Washington v. White

Filing 16

MEMORANDUM OPINION AND ORDER by Senior Judge Thomas B. Russell; The Court construes DNs 6 and 10 as motions to amend the complaint and GRANTS the motions. To the extent that either DN 12 or 15 could be construed as motions to amend the complaint, the motions are DENIED. Upon initial screening, Plaintiff's claims against Defendant White are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1), (2) for failure to state a claim upon which relief may be granted and for seeking monetary damages f rom a defendant who is immune from such relief. IT IS FURTHER ORDERED that within 30 days from the entry date of this Memorandum Opinion and Order, Plaintiff may file an amended complaint. Plaintiff shall name as Defendants the individuals whom he alleges are responsible for his claims and state specifically the factual allegations against them. cc: Plaintiff, pro se; Defendant (ERH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CIVIL ACTION NO. 5:15CV-P247-TBR
TREMAINE DEJUAN WASHINGTON

PLAINTIFF

v.
RANDY WHITE

DEFENDANT
MEMORANDUM OPINION AND ORDER

Plaintiff Tremaine Dejuan Washington filed the instant pro se 42 U.S.C. § 1983 action
proceeding in forma pauperis.
Subsequent to filing the complaint, Plaintiff filed a document (DN 6), in which he
indicates that he is bringing his claims under the First, Eighth, and Fourteenth Amendments to
the United States Constitution. In another document (DN 10), Plaintiff states that the date of the
incident stated in the complaint was wrong, and he corrects the date from August 23, 2015, to
August 25, 2015. The Court construes these filings as motions to amend the complaint and
GRANTS the motions (DNs 6 and 10). See Fed. R. Civ. P. 15(a).
Plaintiff also filed two other documents (DNs 12 and 15) in which he discusses
exhaustion of administrative remedies and attaches letters from Kentucky Department of
Corrections officials and other documents which he seeks to file as evidence to support his case.
Prisoners are no longer required to demonstrate exhaustion in their complaints. Jones v. Bock,
549 U.S. 199, 216 (2007). Therefore, Plaintiff need not present evidence of exhaustion at this
stage. Moreover, Plaintiff should not file evidence or discovery with the Court until it is used in
the proceeding, for example, in support of or in opposition to a motion for summary judgment.
See Fed. R. Civ. P. 5(d)(1). If appropriate, the parties will be directed to engage in discovery
according to the Federal Rules of Civil Procedure and this Court’s order. Therefore, to the extent

that either document could be construed as a motion to amend the complaint, the motions
(DNs 12 and 15) are DENIED.
This matter is now before the Court on initial review pursuant to 28 U.S.C. § 1915A. For
the reasons stated below, the Court will dismiss Plaintiff’s claims against Defendant Randy
White and allow him to amend the complaint.
I.
Plaintiff is a convicted inmate at the Kentucky State Penitentiary (KSP). The only
Defendant named in the complaint is White, the Warden of KSP. Plaintiff does not indicate in
which capacity he sues Defendant White. As his statement of the claim, Plaintiff states, “I’ve
been housed at [KSP] for over two years now. During which, I’ve been mistreated,
discriminated against and prosecuted for my religious beliefs and action.” He states, “Recently, I
have turned my life over to the Lord. My passion for God drew me to inform the Warden Randy
White verbally in person on July 2, 2015 of my desire to help and talk about God to my fellow
inmates on the yard.” According to the complaint, Defendant White responded, “‘You got to do
what you have to do.’”
Plaintiff reports that on August 25, 2015, he was “explaining the love of God to a few
guys on the yard, in a respectful manner.” He states, “For this I was handcuffed and place in
segregation. While in segregation, I’m allow one hour (1 hr) recreation out of my cell five (5
wk.) day a week.” Plaintiff further states as follows:
While on recreation I took the opportunity to speak about the Lord to the inmates
in segregation. At the consequence of being shot multiple times in my neck,
head, front and back body part without any disregard of injury to my face and
possibly putting my eye out with pepper pellets, fired from a paintball gun which
I’m sure was improper use against me and the policies, governing its use Bum
rushed and slam to wall and floor with shield. Strapped naked while cuffed,
forced under water. Then placed naked in a cold cell, with nothing other than a
plastic mat. All because of speaking to inmates about God. Note, This was not
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the last incident that has occurred behind my religion belief. If this is not proof
enough of my mistreatment and my violation of my constitutional rights (Ky
Const. 1 . . .), than I don’t know what is.
Plaintiff further states, “I ask if you would look into this matter. Handcuffed on KSP yard on 823-15 six (6) cell house unit inmates was still out on yard. Three (3) cell house on 8-23-15 was
still out in segregation unit . . . . Remain in segregation for ninty (90) days on incident.” He
maintains, “I refuse recreation throughout segregation time to prevent haressment by c/o’s.
Randy White was inform of staff action. No relieve on my behalf was granted.”
As stated above, Plaintiff alleges violations of the First, Eighth, and Fourteenth
Amendments to the United States Constitution. As relief, Plaintiff seeks compensatory and
punitive damages and injunctive relief in the form of “release form penitentiary[.]”
II.
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

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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
(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.
A. Defendant White
Plaintiff sues only Defendant White and does not indicate in which capacity he sues him.
However, Plaintiff’s claims against Defendant White would be dismissed if he sued him in either
his official or individual capacity.

