Curtis v. Hardin et al
Filing
9
MEMORANDUM OPINION AND ORDER by Senior Judge Thomas B. Russell on 6/20/2017; Dionne Hardin (Internal Affairs Correctional Officer), Seth T. Mitchell (Sergeant), William B. Morrison (Lieutenant Chair/Adjustment Officer), Adam P. Noles (Case W orker - Committee Member), Derek Roberts (Lieutenant Prea Investigator), Jonathan Towery (Inmate #262934), James Beavers (Internal Affairs Correctional Officer) and Brittany Fraliex (Committee Member) are dismissed from this action.cc: plaintiff pro se, defendants, General Counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CIVIL ACTION NO. 5:17CV-P85-TBR
TORI T. CURTIS
PLAINTIFF
v.
DIONNE HARDIN et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
Plaintiff Tori T. Curtis filed the instant pro se 42 U.S.C. § 1983 action proceeding in
forma pauperis. This matter is before the Court on initial review of the complaint 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 stated below, the Court will
dismiss some claims and allow others to proceed.
I.
Plaintiff, an inmate at the Kentucky State Penitentiary (KSP), sues the following KSP
personnel in their individual and official capacities: Dionne Hardin and James Beavers,
identified as Internal Affairs Corrections Officers; Seth T. Mitchell, a sergeant; Derek Roberts, a
“Lieutenant PREA Investigator”; William B. Morrison, a “Lieutenant Chair/Adjustment
Officer”; Brittany Fraliex, a “Committee Member”; Adam P. Noles, a “Caseworker-Committee
Member”; Michael Mitchell, a caseworker; Skylar Grief, the “Deputy Warden of Transfers”;
Troy Belt and Jill Roberts, unit administrators; and Randy White, the KSP Warden. He also sues
Jonathan Towery, a KSP inmate.
Plaintiff states that he was sexually assaulted in a restroom by another KSP inmate,
Defendant Towery, on December 4, 2016. He alleges that Defendants Beavers, Roberts, and
Mitchell were “very unprofessional at not doing a proper investigation on this non-consensual
rape act on me . . . .” Plaintiff alleges as follows:
Before this incident took place . . . Towery lived acrossed from my cell. I wrote a
letter as a joke “to just get laughs,” to inmate Towery’s neighbor because we
always joked. The letter stated “I’ll like to have $10.00 dollars and I’ll give you
beautiful head & give you good pu***. The $10 dollars could be of anything as
long as it’s not stupid shit.” Towery’s neighbor laughed it off and showed it
passing it to Towery who read it and I guess never gave it back an never throwing
it away, keeping it in his cell, I guess. [] Inmate Jonathan Towery has always told
me things like I am pretty, that if he was my man how he’d want this or do that.
So on December 4, 2016 while I was in the gymnasium shooting around with a
basketball towards the rim Inmate Towery & another guy that with him called me
over towards their area. Towery told me to go into the bathroom over to the last
corner stall and to wait on him to come in behind me, I asked him why? He told
me he’s about to fu** me. I told “No,” Towery an the guy that was with him told
me if I didn’t go along doing what inmate Towery wants me to that the – (Towery
an the guy along with him also now a third person walked up,) three of them were
going to jump me beating me up. “I was scared” and hoping that they were
playing a joke on me, minutes later to find they were serious!
Plaintiff states that Defendant Towery then raped him in a restroom stall, giving a detailed
account of the incident, resulting in rectal bleeding and “stabbing pains coming from my bottom
where Towery just forced himself in me at.”
Plaintiff states that later that day he “caught a correction officer making his rounds I
stopped him an told him what had happened to me, I also told him that I needed protective
custody.” Plaintiff reports that he was walked to the segregation unit and then taken to the office
of Defendants Hardin and Beavers where a state police officer was also present. He states that
they asked him numerous questions and watched surveillance video of Plaintiff and Towery
entering the restroom. Plaintiff reports that he was then taken to a hospital “where they did a
rape kit on me” and was returned to KSP and placed in protective custody segregation.
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Plaintiff continues as follows:
A few days later I was interviewed by Lieutenant Derek Roberts and Sergeant
Seth Mitchell regarding a letter that was found in Jonathan Towery’s cell. I didn’t
write this letter to Jonathan Towery, I wrote to his neighbor as a joke for
recreation for laughs. So the only way I can think of how Towery got a hold of
this letter is if his neighbor passed it to him either before or after this incident
happen in the gymnasium. So this letter that was found in Jonathan Towery cell
all of the Defendants I am about to name off is trying to use this note to say that
this rape was a consensual act, when the real truth is it was a non-consensual act.
