Burke et al v. Thompson et al

Filing 21

MEMORANDUM AND OPINION by Senior Judge Thomas B. Russell on 8/4/2017; a separate order shall enter. cc: plaintiffs pro se, defendants, General Counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
THOMAS EDWARD BURKE et al.
v.

PLAINTIFFS
CIVIL ACTION NO. 5:15CV-P156-TBR

LADONNA THOMPSON et al.

DEFENDANTS

MEMORANDUM OPINION
Two Kentucky State Penitentiary (KSP) prisoners, Thomas Edward Burke, Jr., and
Jeremy Todd West, who are proceeding without the assistance of counsel, filed a complaint
pursuant to 42 U.S.C. § 1983 (DN 1) and an amendment (DN 11) thereto. This matter is before
the Court on initial screening of the complaint and its amendment pursuant to 28 U.S.C.
§ 1915A. For the reasons that follow, the Court will dismiss the action.
I. SUMMARY OF CLAIMS
Plaintiffs bring this action against the following nineteen Defendants in their individual
and official capacities: (1) LaDonna Thompson, former Commissioner of the Kentucky
Department of Corrections (KDOC); (2) Randy White, KSP Warden; (3) Joel Dunlap, KSP
Deputy Warden of Security; (4) Skyla Grief, KSP Warden of Programs; (5) James Beavers, KSP
Internal Affairs Officer; (6) Timothy White, KSP Kitchen Supervisor; (7) Josh Patton, KSP Unit
Administrator I; (8) Timothy Lane, KSP Unit Administrator II; (9) Justin Hughes, KSP
Classification and Treatment Officer and member of “Cert Team”; (10) Micah Melton, KSP
“CTO/cert team member”; (11) Amy Fisher, KSP “CTO”; (12) Adam Noel, KSP “CTO” and
Grievance Committee member; (13) Dan Smith, KSP Grievance Coordinator; (14) Lt. Morris;
(15) Kevin Winfrey, KSP Kitchen Supervisor; (16) KSP; (17) Aramark Food Service, employer
of Defendants Kitchen Supervisors White and Winfrey; (18) KDOC; and (19) James L. Erwin,

KDOC Deputy Commissioner, Adult Institutions. Plaintiffs allege retaliation, deliberate
indifference in violation of the Eighth Amendment, and violations of due process under the
Fourteenth Amendment.
According to the complaint, Plaintiffs were kitchen workers at KSP. On January 20,
2015, non-Defendant Lt. Hines called Plaintiffs to the yard office, where they were handcuffed.
Plaintiffs told staff that their personal property was still in the kitchen. Plaintiffs were placed in
segregation – Plaintiff West was taken to “3 cellhouse,” and Plaintiff Burke was taken to
“7 cellhouse that is supermax.”
Two days later, on January 22, 2015, Defendant Beavers met with Plaintiff West to
investigate the situation. At this meeting, Plaintiff West found out that he was placed in
segregation because he “was accused of planning an action against [Defendant] Kevin Winfrey
of Aramark.” Plaintiff West told Defendant Beavers that he had no reason to take action against
Defendant Winfrey and that “he and Kevin may not agree on some things but it was not severe
enough to bring harm to the man.” Defendant Beavers advised Plaintiff West that if Plaintiff
Burke’s statements were similar to Plaintiff West’s, then they would both be released soon.
Three days later on January 25, 2015, both Plaintiffs were released from segregation.
On January 26, 2015, Plaintiff West filed a theft report and a grievance regarding his
missing property. Plaintiffs claim that Defendant Morris violated Plaintiff West’s grievance
process resulting in KSP denying him a reimbursement. Also on January 26th, both Plaintiffs
filed a grievance “because they were being denied their jobs after being cleared of any wrong
doing’s.” Defendant Grievance Coordinator Smith rejected the grievance claiming it was a nongrievable issue as it was a classification issue. Plaintiffs report, “[w]e lost our seniority and pay,

