Smith v. Davis et al
MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers on 3/13/2018. The Clerk of Court is DIRECTED to terminate Defendant Joy Meyers from the docket of this action. The Court will enter a separate Scheduling Order to govern the development of the proceeding claims. cc: Plaintiff, pro se; Counsel of Record (MNM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 5:17-CV-P187-GNS
CHARLES AARON DAVIS et al.
MEMORANDUM OPINION AND ORDER
Plaintiff Rodney Smith, a prisoner presently incarcerated at Kentucky State Penitentiary
(KSP), originally filed this action in the Franklin Circuit Court (DN 1). The case was removed
to the United States District Court for the Eastern District of Kentucky, and on November 29,
2017, the case was transferred to this Court. In his complaint, Plaintiff contends, in part, that
Defendants, employees of the Commonwealth of Kentucky, violated his constitutional rights.
Thus, the Court construes this action as being brought under 42 U.S.C. § 1983.
This matter is before the Court for initial review of the complaint pursuant to 28 U.S.C.
§ 1915A and McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997), overruled on other
grounds by Jones v. Bock, 549 U.S. 199 (2007). For the reasons that follow, the Court will allow
the following claims to proceed: (1) the Fourth Amendment unreasonable search claims against
Defendants Rodriguez and Neely in their individual capacities; (2) the First Amendment
retaliation claims against Defendants Belt, Beeler, Burnett, Epley, Fraliex, McCullough, Ben
Mitchell, Seth Mitchell, Peck, Roberts, and White in their individual capacities; (3) the Eighth
Amendment failure-to-treat claim against Defendant Davis in his individual capacity; and (4) the
religion claim against Defendants Rodriguez and Neely in their individual capacities. The other
claims and Defendants will be dismissed from this action.
I. SUMMARY OF CLAIMS
Plaintiff identifies a total of fifteen Defendants. Plaintiff states that fourteen of the
Defendants are employed by KSP and one Defendant is employed by Correct Care Solutions
(CCS).1 The fifteen Defendants are as follows: (1) James R. Beeler a Lieutenant at KSP;
(2) Troy Belt, a Unit Administrator at KSP; (3) Wesley Burnett, a Correctional Officer (CO) at
KSP; (4) Charles Aaron Davis, a Registered Nurse employed by CCS and working at KSP;
(5) Lauren Epley, an employee of KSP; (6) Brittany Fraliex, a CO at KSP; (7) Monica
McCullough, a CO at KSP; (8) Joy Meyers, a Social Service Clinician at KSP; (9) Benjamin D.
Mitchell, a Case Treatment Officer at KSP; (10) Seth T. Mitchell, an employee of KSP;
(11) Brian Neely, a CO at KSP; (12) Marshall E. Peck, an employee of KSP; (13) Charles
Roberts, an employee of KSP; (14) Gage Rodriguez, a Sergeant at KSP; and (15) Randy White,
the Warden at KSP. All Defendants are sued in their individual and official capacities. As relief,
Plaintiff seeks compensatory and punitive damages. He also wants the Adjustment Committee
decision to be vacated, the “matter to be rescinded from [his] Department of
Corrections/Kentucky State Penitentiary institutional records and files,” and his good-time
credits restored. Additionally, Plaintiff seeks a declaration that Defendants “each and together
have violated [Plaintiff’s] State and Federal rights.”
In his complaint, Plaintiff states that on February 24, 2017, he was enrolled in the
“Segregation Transition Unit Group in attempt to have his Segregation Sentence subsequently
suspended upon successful completion.” Plaintiff states that on April 17, 2017, while he was
showering, Plaintiff believed Officer Muncher “molested and/or violated his intimate privacy
and persons, Ergo [Plaintiff] verbally complained to . . . Supervisor/Lieutenant, Samantha Paris.”
Plaintiff states that CCS “is contracted By the Kentucky Department of Corrections, . . . as [a] Medical
On the following day, April 18, 2017, Plaintiff states that Defendant Rodriquez, “along
with a non-defendant,” removed Plaintiff from the Segregation Transition Unit Program at
approximately 10:20 a.m. and relocated him to 3 cell house 12-Right. Plaintiff states that during
the transfer he made a “PREA (Prison Rape Elimination Act) claim on [Defendant] Rodriguez.”