Plaintiff asserts that Defendants Hardin, Beavers, Roberts, and Mitchell investigated the
rape and that they “didn’t do a full proper investigation, it was very unprofessional of them to
take a letter that was found in Jonathan Towery’s cell an once they read it they made this whole
rape incident out to seem like I lied, telling me it was consensual act . . . .” Plaintiff maintains
that he received two disciplinary charges in connection with this incident, a charge for
“Prostitution as defined by KRS 529.010” and a charge for “Inappropriate sexual behavior.” He
asserts that the letter does not justify rape “so these four defendants has quickly turned me from
victim to suspect, and then convicted me of two different write up’s.” Plaintiff argues that these
Defendants violated his rights under the Fourth, Eighth, Thirteenth, and Fourteenth
Amendments, as well as the Universal Declaration of Human Rights.
Plaintiff further states that on January 5, 2017, he went to his final court hearing
regarding the two write-ups. He reports that Defendants Morrison, Fraliex, and Noles were the
adjustment committee members who conducted the hearing on his disciplinary charges. He
states that he explained the situation described above but that he received “30 days restrictive
housing and 90 days Good Time loss” on the charge for prostitution and “15 days restrictive
housing” on the charge for inappropriate sexual behavior. Plaintiff maintains, “No matter what a
letter said in it because it can never justify rape!! I went asking for help & telling these
defendants at this court call hearing the truth only for the truth to be turned around an making me
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the suspect . . . .” He argues that Defendants Morrison, Fraliex, and Noles violated his Fourth,
Eighth, Thirteenth, and Fourteenth Amendment rights, as well as the Universal Declaration of
Human Rights.
Moreover, Plaintiff states that Defendants White, Roberts, Belt, Grief, and Mitchell have
also violated his rights. He states as follows:
Each defendant did so by telling me they’re putting me in for a transfer. For
about 30 days or so I was believeing this until each of them told me that the
inmate was transfered who I did have some problems with, they told me that their
going to release me back out to general population. These Defendants was
releasing me back out to general population where the inmate Jonathan Towery
was. Before leaving the segregation unit they made me sign a paper saying that I
have no problems with anyone on the yard an want to return out there, they said
that if I didn’t sign this paper that they’ll just make sure that I am just sitting in
the segregation unit for a very long time with no pending transfer.
I was scared too death going back out to general population around Towery & his
friends plus every one else knowing I came to correctional officers for help. Once
I was released back out to the yard Jonathan Towery an a couple of his friends the
same friends of his that were buzzing for him - (watching out for c.o.’s) while in
the gym that day the rape happen, were tailing close behind. Towery told me that
I will be paying him in canteen items once a week & if I couldn’t come up with
the payment that I better find a way to do so or he was going to beat my face off.
Plaintiff maintains that after he was raped and asked for protective custody, he should not have
been allowed back in the yard in general population. He states, “Also to be allowed back out to
the yard while inmate Jonathan Towery is, showing that these defendants don’t care about
anyone’s safety but also will put those they suppose to be responsible for life & safety in
jeopardy at risk without even a second thought!!” He argues that Defendants White, Roberts,
Belt, Grief, and Mitchell violated his First, Fourth, Eighth, Thirteenth, and Fourteenth
Amendment rights, as well as the Universal Declaration of Human Rights.
Finally, Plaintiff alleges that Defendant Towery “pressured me into having nonconsensual sex with him by threatening that him an his friends were going to beat my face off if
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I didn’t do what Towery wanted.” He states that Towery anally raped him resulting in bleeding
from his anus. He maintains that Defendant Towery violated his First, Fourth, Eighth,
Thirteenth, and Fourteenth Amendment rights, as well as the Universal Declaration of Human
Rights.
In an attachment to the complaint, Plaintiff states, “I have a lawsuit against him in court
pending. I told him about this but he didn’t listen, so by this he able to ‘retaliation against me.’”
This appears to be in response to a question number 2, but the Court cannot determine what
question this statement attempts to answer or to whom Plaintiff is referring.
