Basham v. Burns et al

Filing 6

MEMORANDUM OPINION by Chief Judge Joseph H. McKinley, Jr. on 10/3/2018: The Court will enter a separate Order dismissing this action for failure to state a claim upon which relief may be granted. cc: Plaintiff (pro se), Defendants, DCA (JM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT OWENSBORO
BRYANT ANTHONY BASHAM
v.

PLAINTIFF
CIVIL ACTION NO. 4:17-CV-P156-JHM

ROBBY BURNS et al.

DEFENDANTS
MEMORANDUM OPINION

This is a pro se civil rights action brought pursuant to 42 U.S.C. § 1983. This matter is
before the Court for screening of the complaint pursuant to 28 U.S.C. § 1915A. For the reasons
set forth below, the Court will dismiss this action.
I. SUMMARY OF COMPLAINT
Plaintiff Bryant Anthony Basham is incarcerated at Daviess County Detention Center
(DCDC). He names Robby Burns, a DCDC shift supervisor, and Shawn Wethington, a DCDC
corrections officer, as Defendants in their individual capacities.
In his complaint, Plaintiff makes the following allegations:
On 10-29-2017 at approximately 5:40 a.m. I county inmate Bryant Anthony
Basham was placed in cell B-190 with state inmate [] inside hole by [Defendant]
Wethington a correction officer who was asked to do so by shift supervisor Robby
Burns as soon as Mr. Worthington left the cell state inmate [] found out I come
from a protective custody cell and was offer $20 dollars to beat me up.
State inmate [] started punching me in the face and back of head and I put my hand
over my head to protect my temples and I felt a hard object slam into my left hand,
x-ray results showed fracture to my 4th metacarpal, swelling to soft tissue associated
to fracture, I also suffered bloody nose and redness to head and face and bruising
to left hand as well.
Soft cast was put on left hand, I had to go outside to hospital for x-rays and cast
. . . . It is a violation to house county inmates with state inmates in a two man cell.
Due to me being a county inmate who received physical injuries from a state inmate
I’m filing this lawsuit.
As relief, Plaintiff seeks damages and injunctive relief.

II. LEGAL STANDARD
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 the court 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. See § 1915A(b)(1), (2); McGore v. Wrigglesworth, 114 F.3d 601, 604
(6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007).
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
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, 561 F.3d at 488 (quoting
Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). “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 this Court recognizes that pro se pleadings are to be held to a less stringent
standard than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520-21

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(1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991), “[o]ur duty to be ‘less stringent’
with pro se complaints does not require us to conjure up unpled allegations.” McDonald v. Hall,
610 F.2d 16, 19 (1st Cir. 1979) (citation omitted). And this Court is not required to create a
claim for Plaintiff. Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975).
To command otherwise would require the Court “to explore exhaustively all potential claims of a
pro se plaintiff, [and] would also transform the district court from its legitimate advisory role to
the improper role of an advocate seeking out the strongest arguments and most successful
strategies for a party.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
III. ANALYSIS
“Section 1983 creates no substantive rights, but merely provides remedies for
deprivations of rights established elsewhere.” Flint ex rel. Flint v. Ky. Dep’t of Corr., 270 F.3d
340, 351 (6th Cir. 2001). Two elements are required to state a claim under § 1983. Gomez v.
Toledo, 446 U.S. 635 (1980). “[A] plaintiff must allege the violation of a right secured by the
Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
“Absent either element, a section 1983 claim will not lie.” Christy v. Randlett, 932 F.2d 502,
504 (6th Cir. 1991).
The Eighth Amendment imposes a duty on corrections officers to take reasonable
measures “to protect prisoners from violence at the hands of other prisoners.” Farmer v.
Brennan, 511 U.S. 825, 832 (1994) (citation omitted). However, not “every injury suffered by
one prisoner at the hands of another . . . translates into constitutional liability for prison officials
responsible for the victim’s safety.” Id. at 834. Rather, to maintain an Eighth Amendment claim
based on a failure to prevent harm, an inmate must allege both an objective and subjective