The PREA claim, according to Plaintiff, was investigated by Defendant Roberts. Plaintiff states
that he received a disciplinary report because Defendant Roberts found that Plaintiff made the
PREA claim in bad faith.
Further, during the transfer, Plaintiff states that he “was deprived the opportunity to pack
his personal and State Belonging.” However, according to Plaintiff, his property was returned
later in the evening. According to Plaintiff, at approximately 2:20 p.m. on April 18, 2017, he
was placed on property restrictions, and Defendant Rodriguez conducted an inventory of
Plaintiff’s property and “annotated that an ipod was missing.” Plaintiff states that at 2:22 p.m.
Defendants Rodriguez and Neely came to Plaintiff’s cell to remove him and take him to the “cell
house strip cage.” Apparently, Plaintiff received a disciplinary report for alleged indecent
exposure for activity which took place at this time. Plaintiff states that he was placed in wrist
and ankle restraints. Plaintiff states that he was “forcefully placed against the exterior wall”
while being removed from the cell. According to Plaintiff, “[a]t this time [Defendants]
Rodriguez and Neely forcefully with Malicious intent, wedged [Plaintiff’s] under garments and
trousers in Between [Plaintiff’s] Buttocks in an attempt to” dislodge the missing iPod from
Plaintiff’s “cavity.” Plaintiff states that nothing was found at this time, and he was escorted to
the “12 left and right Officer Station, which is one of many sections in the ‘Restricted Housing
Plaintiff states that he was “stopped and placed up against the hall-way crash gate.”
Thereafter, according to Plaintiff, Defendants Rodriguez and Neely “elevated [Plaintiff’s] arms
above head, at which time [Defendant] Rodriguez pulled [Plaintiff’s] trousers and under
garments down and went inside the anal cavity with [Defendant] Rodriguez’s hand.” Plaintiff
states that he began to “execute ‘PREA’ prevention tactics” previously taught to him, and he
“yelled out loud enough to bring attention and awareness to the area to scare, discourage and
cause [Defendants] Rodriguez and Neely to cease their illegal acts of sexual abuse.” According
to Plaintiff, at this point Defendants Rodriguez and Neely “yanked [Plaintiff] down the stairways
in route to the cell house strip cage with [Plaintiff’s] Male extremities exposed along with
Buttocks for view of inmate sexual predators and male and female staff.” Plaintiff asserts that
this “sexual molestation” violated his “rights under Article four of the U.S. Constitution ‘illegal
search’ it also violated a tenant of [Plaintiff’s] Religious Beliefs as a professed Muslim.”
Plaintiff states that he continued to scream and yell and that Defendant Rodriguez
threatened Plaintiff with pepper spray. Plaintiff states that Defendant Rodriguez told Plaintiff,
“If you Don’t Shut up I’ll Beat Your (word omitted).” Plaintiff states that there is no
surveillance in the strip cage, so he requested a hand-held camera to “insure” his safety. Plaintiff
states that the video recording shows that upon his arrival in the strip cage, Plaintiff’s trousers
and undergarments were at his ankles. According to Plaintiff, his clothing was then exchanged,
and he was “re-restrained and escorted Back to cell, located on 12-Right.” Plaintiff states that
when arriving at his cell there were officers in the cell trying to locate the “alleged missing
ipod.” When asked by Defendant Rodriguez if they had found the iPod, the officers searching
Plaintiff’s cell responded that they had not. According to Plaintiff, Defendant Rodriguez
“delegated [Plaintiff] to be stripped out.” Thereafter, Plaintiff states that his personal property
and hygiene items were removed from his cell for 24 hours. Plaintiff states that this is
permissible according to institutional policy promulgated through Defendant White. Although
unclear, it appears that Plaintiff states that there were feces and urine on the floor of this cell.
On April 19, 2017, according to Plaintiff, he informed psychologist Gene Reaney of his
living conditions. Plaintiff states that he was then moved to another cell. According to Plaintiff,
he was moved “in Solely” his boxers while being “video’d surveilled.” Plaintiff states that
Defendant Rodriguez continued to “harass, intimidate and Deprive [Plaintiff] of Constitutional
necessities, a Mattress.” Plaintiff states that Defendant Rodriguez told Plaintiff, “thats how
Muslims shall Be treated in America . . . You’re a Rat.” Plaintiff states that on April 25, 2017,
he “was given Back state issued property, ie. clothing and Bed linen.”