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1. Official capacity
“Official-capacity suits . . . ‘generally represent [] another way of pleading an action
against an entity of which an officer is an agent.’” Kentucky v. Graham, 473 U.S. 159, 166
(1985) (quoting Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 n.55 (1978)).
Because Defendant White is an employee of the Commonwealth of Kentucky, claims brought
against him in his official capacity are deemed claims against the Commonwealth of Kentucky.
See Kentucky v. Graham, 473 U.S. at 166. State officials sued in their official capacities for
money damages are not “persons” subject to suit under § 1983. Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989). Additionally, the Eleventh Amendment acts as a bar to claims
for monetary damages against state employees or officers sued in their official capacities.
Kentucky v. Graham, 473 U.S. at 169. Therefore, Plaintiff’s official-capacity claims against
Defendant White for monetary damages must be dismissed for failure to state a claim upon
which relief may be granted and for seeking monetary relief from a Defendant immune from
such relief.
With regard to Plaintiff’s request for injunctive relief, he seeks injunctive relief in the
form of release from incarceration. However, release from custody is not an available remedy
under § 1983. See Heck v. Humphrey, 512 U.S. 477, 481 (1994) (“[H]abeas corpus is the
exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and
seeks immediate or speedier release, even though such a claim may come with the literal terms
of § 1983.”). “[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).

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Accordingly, because Plaintiff cannot recover the injunctive relief he seeks, to the extent
he sues Defendant White in his official capacity, the claims for injunctive relief also must be
dismissed for failure to state a claim upon which relief may be granted.
2. Individual capacity
Moreover, if Plaintiff had sued Defendant White in his individual capacity, the claims
would also fail. The only allegation in the complaint concerning Defendant White’s involvement
in the alleged incident is Plaintiff’s statement that, “Randy White was inform of staff action. No
relieve on my behalf was granted.” The doctrine of respondeat superior, or the right to control
employees, does not apply in § 1983 actions to impute liability onto supervisors. Monell v. New
York City Dep’t of Soc. Servs., 436 U.S. at 691; Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 8081 (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.”
Bellamy, 729 F.2d at 421 (citing Hays v. Jefferson Cty., Ky., 668 F.2d 869, 872-74 (6th Cir.
1982)). “[L]iability of supervisory personnel must be based on more than merely the right to
control employees.” Hays, 668 F.2d at 872. “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 Cty. 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)).
Here, Plaintiff fails to demonstrate any facts showing that Defendant White directly
participated in the alleged unconstitutional conduct. Plaintiff’s allegations against Defendant

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White are based on White’s failure to act, which is insufficient to state a claim under § 1983.
Therefore, to the extent Plaintiff sues Defendant White in his individual capacity, the claims
against Defendant White must also be dismissed for failure to state a claim.
B.

Opportunity to amend
However, upon review of the complaint, the Court finds that Plaintiff’s claims may

survive initial screening if he had sued the individuals who allegedly participated in the alleged
incident. Therefore, the Court will afford Plaintiff an opportunity to file an amended
complaint to name any specific individual(s) who is/are responsible for the alleged incident.
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.”). The Court having found that Plaintiff does not state a claim against state
employees in their official capacities, any official-capacity claims against any newly named
Defendants would be futile; therefore, Plaintiff must sue any newly named Defendants in
their individual capacities.
IV.
For the reasons set forth herein, and the Court being otherwise sufficiently advised,
IT IS ORDERED that Plaintiff’s claims against Defendant White are DISMISSED
pursuant to 28 U.S.C. § 1915A(b)(1), (2) for failure to state a claim upon which relief may be
granted and for seeking monetary damages from a defendant who is immune from such relief.
IT IS FURTHER ORDERED that within 30 days from the entry date of this
Memorandum Opinion and Order, Plaintiff may file an amended complaint. Plaintiff shall
name as Defendants the individuals whom he alleges are responsible for his claims and state
specifically the factual allegations against them. The Clerk of Court is DIRECTED to place the

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case number and word “Amended” on a § 1983 complaint form and send it, along with three
summons forms, to Plaintiff for his use should he wish to amend the complaint.
Plaintiff is WARNED that should he not file an amended complaint within 30 days,
the Court will enter an Order dismissing the action for the reasons stated herein.
Date:

May 27, 2016

cc:

Plaintiff, pro se
Defendant
4413.010

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