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along with Burke’s program completion, because [Defendant] Tim White would not listen to
reason” and hire them back in the kitchen.
At a classification hearing on February 2, 2015, Defendant Patton told Plaintiffs that he
was giving them seven days to find a job; that they were not being listed as “‘unassigned’”; and
that they would not be given back their kitchen jobs “based on ‘Security issues.’” Plaintiffs
report that on February 6, 2015, Plaintiff West was assigned a “‘Yard Runners’ position” that
paid $0.80 per day and that Plaintiff Burke was placed “into ‘Yard Detail’” at the same pay rate.
Plaintiffs claim that Defendant Patton “put [them] in those positions. His reasoning for doing so,
was to keep us off unassigned.”
Plaintiffs filed a classification appeal to Defendant Grief, arguing that they “are not a
security risk due to the facts that [Defendant] Lt. Beavers cleared our situation of any wrong
doings.” They claim that on March 3, 2015, Defendant Grief concurred with the decision of the
classification committee “because we were reassigned forceably to jobs that we never
requested.”
Plaintiffs report that they “started putting in for higher paying jobs, but we were not
accepted to any of them. Only then did we find out we were put into a 90 day lock from
[Defendant] Tim Lane and debated the issue to [Defendant] Josh Patton about being denied
higher paying jobs.”
Plaintiffs also sent a letter to Defendant Beavers requesting a copy of his facts and
findings of his investigation but received no response. They also sent a letter to Defendant Grief,
disagreeing with her concurrence with the classification committee, debating the 90-day
lockdown and denial of their job requests, and arguing that Defendant Timothy White, an
Aramark employee, was “overstepping his bounds as a contractor.” Defendant Grief did not

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respond to their letter. On March 23, 2015, Plaintiffs “wrote a mass request” to Defendants
Dunlap, Grief, and Beavers and non-Defendant Rodgers for a meeting with Plaintiffs and
Aramark Defendants Timothy White and Winfrey, but Plaintiffs never received a response.
On April 24, 2015, Defendant Grief told Plaintiffs that they “could put in for the kitchen
again since we waited out her time frame.” Plaintiffs report that they started submitting
applications to the kitchen but were not hired back. On May 1, 2015, Plaintiffs talked to
Defendant Winfrey, who told Plaintiff Burke that he could talk to Defendant Timothy White
about returning to the kitchen. Defendant Winfrey told Plaintiff West, however, that his return
was questionable due to “past issues of disagreement” over Plaintiff West’s illness in January
and sick days. On May 4, 2015, Plaintiffs approached Defendant Timothy White about their
prior kitchen jobs, and Defendant White said that he was withholding their jobs due to lack of
clarification from Defendant Beavers regarding his investigation. Plaintiffs submitted a request
to Defendant Beavers for his investigation report, and Defendant Beavers told them that he could
not submit a written response without Defendant Warden Randy White’s approval.
On May 12, 2015, Plaintiffs again submitted kitchen applications. Later that day
Defendant Timothy White told them that he refused to hire either of them and that he will not
hire Plaintiff West back because of a past disagreement. Defendant Timothy White did not
indicate why Plaintiff Burke’s position was being denied and said that Plaintiffs “can ‘apply’ all
we want, but I won’t hire you or Burke till I see fit to do so!”
Plaintiffs report that they talked to Defendant Noel in the presence of Defendant Melton
and that Defendant Noel referred them to Defendants Patton and Grief, who Plaintiffs advised
they already dealt with. Plaintiffs wrote to Defendant Warden Randy White on May 26, 2015,
but received no response. On June 2, 2015, Plaintiffs talked to Defendant Dunlap about