Also on April 25, 2017, Plaintiff represents that he was escorted to medical to be seen by
Defendant Davis. Plaintiff states that the visit was to be for “pain of the rectal cavity . . . that
was the result of [Defendant] Rodriguez entering [Plaintiff’s] Anal cavity on April 18, 2017.”
Plaintiff states that Defendant Davis questioned Plaintiff about the names of the individuals
Plaintiff alleged molested him, as if Defendant Davis “was More Concerned of the incident
and/or activity than the well-being and Safety of [Plaintiff].” Plaintiff states that thereafter
Defendant Davis “told the escorting officers the visit was terminated.” According to Plaintiff, he
was escorted back to his living area.
Plaintiff states that on April 26, 2017, Defendant Rodriguez removed Plaintiff from his
cell to escort him to a visitation area on 12-left. Plaintiff states that along the way, Defendant
Rodriguez “forcefully Placed [Plaintiff] against a wall.” Plaintiff states that he began to yell out
for someone in fear for his safety. According to Plaintiff, while in the visitation cage, Plaintiff
was asked by a person named Coombs about what was going on. Plaintiff states that Coombs
threatened and intimidated Plaintiff by “shaking an ‘MK9’ Mace can.” Plaintiff inquired as to
whether Coombs and Defendant Rodriguez were going to kill him. Plaintiff reports that Coombs
Plaintiff lists various disciplinary reports (DR) he received. On April 25, 2017, he
received DR# KSP-2017-00920 which was issued by Defendant Seth Mitchell. On April 26,
2017, Plaintiff received DR# KSP-2017-00931 which was also issued by Defendant Seth
Mitchell. On May 2, 2017, Plaintiff was issued DR# 2017-KSP-00869 which was issued by
Defendant Seth Mitchell “while conducting a PREA investigation.” Although unclear, it appears
that Plaintiff states, as to this disciplinary report, that Defendant Beeler found Plaintiff guilty of
tampering with physical evidence or hindering an investigation. On May 3, 2017, Plaintiff
received DR# KSP-2017-00994 issued by Defendant Seth Mitchell. On May 20, 2017, Plaintiff
received DR# KSP-2017-01133 issued by Defendant Burnett.
Seemingly, Plaintiff refers to two other disciplinary reports that he says were issued by
Defendants Seth Mitchell or Roberts. Plaintiff describes the disciplinary reports as charging
Plaintiff with making a PREA claim in bad faith. Plaintiff asserts that Defendant Seth Mitchell
violated “every aspect of ‘Confidentiality’ . . . when [he] knowingly placed in the face of the
disciplinary the exact illustration in which [Plaintiff] Detailed in the grievance submitted on
claims of PREA.” Plaintiff states that this subjected him to “acts of retaliation by any Meens and
reprisal, once this said disciplinary report was forwarded to the Adjustment Committee for
review.” Plaintiff further appears to contend that the disciplinary violations should not have
been a category 5, but a category 3, and that Defendant Seth Mitchell made them a category 5 in
retaliation for Plaintiff filing grievances and PREA complaints. Plaintiff states that “it should be
deemed when Conducting the investigation into [Plaintiff’s] Claims of [Defendant] Rodriguez’s
Sexual Misconduct . . . there was more than a Modicum of evidence to support [Plaintiff’s]
claims.” Plaintiff further states that “[t]o issue a disciplinary report when an inmate initiates
legal redress and begins to exhaust their administrative remedies to be in compliance with the
Prison Litigation Reform Act, is Kentucky State Penitentiary’s Machinated Thwart process to
deter and Deprive and/or negate this requirement.”
