Sublett v. White et al
Filing
22
MEMORANDUM OPINION & ORDER by Senior Judge Thomas B. Russell on 5/22/2013; re 18 Reply filed by Damien A. Sublett, 14 Reply to Response to Motion filed by Damien A. Sublett, 8 MOTION for Emergency Temporary Injunction filed by Damien A. Sublett, 5 Memorandum filed by Damien A. Sublett; a separate scheduling order shall issue cc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
DAMIEN A. SUBLETT
PLAINTIFF
v.
CIVIL ACTION NO. 5:12CV-P180-R
RANDY WHITE et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
Plaintiff Damien A. Sublett filed the instant pro se 28 U.S.C. § 1983 action proceeding in
forma pauperis. This matter is before the Court on the initial review pursuant to 28 U.S.C.
§ 1915A and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
I.
Before conducting initial screening, however, the Court will address several documents
filed by Plaintiff subsequent to filing the complaint in which Plaintiff alleges additional facts
and/or claims. Plaintiff filed a “Memorandum In Support of Claim(s) two (2) and Addendum;
Claim (1) one . . . .” (DN 5). While the filing is not entirely clear, the Court will construe it as a
motion to amend the complaint. Upon review, IT IS ORDERED that the motion to amend the
complaint (DN 5) is GRANTED. See Fed. R. Civ. P. 15(a)(1).
In addition, Plaintiff filed a motion for preliminary injunction (DN 8), a reply in support
of the motion for preliminary injunction (DN 14), and reply to Defendants’ sur-reply (DN 18).
In these filings he makes factual allegations not alleged in the complaint concerning a “hit”
placed on his life by Level 5 prisoners in a white supremacist prison gang. This motion was
fully briefed by the parties and was denied by separate Memorandum and Order (DN 19) for the
reasons stated therein. However, because the motion and reply briefs contain additional facts not
contained in the complaint or amendment, the Court will construe them as motions to amend the
complaint. IT IS ORDERED that, to the extent the motions (DN 8, 14, and 18) seek to amend
the complaint, they are GRANTED. See Fed. R. Civ. P. 15(a)(2).
Upon initial review of the complaint and amendments, for the reasons that follow, some
of Plaintiff’s claims will be dismissed and some will be permitted to proceed for further
development for the reasons that follow.
II.
Plaintiff is an inmate at the Kentucky State Penitentiary (KSP). He sues KSP Warden
Randy White; Deputy Warden of Program Duke Pettit; Unit Administrator Bruce Von Dwigelo;
Correctional Treatment Officer Daniel Smith; and Lieutenant James Beavers. He sues each
Defendant in his individual capacity only.
Plaintiff’s “Claim (1)” states that Defendants deprived him “of his Statutory due process
right under KRS 197.065; ‘Classification and Segregation of prisoners in penal institution.’ By
intergrating, plaintiff, a Level (3) prisoner, with Level (5) prisoners. In violation of KRS
197.065.” He states this is a violation of the Fourteenth Amendment’s Due Process Clause.
In “Claim (2)” Plaintiff states that he filed a previous 42 U.S.C. § 1983 action in this
Court against KSP officials. On October 23, 2012, he prepared a motion to be filed in that action
addressed to the Court and gave it to a prison staff member for mailing. Plaintiff states that
Defendant Smith “intercepted Sublett’s legal mail, and placed a notation on it” and placed it in
the desk where it was found. Plaintiff states, “Plaintiff legal mail never made it out of the
institution.” He later filed a complaint with KSP’s Internal Affairs concerning the mailing. He
states that an Internal Affairs officer conducted an investigation and corrections officer Wilson
“stated that he did find Sublett’s legal mail in the c/o desk.” Wilson stated that he retrieved the
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legal mail from the desk and gave it back to Plaintiff four days after Plaintiff gave the legal mail
to Defendant Smith. He also states that “c/o Howard, stated, he picked up Sublett’s legal mail
and it was placed in the cage operator’s mailing bag, to be forwarded to the mail room. Out
going.” Plaintiff further states that “c/o Wilson was repremended for givening Sublett, his legal
mail to Sublett.” Plaintiff states that his First Amendment right of access to the courts has been
violated.
Plaintiff amended his first claim to state that integrating Level 3 inmates with Level 5
inmates violates the Equal Protection Clause, as well as Ky. Rev. Stat. § 197.065. He also
amended his second claim to state that his legal mail was censored under a KSP policy that
requires indigent inmates to give legal mail to the mailroom unsealed so that it can be verified.
He states that this is a violation of the First Amendment and the Equal Protection Clause. He
also attaches a memorandum addressed to him from Defendant Von Dwigelo stating that his
legal mail must be given to the mailroom staff unsealed for inspection because he is an indigent
prisoner.
Plaintiff further amended the complaint to add factual allegations concerning a “hit”
placed on him by Level 5 prisoners in a white supremacist prison gang. He states that he “has
been extorted by way of food and labor in order to be allowed to come out of his cell for
recreation.” He states that he has lost 33 pounds “for lack of food, because Plaintiff pay with
food because Plaintiff has no money.” Plaintiff further states that the white supremacist prison
gang is “now seeking sexual payments” but he has refused because of fear of HIV or AIDS. He
states that he informed Defendants Von Dwigelo, Beaver, Smith, Pettit, and White, as well as
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several non-Defendant KSP staff members, about the threat of a “hit” by the white supremacist
prison gang and that they did not transfer Plaintiff to another prison unit.