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Defendant Timothy White. Defendant Dunlap then went to talk to Defendant Timothy White.
When Defendant Dunlap returned, he stated, “‘I’m done talking!’” and asked Plaintiffs where
they are from. Plaintiffs state, “We assume that Joel Dunlap is attempting to have us transfered
after asking about Tim Whites actions.” Plaintiffs then wrote Defendant former Commissioner
Thompson about their issues and to prevent their transfer.
In the amendment (DN 11), Plaintiffs report that the letter that they sent to Defendant
former Commissioner Thompson was responded to by Defendant Deputy Commissioner Erwin.
They claim that Defendant Erwin advised them that their “job placements are only handled no
higher than the institutional Warden, and it would be forwarded to Warden Randy White.” They
further claim that Defendant Erwin “inadvertantly states that by having 2 or more inmates sign
that I [Plaintiff West] can be punished by D.O.C. for ‘involvement in the writing, circulation, or
signing of petitions which may lead to disruptions of institutional operations.’” Plaintiff West
asserts that he had to include Plaintiff Burke in his letter because “the situation involves both of
us from the start.”
As relief, Plaintiffs seek compensatory and punitive damages, declaratory relief, and
injunctive relief in the form of ordering Defendants Timothy White and Dunlap “to stop your
‘deliberate indifference and retaliation’ of our Jobs and any Transfers to any other prisons, for
retaliation in filing of this complaint before this court. Or any other harrassment from all
defendants named herein the complaint!!”
II. LEGAL STANDARD
Because Plaintiffs are prisoners 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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§ 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 v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.
1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007).
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).

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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).
A. Claims Against KDOC and KSP and Official-Capacity Claims
for Damages Against KDOC and KSP Employees
The Eleventh Amendment1 “bars all suits, whether for injunctive, declaratory or
monetary relief, against the state and its departments,” Thiokol Corp. v. Dep’t of Treasury, State
of Mich., Revenue Div., 987 F.2d 376, 381 (6th Cir. 1993), unless Congress has validly abrogated
the state’s immunity or the state has waived its immunity. Nev. Dep’t of Human Res. v. Hibbs,
538 U.S. 721, 726 (2003); Alabama v. Pugh, 438 U.S. 78l, 782 (1978). The Commonwealth of
Kentucky has not waived its immunity, see Adams v. Morris, 90 F. App’x 856, 857 (6th Cir.
2004), and in enacting § 1983, Congress did not intend to override the traditional sovereign
immunity of the states. Whittington v. Milby, 928 F.2d 188, 193-94 (6th Cir. 1991) (citing Quern

The Eleventh Amendment to the United States Constitution provides, “The Judicial power of the United
States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one
of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
Const. amend. XI. “Although the amendment does not address the possibility of suit against a state by
one of its own citizens, unassailable case law has interpreted the amendment in such a way as to close that
gap.” Barton v. Summers, 293 F.3d 944, 948 (6th Cir. 2002) (citing Hans v. Louisiana, 134 U.S. 1
(1890)).
1

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v. Jordan, 440 U.S. 332, 341 (1979)). The Eleventh Amendment, therefore, bars this § 1983
action against KDOC and KSP.
“This [Eleventh Amendment] bar remains in effect when State officials are sued for
damages in their official capacity.” Kentucky v. Graham, 473 U.S. 159, 169 (1985).
Consequently, the official-capacity claims for damages against all Defendants who are KDOC
and KSP employees are barred by the Eleventh Amendment.
In addition, “neither a State nor its officials acting in their official capacities are ‘persons’
under § 1983.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).
Thus, the claims against KDOC and KSP and the official-capacity claims for damages
against Defendants Thompson, Randy White, Dunlap, Grief, Beavers, Patton, Lane, Hughes,
Melton, Fisher, Noel, Smith, Morris, and Erwin are barred by the Eleventh Amendment and fail
to state a claim upon which relief may be granted.
B. Claims Against Aramark and Official-Capacity
Claims Against Timothy White and Winfrey
The official-capacity claims against Defendants Aramark employees Timothy White and
Winfrey are actually against their employer, Aramark.2 See, e.g., Griffin v. S. Health Partners,
Inc., No. 1:12CV-P174-M, 2013 WL 530841, at *5 (W.D. Ky. Feb. 11, 2013). A private
corporation, like Aramark, “is not liable under § 1983 for torts committed by its employees when
such liability is predicated solely upon a theory of respondeat superior.” Austin v. Paramount
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Aramark apparently contracted with the State to provide food services to Kentucky State Penitentiary
inmates. In the Sixth Circuit, “it is clear that a private entity which contracts with the state to perform a
traditional state function such as providing medical services to prison inmates may be sued under § 1983
as one acting under color of state law.” Hicks v. Frey, 992 F.2d 1450, 1458 (6th Cir.1993). Accordingly,
for the purposes of initial review, the Court presumes that Aramark and its employees are state actors.
See also McCullum v. City of Philadelphia, No. 98-5858, 1999 WL 493696, at *3 (E.D. Pa. July 13,
1999) (“Plaintiff has sufficiently alleged facts which show Aramark was acting under color of state law
for purposes of § 1983. . . . [P]roviding food service, like medical care, to [ ] incarcerated people is one
part of the government function of incarceration.”).