As to the “alleged theft of an ipod,” Plaintiff states that Defendant Rodriguez violated
Corrections Policies and Procedures (CPP) 9.8 because Plaintiff was not present during the cell
search as the policy requires. Plaintiff states that Defendants Belt, McCullough, and Epley found
Plaintiff guilty of stealing or possession of stolen goods and assessed Plaintiff restitution in the
amount of $50.00. Plaintiff states that Defendant White concurred with the findings. Plaintiff
points out that he signed an agreement stating that if the iPod was damaged or altered that he
would be held responsible for the restitution cost of the iPod. Plaintiff states that this is a legal
contract to which he is bound. Plaintiff asserts that he was found “guilty void of any evidence
and soley on the Blind assertion of [Defendant] Rodriguez stating he couldn’t find it . . . and Due
to [Defendant] Meyers stating, ‘Smith did happen to have the ipod on this date.’” Further,
Plaintiff states that the iPod is “deemed dangerous contraband” as defined by “KRS 520.010”
and “CPP 9.6 II. B.” Plaintiff states that Defendant Meyers introduced this contraband into the
institution and that she may be prosecuted.
Plaintiff states that the disciplinary report by Defendant Rodriguez in which Plaintiff was
charged with “Eluding or Resisting apprehension” is “a clear display of retaliation.” Plaintiff
states that Defendants Beeler, Fraliex, and Benjamin Mitchell, the members of the adjustment
committee, found Plaintiff “[g]uilty to guarantee [Plaintiff] receives More Segregation time and
is unable to grieve the acts and omissions of [Defendants].” Plaintiff states that Officer Jenkins
reviewed the “hand held video camera; at no time does he report he seen [Plaintiff] Resist
apprehension.” Plaintiff states that he informed the members of the adjustment committee that
he had contacted the Department of Public Advocacy about being sexually molested by
Defendant Rodriguez. Plaintiff asserts that this “gave prerequisite knowledge to [Defendant]
Rodriguez’s parties, agents and Successors to protect him By all means.” Plaintiff states that two
incidents occurred in April, but were not reported until May. Plaintiff concludes that Defendant
Rodriguez “Back Dated incidents of alleged wrong-doings By” Plaintiff. According to Plaintiff,
Defendant White concurred in the finding of guilt.
In the “Conclusions” portion of his complaint, Plaintiff summarizes his claims. He
claims that when Defendant Rodriguez went into his anal cavity for his own personal reasons, he
violated “Article IV.” Plaintiff states that “Article XIV was violated in Both forms, Procedural
when [Defendants] White, Belt, Mitchell, Epley, Peck, McCullough, Fraliex and Beeler refused
to Dismiss each and every Disciplinary report at the Committee level.” As to Defendant White,
Plaintiff states that Defendant White violated “Article XIV” when he concurred in the guilty
finding, “furthering Arbitration and Concealing the Malfeasance at the [KSP].” Plaintiff
contends that “Article VIII was violated [by Defendant] Rodriguez [when he] delegated
[Plaintiff’s] state and personal Property to Be removed from [Plaintiff’s] cell for Days at a time.”
Plaintiff states that he was deprived of the “[b]are necessities of life in violation of Article XIV
of the U.S. Constitutional, [Plaintiff] was forced into a cruel and Unusual living arrangement due
to the Urine and feces all over the cell floor.” Plaintiff further states that he was denied medical
treatment for the “lacerations sustained in the inner cavity.”
II. STANDARD OF REVIEW
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 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. 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)). “But the district court need not accept a ‘bare assertion of legal
conclusions.’” Tackett v. M & G Polymers, USA, LLC, 561 F.3d at 488 (quoting Columbia Nat.
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 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).
A. Official-Capacity Claims
1. Claims for Damages against the State-Employee Defendants
“Official-capacity suits . . . ‘generally represent only another way of pleading an action
against an entity of which an officer is an agent.’” Kentucky v. Graham, 473 U.S. 159, 165-66
(1985) (quoting Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690 n.55 (1978)). The
official-capacity claims brought against the Defendants who are employees or officers of the
Commonwealth of Kentucky are deemed claims against the Commonwealth of Kentucky.
Id. at 166. State officials sued in their official capacities for money damages are not “persons”
subject to suit under § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Thus,
because Plaintiff seeks money damages from state officers or employees in their official
capacities, he fails to allege cognizable claims under § 1983. Additionally, the Eleventh
Amendment2 acts as a bar to claims for monetary damages against Defendants in their official
capacities. Kentucky v. Graham, 473 U.S. at 169.
Accordingly, Plaintiff’s official-capacity claims for monetary damages against
Defendants who are employees of the Commonwealth of Kentucky will be dismissed.
