stating that supervisory
liability “must be based on active unconstitutional behavior and cannot be based upon ‘a mere
failure to act’”) (quoting Salehpour v. Univ. of Tenn., 159 F.3d 199, 206 (6th Cir. 1998)).
Plaintiff fails to allege that Defendant Jailer Herrington was actively involved in any of
the alleged wrongdoing. The Court, therefore, will dismiss the individual-capacity claims
against Defendant Jailer Herrington for failure to state a claim upon which relief can be granted.
b. Lt. Buckman
Plaintiff alleges that when he complained about the conditions in the isolation cell to
Defendant Lt. Buckman, that Defendant stated, “‘Thats good enough for you.’” Plaintiff claims
that by Defendant saying this, Defendant “had a biased opinion of me.”
“Not every unpleasant experience a prisoner might endure while incarcerated constitutes
cruel and unusual punishment within the meaning of the Eighth Amendment.” Ivey v. Wilson,
832 F.2d 950, 954 (6th Cir. 1987). Verbal abuse and harassment do not constitute punishment
that would support an Eighth Amendment claim. Id. at 955; 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.”). Plaintiff has failed to make any allegations of a constitutional dimension

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against Defendant Lt. Buckman, and the claim against him will be dismissed for failure to state a
claim upon which relief may be granted.
c. K9 Lt. Rolley
Upon consideration, the Court will allow the Eighth Amendment excessive-force claim to
proceed against Defendant K9 Lt. Rolley for damages.
d. Captains Floyd and Ackerman and Col. Gibson
Plaintiff alleges a violation of his “right to Proper Due Process in an Adjustment
Commity Proceeding (court call) on 12-22-14 [when] Capt’s Floyd and Ackerman knowingly
lied on an offical Department of Corrections [DOC] write up.” He further alleges a due process
violation when “on 1-22-15 Col. Gibson changed the previouse charges on that offical [DOC]
write up to better suit the jails needs on this new write up.”
“Prisoners claiming a due process violation under the Fourteenth Amendment must
demonstrate that they have been deprived of a protected liberty or property interest by arbitrary
governmental action.” Williams v. Bass, 63 F.3d 483, 485 (6th Cir. 1995). Plaintiff wholly fails
to allege the deprivation of a property interest. To the extent he alleges deprivation of a liberty
interest, “[s]uch a liberty interest can arise from the Constitution,” id., and “[s]tates may under
certain circumstances create liberty interests which are protected by the Due Process Clause.”
Sandin v. Connor, 515 U.S. 472, 483-84 (1995). These state-created liberty interests, however,
“will be generally limited to freedom from restraint which, while not exceeding the sentence in
such an unexpected manner as to give rise to protection by the Due Process Clause of its own
force, nonetheless imposes atypical and significant hardship on the inmate in relation to the

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ordinary incidents of prison life.” Id. at 484 (citations omitted). However, a restraint which
“inevitably affect[s] the duration of [an inmate’s] sentence” creates a liberty interest. Id. at 487.
Plaintiff merely claims that Defendants Floyd, Ackerman and Gibson lied or “changed
charges” on write ups. He does not allege that he was found guilty of the disciplinary charges
and, if so, what, if any, discipline he received. Plaintiff fails to allege a restraint either affecting
the duration of his sentence or imposing an atypical and significant hardship on him in relation to
the ordinary incidents of prison life. Accordingly, Plaintiff has failed to demonstrate the
deprivation of a protected liberty interest that would entitled him to procedural due process
protections, and his due process claims against Defendants Captain Floyd, Captain Ackerman,
and Col. Gibson will be dismissed for failure to state a claim upon which relief may be granted.
IV. ORDER
For the foregoing reasons,
IT IS ORDERED that on initial review of the complaint, the Eighth Amendment
excessive-force claim will continue against Defendant K9 Lt. Rolley in his individual capacity
for damages. In permitting this claim to proceed, the Court passes no judgment on the merits
and ultimate outcome of the action. A separate Scheduling Order will be entered to govern the
development of the continuing claim.
IT IS FURTHER ORDERED that all other claims against all remaining Defendants are
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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As all claims against Defendants Jailer Herrington, Lt. Buckman, Captains Ackerman and
Floyd, and Col. Gibson are dismissed, the Clerk of Court is DIRECTED to terminate them
from this action.
Date:

July 7, 2015

cc:

Plaintiff, pro se
Defendants
Henderson County Attorney
4414.005

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