As relief, Plaintiff requests the Court to “issue conflicts against me & all of these
defendants to prevent retaliation. So I am ask for transfer. Asking that my 90 days good time
days that was taken behind these two write up’s are restored to me.” He also seeks
compensatory and punitive damages and requests that Defendant Towery “face[] charges.”
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
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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)). “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).
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III.
A. Defendant Towery
Plaintiff alleges that Defendant Towery violated his constitutional rights. A claim for
violation of constitutional rights under § 1983 consists of two elements: (1) the defendant acted
under color of state law; and (2) the offending conduct deprived the plaintiff of rights secured by
federal law. Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998). “If a plaintiff fails to make a
showing on any essential element of a § 1983 claim, it must fail.” Redding v. St. Eward, 241
F.3d 530, 532 (6th Cir. 2001). Defendant Towery, a KSP inmate, is not a state actor and did not
act under color of state law at any time. He is therefore not subject to suit under § 1983, and the
claims against Defendant Towery will be dismissed for failure to state a claim.
B. § 1983 Official-Capacity Claims
“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)).
Defendants are employees of KSP, with the exception of Defendant Towery. Claims brought
against state employees in their official capacities are deemed claims against the Commonwealth
of Kentucky. See Kentucky v. Graham, 473 U.S. at 166. Moreover, 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 Defendants for money damages must be dismissed for failure to state a claim upon which
relief may be granted and for seeking monetary relief from Defendants who are immune from
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such relief.
Plaintiff also seeks injunctive relief in the form of issuance of “conflicts against me & all
of those defendants to prevent retaliation. So I am ask for transfer. Asking that my 90 days
good time days that was taken behind these two write up’s are restored to me.” This Court,
however, does not have the authority to order that prison conflicts be issued. The Supreme Court
has recognized that “the problems that arise in the day-to-day operation of a corrections facility
are not susceptible of easy solutions.” Bell v. Wolfish, 441 U.S. 520, 562 (1979). Therefore,
“[p]rison officials therefore should be accorded wide-ranging deference in the adoption and
execution of policies and practices that in their judgment are needed to preserve internal order
and discipline and to maintain institutional security.” Id. Thus, the Court will not order prison
officials to order certain conflicts among inmates and staff.
Moreover, the Court has no authority to award a transfer because the law is clear that
inmates have no constitutional right to be incarcerated in any particular institution. Montanye v.
Haymes, 427 U.S. 236 (1976); Beard v. Livesay, 798 F.2d 874, 876 (6th Cir. 1986). In addition,
Plaintiff has failed to demonstrate any state-created liberty interest in being transferred because,
in Kentucky, the transfer of prisoners is within the discretion of the corrections cabinet. See Ky.
Rev. Stat. § 197.065. Likewise, the Court cannot order the restoration of good-time credits in
this § 1983 action as more fully explained below.
Plaintiff also requests that Defendant Towery face charges. However, “[i]t is well settled
that the question of whether and when prosecution is to be instituted is within the discretion of
the Attorney General.” Powell v. Katzenbach, 359 F.2d 234, 235 (D.C. Cir. 1965). Indeed, only
federal prosecutors, and not private citizens, have authority to initiate federal criminal charges.
Sahagian v. Dickey, 646 F. Supp. 1502, 1506 (W.D. Wis. 1986); see also United States v. Nixon,
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418 U.S. 683, 693 (1974) (“Executive Branch has exclusive authority and absolute discretion to
decide whether to prosecute a case.”); Saro v. Brown, 11 F. App’x 387, 388 (6th Cir. 2001) (“A
private citizen has no authority to initiate a federal criminal prosecution; that power is vested
exclusively in the executive branch.”).
Therefore, Plaintiff’s official-capacity claims against Defendants for injunctive relief will
also be dismissed for failure to state a claim.
C. § 1983 Individual-Capacity Claims
Failure to protect from sexual assault
While it is not entirely clear whether Plaintiff is alleging claims of failure to protect
against any of the KSP Defendants based on the alleged sexual assault by another inmate,
broadly construing the complaint, the Court will address such claims. The Eighth
Amendment imposes a duty on corrections officers to take reasonable measures “to protect
prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 832
(1994) (citation omitted). However, not “every injury suffered by one prisoner at the hands of
another . . . translates into constitutional liability for prison officials responsible for the victim’s
safety.” Id. at 834. Rather, to maintain an Eighth Amendment claim based on a failure to
prevent harm, an inmate must allege both an objective and subjective component. Id. With
regard to the objective component, the plaintiff “must show that he [was] incarcerated under
conditions posing a substantial risk of serious harm.” Id. The subjective component requires the
plaintiff to allege that the defendant acted with “deliberate indifference” to that risk. Id.
