Miles v. Kentucky Department of Corrections et al
Filing
25
MEMORANDUM OPINION AND ORDER by Senior Judge Thomas B. Russell. IT IS HEREBY ORDERED that Plaintiff's motions for leave to file supplemental complaints (DN 22 & 24) are GRANTED. In addition, on initial review of Plaintiff's complaint in a ccordance with 28 U.S.C. § 1915A, IT IS FURTHER ORDERED that Plaintiff's claims based upon deliberate indifference to his safety, deliberate indifference to a serious medical need (excepting his claim based upon Defendants Vickery and Tangi lag's refusal to refer him for an endoscopy), retaliation, the reading of his legal mail, PREA, the grievance procedure, and the clothes and shower allegations are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim u pon which relief may be granted and/or frivolousness. The Clerk of Court is DIRECTED to terminate Defendants KDOC, Randy White, Steve Ford, Skyla Grief, Darime Ellis, Lieutenant Allen, Lieutenant Harris, Daniel Smith, Sergeant Christopher Vinson, Der ek Mecek, Laura Delaney, M. Padilla, Roaker, Springfield, Shaffer, Freeman, Miller, Kirst, John Doe, Jane Doe, Correct Care Solutions Staff, Tonya Gray, Bruce Bauer, Jill Shelton, and Pamela Reece as parties to this action. cc: Plaintiff, pro se; Defendants; Counsel of Record. (RR)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
DARRELL L. MILES
PLAINTIFF
v.
CIVIL ACTION NO. 5:16-CV-P73-TBR
KENTUCKY DEPARTMENT
OF CORRECTIONS et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This is a civil rights action brought by a convicted prisoner pursuant to 42 U.S.C. § 1983.
The Court has granted pro se Plaintiff Darrell L. Miles leave to proceed in forma pauperis. 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, 594
U.S. 199 (2007). For the reasons set forth below, the Court will grant Plaintiff’s motions for
leave to file a supplemental complaint and the action will be dismissed in part and allowed to
continue in part.
I. PROCEDURAL HISTORY
On May 13, 2016, Plaintiff filed a motion for a temporary restraining order (TRO) and a
preliminary injunction (DN 1) in the United States District Court, Eastern District of Kentucky.
In a Memorandum Order (DN 3), the Eastern District of Kentucky transferred the motion to this
Court in accordance with 28 U.S.C. § 1391(b) because the individually-named Defendants in the
motion work for Kentucky State Penitentiary (KSP), which is located in the Western District of
Kentucky, and because the events described in the motion allegedly occurred at KSP. This
motion was re-docketed as DN 7 when the action was transferred to this Court. On May 20,
2016, the Court denied Plaintiff’s motion for a TRO (DN 9) and on June 29, 2016, the Court
denied Plaintiff’s motion for a preliminary injunction (DN 23).
After Plaintiff filed his motion for a preliminary injunction, he filed his complaint
(DN 6). On June 24, 2016, and June 30, 2016, Plaintiff filed two documents, both of which are
titled “Affidavit,” and both of which contain additional allegations against Defendants
(DNs 22 & 24). The Court construes these documents as motions for leave to file supplemental
complaints and hereby GRANTS these motions. See Fed. R. Civ. P. 15(d) (“[T]he court may, on
just terms, permit a party to serve a supplemental pleading setting out any transaction,
occurrence, or event that happened after the date of the pleading to be supplemented.)
The Court will consider the allegations set forth in Plaintiff’s complaint (DN 6), his
motion for a preliminary injunction (DN 7), his reply in support of the motion for a preliminary
injunction (DN 20), the first “Affidavit”/supplemental complaint (DN 22), and the second
“Affidavit”/supplemental complaint (DN 24) for purposes of conducting an initial screening of
this action.
In Plaintiff’s complaint and motion for a preliminary injunction combined, he names as
Defendants the Kentucky Department of Corrections (KDOC), 18 KSP officials, and six medical
professionals at KSP whom he indicates are employed by Correct Care Solutions (CCS). He
sues these Defendants in both their official and individual capacities. Plaintiff seeks injunctive
relief and monetary and punitive damages.
II. LEGAL STANDARD
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
§ 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
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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 at 608.
