Martinez v. Gore et al

Filing 14

MEMORANDUM OPINION & ORDER signed by Senior Judge Thomas B. Russell on 6/2/2021. Denying #7 Motion for Order to Show Cause; denying #7 Motion for Preliminary Injunction; denying #7 Motion for Damages ; denying #8 Motion for Preliminary Injunction; denying #8 Motion. All defendants EXCEPT Stephen Mitchell are terminated. Clerk is directed to send plaintiff a 1983 packet with this case number and amended. See order for specifics. cc: Counsel, plaintiff pro se, defendants(KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
LEONEL MIRANDA MARTINEZ
v.

PLAINTIFF
CIVIL ACTION NO. 5:21-CV-P50-TBR

TOM GORE et al.

DEFENDANTS
MEMORANDUM OPINION AND ORDER

Plaintiff, Leonel Miranda Martinez, proceeding pro se and in forma pauperis, initiated
this 42 U.S.C. § 1983 action. 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, 549 U.S. 199 (2007). For the following reasons, Plaintiff’s claims
will be dismissed in part and allowed to continue in part, and Plaintiff will be allowed to amend
his complaint. Additionally, the Court will deny as moot Plaintiff’s motion to show cause, for
preliminary injunction, and for punitive damages (DN 7), as well as his motion for preliminary
injunction/restraining order (DN 8).
I. SUMMARY OF CLAIMS
Plaintiff, an inmate at the Kentucky State Penitentiary (KSP), names as Defendants Tom
Gore, Cookie Crews, Scott Jordan, Daniel Cameron, Marc Manley, Stephen Mitchell, Lauren
Massey, William Simpson, Michael Massey, and Bruce Von Dwingelo. All Defendants are sued
in their individual and official capacities.
Plaintiff’s first claim is that on September 9, 2020, he was convicted of multiple prison
disciplinary offenses occurring on the same day resulting in good-time loss, segregation time,
administrative control segregation, and phone restriction. He alleges that this was a violation of
the Double Jeopardy Clause and the Eighth Amendment.

Second, Plaintiff claims that on December 11, 2020, he was pepper sprayed while he was
in restraints, then placed in a restraint chair, and then choked by Defendant Mitchell violating the
Eighth Amendment.
Plaintiff’s third claim is that on February 12, 2021, he “was stripped out and placed in a
cold cell for four days with nothing but paper boxers to wear,” with no mat, sheets, blankets,
shoes, socks, or any other property. He alleges violations of his Fifth, Eighth, and Fourteenth
Amendments.
In his fourth claim, Plaintiff alleges that being placed on administrative control
segregation means that he does not have an “out date” from solitary confinement, causing him to
suffer from anxiety, depression, panic, paranoia, and bipolar depression in violation of the Eighth
Amendment and the Double Jeopardy Clause.
Plaintiff’s fifth claim alleges that KSP is withholding legal material/mail from him due to
being in segregation in violation of the First, Fifth, and Fourteenth Amendment rights.
Finally, in his sixth claim, Plaintiff alleges that from 2006 until 2021 he has been the
victim of excessive prison phone charges.
As relief, Plaintiff asks for monetary and punitive damages, for KSP’s legal office to
return his legal material, and to be released from segregation.
II. ANALYSIS
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 action, 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 28
U.S.C. § 1915A(b)(1) and (2). When determining whether a plaintiff has stated a claim upon

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which relief can be granted, the Court must construe the complaint in a light most favorable to
Plaintiff and accept all of the factual allegations as true. Prater v. City of Burnside, Ky., 289
F.3d 417, 424 (6th Cir. 2002). While a reviewing court must liberally construe pro se pleadings,
Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam), to avoid dismissal, a complaint
must include “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007).
A. Claims under the Double Jeopardy Clause
Plaintiff alleges in his first claim that his Fifth Amendment right to be free from Double
Jeopardy has been violated by the multiple disciplinary actions against him and in his fourth
claim by placing him in administrative control segregation.
The guarantee against Double Jeopardy protects against a second prosecution for the
same offense after a prior acquittal or conviction and against multiple punishments for the same
offense. See Witte v. United States, 515 U.S. 389, 396 (1995); United States v. DiFrancesco, 449
U.S. 117, 129 (1980). These protections govern prosecutions and sentences carried out in state
and federal court based on criminal charges. This Court is aware of no authority for the
proposition that Double Jeopardy protections apply in any context other than state or federal
court proceedings. Therefore, Plaintiff’s claims related to alleged Double Jeopardy violations
will be dismissed for failure to state a claim upon which relief may be granted.
B. Eighth Amendment claim related to punishment after disciplinary conviction
Plaintiff’s first claim alleges that after he was convicted of multiple offenses on
September 9, 2020, he (1) lost good time, (2) was placed in segregation and administrative
control segregation, and (3) was not allowed to use the phone in violation of the Eighth
Amendment. These claims will be dismissed for failure to state a claim.

