Hardy v. Parnell et al

Filing 16

MEMORANDUM OPINION AND ORDER by Senior Judge Thomas B. Russell, dismissing the amended complaint 7 and supplement 13 pursuant to 28 U.S.C. § 1915A(b)(1). Plaintiff may amend the complaint with respect to the retaliation claim. Should Plaintiff file no amended complaint within 30 days, the Court will enter a final Order dismissing this action. cc: Plaintiff (pro se) (with § 1983 complaint form); Fulton County Attorney (JLS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH

VICTOR HARDY

PLAINTIFF

v.

CIVIL ACTION NO. 5:13CV-P73-R

RICKY PARNELL et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
On review of the original pro se complaint (DN 1), the Court was unable to discern who
the Plaintiffs were. Consequently, by Order entered August 16, 2013 (DN 5), the Court directed
Plaintiff Hardy and any other intended Plaintiffs to file an amended complaint which the Court
advised would supercede the original complaint. Only Plaintiff Hardy filed an amended
complaint (DN 7), and in a letter, he advised that he is the only Plaintiff in this action “Due to we
all have been separated some or in different dorms then [] others have left [and] went to prison.
Some or free and went home [] And I have no way to contact or get intouch with these peers”
(DN 9). The Court concludes that Plaintiff Hardy is the sole Plaintiff in this action.
After filing his amended complaint, Plaintiff also filed a letter (DN 13) containing
allegations which occurred following the filing of his amended complaint. The Court construes
this letter as a motion to supplement (DN 13), which is GRANTED.
This matter is currently before the Court on initial review of Plaintiff’s pro se amended
complaint (DN 7) and supplement (DN 13) 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 amended complaint (DN 7) and supplement

(DN 13) will be dismissed, but the Court will provide Plaintiff with another opportunity to file
an amended complaint with respect to his retaliation claim.
I. SUMMARY OF CLAIMS
Plaintiff filed an amended complaint pursuant to 42 U.S.C. § 1983 regarding the
conditions of his confinement at the Fulton County Detention Center (FCDC). Plaintiff was a
convicted inmate incarcerated in the FCDC when he initiated this action, but he has since been
transferred to the Roederer Correctional Complex (RCC).
Plaintiff brings suit against FCDC Jailer Ricky Parnell and FCDC Chief Deputy Jim
Williams in their individual and official capacities.
In the amended complaint, Plaintiff raises two claims. Plaintiff first complains of
“Money being taken off My books.” He reports filing “Grievances against Jim Williams” on
February 19 and 25, 2013, and filing an appeal on March 4, 2013, but never receiving a
response. He asks, “why they was taking money off my account for Hygienes,” and he reports
that he filed an “informal resolutin - Jim Williams- nothing done - 2-25-13 [and] 2-18-13 file
claim do to my 8th Amendment Rights being violated cruel unusual Punishment by Jailer Ricky
Parnell. Im a state inmate being charged for state indigent Products.”
As to his second claim, Plaintiff complains of being placed in “the hole” and alleges as
follows:
Grievence on 8-14-13 about putting me in the hole against my will.1 During chow
time guard comes and say Hardy Pack it up, im thinking im being shipped off, then

