Opinion
CIVIL ACTION, No. 09-3068-SAC.
March 9, 2010
ORDER
Plaintiff proceeds pro se and in forma pauperis on a civil complaint filed while he was confined in a detention facility operated by the Correction Corporation of America (CCA) in Leavenworth, Kansas (CCA-LVN).
In the complaint as first amended, plaintiff complains of his reassignment in December 2009 from general population to placement in "M Pod" for housing prisoners pursuant to Prison Rape Elimination Act (PREA), 42 U.S.C. § 15601, et seq., or for protective custody (PC). Plaintiff claims his placement in PREA/PC is unfounded and unlawfully restricts privileges that were available to him in general population. Plaintiff also contends his assignment to PREA/PC impairs his personal safety because he is identified and labeled by other prisoners as a sexual predator, but in supplemental filings states he has encountered no threats or problems regarding his personal safety when he is with general population prisoners during court appearances and transports to and from the CCA facility. Plaintiff further challenges the existence of the death threats cited by CCA staff for classifying plaintiff as needing protective custody, and contends CCA staff is misinterpreting and misapplying PREA.
Plaintiff's motions to further amend his complaint to provide additional and more recent information about the conditions of his PREA/PC classification are granted and treated as a supplement to the complaint as previously amended.
The defendants named in the complaint are CCA, CCA-LVN Warden Shelton Richardson, CCA-LVN Assistant Warden Robert Mundt, CCA-LVN Chief of Unit Management Kenneth Daugherty, CCA-LVN Chief of Security Bruce Roberts, and CCA-LVN Unit Manager Roger Moore. Plaintiff seeks declaratory and injunctive relief including his return to general population and better training of CCA staff about PREA.
Construed as attempts to proceed under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and 42 U.S.C. § 1983, the court directed plaintiff to show cause why the complaint should not be summarily dismissed as stating no claim upon which relief could be granted. The court found plaintiff could not proceed on his claims under Bivens becauseMalesko barred plaintiff from proceeding against CCA, and because the Tenth Circuit in Peoples v. CCA Detention Centers, 422 F.3d 1090, 1108 (10th Cir. 2005), held there is no cause of action under Bivens against individual CCA defendants if alternative remedies are available to the plaintiff in the state courts. The court further found plaintiff could not proceed under 42 U.S.C. § 1983 because no defendant acted under color of state law for purposes of stating a cognizable claim under that statute.
In response, plaintiff essentially argues the federal courts should be available to remedy constitutional wrongs by a private entity and its employees while providing contracted governmental services, an argument advanced by the dissent in Malesko. Plaintiff also cites decisions in other circuits that more broadly allow claims against individual defendants of such private entities. As to § 1983, plaintiff relies on cases involving prisoners confined pursuant to state rather than federal authority, in which private entities were found to be acting under color of state law for the purpose of § 1983.
Plaintiff's Transfer from CCA-LVN
Plaintiff was sentenced on January 27, 2010, in his pending criminal action in the District of Kansas, and has notified the court of his transfer from the CCA-LVN facility to a Bureau of Prisons (BOP) facility. The court finds this action is subject to being dismissed without prejudice because the relief plaintiff seeks is now moot. See Martin v. Sargent, 780 F.2d 1334 (8th Cir. 1985) (claim for injunctive relief moot if no longer subject to conditions). See also, Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1348 (10th Cir. 1994) (declaratory relief subject to mootness doctrine).
No Claim for Relief under Bivens or 42 U.S.C. § 1983
Even if the complaint is not moot, the court continues to find dismissal of this action would be warranted because plaintiff's allegations state no claim for relief under Bivens or 42 U.S.C. § 1983, as plaintiff's attempts to avoid the majority's holding in Malesko, and the controlling law in this district as set forth in Peoples, are without merit.
Moreover, plaintiff's disagreement with his protective custody classification, and dissatisfaction with the restraints imposed on his privileges due to that classification, generally implicate no liberty interest protected by the Due Process Clause. See Meachum v. Fano, 427 U.S. 215, 225 (1976). Instead, routine classification decisions for security concerns fall within the broad discretion afforded prison officials in their day-to-day management of detention and correctional facilities. Hewitt v. Helms, 459 U.S. 460 (1983); Hutto v. Finney, 437 U.S. 678, rehearing denied, 439 U.S. 122 (1976). Such deference is appropriate because the managerial task facing prison officials is "at best an extraordinarily difficult undertaking." Wolff v. McDonnell, 418 U.S. 539, 566 (1974).