“The Judicial power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another state, or by Citizens or
Subjects of any Foreign State.” U.S. Const. amend. XI. “While the Amendment by its terms does not bar
suits against a State by its own citizens, [the Supreme Court] has consistently held that an unconsenting
State is immune from suits brought in federal courts by her own citizens as well as by citizens of another
State.” Edelman v. Jordan, 415 U.S. 651, 662-63 (1974).
2. Claim against the CCS-Employee Defendant
Plaintiff has named one employee of CCS, Charles Aaron Davis, as a Defendant in this
case. The claim against Defendant Davis in his official capacity is deemed a claim against his
employer, CCS.3 See Prather v. Corr. Care Solutions, No. 2016 WL 2903288, at *4 (W.D. Ky.
May 18, 2016) (stating that plaintiff’s official-capacity claim against an employee of CCS was
actually a claim against CCS).
Municipal-liability analysis applies to § 1983 claims against private corporations like
CCS. 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.’”) (quoting Harvey v. Harvey, 949 F. 2d 1127, 1129 (11th Cir. 1992));
Detwiler v. S. Health Partners, No. 3:16-cv-P343-DJH, 2016 WL 4083465, at *2 (W.D. Ky.
Aug. 1, 2016) (“The Sixth Circuit has held that the analysis that applies to a § 1983 claim against
a municipality applies to a § 1983 claim against a private corporation such as Southern Health
Partners.”) (citing Street v. Corr. Corp. of Am., 102 F.3d at 818). CCS cannot be held liable on a
respondeat superior basis for the actions of its employees. Starcher v. Corr. Med. Sys., Inc.,
7 F. App’x 459, 465 (6th Cir. 2001); Ruley v. S. Health Partners, No. 4:10-CV-P34-M,
2011 WL 2214998, at *4 (W.D. Ky. June 6, 2011). Liability must be based on a policy or
custom of the contracted private entity or “the inadequacy of [an employee’s] training.” Street v.
Corr. Corp. of Am., 102 F.3d at 817; see also Starcher v. Corr. Med. Sys., Inc., 7 F. App’x at 465
For purposes of initial review, the Court will consider CCS to be a state actor. Hicks v. Frey, 992 F.2d
1450, 1458 (6th Cir. 1993) (“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.’”) (quoting West v. Atkins, 487 U.S. 42, 54 (1988)).
(“CMS’s [Correctional Medical Systems, Inc.,] liability must also be premised on some policy
that caused a deprivation of [plaintiff’s] Eighth Amendment rights.”).
Plaintiff has not alleged that any policy or custom of CCS caused his alleged harm.
Further, he has not alleged that any inadequacy of its employees’ training caused his alleged
harm. Plaintiff’s complaint appears to contain allegations of an isolated occurrence affecting
only Plaintiff. See Fox v. Van Oosterum, 176 F.3d 342, 348 (6th Cir. 1999) (“No evidence
indicates that this was anything more than a one-time, isolated event for which the county is not
responsible.”). As nothing in the complaint demonstrates that any purported wrongdoing
occurred as a result of a policy or custom implemented or endorsed by CCS, Plaintiff fails to
establish a basis of liability against this entity and fails to state a cognizable § 1983 officialcapacity claim as to Defendant Davis.
Accordingly, the official-capacity claim against Defendant Davis will be dismissed from
B. Individual-Capacity Claims
1. Fourth Amendment Unreasonable Search Claims
Plaintiff alleges that Defendants Rodriguez and Neely performed two unconstitutional
searches of his person on April 18, 2017. As to the first incident, Plaintiff states that Defendants
Rodriguez and Neely “forcefully with Malicious intent, wedged [Plaintiff’s] under garments and
trousers in Between [Plaintiff’s] Buttocks in an attempt to” dislodge the missing iPod from
Plaintiff’s anal cavity. As to the second incident, which Plaintiff indicates occurred later this
same date, Plaintiff states that Defendants Rodriguez and Neely “elevated [Plaintiff’s] arms
above head, at which time [Defendant] Rodriguez pulled [Plaintiff’s] trousers and under
garments down and went inside the anal cavity with [Defendant] Rodriguez’s hand.”
Upon consideration, the Court will allow the Fourth Amendment unreasonable search
claims to proceed against Defendants Rodriguez and Neely.
