Cox v. Von Dwingelo et al

Filing 6

MEMORANDUM AND OPINION and ORDER by Senior Judge Thomas B. Russell on intitial screening pursuant to 28 U.S.C. § 1915A. The claims against Defendants Grief and White are DISMISSED for failure to state a claim pursuant to § 1915A(b)(1).The Clerk of Court is DIRECTED to terminate Defendants Grief and White as parties to this action. A separate Scheduling Order will be entered to govern the development of the remaining claims. cc: Plaintiff, pro se; Defendants; General Counsel (SG)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CLAUDE COX A/K/A CANDY LEE
v.

PLAINTIFF
CIVIL ACTION NO. 5:14-CV-P212-R

BRUCE VON DWINGELO et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Plaintiff, Claude Cox a/k/a Candy Lee, filed a pro se, in forma pauperis complaint
pursuant to 42 U.S.C. § 1983. This matter 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 reasons set forth below, the action will
be dismissed in part and allowed to continue in part.
I. SUMMARY OF CLAIMS
Plaintiff is a prisoner at the Kentucky State Penitentiary (KSP). He names as Defendants
in their individual capacities the following employees of KSP: Bruce Von Dwingelo,
caseworkers Marshall Peek and Mike Spendler, Deputy Warden Skyla Grief, and Warden Randy
White.
Plaintiff alleges that when he “checked into the whole” he told Defendants Von
Dwingelo, Peek, and Spendler that he needed to go “back up to protective custody and they
refused to grant me protective custody.” He states that his “life is in danger on this yard and I
told them five name’s of inmate’s were charging me yard taxes so I was actually forced to check
back in too protective custody and they have refused it.” As relief, he asks for monetary and
punitive damages and an emergency transfer.

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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
On initial review, the Court will allow the claims against Defendants Von Dwingelo,
Peek, and Spendler to continue. In doing so, the Court expresses no opinion on the ultimate
merit of those claims.
However, Defendants Grief and White will be dismissed from this action. Other than
naming them as Defendants, the complaint does not mention Defendants Grief and White. Some
factual basis for claims against a Defendant must be set forth in the pleadings. Chapman v. City
of Detroit, 808 F.2d 459, 465 (6th Cir. 1986). Plaintiff must allege specific facts that explain

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how the defendant is personally responsible for the alleged injuries. Smith v. Rowe, 761 F.2d
360, 369 (7th Cir. 1985). Plaintiff’s complaint fails to do so with regard to these Defendants. As
such, the claims against these Defendants must be dismissed for a failure to state a claim. See
Copeland v. Machulis, 57 F.3d 476, 481 (6th Cir. 1995) (per curiam) (stating that personal
involvement by the defendant is an essential element in a § 1983 cause of action asserting a
constitutional deprivation).
Moreover, these Defendants cannot be liable simply by virtue of their supervisory
positions, i.e., as Warden and Deputy Warden of KSP. The doctrine of respondeat superior, or
the right to control employees, does not apply in § 1983 actions to impute liability onto
supervisors. Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658, 691 (1978);
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). Rather, to establish supervisory liability in a § 1983 action, “[t]here
must be a showing that the supervisor encouraged the specific incident of misconduct or in some
other way directly participated in it. At a minimum, a § 1983 plaintiff must show that a
supervisory official at least implicitly authorized, approved or knowingly acquiesced in the
unconstitutional conduct of the offending subordinate.” Bellamy, 729 F.2d at 421. “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)). Supervisory liability “must be based on active unconstitutional
behavior and cannot be based upon ‘a mere failure to act.’” Shehee v. Luttrell, 199 F.3d 295,
300 (6th Cir. 1999) (quoting Salehpour v. Univ. of Tenn., 159 F.3d 199, 206 (6th Cir. 1998)).
Consequently, the Court finds that Plaintiff has not stated a claim against these Defendants.

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III. CONCLUSION AND ORDER
For the foregoing reasons,
IT IS ORDERED that the claims against Defendants Grief and White are DISMISSED
for failure to state a claim pursuant to § 1915A(b)(1).
The Clerk of Court is DIRECTED to terminate Defendants Grief and White as parties to
this action.
A separate Scheduling Order will be entered to govern the development of the remaining
claims.
Date:

December 5, 2014

cc:

Plaintiff, pro se
Defendants
General Counsel, Justice & Public Safety Cabinet, Office of Legal Counsel
4413.009

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