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component. Id. With regard to the objective component, the plaintiff “must show that he [was]
incarcerated under conditions posing a substantial risk of serious harm.” Id. The subjective
component requires the plaintiff to allege that the defendant acted with “deliberate indifference”
to that risk. Id. “Deliberate indifference is a state of mind akin to criminal recklessness: the
official must both be aware of the facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.” Hamilton v. Eleby,
341 F. App’x 168, 171 (6th Cir. 2009) (internal quotation marks and citations omitted).
Indeed, as the Court of Appeals for the Seventh Circuit explained:
In failure to protect cases, a prisoner normally proves actual knowledge of
impending harm by showing that he complained to prison officials about a specific
threat to his safety. Mere negligence (for example if a prison guard should know
of a risk but does not) is not enough to state a claim of deliberate indifference under
the Eighth Amendment. It is also not sufficient to show that the prison guard
merely failed to act reasonably.
Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996) (internal quotation marks and citations omitted).
With regard to establishing the first component - substantial risk of serious harm - an
inmate must allege that he was incarcerated under conditions posing a substantial risk of serious
harm. Hester v. Morgan, 52 F. App’x 220, 222 (6th Cir. 2002). To do so, he must allege that
“there was a substantial risk of serious harm to inmates generally, or to himself specifically.”
Id. at 223. Here, Plaintiff claims that he was attacked because he, a “county inmate,” was
wrongfully housed with a “state inmate.” However, Plaintiff makes no allegation that there was
any warning or threat of violence against him by state inmates or that he or other county inmates
had been the subject of assaults by state inmates in the past. Thus, because Plaintiff has failed to
allege that a substantial risk of harm existed, he fails to state a claim upon which relief may be
granted. See, e.g., Fanning v. Voyles, No. 2:13-cv-02011-WMA-HGD, 2014 U.S. Dist. LEXIS
164376, at *11 (N.D. Ala. Oct. 9, 2014) (finding no substantial risk of harm to plaintiff existed
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where assaulting inmate had spat on and kicked another inmate several days prior to his attack on
the plaintiff); cf. Sousa v. Anglin, 481 F. App’x 265, 267 (7th Cir. 2012) (finding that plaintiff
had alleged that he was incarcerated under conditions posing a substantial risk of harm where his
cellmate weighed 260 pounds, was known as a “barn boss,” and had a history of attacks on at
least five prior cellmates); Greene v. Bowles, 361 F.3d 290, 294-95 (6th Cir. 2004) (concluding
that the plaintiff had satisfied the first element of a failure-to-protect claim by alleging that, as a
transgendered inmate, she was vulnerable to assaults by other inmates and that the assaulting
inmate had “a long institutional history of being a disruptive, violent inmate” and was “a
maximum-security inmate”).
In addition, even if Plaintiff could demonstrate that he was incarcerated under conditions
imposing a substantial risk of harm, he has failed to allege any facts which demonstrate that
either Defendant knew of and disregarded that risk. Courts have generally held that unexpected
incidents are insufficient to establish a claim for deliberate indifference. See, e.g., Parris v. N.Y.
State Dep’t Corr. Servs., 947 F. Supp. 2d 354, 363 (S.D.N.Y. 2013) (“Courts routinely deny
deliberate indifference claims based on surprise attacks.”) (citation omitted). Plaintiff does not
allege that he complained to any prison official about any threat to his safety. Indeed, nothing in
the complaint demonstrates that the assault was anything but an unexpected incident or gives any
other indication that Defendants knew of and disregarded a risk of harm to Plaintiff.
Finally, to the extent that Plaintiff asserts that his rights were violated simply because
state and county inmates are housed together at DCDC, Plaintiff also fails to state cognizable
claim under § 1983. While state law may dictate the duration and circumstances under which a
convicted inmate can be held in a county facility, an inmate does not enjoy a constitutional right
to be housed in any particular facility or a particular part of the facility. See Harbin-Bey v.

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Rutter, 420 F.3d 571, 576 (6th Cir. 2005) (holding that a prisoner does not have a constitutional
right to be placed in a specific security classification); Biliski v. Harborth, 55 F.3d 160, 162
(5th Cir. 1995) (per curiam) (rejecting claim that being held in a county facility was more
disagreeable than if plaintiff had immediately been transferred to a state facility).
IV. CONCLUSION
For the foregoing reasons, the Court will enter a separate Order dismissing this action for
failure to state a claim upon which relief may be granted.
Date:

October 3, 2018

cc:

Plaintiff, pro se
Defendants
Daviess County Attorney
4414.011

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