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To his amended complaint, Plaintiff attached a copy of the August 14, 2013, grievance.
The grievance was directed to Jeff Johnson, but it is unclear who responded to the grievance as
the signature is illegible. The response stated, “You are not in the hole you were placed in
protective custody Due to your concerns. We are monitoring your well being closely.”
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I ask whats going on Guard stated to me you are checking in the hole for writting
Greivences, ordered by Jeff Johnson. Grevance 8-20-13 To Jeff Johnson regarding
me being in the hole [and] letting him no that I didnt request to be here.2 Inspector
Sarah Hughes stated to him to release me from P.C. [and] put me back in my dorm.
so he had me to write him a letter stating that I don’t want P.C. after I did that. He
comes back with you are not getting out of P.C due to you have been intimidating
inmates. another way to punish me for writting Greveicnies [and] filing the 1983
lawsuit against them [and] facility. And for bringing attention to F.C.D.C. my rights
are being violated against/inmates have the right to file a complaint against Jail or
Prison Staff for cruel [and] unusual Punishment [and] if your rights are being
violated.
To the amended complaint, Plaintiff attached a copy of a July 28, 2013, letter addressed
to Sarah Hughes of the Department of Corrections, Division of Local Facilities. Therein, he
writes that he is “scared for my safety of my life” at FCDC, and “Im so fearful here I cant eat my
food cause I no now they really are trying to poison me. I keep finding hair [illegible] like rocks
real fine pieces of metal in my food. They given me bread that have green mode on the sides.”
He continues, “Just this matter of me having a civil suit against the Jailer here at F.C.D.C is a
automaticed conflic with me and the staff here at F.C.D.C. Thats probably with they
intimidating me and making these threating statement towards me and trys to poison me with the
food.”

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Plaintiff also attached a copy of his August 20, 2013, grievance directed to Jeff Johnson.
Plaintiff stated that he is not afraid of other inmates but of FCDC officers and that “I feel more
safe being in the dorm around people. Then what I do being in P.C.” He further stated, “You
placed me in here to shut my mouth. . . . this is a retaliation move of a punishment to make me
suffer. Due to me exposing whats taking place down here at f.C.D.C. You call this P.C. I see it
as the hole segregation a consequence for writen them letters to D.O.C.” The August 22, 2013,
response indicated, “After investigating this matter with personel with Dept. Of Corrections. We
spoke with several inmates [and] have concluded that you have intimidated other inmates. We
will not remove you from Protective custody at this time.”
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In the supplement to the complaint, Plaintiff alleges that after being transferred to RCC,
a write up was sent From Fulton Cty. Regarding horseplaying that I served 35 days
for. Then they stated that I was hitting inmates on the butts.3 Which is a lie I don’t
play like that im not a homosexual [and] I don’t play like that in any kind away. So
I went to court call at the roederer tried to defend myself [and] to make them
understand that this is still their way of retialing against me still. . . . Then when I go
to be classified they slap me with high Risk mgnt. Maxium Security Level.
In addition to increasing his custody level, Plaintiff reports that as a result of the new write-up,
“they took 60 days of My Good time [and] gave me twenty days in the hole.”
Plaintiff reports that the “horseplaying” incident, for which he was placed in the hole for
35 days while at FCDC, occurred on June 7, 2013, the same date as the new charge of allegedly
hitting inmates on the butt. He questions why he was not charged for both incidents while at
FCDC and alleges “double Jeopardy Im being punished for the same charge twice of
horseplaying on top of that added charges that never occurred.” He claims that “They are mad
because I got shipped out. And they couldn’t finish tormenting me. So they said I’ll get you one
way or another.”
As relief, Plaintiff seeks monetary and punitive damages; an injunction directing his
shipment away from FCDC; and “Release as soon as disposition/restore good time expungement
of records.”
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

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A copy of the Disciplinary Report Form regarding the new write-up indicates that on
June 7, 2013, Plaintiff and two other inmates “assaulted” four other inmates “by grabbing and
smacking them on their butts.” In addition, Plaintiff “chocked and slammed” one of the inmates
and also grabbed another inmate’s “butt 3 or 4 times.”
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§ 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
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

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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
“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, 640 (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).
Plaintiff sues Defendants in both their individual and official capacities. Individualcapacity “suits seek to impose personal liability upon a government official for actions he takes
under color of state law.” Kentucky v. Graham, 473 U.S. 159, 165 (1985). “Official-capacity
suits, in contrast, ‘generally represent only another way of pleading an action against an entity of
which an officer is an agent.’” Id. Plaintiff’s official-capacity claims against Defendants,

