Daugherty v. White
MEMORANDUM OPINION by Senior Judge Thomas B. Russell on 11/29/17: The Court will dismiss this action for failure to state a claim upon which relief may be granted. The Court will enter a separate order of dismissal. cc: Plaintiff(pro se), Deft, General Counsel (DJT)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
WILLIAM J. DAUGHERTY
CIVIL ACTION NO. 5:17-CV-P141-TBR
WARDEN RANDY WHITE
This is a civil rights action brought by a convicted prisoner pursuant to 42 U.S.C. § 1983.
The Court has granted Plaintiff William J. Daugherty leave to proceed in forma pauperis. This
matter is before the Court for screening pursuant to 28 U.S.C. § 1915A. For the reasons set forth
below, the action will be dismissed.
I. SUMMARY OF COMPLAINT
Plaintiff brings this action against Kentucky State Penitentiary (KSP) Warden Randy
White in his individual capacity.
In his complaint, Plaintiff states as follows:
Cruel and Unusual Punishment . . . On 6/28/2017, three dorms was let out at the
same time, and everyone was trying to get in the canteen line, and then out of
nowhere corrections staff came upon us and started to push inmates around, they
didn’t ask anyone to move, they just push who ever was in there way at the that
time, so the inmates started to push back, that is when the fight broke out on the
institution yard, between inmate and correction staff. It was then that everyone
was place on lock down, we were told by a cert team, that for the next 10 days,
there will be no phone call, and not letters sent out to anyone, that is when
everything became crazy on the institution we could not understand why so many
were being punished for what so few done, then came the threats upon everyone,
the cert team stood in my face and said he will beat my head in if he thought I was
trying to remember who said what to me, then I was push into a wall and call a
coward because I wouldn’t jump on the cert team, like it was said, they done to
corrections staff, I tried to explain to the cert team that I was not involved in the
fight, I was told that before it was over, I was going to wish I had been involved,
then we were told that every time a inmate jumps on correction staff, one hundred
would pay for it with blood . . . then they started to degrade me and inmbarrased
me before Aramark staff which were women for reasons I still don’t understand,
and then the Senior Caption Will Thomas said this is not cruel and unusual
punishment, it is called getting back at a lot of you inmates who thought you
could jump on correction staff and get away with it, so understand what it feel
like, all of you, and it don’t matter if you were involved or not . . .
For everyone who believe they are being done wrong by the cert team that the
warden brought on the institution, they need to stand up and say so. Everyone
who spoke up, was place in segregation and beat up, and told that no one cares
about what you inmates think, but all of you need to understand something right
now, you all are being punishment for what took place on this institution,
something in which you all started, so understand why we are here, we came to
hurt you inmates, just like you thought you had done to correct staff, and it will
not stop until the Warden no longer wants to see just how frightened you all
became . . .
And for the first ten days of this lock down we were lock down for 24 hours, not
letting us out for anything, Warden Randy White could have stop this, but chose
to look over it, 63 days of lockdown for what some else done.
As relief, Plaintiff seeks compensatory 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
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] 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,
94 (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
require [it] to conjure up unpled allegations,” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979),
or 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).
“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. The Lockdown
Plaintiff’s first allegation against Defendant White seems to be that he violated Plaintiff’s
rights by placing Plaintiff and other inmates at KSP on lockdown for 63 days for actions that
Plaintiff allegedly did not commit. Plaintiff also states that, for the first 10 days of the lockdown,
inmates were not allowed to leave their cells, make phone calls, or mail letters. The Court finds
that these allegations fail to state a constitutional claim against Defendant White.
The Due Process Clause of the Fourteenth Amendment does not protect every change in
the conditions of confinement having an impact on a prisoner. See Meachum v. Fano, 427 U.S.
215, 225 (1976). In Sandin v. Conner, 515 U.S. 472, 484 (1995), the Court set forth the standard
for determining when a prisoner’s loss of liberty implicates a federally cognizable liberty interest
protected by the Due Process Clause. According to Sandin, a prisoner is entitled to the
protections of due process only when a deprivation “will inevitably affect the duration of his
sentence” or imposes an “atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Sandin, 515 U.S. at 486-87; see also Jones v. Baker, 155 F.3d
810, 812 (6th Cir. 1998); Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir. 1995). Generally,
courts consider the nature and duration of a stay in segregation in determining whether it
imposes an “atypical and significant hardship.” Harden-Bey v. Rutter, 524 F.3d 789, 795-96
(6th Cir. 2008).