2. Eighth Amendment Conditions-of-Confinement Claims
Plaintiff asserts that for a 24-hour period he was confined in a cell that Defendant
Rodriguez ordered to be “stripped out.” Plaintiff states that his personal and hygiene items were
removed from the cell. He appears to state that he had no mattress, clothing except boxers or bed
linens in this cell. He further states that the cell had feces and urine on the floor.
Plaintiff states that he was moved on April 19, 2017, to another cell. This cell did not
have feces and urine in it, but it was stripped down so that Plaintiff had no mattress, no clothing
except Plaintiff’s boxers, and no hygiene items. Plaintiff states that on April 25, 2017, he was
given back his “state issued property, ie. Clothing and Bed Linen.”
“Extreme deprivations are required to make out a conditions-of-confinement claim”
under the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 9 (1992). “Not every
unpleasant experience a prisoner might endure while incarcerated constitutes cruel and unusual
punishment within the meaning of the Eighth Amendment.” Ivey v. Wilson, 832 F.2d 950, 955
(6th Cir. 1987). An Eighth Amendment claim has both an objective and subjective component:
(1) a sufficiently grave deprivation of a basic human need; and (2) a sufficiently culpable state of
mind. Wilson v. Seiter, 501 U.S. 294, 298 (1991). “[P]rison officials must ensure that inmates
receive adequate food, clothing, shelter, and medical care, and must ‘take reasonable measures to
guarantee the safety of the inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting
Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). However, as former Chief Justice Rehnquist
remarked, “[i]n short, nobody promised [inmates] a rose garden; and I know of nothing in the
Eighth Amendment which requires that they be housed in a manner most pleasing to them . . . .”
Atiyeh v. Capps, 449 U.S. 1312, 1315-16 (1981).
The Court concludes that the conditions described by Plaintiff do not constitute a
sufficiently grave deprivation of a basic human need to state an Eighth Amendment violation.
See, e.g., Grisson v. Davis, 55 F. App’x 756, 757 (6th Cir. 2003) (holding that an allegation of a
seven-day deprivation of a mattress, sheets, and a blanket failed to state an Eighth Amendment
claim); Ziegler v. Michigan, 59 F. App’x 622, 624 (6th Cir. 2003) (allegations of overcrowded
cells and denials of daily showers and out-of-cell exercise do not rise to constitutional
magnitude, where a prisoner is subjected to the purportedly wrongful conditions for six days one
year and ten days the next year); Metcalf v. Veita, No. 97-1691, 1998 WL 476254, at *2 (6th Cir.
Aug. 3, 1998) (finding that an eight-day denial of showers, trash removal, cleaning, and laundry
did not result in serious pain or offend contemporary standards of decency under the Eighth
Amendment); Smith v. Copeland, 87 F.3d 265, 269 (8th Cir. 1996) (finding no constitutional
violation when the prisoner was exposed for four days to raw sewage from overflowed toilet in
his cell); White v. Nix, 7 F.3d 120, 121 (8th Cir. 1993) (finding that an eleven-day stay in an
unsanitary cell was not unconstitutional because of the relative brevity of the stay and the
availability of cleaning supplies); McNatt v. Unit Manager Parker, No. 3:99CV1397 AHN,
2000 WL 307000, at *4 (D. Conn. Jan. 18, 2000) (finding that no Eighth Amendment violation
occurred when inmates endured stained, smelly mattresses, unclean cells, no bedding for six
days, no cleaning supplies for six days, no toilet paper for one day, no toiletries or clothing for
six days, no shower shoes; dirty showers; cold water that did not function properly and smaller
food portions); Evans v. Fogg, 466 F. Supp. 949, 950 (S.D.N.Y. 1979) (no claim stated by
prisoner confined for 24 hours in refuse-strewn cell and for two days in flooded cell). The
conditions to which Plaintiff alleges he was subjected may have been unpleasant, but were not
Accordingly, the Eighth Amendment conditions-of-confinement claims will be
3. Due Process Claims and the Request for Restoration of Good-Time Credits
Plaintiff asserts due process violations as to institutional disciplinary proceedings taken
against him. Plaintiff seeks monetary relief, to have the disciplinary charges vacated, and
restoration of lost good-time credits resulting from him being found guilty of approximately five
disciplinary charges. It appears that Plaintiff brings these claims against Defendants Belt,
Beeler, Burnett, Epley, Fraliex, McCullough, Ben Mitchell, Seth Mitchell, Peck, Roberts, and
Under the Heck doctrine:
In order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination,
or called into question by a federal court’s issuance of a writ of habeas corpus,
28 U.S.C. § 2254.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). In Edwards v. Balisok, 520 U.S. 641 (1997),
the Supreme Court extended the application of Heck to prison disciplinary proceedings. Later, in
Wilkinson v. Dotson, 544 U.S. 74, 81-82 (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”. The relief Plaintiff seeks, the Court to
vacate his institutional disciplinary charges and restore the lost good-time credits, if successful,
would necessarily demonstrate the invalidity of the duration of Plaintiff’s confinement. Thus,
Plaintiff’s request for monetary relief as to the disciplinary charges brought against him is barred
Furthermore, to the extent Plaintiff seeks restoration of lost good-time credits, “when a
state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief
he seeks is a determination that he is entitled to immediate release or a speedier release from that
imprisonment, his sole federal remedy is a writ of habeas corpus.” Preiser v. Rodriguez,
411 U.S. 475, 500 (1973). A finding that Defendants violated Plaintiff’s constitutional rights
when they convicted him of the disciplinary charges and took away his good-time credits would
result in Plaintiff’s speedier release; thus, Plaintiff’s sole remedy for these claims challenging the
loss of good-time credits is a writ of habeas corpus.
Accordingly, Plaintiff’s due process claims and the claim seeking restoration of goodtime credits will be dismissed.
4. Retaliation Claims
Reading Plaintiff’s complaint in the light most favorable to Plaintiff, as the Court must in
performing its review, it appears that Plaintiff is asserting that the disciplinary reports filed
against Plaintiff on April 25, 2017, April 26, 2017, May 2, 2017, May 3, 2017, and May 20,
2017, the decisions of guilt made by the adjustment committees when deciding these claims, and
the affirmation of guilt by Defendant White of the guilty decisions, were all done in retaliation
for Plaintiff filing PREA claims and/or grievances. Plaintiff asks the Court to vacate the
adjustment committee decisions and restore all forfeited good-time credits. It appears that
Plaintiff brings these claims against Defendants Belt, Beeler, Burnett, Epley, Fraliex,
McCullough, Ben Mitchell, Seth Mitchell, Peck, Roberts, and White.
Upon consideration, the Court will allow Plaintiff’s First Amendment retaliation claims
to proceed against Defendants Belt, Beeler, Burnett, Epley, Fraliex, McCullough, Ben Mitchell,
Seth Mitchell, Peck, Roberts, and White in their individual capacities.
5. Eighth Amendment Failure-to-Treat Claim
Plaintiff alleges that when Defendants Rodriguez and Neely engaged in the
unconstitutional searches of Plaintiff’s rectal cavity, that Plaintiff’s rectal cavity was injured and
painful. Plaintiff states that he was brought to see Defendant Davis, a nurse, on April 25, 2017,
for this problem. According to Plaintiff, Defendant Davis just questioned Plaintiff about who
molested him and then had the guards return Plaintiff to his cell without treating Plaintiff’s
Upon consideration, the Court will allow Plaintiff’s Eighth Amendment failure-to-treat
claim against Defendant Davis to procced.
6. Claim Regarding Criminal Charges
As for Defendant Meyers, Plaintiff states that she brought dangerous illegal contraband,
an iPod, into the prison. Plaintiff states that she may be prosecuted because of this conduct.
It is unclear what claim Plaintiff may be trying to bring against Defendant Meyers. To
the extent that Plaintiff is attempting to bring criminal charges against Defendant Meyers,
Plaintiff does not have a constitutional right to initiate or compel the initiation of criminal
proceedings against another individual. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)
(“[I]n American jurisprudence at least, a private citizen lacks a judicially cognizable interest in
the prosecution or nonprosecution of another.”); McCrary v. Cty. of Nassau, 493 F. Supp. 2d
581, 588 (E.D.N.Y. 2007) (“A private citizen does not have a constitutional right to compel
government officials to arrest or prosecute another person.”); Osuch v. Gregory, 303 F. Supp. 2d
189, 194 (D. Conn. 2004) (“An alleged victim of a crime does not have a right to have the
alleged perpetrator investigated or criminally prosecuted.”); White v. City of Toledo,
217 F. Supp. 2d 838, 841 (N.D. Ohio 2002). Therefore, Plaintiff cannot seek criminal charges
against Defendant Meyers in this civil action.