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. “Examples of the latter class are claims describing
fantastic or delusional scenarios, claims with which federal district judges are all too familiar.”
Id. at 328; Denton v. Hernandez, 504 U.S. 25, 33 (1992) (indicating that an action has no
arguable factual basis when the allegations are delusional or “rise to the level of the irrational or
the wholly incredible”). The Court need not accept as true factual allegations that are “‘fantastic
or delusional’” in reviewing a complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471
(6th Cir. 2010) (quoting Neitzke, 490 U.S. at 328). 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] 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] pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89
(2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, while liberal, this
standard of review does require more than the bare assertion of legal conclusions. See Columbia
Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995). The court’s duty “does not
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require [it] 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 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. 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 (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. Official-Capacity Claims
To the extent that Plaintiff sues Defendants in their official capacities, “[o]fficial-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 all Defendants are
employees or officers of KDOC or CCS, the claims brought against them in their official
capacities for damages are deemed claims against one of these entities. See, e.g., Lambert v.
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Hartman, 517 F.3d 433, 440 (6th Cir. 2008) (stating that civil rights suit against county clerk of
courts in his official capacity was equivalent of suing clerk’s employer, the county); Griffin v. S.
Health Partners, Inc., No. 1:12CV-P174-M, 2013 U.S. Dist. LEXIS 17770, at *13-14 (W.D. Ky.
Feb. 11, 2013). For purposes of initial review, the Court will presume that CCS is a state actor.
See, e.g., Hicks v. Frey, 992 F.2d 1450, 1458 (6th Cir. 1993) (quoting West v. Atkins, 487 U.S.
42, 54 (1988) (“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.’”).
At the outset, the Court finds that Plaintiff has failed to state a claim against KDOC. This
is both because a state agency is not a “person” subject to liability under Section 1983, and
because the Eleventh Amendment deprives federal district courts of subject matter
jurisdiction over a claim for money damages against a state and its agencies. Puerto Rico
Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144(1993) (“Absent waiver,
neither a State nor agencies acting under its control may be subject to suit in federal court.”)
The Court also finds that Plaintiff has failed to state a claim against CCS. A private
corporation, like CCS, “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
Parks, Inc., 195 F.3d 715, 728 (4th Cir. 1999). Rather, 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.”). In the instant case, Plaintiff has not alleged that CCS’s staff
acted pursuant to a policy or custom in causing any alleged harm. In addition, nothing in the
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complaint demonstrates that the action or inaction of any personnel occurred as a result of a
policy or custom implemented or endorsed by CCS.
B. Individual-Capacity Claims
1. Eighth Amendment Deliberate Indifference to Safety Claims
The Eighth Amendment requires prison officials to “take reasonable measures to
guarantee the safety of the inmates” in their custody. Farmer v. Brennan, 511 U.S. 825, 832
(1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-527 (1984)). In order to establish liability
under the Eighth Amendment, Plaintiff must demonstrate that Defendants were deliberately
indifferent to “a substantial risk of serious harm.” Farmer, 511 U.S. at 828; Greene v. Bowles,
361 F.3d 290, 294 (6th Cir. 2004). “To demonstrate deliberate indifference, an inmate must
present evidence from which a trier of fact could conclude ‘that the official was subjectively
aware of the ‘risk’ and ‘disregard[ed] that risk by failing to take reasonable measures to abate
it.’” Greene, 361 F.3d at 294.
Plaintiff alleges that KSP officials have failed to protect him and even participated in
both fecal and sexual attacks upon him.1,2 He alleges that “feces is being used to produce bodily
harm to plaintiff by intentionally dropping it in his mouth going to the back of the throat and
being swallowed when he awakens and stay in the in esophagus for unlimited hours causing pain
to the neck, ears, and throat.” He continues: “The plaintiff has to cover his head with a pillow
case and tie a shoe string around his neck to slow down the attacks. Some how they are getting
under that too . . . . The plaintiff has a hard time going back to sleep once he awakens and
1
Although Plaintiff classifies the claims related to the allegations regarding the fecal and sexual attacks as both
excessive-force claims and conditions-of-confinement claims, the Court finds that they are more aptly characterized
as deliberate indifference to safety claims.