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1. Claim for lost good time
Plaintiff’s allegation about his lost good time fails to state a § 1983 claim. 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[.]” Therefore, Plaintiff’s claims based
on lost good time must be dismissed for failure to state a claim upon which relief may be
granted.
2. Segregation claim
To establish an Eighth Amendment claim, the prisoner must show that he was deprived
of the “minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347
(1981). Conditions that are restrictive or even harsh, but are not cruel and unusual under
contemporary standards, are not unconstitutional. Id. Thus, federal courts may not intervene to
remedy conditions that are merely unpleasant or undesirable.

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Placement in segregation is a routine discomfort that is “‘part of the penalty that criminal
offenders pay for their offenses against society.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992)
(quoting Rhodes, 452 U.S. at 347). The Sixth Circuit has held that without a showing that basic
human needs were not met, the denial of privileges as a result of administrative segregation
cannot establish an Eighth Amendment violation. See Evans v. Vinson, 427 F. App’x 437, 443
(6th Cir. 2011). Thus, the Court finds that Plaintiff fails to state a claim under the Eighth
Amendment.
3. Access-to-phone claim
Plaintiff also alleges that he was denied access to a phone. However, access to a phone is
a privilege, not a basic human need or requirement. As explained above, without a showing that
basic human needs were not met, the denial of privileges cannot establish an Eighth Amendment
violation. See Evans, 427 F. App’s at 443; see also Allen v. Alexsander, No. 2:16-CV-245, 2017
WL 2952929, at *5 (W.D. Mich. July 11, 2017) (“Although it is clear that Plaintiff was denied
phone privileges for 90 days, he does not allege or show that he was denied basic human needs
and requirements.”).
Additionally, the Court notes that “prisoners have no per se constitutional right to use a
telephone.” United States v. Footman, 215 F.3d 145, 155 (1st Cir. 2000); see also Valdez v.
Rosenbaum, 302 F.3d 1039, 1047-48 (9th Cir. 2002) (holding that there is no First Amendment
right to telephone access; instead there is a First Amendment right to communicate with persons
outside of prison walls, and “[u]se of a telephone provides a means of exercising this right”)
(emphasis in original); see also Betar v. Advance Corr., No. 4:17CV-P37-JHM, 2017 WL
2884539, at *6 (W.D. Ky. July 6, 2017). Therefore, Plaintiff’s claim based on denial of access to
a phone must be dismissed for failure to state a a claim.

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C. Fifth, Eighth, and Fourteenth Amendment claims related to four-day property restriction
In his third claim, Plaintiff alleges that in February 2021 while he was in segregation he
“was stripped out and placed in a cold cell for four days with nothing but paper boxers to wear,”
without a mat, sheets, blankets, shoes, socks, or any other property. According to a February 12,
2021, Behavioral Control Form attached to the complaint, on that date. Plaintiff exposed himself
to a corrections officer, and for that reason he was put on property restriction.
The Court finds that Plaintiff’s claim that he spent four days with nothing but paper
boxers to wear in a cold cell with no mat, sheets, blankets, shoes, socks, or other property,
standing alone, does not state an Eighth Amendment claim. See Grissom v. Davis, 55 F. App’x
756, 757-58 (6th Cir. 2003) (holding that 7-day period where inmate was not given mattress,
blanket, or sheets did not deprive her of basic human needs or cause her to suffer serious harm);
Wells v. Jefferson Cty. Sheriff Dep’t, 35 F. App’x 142, 143 (6th Cir. 2002) (finding that sleeping
on a mattress on the floor in a cold cell for six days was not a constitutional violation); Valdes v.
Evans, No. 5:19CV-P4-TBR, 2019 WL 334171, at *5 (W.D. Ky. Jan. 25, 2019) (“A . . . oneweek period without a mattress where an inmate does not allege any specific harm from going
without it does not give rise to a constitutional violation.”).
Plaintiff also fails to state a claim under the Fifth Amendment and Fourteenth
Amendments related to these allegations. To the extent that Plaintiff may be alleging that he was
denied his property, in order to assert a claim for deprivation of property without due process
pursuant to § 1983, a plaintiff must allege that the state post-deprivation procedures are
inadequate to remedy the deprivation. Parratt v. Taylor, 451 U.S. 527, 543-44 (1981), overruled
on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). Similarly, the Sixth Circuit has
stated, “in section 1983 damage suits claiming the deprivation of a property interest without