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therefore, are actually against Fulton County. See Lambert v. Hartman, 517 F.3d 433, 440 (6th
Cir. 2008).
“On the merits, to establish personal liability in a § 1983 action, it is enough to show that
the official, acting under color of state law, caused the deprivation of a federal right.” Kentucky
v. Graham, 473 U.S. at 166. “More is required in an official-capacity action, however, for a
governmental entity is liable under § 1983 only when the entity itself is a moving force behind
the deprivation.” Id. (quoting Polk Cnty. v. Dodson, 454 U.S. 312, 326 (1981)) (internal
quotation marks omitted). “[T]hus, in an official-capacity suit the entity’s ‘policy or custom’
must have played a part in the violation of federal law.” Id. (quoting Monell v. New York City
Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)); Alkire v. Irving, 330 F.3d 802, 815 (6th Cir.
2003) (”[T]o 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.”).
A. Payment for hygiene items
“[T]he Eighth Amendment prohibits the denial of basic needs, including hygiene.”
Argue v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003) (citing Estelle v. Gamble, 429 U.S. 97,
104 (1976)). Plaintiff does not allege that he was denied hygiene items. He complains only that
he, a state inmate, was charged for them. Because he does not complain that he was denied any
basic necessities, Plaintiff fails to state an Eighth Amendment claim upon which relief may be
granted. Id. (“Argue’s claim does not rise to the level of cruel and unusual punishment. Argue
did not allege that he suffered extreme discomfort or that he has been completely denied hygiene
products.”). Having failed to state a constitutional claim, Plaintiff’s claims fail against
Defendants Parnell and Williams in both their individual and official capacities.
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B. Retaliation
Plaintiff alleges that he was retaliated against (placed in the hole, threatened, given
tainted food, issued a bogus write-up) for writing letters to the Department of Corrections, for
filing grievances, and for filing this § 1983 action. He fails to allege any facts involving
Defendants Parnell and Williams in the alleged retaliation claims. See Ridgeway v. Kentucky,
510 F. App’x 412, 413 (6th Cir. 2013) (“Ridgeway failed to allege how any defendant was
personally involved in the deprivation of his constitutional rights and for this reason, the district
court properly dismissed the complaint.”) (citing Rizzo v. Goode, 423 U.S. 362, 373 (1976)).
Rather, Plaintiff attributes his placement in the hole to Jeff Johnson, who is not a defendant, and
his bogus write-up, food contamination, and threats to unspecified staff.
To the extent Plaintiff seeks to hold Defendants Parnell and Williams liable based on
their supervisory positions, 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). Additionally,
“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 official’s own individual actions, has violated the Constitution.” Iqbal,
129 S. Ct. at 1948; Grinter v. Knight, 532 F.3d 567, 576 (6th Cir. 2008) (“The ‘denial of
administrative grievances or the failure to act’ by prison officials does not subject supervisors to
liability under § 1983.”) (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)).
Because Plaintiff fails to allege direct involvement by either Defendant Parnell or
Williams in any of his complaints of retaliation, his retaliation claim fails against them in their
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individual capacities. However, because Plaintiff alleges that Jeff Johnson (for whom he
submitted a summons but did not name as a defendant in either the amended complaint or
supplement) and unspecified staff retaliated against him for writing letters, filing
grievances, and filing this action, the Court will allow Plaintiff to file an amended
complaint with respect to the retaliation claim and naming as Defendants those individuals
who were allegedly involved. See LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013)
(“[U]nder Rule 15(a) a district court can allow a plaintiff to amend his complaint even when the
complaint is subject to dismissal under the PLRA.”).
As to the official-capacity claims, none of the allegations in the amended complaint or its
supplement demonstrate that any alleged wrongdoing or injury occurred as a result of a policy or
custom implemented or endorsed by Fulton County. Accordingly, the complaint fails to
establish a basis of liability against the municipality and fails to state a cognizable § 1983 claim.
Additionally, “a municipality is immune from punitive damages under 42 U.S.C. § 1983.” City