2
On May 7, 2015, Plaintiff filed a complaint in the Eastern District of Kentucky alleging that other men were
placing feces in his mouth while he slept at Northpoint Training Center. Miles v. Bottom, Civil Action No. 5:15126-JMH, 2016 U.S. Dist. LEXIS 58400, at *1 (E.D. Ky.). In that action, Plaintiff alleged that beginning in August
2014 he began to be “attacked” with feces. Id. at *4. He explained that these “attacks” involved other inmates
placing human feces in his mouth after he fell asleep, and in some instances touching his buttocks. Id.
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swallow the feces because it is so uncomfortable to go back to sleep with fecal matter stuck in
your throat.” Plaintiff also states:
The plaintiff during the night while trying to sleep on his stomach is touched on
the buttocks from the cell bars until he is awakened enough to feel it . . . . The
plaintiff unconscious rolls on his back and since there is not enough oxygen to the
brain, the plaintiff sleeps with his mouth open and feces placed on the tip of the
fishing pole cause it to drop right in . . . . The plaintiff is still being attacked
three, four, and sometime 5x a night.
Plaintiff also alleges that “on two separate occasions, the Plaintiff’s cell door was opened
and Plaintiff was sexually assaulted being witnessed the first time while [Officer] Roaker was
walk officer” and a “second time . . . being witnessed by walk Officer Derek Mecek and nothing
was done on behalf of the plaintiff and no disciplinary action was taken on those inmates who
were identified when the camera was reviewed.” As a result of at least one of these alleged
attacks, Plaintiff filed a PREA report in which he stated: “The very first night in my cell, my cell
door was opened while I sleep and I was sexual assaulted in which I awakened to have a bowl
movement and my whole ass was wet with semen.” Plaintiff further states that when the
investigator interviewed Plaintiff regarding the incident, Plaintiff stated “I never saw my cell
door open, but when I woke up to use the bathroom my ass was all wet.” He then stated that
“this was not the first time that this occurred” and that “this had happened at other prisons he had
been at.”
In his complaint, Plaintiff also alleges that he has discovered why KSP officials continue
to allow these attacks to occur. He writes:
The plaintiff had an ex-girlfriend who the plaintiff stopped seeing shortly after the
final sentencing in February 2010 in which she became bitter and envious.
Recently the plaintiff discovered why the attacks continued after contacting so
many officials in positions of authority and getting no results. To get straight to
the point, the new defendants as well as old and from guards at Little Sandy as
well have been enjoined to participate by the greasing of the palm. The plot or
motive has been to destroy the plaintiff’s character so no other females would
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want to date him once he get out or write him while he is locked up. So
[plaintiff’s ex-girlfriend] have been contacting females from my past and some
unknown, with the guards assistant have them on to the premises to watch
plaintiff eat a turd (others human waste) then having their way with them sexually
in return for watching. . . . This also explains why the plaintiff been hearing the
sound of females having sex, to annoy him when he can’t participate. . . . This
also explains why during all the investigating of the plaintiff’s complaints, there
was never anything seen on camera with falsifying of documents, to shield the
fact that a non-inmate and non-employee was maliciously allowed on the
compound to all facilities to cause harm and more people to know. There is no
telling how many females have been brung to the compound to witness the
plaintiff eat a turd or how the plaintiff’s name has been slandered in society. This
is a very unusual situation that has been so hard to describe from the beginning.
So no matter where the plaintiff goes within the department of corrections, it is
not gonna stop unless court order and then by [the plaintiff’s ex-girlfriend] being
a non-inmate and non-employee, the staff can keep the inmates from being
responsible by shifting the blame or continue to cover the fact that it is happening
with all the responses being the same from every institution.
With regard to his ex-girlfriend, Plaintiff also states that “Cell 18” is where she
hangs out to spy on him but that, in spite of knowing this information, he “hasn’t figured
out how to confront that issue without seeking disciplinary action.”