Plaintiff's fear that his PREA/PC classification at CCA-LVN might pose a "possible risk" to his personal safety once in BOP custody is speculative at best, and his mere complaint that he is not allowed the same access to religious services while in protective custody as he enjoyed in general population is insufficient to state an actionable First Amendment claim. Also, notwithstanding plaintiff's statements that he was assigned to the PREA/PC pod for protective custody reasons, his reliance on alleged violations of PREA is misplaced as courts have held that PREA "does not create a right of action that is privately enforceable by an individual civil litigant." Moorman v. Herrington, 2009 WL 2020669 (W.D.Ky. 2009) (unpublished opinion) (citing cases from other jurisdictions). Accordingly, even if the complaint is not dismissed as moot, it would be dismissed as stating no claim upon which plaintiff can seek relief under federal law, for the reasons stated herein and in the show cause order dated June 10, 2009.
A copy of that decision is attached.
IT IS THEREFORE ORDERED that plaintiff's motion for the court to order the preparation of a Martinez report (Doc. 10), and for reconsideration of the court's order denying appointment of counsel (Doc. 10), are denied.
IT IS FURTHER ORDERED that plaintiff's motion "for leave to amend the complaint as necessary" (Doc. 10), and motions for leave to amend the complaint to provide more recent information (Docs. 11 and 12), are granted and are liberally construed as supplementing the complaint as previously amended.
IT IS FURTHER ORDERED that plaintiff is granted twenty (20) days to show cause why the amended and supplemented complaint should not be summarily dismissed without prejudice because plaintiff's transfer from the CCA Leavenworth facility has rendered plaintiff's claims moot.
IT IS SO ORDERED.
Slip Copy, 2009 WL 2020669 (W.D.Ky.)
(Cite as: 2009 WL 2020669 (W.D.Ky.))
Only the Westlaw citation is currently available. United States District Court, W.D. Kentucky, at Owensboro. Philip Rodney MOORMAN, III, Plaintiff v. Ron HERRINGTON et al., Defendants. Civil Action No. 4:08CV-P127-M. West KeySummaryCivil Rights 78 1092
78 Civil Rights 781 Rights Protected and Discrimination Prohibited in General 78k1089 Prisons 78k1092 k. Discipline and Classification; Grievances. Most Cited CasesPrisons 310 131 Prisons 310 131
310 Prisons 310II Prisoners and Inmates 310II(B) Care, Custody, Confinement, and Control 310k131 k. Threats, Intimidation, and Harassment; Abusive Language. Most Cited CasesSentencing and Punishment 350H 1554
350H Sentencing and Punishment 350HVII Cruel and Unusual Punishment in General 350HVII(H) Conditions of Confinement 350Hk1554 k. Other Particular Conditions. Most Cited Cases A lewd statement made by a deputy about an inmate was not sufficient to support the inmate's claim for an Eighth Amendment violation under § 1983. The deputy made the statement in court and the inmate stated that he filed a grievance and spoke with one of the deputy's superiors but received no response. Not every statement and unpleasant experience a prisoner experiences, however, amounts to cruel and unusual punishment, and verbal prison abuse does not amount to a § 1983 violation. Further, § 1983 liability could not be imposed simply because a prison denied an administrative grievance or failed to act on information in a grievance. U.S.C.A. Const. Amend. 8; 42 U.S.C.A. § 1983.Philip Rodney Moormon, III, LaGrange, KY, pro se.
MEMORANDUM OPINION
JOSEPH H. McKINLEY, JR., District Judge.
*1 Plaintiff Philip Rodney Moorman III filed a pro se complaint pursuant to 42 U.S.C. § 1983 against Henderson County Detention Center ("HCDC") Jailer Ron Herrington, Major Gibson, and Deputy Baker. He sues each Defendant in his or her individual and official capacities and seeks damages. 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, 608-09 (6th Cir. 1997). For the reasons that follow, all claims will be dismissed, except for an Eighth Amendment claim against Defendants Herrington and Gibson in their individual capacity.
I. STANDARD OF REVIEW
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 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 28 U.S.C. §§ 1915A(b)(1), (2); McGore, 114 F.3d at 604.
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, 109 S.Ct. 1827, 104 L.Ed.2d 338 (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 court must "look for plausibility in th[e] complaint." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555 (internal citations omitted). "[A] plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (citations omitted; alteration in Twombly). In reviewing a complaint under this standard, the court must construe the pleading in the light most favorable to the plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998).
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, 92 S.Ct. 594, 30 L.Ed.2d 652 (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 (1 st 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).
II. ANALYSIS
*2 Within the complaint, Plaintiff alleges constitutional violations under § 1983 as well as violations of the Prison Rape Elimination Act and the Administrative Procedure Act.