As relief, he seeks compensatory and punitive damages and injunctive relief.
III.
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 28 U.S.C. §§ 1915A(b)(1), (2); McGore, 114 F.3d at 604.
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
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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
(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).
IV.
Housing classification
Plaintiff claims that he is classified as a Level 3 inmate but is being housed with Level 5
inmates.1 He argues that this amounts to a denial of due process and a violation of Ky. Rev. Stat.
§ 197.065. However, a prisoner does not have a constitutional right to be housed in any
particular facility or to be assigned to a certain classification. See Argue v. Hofmeyer, 80 F.
App’x 427, 429 (6th Cir. 2003); Williamson v. Campbell, 44 F. App’x 693 (6th Cir. 2002)
(holding that a prisoner has no constitutional right to be confined in a particular institution or to
1
In an affidavit filed by Defendant Pettit, Petit stated that Level 3 inmates are mediumsecurity inmates and that Level 5 inmates are maximum-security inmates.
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enjoy a certain classification). Therefore, the integration of Level 3 and Level 5 inmates does
not give rise to a constitutional claim.
Moreover, while Plaintiff claims that Defendants have violated Ky. Rev. Stat. § 197.065,
the failure of prison officials to follow state statutes or institutional procedures or policies does
not give rise to a constitutional claim. Sandin v. Conner, 515 U.S. 472, 481-82 (1995); Smith v.
City of Salem, Ohio, 378 F.3d 566, 578 (6th Cir. 2004) (“[S]tate law, by itself, cannot be the
basis for a federal constitutional violation.”).
Plaintiff also alleges that integrating Level 3 inmates with Level 5 inmates is a violation
of the Equal Protection Clause. However, to sustain an equal protection claim, a plaintiff must
allege, in part, that the defendant intentionally discriminated against him because he was a
member of a protected class. McCleskey v. Kemp, 481 U.S. 279, 292 (1987); Purisch v. Tenn.
Tech. Univ., 76 F.3d 1414, 1424 (6th Cir. 1996). Plaintiff has not alleged that he is a member of
any protected class or that Defendants integrated him with Level 5 inmates because of his
membership in a protected class. Neither prisoners nor any classification of prisoners are a
suspect class subject to the protection of the Equal Protection Clause. Hampton v. Hobbs, 106
F.3d 1281, 1286 (6th Cir. 1997); see also United States v. King, 62 F.3d 891, 895 (7th Cir.
1998).
Therefore, Plaintiff’s claims concerning the integration of Level 3 inmates with Level 5
inmates fail to state a claim upon which relief may be granted and will be dismissed.
Failure to protect and denial of recreation
Plaintiff also alleges that he has a “hit” placed on him by Level 5 prisoners in a white
supremacist prison gang and that he has had to pay these inmates in food to go to recreation
causing him to lose 33 pounds and to be denied recreation. He further alleges that he informed
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Defendants Von Dwigelo, Beaver, Smith, Pettit, and White of these circumstances and they took
no action.
Prison officials have a duty under the Eighth Amendment “to protect prisoners from
violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994).
Furthermore, a total deprivation of recreation may violate the Eighth Amendment. Walker v.
Mintzes, 771 F.2d 920, 927 (6th Cir. 1985). While the Court found that Plaintiff failed to meet
the standard of proof necessary for obtaining emergency injunctive relief, upon review, the Court
will allow Plaintiff’s claims of failure to protect and denial of recreation to proceed for further
development against Defendants Von Dwigelo, Beaver, Smith, Pettit, and White. In doing so,
the Court passes no judgment on the ultimate merit of these claims.
Legal mail
Plaintiff states that Defendant Smith intercepted his legal mail and that, as an indigent
prisoner, he must give his legal mail to the mailroom unsealed so that it can be verified as legal
mail according to KSP policy. He attaches a memorandum from Defendant Von Dwigelo stating
that his legal mail must be given to the mailroom staff unsealed for inspection because he is an
indigent prisoner. In certain situations, opening a prisoner’s legal mail outside of his presence
can violate the First Amendment. See Sallier v. Brooks, 343 F.3d 868, 874 (6th Cir. 2003).
Upon review, the Court will allow Plaintiff’s First Amendment claims concerning his legal mail
to go forward against Defendants Smith and Von Dwigelo. The Court passes no judgment on the
outcome of these claims.
However, to the extent Plaintiff alleges that interference with his legal mail violates the
Equal Protection Clause, the claim fails. Plaintiff states that his legal mail is opened because of
his status as an indigent prisoner. However, indigent prisoners are not a protected class subject
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to the Equal Protection Clause. Harris v. McRae, 448 U.S. 297, 323 (1980) (indigence is not a
suspect class for an equal protection claim); Hampton v. Hobbs, 106 F.3d at 1286 (indigent
prisoners are not a suspect class). Therefore, Plaintiff’s claims that the opening of his legal mail
violated the Equal Protection Clause will be dismissed for failure to state a claim.
V.
For the reasons set forth herein, and the Court being otherwise sufficiently advised, IT IS
ORDERED that Plaintiff’s § 1983 claims concerning the integrating of Level 3 and Level 5
inmates and claims for violation of the Equal Protection Clause concerning the opening of his
legal mail are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon
which relief may be granted.
The Court will enter a separate Scheduling Order governing the development of the
claims that have been permitted to proceed.
Date:
May 22, 2013
cc:
Plaintiff, pro se
Defendants
Counsel of record
4413.010
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