Plaintiff further alleges that on March 14, 2016, Ms. Laura Delaney told Plaintiff
that if “plaintiff pissed her off it would burn.” He then adds: “Ms. Delaney has worked
around the Plaintiff for mainly the entire time plaintiff has been here. . . . When Plaintiff
fell asleep on her shift in which nine out of ten nights the plaintiff did, he woke up in the
same condition he does with the other c/o working his walk, digesting fecal matter.”
Plaintiff further alleges that on May 9, 2016, “C/O Shaffer” allowed “plaintiff’s
cell door to be opened while plaintiff was sleep and set him up to be assaulted by the
same inmate from before when the p.r.e.a. report was filed.”
The Court notes that Plaintiff has submitted evidence which shows that he has been
referred to a mental health professional on at least three occasions for making allegations
regarding these fecal and/or sexual attacks. The first evaluation took place at the institution
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where Plaintiff was housed prior to being transferred to KSP. That evaluation stated that
Plaintiff was “functioning normally” but was delusional. Plaintiff was also referred for an
evaluation at KSP on January 20, 2016. Again, the psychologist concluded that Plaintiff was
“delusional” and “fixated on the fact that others are placing feces in his mouth while he sleeps.”
Plaintiff was again referred for a mental health evaluation on March 9, 2016, which also
concluded that he was “delusional.”
Plaintiff contends that Defendants Warden Randy White, Deputy Warden Steve Ford,
and Darime Ellis were deliberately indifferent to his safety because they failed to respond to the
letters that Plaintiff wrote to them concerning these attacks. He also argues that the “supervisor
officials” are connected with the “continuing of this practice on a routine basis.”
Plaintiff also contends that Defendants Laura Delaney, M. Padilla, Roaker, Springfield,
Shaffer, Freeman, Miller, and Mecek and were deliberately indifferent to his safety by
encouraging Plaintiff to be attacked “by repeatedly standing by and doing nothing witnessing the
Plaintiff health at risk.”
Plaintiff further alleges that Defendants Vinson, Harris, Allen, Ellis, White, and Ford
were deliberately indifferent to his safety by failing to take any action “while discussing it on a
daily basis.”
The Court finds that Plaintiff has failed to state a claim against any Defendant in his or
her official or individual capacity for deliberate indifference to his safety. On their face, the
allegations upon which these claims are based are “fantastical,” “irrational,” and “wholly
incredible,” especially in light of the fact that Plaintiff has alleged that these attacks occurred at
each of the last three institutions where he has been incarcerated. In addition, Plaintiff has
submitted three mental health reports, which were completed by at least two different mental
9
health professionals, stating that he is “delusional.” Accordingly, Plaintiff’s claims based upon
his allegations of fecal and sexual attacks will be dismissed.
2. Eighth Amendment Deliberate Indifference to a Serious Medical Need Claims
To satisfy the objective component of an Eighth Amendment deliberate indifference
claim, Plaintiff must show the existence of a sufficiently serious medical need, meaning that he
is “incarcerated under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at
834. A serious medical need is “one that has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person would easily recognize the necessity
for a doctor’s attention.” Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008) (quoting
Blackmore v. Kalamazoo Cty., 390 F.3d 890, 897 (6th Cir. 2004)).
The subjective component of the Eighth Amendment standard is met “where a plaintiff
demonstrates that prison officials acted with ‘deliberate indifference’ to a serious medical need,”
which “is the equivalent of ‘recklessly disregarding that risk.’” McCarthy v. Place, 313 F.
App’x 810, 814 (6th Cir. 2008) (quoting Farmer, 511 U.S. at 836). In other words, “[s]atisfying
the objective component ensures that the alleged deprivation is sufficiently severe, while
satisfying the subjective component ‘ensures that the defendant prison official acted with a
sufficiently culpable state of mind.’” Quigley v. Tuong Vinh Thai, 707 F.3d 675, 681 (6th Cir.
2013) (quoting Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003)).
In Alspaugh v. McConnell, the Sixth Circuit held as follows:
“[W]e distinguish between cases where the complaint alleges a complete denial of
medical care and those cases where the claim is that a prisoner received
inadequate medical treatment.” Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th
Cir. 1976). Where a prisoner alleges only that the medical care he received was
inadequate, “federal courts are generally reluctant to second guess medical
judgments.” Id. However, it is possible for medical treatment to be “so woefully
inadequate as to amount to no treatment at all.” Id.