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procedural due process of law, the plaintiff must plead and prove that state remedies for
redressing the wrong are inadequate.” Vicory v. Walton, 721 F.2d 1062, 1066 (6th Cir. 1983).
The Sixth Circuit has found that Kentucky’s statutory remedy for such losses is adequate within
the meaning of Parratt. Wagner v. Higgins, 754 F.2d 186, 191-92 (6th Cir. 1985). The same
rationale applies to claims under the Fifth Amendment Takings Clause; that is, no taking has
occurred absent a showing that available remedies have been pursued and have failed to provide
adequate compensation. Hudson v. Palmer, 468 U.S. 517, 539 (1984) (O’Connor, J.,
concurring). These claims will be dismissed.
D. Claim related to mail
Plaintiff alleges that KSP withholds legal material/mail from him due to being in
segregation in violation of his First, Fifth, and Fourteenth Amendment rights. This is all the
complaint says. Exhibit 5 to the complaint adds additional details on this claim. It refers to a
personal letter that was “withheld” for eight days; explains that on January 12, Plaintiff mailed
12 items of legal mail but only 5 were mailed out; and states that legal mail he attempted to send
on March 5 was not mailed out until March 10.1 Grievance No. 21-01-157-G, attached to the
complaint, shows that the informal resolution of the grievance involving all 12 pieces of mail not
being mailed out occurred because additional postage was due.
First Amendment issues are implicated when restrictions are placed upon an inmate’s
correspondence. United States v. Holloway, 740 F.2d 1373, 1382 (6th Cir. 1984). However, not
all violations regarding mail rise to the level of a constitutional violation. “An isolated incident
of interference with mail in a prison setting does not state a claim that rises to the level of
constitutional magnitude actionable under § 1983.” Lloyd v. Herrington, No. 4:11CV-P128-M,
2011 WL 6026661, at *2 (W.D. Ky. Dec. 2, 2011); see also Okoro v. Scibana, 63 F. App’x 182,
1

The Court notes that March 5, 2021, was a Friday.

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184 (6th Cir. 2003) (“Such a random and isolated incident [of mail interference] is insufficient to
establish a constitutional violation.”); Pearson v. Simms, 345 F. Supp. 2d 515, 519 (D. Md.
2003) (“[O]ccasional incidents of delay or non-delivery of mail do not rise to a constitutional
level.”).
Here, Plaintiff at most has alleged an eight-day delay in receiving a personal letter; a fiveday delay in mailing out five items of legal mail, which according to the attachment to the
complaint occurred because of inadequate postage; and another delay of five days for an item of
legal mail. Reading Plaintiff’s complaint liberally, he has alleged three short delays in sending
or receiving mail over a three-month period. Such isolated instances are insufficient to state a
First Amendment claim related to his mail, especially given that one of the delays appears to be
due to inadequate postage. See Lloyd, 2001 WL 6026661 at *2 (“Even if the Court interprets
Plaintiff’s complaint as alleging two instances of interference with his mail-one of the outgoing
motion and one of his incoming piece of legal mail-the Court still finds that the two incidences
taken together do not rise to a constitutional violation.”); see also Odom v. Pheral, No. 5:12CVP73-R, 2013 WL 1703868, at *8 (W.D. Ky. Apr. 19, 2013) (“Plaintiff’s allegations regarding
mail being refused and returned to him to complete an administrative task prior to mailing do not
rise to the level of a constitutional violation.”); Musquez v. Sepulveda, No. C 07-5966 VRW,
2008 WL 2811503, at *1 (N.D. Cal. July 17, 2008) (“[T]hese few instances of lost mail do not
amount to more than isolated incidents insufficient to state a First Amendment claim of mail
interference.”). Consequently, the Court will dismiss Plaintiff’s First Amendment claim related
to his mail.
Additionally, for the reasons stated in subsection C above, Plaintiff fails to state a Fifth or
Fourteenth Amendment claim related to his mail.

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E. Claim related to phone charges
Plaintiff alleges that while in prison from 2006 until now he has been charged excessively
for phone use. In Grievance No. 21-02-127 attached to the complaint Plaintiff stated that he has
been a victim of excessive phone charges. He stated that Defendants Jordan, the Warden of
KSP, and Gore, the owner of the prison phone service JPay, conspired to “engage in intentional
exploitation and over pricing their services.” He further stated, “You are charging me phone fees
for a 15 min. phone call and only get to talk 10 min.”
Incarcerated prisoners retain First Amendment rights, but those rights necessarily are
circumscribed because of the legitimate penological and administrative interests of the prison
system. See Turner v. Safley, 482 U.S. 78, 89 (1987). It is beyond dispute that “prisoners are
[not] entitled to a specific rate for their telephone calls.” Johnson v. California, 207 F.3d 650,
656 (9th Cir. 2000) (per curiam), overruled on other grounds, 543 U.S. 499 (2005); Smith v.
Bradley, No. 94-5351, 1995 WL 241996, at *3 (6th Cir. 1995) (per curiam) (noting that “merely
replacing a collect-call telephone system with a direct-dial system does not alone implicate
inmates’ First Amendment rights”); Woods v. Carey, No. CIV-S050049-MCEDADP, 2005 WL
3436366, at *2 (E.D. Cal. Dec. 14, 2005) (dismissing plaintiff’s claim that prison conspired with
telephone company to overcharge prisoners for long distance telephone calls pursuant to §
1915A for failure to state a claim). The Court concludes that Plaintiff fails to state a § 1983
claim related to alleged excessive phone charges.
F. Remaining claims
On review, the Court will allow to continue Plaintiff’s Eighth Amendment excessiveforce claim based on his allegations that on December 11, 2020, he was pepper sprayed while he
was in restraints, then placed in a restraint chair, and then choked by Defendant Mitchell.