“Deliberate indifference is a state of mind akin to criminal recklessness: the official must both
be aware of the facts from which the inference could be drawn that a substantial risk of serious
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harm exists, and he must also draw the inference.” Hamilton v. Eleby, 341 F. App’x 168, 171
(6th Cir. 2009) (internal quotation marks and citations omitted).
Indeed, as the Court of Appeals for the Seventh Circuit explained:
In failure to protect cases, a prisoner normally proves actual knowledge of
impending harm by showing that he complained to prison officials about a
specific threat to his safety. Mere negligence (for example if a prison guard
should know of a risk but does not) is not enough to state a claim of deliberate
indifference under the Eighth Amendment. It is also not sufficient to show that
the prison guard merely failed to act reasonably.
Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996) (internal quotation marks and citations omitted).
With regard to Plaintiff’s allegation that he was raped by another inmate, he cannot
maintain a claim against Defendant KSP personnel for failure to protect because he does not
allege that any personnel were aware of the risk of harm. Courts have generally held that
unexpected incidents are insufficient to establish a claim for deliberate indifference. See, e.g.,
Parris v. N.Y. State Dep’t Corr. Servs., 947 F. Supp. 2d 354, 363 (S.D.N.Y. 2013) (“Courts
routinely deny deliberate indifference claims based on surprise attacks.”) (citation omitted).
Plaintiff does not allege that he complained to prison officials about any threat to his safety.
Nothing in the complaint demonstrates that the assault was anything but an unexpected incident
or gives any other indication that Defendants knew of and disregarded a risk of harm to Plaintiff.
Therefore, any claim based on alleged failure to protect Plaintiff from sexual assault must
be denied for failure to state a claim upon which relief may be granted.
Failure to investigate alleged sexual assault
Plaintiff asserts that several Defendants failed to properly investigate the alleged sexual
assault. However, a claim based on an inadequate investigation fails to state a constitutional
violation because private citizens have no constitutional or federal statutory right to compel the
investigation of another person. See Diamond v. Charles, 476 U.S. 54, 64-65 (1986); Browder v.
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Parker, No. 5:11CV-P29-R, 2011 U.S. Dist. LEXIS 64061, at *20 (W.D. Ky. Jun. 15, 2011)
(“Private citizens, whether or not they are incarcerated, have no constitutional or federal
statutory right to compel the investigation of another person.”) (citing Diamond, 476 U.S. at 6465; White v. City of Toledo, 217 F. Supp. 2d 838, 841 (N.D. Ohio 2002)); Walker v. Schmoke,
962 F. Supp. 732, 733 (D. Md. 1997) (“[N]o federal appellate court, including the Supreme
Court . . . has recognized that there is a federally enforceable right for the victim to have criminal
charges investigated at all, let alone with vigor or competence.”) (citation omitted).
Accordingly, Plaintiff’s claims that Defendants failed to properly investigate his allegations will
be dismissed for failure to state a claim.
Disciplinary charges
Plaintiff also alleges that the disciplinary charges against him violated his rights. The
Court construes these claims as alleging that he received a disciplinary action in violation of the
Due Process Clause which resulted in him improperly receiving restrictive housing and a loss of
good-time credits. To state a Fourteenth Amendment due-process claim, an inmate must allege a
deprivation of a liberty interest protected by the Due Process Clause. However, the law is clear
that inmates have no constitutional right to be incarcerated in any particular institution, a
particular part of an institution, or a particular security classification, unless the state has created
a liberty interest in remaining at a particular institution. See Olim v. Wakinekona, 461 U.S. 238,
245-48 (1983); Montanye v. Haymes, 427 U.S. at 242; Meachum v. Fano, 427 U.S. 215, 223-229
(1976); Beard v. Livesay, 798 F.2d at 876. This is not the case in Kentucky where classification,
segregation, and transfer of prisoners are within the discretion of the corrections department.
Ky. Rev. Stat. § 197.065.