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643 F.3d 162, 169 (6th Cir. 2011).
The Sixth Circuit has also held that “[a] plaintiff alleging deliberate indifference must
show more than negligence or misdiagnosis of an ailment.” Johnson v. Karnes, 398 F.3d 868,
874 (6th Cir. 2005). A plaintiff must also show that his claim involves more than a difference of
opinion between the plaintiff and a doctor regarding the plaintiff’s diagnosis and treatment.
Westlake v. Lucas, 537 F.2d at 860, n.5.
With regard to Plaintiff’s medical condition and treatment, he alleges as follows:
On numerous occasions [Plaintiff] has made complaints to the medical
department to either remove the feces from the esophagus or to be sent out to
have it removed. . . . [Plaintiff] has reported on several occasions chest pain, a
uncomfortable and painful sore neck, throat pain, ears, sleep apnea, lower back
pain, in addition to his condition that is not normal and feels he has contacted
some unknown contamination . . . . The medical officials are trying to cover with
denying access to a specialist or prescribing medical treatment that does not help
the symptoms. . . . Karen Vickery has determined the bacteria to be treated with
antibiotics from observation of past treatments that did not help and has made the
refusal to see him. . . . [Plaintiff] has requested the address for a ear, neck, and
throat specialist that he was gona contact himself to make an appointment . . . .
Plaintiff notified Correct Care Solutions medical staff again to inform them that
the gastroenterologist from May 2015 recommend a follow-up treatment in one
(1) year and after consulting with Dr. Tangilag and APRN, Karen Vickery, they
both decided that there no need for them to follow the doctors’ order. . . . The
medical dept. is causeing the unnecessary and wanton infliction of pain while
delaying treatment to the neck, throat, and ears . . . . On April 27th, 2016, Plaintiff
reported that he was choking on something that he swallowed when he woke up
that was painful. Plaintiff was escorted to medical in cuffs. . . . [Plaintiff] was
given two aspirin for the pain. . . . . apprx 8:00 A the plaintiff was detained and
taken to cell house 7 observation cell and stripped of all his clothes and shoes,
given boxers and a smock. . . . While in segregation or psychological observation
the officials failed to take plaintiff to his dental appointment and failed to
reschedule it when it takes months to be seen.
Plaintiff has filed several documents from his medical record. One is a letter from a
private gastroenterologist dated June 20, 2015. (DN 1, Attach. 7). This letter states as follows:
“The results of the recent EGD showed changes of Barrett’s. This is a condition that predisposes
the esophagus to cancer. A repeat endoscope is needed in 1 yr. The biopsies taken during your
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recent EGD DID NOT show a bacteria called Helicobacter pylori. This bacteria is known to
cause ulcers.”
The second is a healthcare request form he completed on January 13, 2016. (DN 1,
Attach. 6., “Ex. V-2”). In it, he states: “I have been reporting from prior facility I am having ear,
neck, and throat issues. I need to be evaluated to determine the damage to the esophagus, to be
sure it’s not gastric cancer. I seem to have a bacteria infection! I also need to know how to
remove the lump in my throat when I awaken in the mornings, thru medical.” The form then
shows that Plaintiff was seen on that date.
Plaintiff also submits a grievance he filed on February 18, 2016. (DN 1, Attach. 8,
Ex. X). In this grievance, Plaintiff writes that he has been “seeking medical treatment for my
internal organs to get the proper diagnosis for my symptoms. I have trouble swallowing and
deterioration of the lining of my throat. I have chest pains and I am only inspected on the
outside. . . . I request to see a qualified internal doctor, ear, nose and throat specialist, or a
gastroenterologist for my throat condition. Everyday my condition gets worse from the lack of
treatment. Can I see a doctor out of genuine concern?” In the response section of this grievance,
a KSP official wrote on March 20, 2016: “You have been seen by the provider here at KSP +
they have addressed your concerns. Should you wish to have a second opinion, then it is your
responsibility to make the arrangements for the appointment time and secure the payment with
the provider of your choice. We will provide you room for visit!!”