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However, this claim will only be allowed to continue against Defendant Mitchell in his
individual capacity. Plaintiff’s only claims for relief related to this claim are for monetary and
punitive damages. Plaintiff cannot recover either of these types of relief from Defendant
Mitchell, a KSP employee, in his official capacity. Brown v. Ky. State Penitentiary, No. 5:10CV-P188-R, 2010 WL 4638764, at *2 (W.D. Ky. Nov. 5, 2010) (finding that KSP employees
sued “in their official capacity are immune from monetary damages under the Eleventh
Amendment” ) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)); see also
Smither v. Vonckx, No. 4:14-CV-P121-JHM, 2015 WL 1259119, at *2 (W.D. Ky. Mar. 18, 2015)
(“[The Courts lacks subject-matter jurisdiction over Plaintiff’s claims for punitive damages
against . . . a state official[] in his official capacity by operation of the Eleventh Amendment[.]”).
Additionally, the Court will allow Plaintiff to amend his complaint to name who he
alleges placed him on administrative control segregation for an indefinite period of time causing
him to suffer from anxiety, depression, panic, paranoia, and bipolar depression in violation of the
Eighth Amendment. See LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013) (“[U]nder
Rule 15(a) a district court can allow a plaintiff to amend his complaint even when the complaint
is subject to dismissal under the PLRA [Prison Litigation Reform Act].”).
III. MOTIONS FOR PRELIMINARY INJUNCTION AND TRO
Also before the Court are Plaintiff’s motion to show cause, for preliminary injunction,
and for punitive damages (DN 7), as well as his motion for preliminary injunction/restraining
order (DN 8).
Plaintiff’s motion for preliminary injunction (DN 7) asks the Court to rule that KSP’s
Administrative Control violates federal and state constitutions’ Double Jeopardy Clause. His

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motion for preliminary injunction/restraining order (DN 8) asks for a restraining order for the
KSP mailroom to stop withholding his personal and legal mail.
Because both Plaintiff’s Double Jeopardy claims and mail claims will be dismissed on
initial review, the Court will deny these motions as moot.
IV. CONCLUSION AND ORDER
For the foregoing reasons,
IT IS ORDERED that Plaintiff’s claims under the Double Jeopardy Clause; his Eighth
Amendment claim related to punishment after a disciplinary conviction; his Fifth, Eighth, and
Fourteenth Amendment claims related to a four-day property restriction; his claim related to his
mail; and his claim related to phone charges are DISMISSED pursuant to 28 U.S.C.
§ 1915A(b)(1) for failure to state a claim upon which relief may be granted; and the officialcapacity claims against Defendant Stephen Mitchell are DISMISSED pursuant to 28 U.S.C.
§ 1915A(b)(2) for seeking relief from a defendant who is immune from such relief.
The Clerk of Court is DIRECTED to terminate all Defendants except Defendant Stephen
Mitchell.
IT IS FURTHER ORDERED that within 30 days from the entry date of this
Memorandum Opinion and Order, Plaintiff may file an amended complaint to name as
Defendant(s) in their individual capacities any person(s) who he alleges placed him on
administrative control segregation for an indefinite period of time causing him to suffer from
anxiety, depression, panic, paranoia, and bipolar depression in violation of the Eighth
Amendment.

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The Clerk of Court is DIRECTED to place the instant case number and “Amended” on a
§ 1983 complaint form and send it, along with four blank summons forms, to Plaintiff for his use
should he wish to amend the complaint.
Plaintiff is WARNED that failure to amend his complaint as instructed within the 30-day
period will result in dismissal of that claim for the reasons set forth in this Memorandum Opinion
and Order.
Once the 30-day period has passed, the Court will enter a Service and Scheduling Order
to govern the development of the continuing claims.
Additionally,
IT IS ORDERED that Plaintiff’s motions (DNs 7 and 8) are DENIED as moot.
Date:

June 2, 2021

cc:

Plaintiff, pro se
Defendants
General Counsel, Justice & Public Safety Cabinet, Office of Legal Counsel
4413.009

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