Here, the Court finds that Plaintiff’s allegation of a 63-day lockdown fails to meet this
standard. First, Plaintiff has not alleged the duration of his sentence was affected by the
lockdown. Moreover, in Sandin, the Supreme Court concluded that the segregation at issue in
that case (disciplinary segregation for 30 days) did not impose an atypical and significant
hardship. Sandin, 515 U.S. at 484. Similarly, the Sixth Circuit has held that placement in
administrative segregation for a relatively limited period of time does not require the protections
of due process. Joseph v. Curtin, 410 F. App’x 865, 868 (6th Cir. 2010) (61 days in segregation
is not atypical and significant); Rimmer-Bey, 62 F.3d at 790-91. See also Walton v. Sing, No.
CIV S-10-3167 JAM GGH P, 2011 U.S. Dist. LEXIS 119798, at *11(E.D. Cal. Oct. 17, 2011)
(holding that a prisoner who alleged that he was subjected to a prison lockdown for thirty days
after a prison riot failed to demonstrate an atypical and significant hardship under Sandin)
(citing Wade v. Maddock, No. 99-15565, 2000 U.S. App. LEXIS 16030, at *3 (9th Cir. July 7,
2000) (“[W]e do not believe that the two-month lockdown can, as a matter of law, constitute a
protected liberty interest under Sandin . . . .”).
Moreover, Plaintiff’s allegations that he was not allowed to use the telephone or send
mail during the first 10 days of the lockdown do not change this analysis. See, e.g., Boriboune v.
Litscher, 91 F. App’x 498, 500 (7th Cir. 2003) (short-term loss of telephone privileges and
disciplinary segregation implicated no liberty interest and triggered no due process protection);
Blum v. Fed. Bureau of Prisons, No. 98-1055, 1999 U.S. App. LEXIS 20051, at *8-9 (10th Cir.
Aug. 23, 1999) (protected liberty interest not triggered by restrictions on store privileges,
telephone calls, and access to a radio during disciplinary segregation); Larue v. Blodgett, No. 9535936, 1996 U.S. App. LEXIS 11739, at *3-4 (9th Cir. May 6, 1996) (temporary loss of
telephone privileges, possession of a radio, and visitation did not meet Sandin requirements);
Kennedy v. Blankenship, 100 F.3d 640, 642-43, n.2 (8th Cir. 1996) (temporary restriction
of mail, telephone, visitation, commissary, and personal-possession privileges was not a
constitutional violation); Allen v. Alexsander, No. 2:16-cv-245, 2017 U.S. Dist. LEXIS 106698,
at *12 (W.D. Mich. July 11, 2017) (90-day phone restriction does not violate right to procedural
Therefore, Plaintiff’s claims against Defendant White related to the lockdown at KSP
must be dismissed for failure to state a claim.
B. Actions by Members of the “Cert Team”
Plaintiff also appears to make claims against Defendant White liable for the alleged
actions taken by members of the “cert team” against Plaintiff during the lockdown. The
specific allegations that Plaintiff makes against members of the “cert team” regarding himself
seem to be that they verbally harassed and threatened him and pushed him into a wall. The
doctrine of respondeat superior does not apply in § 1983 lawsuits to impute liability onto
supervisory personnel, see Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691-95 (1978), unless it
is shown “that the supervisor encouraged the specific incident of misconduct or in some other
way directly participated in it.” Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Put
another way, a supervisor’s failure to supervise, train or control an employee is not actionable
under § 1983, unless the plaintiff shows “the official at least implicitly authorized, approved, or
knowingly acquiesced in the unconstitutional conduct . . . .” Hays v. Jefferson Cty., Ky., 668
F.2d 869, 874 (6th Cir. 1982) (emphasis added).
Here, Defendant White cannot be held liable for members of the “cert team” allegedly
verbally harassing and threatening Plaintiff because these actions do not constitute
unconstitutional conduct. Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987); see also Violett v.