Plaintiff next submits a healthcare request he filed on March 14, 2016. (DN 1, Attach. 6,
“Ex. V-1”). In this request, he states: “I have a serious medical issue, a infection in my throat. I
need to see a doctor for anti-biotics. There are other issues going on in there and it is causeing
me to have trouble swallowing. This has been reported to medical on a couple of occasions and
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seems to be getting worse.” This form shows that Plaintiff was seen by medical staff on the
following day. Plaintiff concludes his allegations by stating as follow: “Not one time since
plaintiff arrived have the plaintiff been cultured for bacteria infection or lab work for infection,
there response have been based upon the answers other facilities gave, to avoid giving treatment
or documenting what they discover and be held accountable for letting matters get worse.”
The Court finds that Plaintiff may have established that he has an objectively serious
medical need. As stated above, the medical record dated June 20, 2015, shows that a specialist
diagnosed Plaintiff with a disease that predisposes him to cancer and indicated that, as such, an
endoscopy needed to be performed again within one year. Although the medical records
submitted by Plaintiff show that he was regularly seen by medical providers at KSP for his
medical need(s), Plaintiff specifically alleges that Defendants Vickery and Tangilag were
deliberately indifferent to his serious medical by refusing to provide him with or refer him for a
test that had been ordered by a gastroenterologist.
For these reasons, the Court finds that Plaintiff has failed to state a claim for deliberate
indifference to a serious medical need against all Defendants except Defendants Vickery and
Tangilag. See, e.g., Wakefield v. Thompson, 177 F.3d 1160, 1165 (9th Cir. 1999) (prison
officials act with deliberate indifference when they “intentionally interfer[e] with . . . treatment
once prescribed”. . . [and] a violation may be found when a prison official deliberately ignores
explicit orders of the inmate’s previous doctor for reasons not related to the prisoner’s medical
needs); Fantone v. Herbik, 2011 U.S. Dist. LEXIS 152558, (W.D. Penn. Dec. 23, 2011)
(deliberate indifference has been shown when “prison authorities prevent an inmate from
receiving recommended treatment for serious medical needs or deny access to [a] physician
capable of evaluating the need for such treatment”)(citing Monmouth Cty. Corr. Inst. Inmates v.
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Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987)); Vickery v. Caruso, No. 07-13419, 2008 U.S. Dist.
LEXIS 68288, at *26-27 (E.D. Mich. Apr. 25, 2008)(finding plaintiff had stated a claim where
he alleged that defendants knowingly refused to conduct certain testing that was recommended
by a physician); see also Tripati v. Hale, No. 2:13-CV-0830, 2015 U.S. Dist. LEXIS 45857, at
14-15 (W.D. Pa. Mar. 2, 2015).
3.
First Amendment Retaliation Claims
“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.” Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.
1999) (en banc). The plaintiff has the burden of proof regarding all three elements. See, e.g.,
Murray v. Evert, 84 F. App’x 553, 556 (6th Cir. 2003); Green v. Tudor, 685 F. Supp. 2d 678,
692 (W.D. Mich. 2010). Moreover, the plaintiff must prove that the exercise of the protected
right was a substantial or motivating factor in the defendant’s alleged retaliatory conduct. Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Smith v. Campbell, 250
F.3d 1032, 1037 (6th Cir. 2001). If the plaintiff makes such a showing, the defendants may still
avoid liability by showing “that [they] would have taken the same action in the absence of the
protected activity.” Whiteside v. Parrish, 387 F. App’x 608, 612 (6th Cir. 2010) (quoting
Thaddeus-X, 175 F.3d at 399); see also Jones v. Smolinski, No. 1:09-CV-633, 2010 U.S. Dist.
LEXIS 143638 (W.D. Mich. Aug. 31, 2010).
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a. Security Classification
Plaintiff alleges that he is being retaliated against by Defendants Gray and Grief for
continuing to file grievances and complaints. He alleges that these Defendants are retaliating
against him by “being held at the maximum security facility . . . when he meets all requirements
for minimum custody to be housed in a less restrictive environment.” He then points to his
“Exhibit W.” This exhibit is his appeal of the March 28, 2016, decision of the classification
committee. The document shows that the appeal committee concurred with the classification
committee’s initial decision and concluded as follows on April 4, 2016: “Since arriving at KSP
on 1-7-16, you have expressed some concerns through written correspondence to several staff
members, resulting in a mental health referral and monitoring. You have continued expressing
these claims after consulting with Mental Health Staff. The override is appropriate at this time.