Accordingly, this claim against Defendant Meyers will be dismissed for failure to state a
claim upon which relief may be granted. Further, there being no other claims against Defendant
Meyers, she will be dismissed from this action.
7. Claim Regarding Threats and Harassing Statements
Plaintiff states that some of the Defendants made threats that they would spray Plaintiff
with mace or pepper spray. According to Plaintiff, some Defendants made derogatory
statements about him being a Muslim.
Although reprehensible and not condoned, verbal abuse, harassment, and threats are
insufficient to state a constitutional violation under § 1983. See 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 WL 721798, at *2 (6th Cir. Dec. 13, 1996)
(“Verbal harassment or idle threats are generally not sufficient to constitute an invasion of an
inmate’s constitutional rights.”); Jackson v. Hopkins Cty. Det. Ctr., No. 4:12CV-P82-M,
2012 WL 5472024, at *6 (W.D. Ky. Nov. 9, 2012) (“[W]hile reprehensible and not condoned,
racial epithets and verbal abuse alone are insufficient to state a constitutional violation under
§ 1983.”); Searcy v. Gardner, No. 3:07-0361, 2008 WL 400424, at *4 (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.”); McGowan v. Cantrell,
No. 1:05-cv-334, 2007 WL 2509704, at *16 (E.D. Tenn. Aug. 30, 2007) (“While defendants’
alleged conduct is despicable and to be condemned, it does not violate the Constitution because
neither verbal harassment nor threats constitute punishment within the context of the Eighth
Accordingly, the claims of threats and verbal harassment fail to state a claim upon which
relief may be granted and will be dismissed.
8. Religion Claim
Plaintiff states that Defendants Rodriguez and Neely’s actions of searching his rectal
cavity and then taking him down the stairs to the cell house strip cage while his “male
extremities” and buttocks were exposed “violated a tenet of [his] Religious Beliefs as a professed
Upon consideration, the Court will allow this claim against Defendants Rodriguez and
Neely to proceed.
For the reasons set forth more fully above, and the Court being otherwise sufficiently
IT IS ORDERED as follows:
(1) The official-capacity claims for monetary damages against the Defendants who are
employees of the Commonwealth of Kentucky are DISMISSED pursuant to 28 U.S.C.
§ 1915A(b)(1) for failure to state a claim upon which relief may be granted and pursuant to
28 U.S C. § 1915A(b)(2) because they seek monetary relief from Defendants who are immune
from such relief;
(2) The official-capacity claim against Defendant Davis is DISMISSED pursuant to
28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be granted;
(3) The Eighth Amendment conditions-of-confinement claims are DISMISSED
pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be
(4) The due process claims and claims seeking restoration of good-time credits are
DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief
may be granted and because they are barred by the Heck doctrine;
(5) The claim seeking criminal charges is DISMISSED pursuant to 28 U.S.C.
§ 1915A(b)(1) for failure to state a claim upon which relief may be granted;
(6) The claims regarding threats and verbal harassment are DISMISSED pursuant to
28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be granted; and
(7) There being no remaining claim against her, Defendant Meyers is DISMISSED from
The Clerk of Court is DIRECTED to terminate Defendant Joy Meyers from the docket
of this action.
IT IS FURTHER ORDERED as follows:
(1) The Fourth Amendment unreasonable search claims against Defendants Rodriguez
and Neely in their individual capacities will proceed;
(2) The First Amendment retaliation claims against Defendants Belt, Beeler, Burnett,
Epley, Fraliex, McCullough, Ben Mitchell, Seth Mitchell, Peck, Roberts, and White in their
individual capacities will proceed;
(3) The Eighth Amendment failure-to-treat claim against Defendant Davis in his
individual capacity will proceed; and
(4) The religion claim will proceed against Defendants Rodriguez and Neely in their
The Court passes no judgment on the merits or ultimate outcome of this case. The Court
will enter a separate Scheduling Order to govern the development of the proceeding claims.
March 13, 2018
Greg N. Stivers, Judge
United States District Court
Plaintiff, pro se
Counsel of Record
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