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Parks, Inc., 195 F.3d 715, 728 (4th Cir. 1999). Rather, like a municipality, a private corporation
is liable under § 1983 only when an official policy or custom of the corporation causes the
alleged deprivation of federal rights. See Street v. Corr. Corp. of Am., 102 F.3d 810, 818 (6th
Cir. 1996) (“Monell involved a municipal corporation, but every circuit to consider the issue has
extended the holding to private corporations as well.”). 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).
In the instant case, Plaintiffs do not identify any Aramark policy or custom that caused
any alleged harm. The complaint, therefore, fails to establish a basis of liability against
Aramark. Consequently, the claims against Aramark and the official-capacity claims against
Defendants Timothy White and Winfrey will be dismissed for failure to state a claim.
C. Retaliation
Plaintiffs mention retaliation in the relief section of their complaint when they seek an
injunction “to stop your ‘deliberate indifference and retaliation’ of our Jobs and any Transfers to
any other prisons, for retaliation in filing of this complaint before this court. Or any other
harrassment from all defendants named herein the complaint!!”
Retaliation for the exercise of a constitutional right is itself a violation of the Constitution
actionable under § 1983. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc).
A retaliation claim essentially entails three elements: (1) the plaintiff engaged in
protected conduct; (2) an adverse action was taken against the plaintiff that would
deter a person of ordinary firmness from continuing to engage in that conduct;
and (3) there is a causal connection between elements one and two—that is, the
adverse action was motivated at least in part by the plaintiff’s protected conduct.
Id.

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Plaintiffs do not allege facts in the complaint or amended complaint supporting a
retaliation claim. While filing a lawsuit is protected conduct, Plaintiffs had not yet filed their
complaint when they requested not to be transferred nor do they allege that they told anyone that
they were going to file a lawsuit. Further, a transfer is usually not an adverse action, see SiggersEl v. Barlow, 412 F.3d 693, 701 (6th Cir. 2005) (“Since prisoners are expected to endure more
than the average citizen, and since transfers are common among prisons, ordinarily a transfer
would not deter a prisoner of ordinary firmness from continuing to engage in protected
conduct.”), and Plaintiffs are claiming only a speculative fear of a transfer. They do not allege
that a transfer has been ordered; they merely “assume that Joel Dunlap is attempting to have us
transferred” because Defendant Dunlap asked where they were from. It is unclear what Plaintiffs
mean in seeking stopping retaliation “of our Jobs.” Nevertheless, the complaint indicates that
they lost their jobs and were being refused rehiring before filing the lawsuit; thus, there is no
causal connection between the two elements. Finally, Plaintiffs’ request to stop the harassment
is a non-specific, conclusory request devoid of facts. For these reasons, Plaintiffs fail to allege
that any adverse action has been taken against them that has been motivated by any protected
conduct and fail to state a retaliation claim.
D. Deliberate Indifference
“Extreme deprivations are required to make out a conditions-of-confinement claim”
under the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 9 (1992). “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, 955
(6th Cir. 1987). 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