Moreover, with respect to the loss of Plaintiff’s good-time credits, a state prisoner may
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not file a § 1983 suit for damages or equitable relief challenging his conviction or sentence if a
ruling on his claim would render the conviction or sentence invalid, until and unless the
conviction or sentence has been reversed on direct appeal, expunged by Executive Order,
declared invalid by a state tribunal, or has been called into question by a federal court’s issuance
of a writ of habeas corpus under 28 U.S.C. § 2254. Heck v. Humphrey, 512 U.S. 477, 486-87
(1994). If a ruling on a claim would necessarily render the duration of Plaintiff’s confinement
invalid, the claim must be dismissed because it simply is not cognizable until the challenged
confinement has been remedied by some other process. Id. at 487.
In Edwards v. Balisok, 520 U.S. 641 (1997), the Supreme Court extended the application
of Heck to prison disciplinary proceedings. If the inmate’s allegations would “necessarily imply
the invalidity of the punishment imposed,” the claim is not cognizable in a civil action under
§ 1983. Id. at 648. Furthermore, in Wilkinson v. Dotson, 544 U.S. 74 (2005), the Supreme Court
reemphasized that “a state prisoner’s § 1983 action is barred (absent prior invalidation)--no
matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit
(state conduct leading to conviction or internal prison proceedings)--if success in that action
would necessarily demonstrate the invalidity of confinement or its duration.” Id. at 81-82.
In the instant action, Plaintiff alleges that the disciplinary action against him violated his
rights and requests the Court to determine that it was invalid. Nothing in the complaint indicates
that Plaintiff’s disciplinary conviction was reversed or otherwise invalidated. Success on
Plaintiff’s claims concerning the disciplinary conviction and loss of good-time credits would
necessarily imply the invalidity of his confinement and therefore cannot be brought under
§ 1983.
Accordingly, Plaintiff’s due-process claims based on the disciplinary charges will be
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dismissed for failure to state a claim upon which relief may be granted.
To the extent that Plaintiff alleges that the disciplinary charges violated the Eighth
Amendment’s Cruel and Unusual Punishments Clause, the claim also fails. “A viable Eighth
Amendment claim must satisfy both an objective component and a subjective component.”
Farmer, 511 U.S. at 834; Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). The
objective component requires that the deprivation be “sufficiently serious.” Wilson v. Seiter, 501
U.S. 294, 298 (1991). An inmate must show that he was deprived of “the minimal civilized
measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). “[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, 511 U.S. at
832 (citations omitted). The subjective component requires the defendant to act with “deliberate
indifference” to a prisoner’s health or safety. Wilson, 501 U.S. at 302-03.
“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). “[H]arsh ‘conditions of confinement’ may constitute cruel
and unusual punishment unless such conditions ‘are part of the penalty that criminal offenders
pay for their offenses against society.’” Whitley v. Albers, 475 U.S. 312, 319 (1986) (quoting
Rhodes, 452 U.S. at 347). The alleged conduct must reflect an “unnecessary and wanton
infliction of pain” to fall within the ambit of conduct proscribed by the Eighth Amendment.
Ingraham v. Wright, 430 U.S. 651, 670 (1977) (citing Estelle v. Gamble, 429 U.S. 97, 103
(1976)).
“‘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
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Eighth Amendment Claim.’” Harden-Bey v. Rutter, 524 F.3d 789, 795 (6th Cir. 2008) (quoting
Murray v. Unknown Evert, 84 F. App’x 553, 556 (6th Cir. 2003)); Merchant v. Hawk-Sawyer, 37
F. App’x 143, 145 (6th Cir. 2002) (“Merchant presented no evidence that he was denied basic
human needs or was otherwise subjected to cruel and unusual punishment by virtue of the
conditions in administrative detention or disciplinary segregation.”). Plaintiff does not allege
that he was denied basic human needs as a result of the disciplinary action against him.
Therefore, Plaintiff’s allegations fail to state an Eighth Amendment claim, and his Eighth
Amendment claims based on the disciplinary action will be dismissed for failure to state a claim.
Failure to protect in releasing Plaintiff to general population
Plaintiff also alleges that Defendants White, Jill Roberts, Belt, Grief, and Michael
Mitchell misled him into thinking Defendant Towery had been transferred out of KSP and
released him to the general population where Defendant Towery is also housed. Upon review,
the Court will allow this Eighth Amendment failure-to-protect claim to proceed past initial
screening.
Retaliation
In an attachment to the complaint, Plaintiff states, “I have a lawsuit against him in court
pending. I told him about this but he didn’t listen, so by this he able to ‘retaliation against me.’”