The Behavioral Management will periodically review you and you may use your special
reclassification request if you feel the situation has improved.”
With regard to this retaliation claim, the Court first recognizes that filing grievances is a
constitutionally protected right. Turner v. Safley, 482 U.S. 78, 84 (1987); Herron v. Harrison,
203 F.3d 410, 415 (6th Cir. 2000). The Court also recognizes that “an increase in security
level . . . may be considered an adverse action that could deter a person of ordinary firmness
from engaging in protected conduct.” King v. Zamiara, 150 F. App’x 485, 494 (6th Cir. 2005).
However, the document that Plaintiff attaches as Exhibit W undercuts his allegation that he is
being held in a maximum security facility because of his protected conduct and instead indicates
that he is being held there based upon his mental health.
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Thus, the Court concludes that Plaintiff has failed to state a retaliation claim based upon
his security classification and this claim will be dismissed for failure to state a claim upon which
relief may be granted.
b. Allowance of Fecal and Sexual Attacks
Plaintiff also alleges that several Defendants permitted the fecal and sexual attacks upon
him to continue because he has filed grievances and complaints. In his second supplemental
complaint, he also alleges that since the Court denied his TRO, “there are new defendants that
are opening the plaintiffs cell door regularly to have him sexually assaulted . . .” However, as
set forth above, the Court finds Plaintiff’s allegations regarding these attacks to be too “wholly
incredible” to actually state a claim upon which relief may be granted. Therefore, his retaliation
claim based on allegations of fecal and sexual attacks will be dismissed.
c. Hostage-Taking
In the document titled “Affidavit,” which this Court construes as a supplemental
complaint, Plaintiff alleges that “in retaliation for filing my complaint against D.O.C. officials at
[KSP], Lieutenant Allen and Warden Randy White has authorized the luring of my family
members to be held hostage by the inmates at [KSP].” The Plaintiff alleges that those captured
include his two sisters, his daughter, his mother, and “Hana Ali,” the daughter of “Mahommed
Ali.” He states that these individuals are “being beaten to not report their capture.” Plaintiff
alleges that “this most extreme form of retaliation” has been taken to get Plaintiff to drop his
lawsuit . . .”
Like Plaintiff’s allegations regarding the fecal and sexual attacks against him, the Court
finds that these allegations too are “fantastical” and “wholly incredible.” Thus, this claim will be
dismissed as frivolous.
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4. First Amendment Interference with Legal Mail Claim
The Sixth Circuit “has held that a prisoner has a fundamental interest in preserving the
confidentiality of his legal mail.” Bell-Bey v. Williams, 87 F.3d 832, 837 (6th Cir. 1996). Thus,
prison policies that regulate outgoing legal mail must further “an important or substantial
governmental interest unrelated to the suppression of expression,” and may not limit prisoners’
First Amendment freedoms more than necessary to protect the governmental interest involved.
Procunier v. Martinez, 416 U.S. 396, 413-14 (1974); see also Thornburgh v. Abbott, 490 U.S.
401, 411 (1989) (clarifying that Martinez does not impose a “least restrictive means” test).
Plaintiff alleges that Defendants are “impinging on the plaintiff rights with reading of his
legal mail that is presently being prepared for the Court.” He also states that “the facility does
not allow locks and there is no way of keeping legal mail from being read and copied once
plaintiff leaves his cell, then originals put back.” Plaintiff continues: “The reading of the mail
the plaintiff have been complaining of is to see how much information the plaintiff actually
know . . . This explains why the mail was stolen to get the name and address of people who
plaintiff was in contact with.” He also states: “The inmates have been using the plaintiff to there
advantage in a variety of ways and the plaintiff’s personal information in obtaining a credit
report has been difficult from prison, possibly stealing money from his name and information.”