Reynolds, 76 F. App’x 24, 27 (6th Cir. 2003) (“[V]erbal abuse and harassment do not constitute
punishment that would support an Eighth Amendment claim.”); Clark v. Turner, No. 96-3265,
1996 U.S. App. LEXIS 331113, at *4 (6th Cir. Dec. 13, 1996) (“Verbal harassment or idle
threats are generally not sufficient to constitute an invasion of an inmate’s constitutional
rights.”); George v. Ballard, No. 5:16-482-KKC, 2017 U.S. Dist. LEXIS 2564, at *8 (E.D. Ky.
Jan. 9, 2017) (“It has long been established that a prison guard’s verbal abuse or general
harassment of an inmate does not violate the Eighth Amendment.”); Searcy v. Gardner, No.
3:07-0361, 2008 U.S. Dist. LEXIS 118217, at *10 (M.D. Tenn. Feb. 11, 2008) (“A claim
under 42 U.S.C. § 1983 cannot be based on mere threats, abusive language, racial slurs, or verbal
harassment by prison officials.”).
The Court also finds that Plaintiff’s claim against Defendant White based upon members
of the “cert team” allegedly pushing him into a wall fails for the same reason. Under the Eighth
Amendment, an official’s conduct will be found to amount to cruel and unusual punishment
“when their offending conduct reflects an unnecessary and wanton infliction of pain.” Cordell v.
McKinney, 759 F.3d 573, 580 (6th Cir. 2014) (quoting Williams v. Curtin, 631 F.3d 380, 383
(6th Cir. 2011)). In examining an excessive-force claim under the Eighth Amendment, the
constitutional analysis has both a subjective and an objective component, requiring the court to
determine “whether the force was applied in a good-faith effort to maintain or restore discipline,
or maliciously and sadistically to cause harm,” and whether “the pain inflicted [is] sufficiently
serious.” Cordell, 759 F.3d at 580 (internal quotation marks and citations omitted). The inmate
is not required to suffer a serious injury, but the extent of his injuries may be considered in
determining whether the force used was wanton and unnecessary. Wilkins v. Gaddy, 559 U.S.
34, 38-40 (2010); Hudson v. McMillian, 503 U.S. 1, 7 (1992). Thus, “[a]n inmate who
complains of a ‘push or shove’ that causes no discernible injury almost certainly fails to state a
valid excessive force claim.” Tuttle v. Carroll Cty. Det. Ctr., 500 F. App’x 480, 482 (6th Cir.
2012) (citing Wilkins, 559 U.S. at 38).
Here, the Court finds that because Plaintiff’s excessive-force claim is based on no more
than an alleged shove into a wall, Plaintiff fails to meet the objective standard of an excessiveforce claim. See, e.g., Tuttle v. Carroll Cty. Det. Ctr., 500 F. App’x at 482 (affirming that
plaintiff’s “bare-bones allegation that [a] female deputy “grabbed his privates and squeezed them
really hard” was simply too subjective and vague to state an excessive-force claim); Wicker v.
Lawless, No. 1:15-cv-00237, 2017 U.S. Dist. LEXIS 162076, at *42 (S.D. Ohio Sept. 30, 2017)
(finding that an alleged “shove” that caused the plaintiff to “bump” her head - “causing no
discernable harm of record – is insufficient harm under Wilkins”); Cline v. Cruse, No. 3:14 CV
1678, 2016 U.S. Dist. LEXIS 84357, at *9 (N.D. Ohio June 8, 2016) (holding that an officer’s
grabbing of the plaintiff’s thumb, applying pressure to it, and bending in backward, which
resulted only in “a small reddening of the skin” was not sufficiently serious to meet the objective
prong of an excessive force claim).
Thus, because Plaintiff’s allegations of a “shove” suggest no underlying constitutional
violation, Plaintiff’s claim against Defendant White for this alleged act must also be dismissed.
For the foregoing reasons, the Court will dismiss this action for failure to state a claim
upon which relief may be granted. The Court will enter a separate order of dismissal.
Date: November 29, 2017
Plaintiff, pro se
General Counsel, Justice & Public Safety Cabinet, Office of Legal Counsel
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