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mind. Wilson v. Seiter, 501 U.S. 294, 298 (1991). “[P]rison officials must ensure that inmates
receive adequate food, clothing, shelter, and medical care, and must ‘take reasonable measures to
guarantee the safety of the inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting
Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). “Because placement in segregation is a
routine discomfort that is a part of the penalty that criminal offenders pay for their offenses
against society, it is insufficient to support an Eighth Amendment Claim.” Harden-Bey v. Rutter,
524 F.3d 789, 795 (6th Cir. 2008).
Plaintiffs have alleged no facts even suggesting that they have been denied any basic
human needs, and therefore, they fail to state an Eighth Amendment claim upon which relief
may be granted.
E. Due Process
Plaintiffs’ claim that they lost their kitchen prison jobs and were not rehired; were placed
in segregation for five days; and had grievances interfered with and rejected. Plaintiff West
alleges that he lost property when he was taken to segregation, and Plaintiff Burke alleges that he
was unable to complete some sort of program. Plaintiffs fail to state a due process violation.
“[A] prisoner does not have a constitutional right to prison employment or a particular
prison job.” Martin v. O’Brien, 207 F. App’x 587, 590 (6th Cir. 2006) (citing Newsom v. Norris,
888 F.2d 371, 374 (6th Cir. 1989)); see also Anderson v. Hascall, 566 F. Supp. 1492, 1494 (D.C.
Minn. 1983) (“It is beyond dispute that the Constitution itself does not create a protectable
interest in the retention of a prison job.”). “Prisoners have no constitutional right to
rehabilitation, education, or jobs.” See Argue v. Hofmeyer, 80 F. App’x 427, 429 (6th Cir. 2003).
Further, prisoners have no inherent constitutional right to placement in any particular prison,
security classification, or housing assignment. See Olim v. Wakinekona, 461 U.S. 238, 245

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(1983); Meachum v. Fano, 427 U.S. 215, 225 (1976). Additionally, any complaint regarding the
grievance procedure does not state a constitutional claim. See LaFlame v. Montgomery Cty.
Sheriff’s Dep’t, No. 00-5646, 2001 WL 111636, at *2 (6th Cir. Jan. 31, 2001) (holding that
inmate “cannot premise a § 1983 claim on allegations that the jail’s grievance procedure was
inadequate because there is no inherent constitutional right to an effective prison grievance
procedure”) (citing Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996)); Spencer v. Moore,
638 F. Supp. 315, 316 (E.D. Mo. 1986) (holding that if the prison provides a grievance process,
violations of its procedures do not rise to the level of a federal constitutional right). Plaintiffs,
therefore, have not shown a liberty interest arising under the Due Process Clause itself.
However, “a liberty interest in avoiding particular conditions of confinement may arise
from state policies or regulations, subject to the important limitations set forth in Sandin v.
Conner, 515 U.S. 472 (1995).” Wilkinson v. Austin, 545 U.S. 209, 222 (2005). In Sandin,
[The Court] recognize[d] that States may under certain circumstances create
liberty interests which are protected by the Due Process Clause. But these
interests will generally be 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 ordinary
incidents of prison life.
Sandin, 515 U.S. at 483-84. Here, Plaintiffs fail to allege conditions imposing any atypical and
significant hardship on them in relation to the ordinary incidents of prison life. See, e.g., Cook v.
Hills, 3 F. App’x 393, 394 (6th Cir. 2001) (“[P]laintiff cannot show a denial of due process
regarding his placement in segregation because a prisoner enjoys no liberty interest in remaining
free from disciplinary segregation absent an atypical and significant hardship . . . .”).
Plaintiffs, therefore, fail to state a Fourteenth Amendment due process claim.

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IV. CONCLUSION
For all the foregoing reasons, the instant action will be dismissed by separate Order.
Date:

August 4, 2017

cc:

Plaintiffs, pro se
Defendants
General Counsel, Justice & Public Safety Cabinet, Office of Legal Counsel
4413.005

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