Thus, Plaintiff’s claim seems to be that Defendants have violated his rights by failing to
provide Plaintiff with a locked place to store his legal mail. However, because Plaintiff has not
alleged that any of the 25 Defendants he has named actually read his legal mail, the Court finds
that Plaintiff has failed to state a claim regarding such. This claim will therefore be dismissed.
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5. PREA Claim
Plaintiff also alleges that Defendant Ellis failed to conduct an adequate investigation
based upon a Prison Rape Elimination Act (PREA) report that he filed. He further states that he
has been prevented from filing any future PREA complaint “because he does not have the exact
time of the attacks because of being asleep.” However, the Court finds that Plaintiff has failed to
state a claim under PREA because PREA does not provide a private cause of action. See,
e.g., Beckham v. Keaton, No. 14-CV-159-HRW, 2015 U.S. Dist. LEXIS 29736 (E.D. Ky. Mar.
10, 2015); Simmons v. Solozano, No, 3:14-CV-P354-H, 2014 U.S. Dist. LEXIS 129249 (W.D.
Ky. Sept. 16, 2014); Montgomery v. Harper, No. 5:14CV-P38-R, 2014 U.S. Dist. LEXIS 114727
(W.D. Ky. Aug. 19, 2014); Chapman v. Willis, No. 7:12-CV-00389, 2013 U.S. Dist. LEXIS
74694 (W.D. Va. May 28, 2013); Holloway v. Dep’t of Corr., No. 3:11-CV-1290(VLB), 2013
U.S. Dist. LEXIS 23243 (D. Conn. Feb. 20, 2013). Accordingly, Plaintiff’s claim under PREA
will be dismissed for failure to state a claim upon which relief may be granted.
6. Grievance Claim
Plaintiff also brings suit against Defendant Daniel Smith, “law library staff who oversee’s
the grievance . . . .” Plaintiff does not specifically allege how Defendant Smith has violated his
rights. However, prison inmates do not have a constitutionally protected right to a grievance
procedure. Jones v. N.C. Prisoners’ Labor Union, 433 U.S. 119, 138 (Burger, J., concurring)
(“I do not suggest that the [grievance] procedures are constitutionally mandated.”); Walker v.
Mich. Dep’t of Corr., 128 F. App’x. 441, 445 (6th Cir. 2005) (“All circuits to consider this issue
have also found that there is no constitutionally protected due process right to unfettered access
to prison grievance procedures.”). And if prisoners do not possess a constitutional right to a
grievance procedure, then they certainly do not have a claim premised on an ineffective
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procedure. LaFlame v. Montgomery Cty. Sheriff’s Dep’t, 3 F. App’x 34 (6th Cir. 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). Therefore,
Plaintiff’s grievance-related claim will be dismissed for failure to state a claim upon which relief
may be granted.
7.
Taking of Clothes and Shower Claim
Plaintiff also brings suit against Defendant Harris for taking his clothes “once they were
returned” and allowing him to shower while he was housed in a cold cell. The Court finds that
these allegations fail to a state claim for relief under any constitutional standard, and, thus, will
dismiss Plaintiff’s claim against Defendant Harris.
IV. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s motions for leave
to file supplemental complaints (DN 22 & 24) are GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s claims based upon deliberate indifference
to his safety, deliberate indifference to a serious medical need (excepting his claim based upon
Defendants Vickery and Tangilag’s refusal to refer him for an endoscopy), retaliation, the
reading of his legal mail, PREA, the grievance procedure, and the clothes and shower allegations
are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which
relief may be granted and/or frivolousness.
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The Clerk of Court is DIRECTED to terminate Defendants KDOC, Randy White, Steve
Ford, Skyla Grief, Darime Ellis, Lieutenant Allen, Lieutenant Harris, Daniel Smith, Sergeant
Christopher Vinson, Derek Mecek, Laura Delaney, M. Padilla, Roaker, Springfield, Shaffer,
Freeman, Miller, Kirst, John Doe, Jane Doe, Correct Care Solutions Staff, Tonya Gray, Bruce
Bauer, Jill Shelton, and Pamela Reece as parties to this action.
A separate Scheduling Order will be entered to govern the continuing claims.
Date:
July 19, 2016
cc: Plaintiff, pro se
Defendants
Counsel of Record
4413.011
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