In order to set forth a First Amendment retaliation claim, a plaintiff must establish that: (1) he
was engaged in protected conduct; (2) an adverse action was taken against him that would deter a
person of ordinary firmness from engaging in that conduct; and (3) the adverse action was
motivated, at least in part, by the protected conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394
(6th Cir. 1999) (en banc). Moreover, a plaintiff must be able to prove that the exercise of the
protected right was a substantial or motivating factor in the defendant’s alleged retaliatory
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conduct. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mt. Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). “[A]lleging merely the ultimate fact
of retaliation is insufficient.” Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987). “[C]onclusory
allegations of retaliatory motive ‘unsupported by material facts will not be sufficient to state . . .
a claim under § 1983.’” Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005) (quoting
Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987)); see also Iqbal, 556 U.S. at 678
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”).
While Plaintiff makes a vague, conclusory assertion of retaliation, he does not allege
sufficient facts to support a retaliation claim, and the Court cannot even discern who allegedly
retaliated against him. Therefore, the complaint fails to state a retaliation claim, and the claim
will be dismissed.
Fourth and Thirteenth Amendment claims
Plaintiff alleges that Defendants violated his rights under the Fourth Amendment, which
provides as follows:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
U.S. Const. amend. IV. Plaintiff does not explain the factual basis for alleging a Fourth
Amendment claim. The Supreme Court has held that a prisoner does not possess “any subjective
expectation of privacy . . . in his prison cell and that, accordingly, the Fourth Amendment
proscription against unreasonable searches and seizures does not apply within the confines of the
prison cell.” Hudson v. Palmer, 468 U.S. 517, 526 (1984). Moreover, while the Fourth
15
Amendment’s prohibition against unreasonable seizures bars excessive force against free
citizens, Graham v. Connor, 490 U.S. 386, 388 (1989), the Eighth Amendment’s ban on cruel
and unusual punishment bars excessive force against convicted persons. Whitley v. Albers, 475
U.S. at 318-22. Since Plaintiff is a convicted prisoner, the Court must analyze his failure-toprotect claims under the Eighth Amendment. To the extent that he is alleging his disciplinary
charges violated the Fourth Amendment, that claim must be dismissed for the reasons described
above. Accordingly, Plaintiff’s Fourth Amendment claims will be dismissed for failure to state a
claim.
Plaintiff also alleges violations of the Thirteenth Amendment. The Court will dismiss the
Thirteenth Amendment claims as inapplicable to the facts raised in the complaint. See United
States v. Kozminski, 487 U.S. 931, 942 (1988) (“The Thirteenth Amendment declares that
‘[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party
shall have been duly convicted, shall exist within the United States, or any place subject to their
jurisdiction.’”).
D. Claims under Universal Declaration of Human Rights
Plaintiff claims that Defendants violated various articles of the Universal Declaration of
Human Rights. However, the Universal Declaration of Human Rights is not a treaty or
international agreement that imposes legal obligations. See Sosa v. Alvarez-Machain, 542 U.S.
692, 734 (2004) (“[T]he Declaration does not of its own force impose obligations as a matter of
international law.”). Rather, it is a statement of principles aimed at providing a common
standard for international human rights. Id. at 734-35. Because it is not enforceable in American
courts, Plaintiff’s claims alleging violations of the Universal Declaration of Human Rights will
be dismissed.
16
IV.
For the reasons set forth herein, and the Court being otherwise sufficiently advised,
IT IS ORDERED that Plaintiff’s § 1983 official-capacity claims against all Defendants
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 relief from defendants immune from such
relief.
IT IS ORDERED that Plaintiff’s § 1983 individual-capacity claims based on allegations
of failure to protect from sexual assault, failure to investigate sexual assault, constitutional
violations against Defendant Towery, retaliation, violations of the Fourth and Thirteenth
Amendments, and violations of the Universal Declaration of Human Rights are DISMISSED
pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be
granted.
As all claims against them have been dismissed, the Court is directed to TERMINATE
the following Defendants: Hardin, Beavers, Seth T. Mitchell, Derek Roberts, Morrison, Fraelix,
Noles, and Towery.
The Court will enter a separate Order Regarding Service and Scheduling Order to govern
the claims that have been permitted to proceed.
Date:
June 20, 2017
cc:
Plaintiff, pro se
Defendants
General Counsel, Justice & Public Safety Cabinet, Office of Legal Counsel
4413.010
17
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