of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). For these reasons, the officialcapacity claims of retaliation against Defendants also must be dismissed.
C. Fear for safety
Plaintiff alleges that while at FCDC he feared for his safety because unspecified FCDC
officers were threatening him and trying to poison him. However, he does not allege the
circumstances surrounding these claims. His conclusory allegations of fear for his safety do not
rise to the level of a constitutional violation in this case. Wilson v. Yaklich, 148 F.3d 596, 601
(6th Cir. 1998) (“However legitimate [the plaintiff’s] fears may have been, we nevertheless
believe that it is the reasonably preventable assault itself, rather than any fear of assault, that
gives rise to a compensable claim under the Eighth Amendment.”) (quoting Babcock v. White,
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102 F.3d 267, 272 (7th Cir. 1996)) (internal citations omitted)). Because Plaintiff complains
only of past threats resulting in no physical injury and is no longer incarcerated at the FCDC, he
fails to state a claim upon which relief may be granted against Defendants in both their
individual and official capacities.
D. Double Jeopardy
Plaintiff alleges a double jeopardy violation for “being punished for the same charge
twice of horseplaying on top of that added charges that never occurred.” “The Double Jeopardy
Clause provides that no ‘person [shall] be subject for the same offence to be twice put in
jeopardy of life or limb.’” Hudson v. United States, 522 U.S. 93, 98 (1997). That Clause “does
not prohibit the imposition of all additional sanctions that could, in common parlance, be
described as punishment.” Id. at 98-99 (citations and internal quotation marks omitted). Rather,
it “protects only against the imposition of multiple criminal punishments for the same offense.”
Id. at 99. The “traditional rule [is] that prison disciplinary sanctions do not trigger the
protections of the double jeopardy clause.” Porter v. Coughlin, 421 F.3d 141, 144 (2d Cir.
2005). “The Double Jeopardy Clause was not intended to inhibit prison discipline . . . .” United
States v. Simpson, 546 F.3d 394, 398 (6th Cir. 2009).
Because “the Double Jeopardy Clause does not apply to prohibit the successive prison
disciplinary proceedings,” Meeks v. McBride, 81 F.3d 717, 722 (7th Cir. 1996); see also Howard
v. Tibbals, No. 1:12-CV-2628, 2013 WL 821339, at *9 (N.D. Ohio Mar. 4, 2013) (“[T]here is no
suggestion that defendants’ consideration of previously imposed administrative disciplinary
sanctions in determining plaintiff’s security classification constituted a criminal punishment.”),
Plaintiff fails to state a double jeopardy claim related to his prison disciplinary proceedings, and
that claim must be dismissed.
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E. Injunctive relief
Plaintiff seeks two forms of injunctive relief. First, Plaintiff asks to be shipped from
FCDC. Because Plaintiff has been transferred to RCC, this request for injunctive relief is moot.
See Wilson v. Yaklich, 148 F.3d 596, 601 (6th Cir. 1998) (holding that a prisoner’s claims for
injunctive relief became moot after transfer to another facility).
Second, Plaintiff asks for “Release as soon as disposition/restore good time expungement
of records.” “[W]hen a state prisoner is challenging the very fact or duration of his physical
imprisonment, and the relief he seeks is a determination that he is entitled to immediate release
or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.”
Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Wolff v. McDonnell, 418 U.S. 539, 554 (1974)
(“The complaint in this case sought restoration of good-time credits, and the Court of Appeals
correctly held this relief foreclosed under Preiser.”). Because Plaintiff is seeking an immediate
or speedier release from custody, this § 1983 claim for injunctive relief must be dismissed.

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IV. ORDER
For the foregoing reasons,
IT IS ORDERED the amended complaint (DN 7) and supplement (DN 13) 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 that within 30 days from the entry date of this
Memorandum Opinion and Order, Plaintiff may amend the complaint with respect to the
retaliation claim. The Clerk of Court is DIRECTED to place the case number and word
“Amended” on a § 1983 complaint form and send it, along with three blank summons forms, to
Plaintiff for his use should he wish to amend the complaint. Should Plaintiff file no amended
complaint within 30 days, the Court will enter a final Order dismissing this action.
Date:

November 1, 2013

cc:

Plaintiff, pro se
Fulton County Attorney
4413.005

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