A. Prison Rape Elimination Act
Although not addressed in the Sixth Circuit, several district courts have found that the Prison Rape Elimination Act ("PREA"), 42 U.S.C. § 15601 et seq., "does not create a right of action that is privately enforceable by an individual civil litigant." LeMasters v. Fabian, Civil No. 09-702 DSD/AJB, 2009 WL 1405176, at *2 (D.Minn. May 18, 2009); Rindahl v. Weber, No. CIV. 08-4041-RHB, 2008 WL 5448232, at *1 (D.S.D. Dec. 31, 2008); Bell v. County of Los Angeles, No. CV 07-8187-GW(E), 2008 WL 4375768, at *6 (C.D.Cal. Aug. 25, 2008); Pirtle v. Hickman, No. CV05-146-S-MHW, 2005 WL 3359731, at *1 (D.Idaho Dec.9, 2005).
The PREA is intended to address the problem of rape in prison, authorizes grant money, and creates a commission to study the issue. 42 U.S.C. § 15601 et seq. The statute does not grant prisoners any specific rights. In the absence of "an `unambiguous' intent to confer individual rights," such as a right to sue, courts will not imply such a right in a federal funding provision.Chinnici v. Edwards, No. 1:07-cv-229, 2008 WL 3851294, at *3 (D.Vt. Aug. 12, 2008) (quoting Gonzaga University v. Doe, 536 U.S. 273, 280, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002)); Jones v. Schofield, No. 1:08-CV-7 (WLS), 2009 WL 902154, at *2 (M.D.Ga. Mar. 30, 2009) ("A reading of the Prison Rape Elimination Act makes clear that its goal is to lessen the occurrence of rapes in prisons across this Country. Its focus concentrates on statistics, standards, developing information, and regulating federal funding in an effort to lessen prison rapes.").
Upon consideration, this Court also concludes that the PREA creates no private right of action. Plaintiff's claims brought under that Act must, therefore, be dismissed.
B. Administrative Procedure Act ("APA")
Section 702, Title 5, United States Code provides, in part: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." Such redress, however, is available only for actions taken by federal agencies." `Agency' means each authority of the Government of the United States. . . ." 5 U.S.C. § 701(b)(1); Southwest Williamson County Cmty. Ass'n v. Slater, 173 F.3d 1033, 1035 (6th Cir. 1999) ("By its own terms, the APA does not apply to state agencies.").
Here, because Plaintiff is suing municipal actors, not any federal agency, the APA is wholly inapplicable to any portion of the complaint, and any claims brought thereunder must be dismissed.
C. § 1983 1. 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, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (quoting Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 691 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Plaintiff's official capacity claims against all of the municipal Defendants, therefore, are actually against Henderson County. See Lambert v. Hartman, 517 F.3d 433, 440 (6th Cir. 2008) (stating that civil rights suit against county clerk of courts in his official capacity was equivalent of suing clerk's employer, the county).
*3 When a § 1983 claim is made against a municipality, this Court must analyze two distinct issues: (1) whether Plaintiff's harm was caused by a constitutional violation; and (2) if so, whether the municipality is responsible for that violation. Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). The Court will address the issues in reverse order.
"[A] municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell, 436 U.S. at 691; Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994); Berry v. City of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994). "[T]he touchstone of `official policy' is designed `to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.'" City of St. Louis v. Praprotnik, 485 U.S. 112, 138, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479-480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)) (emphasis in original).
A municipality cannot be held responsible for a constitutional deprivation unless there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation. Monell, 436 U.S. at 691; Deaton v. Montgomery County, Ohio. 989 F.2d 885, 889 (6th Cir. 1993). Simply stated, the plaintiff must "identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of that policy." Garner v. Memphis Police Dep't. 8 F.3d 358, 363-64 (6th Cir. 1993) (quoting Coogan v. City of Wixom, 820 F.2d 170, 176 (6th Cir. 1987), overruled on other grounds by Frantz v. Village of Bradford, 245 F.3d 869 (6th Cir. 2001)). The policy or custom "must be `the moving force of the constitutional violation' in order to establish the liability of a government body under § 1983." Searcy, 38 F.3d at 286 (quoting Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (citation omitted)); Bd. of County Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (indicating that the plaintiff must demonstrate "deliberate conduct").
In the instant case, Plaintiff has not alleged that Defendants acted pursuant to a municipal policy or custom in causing his alleged harm, and nothing in the complaint demonstrates that Defendants' actions occurred as a result of a policy or custom implemented or endorsed by Henderson County. Consequently, the complaint fails to establish a basis of liability against the municipality, and the official-capacity claims against all municipal Defendants must be dismissed for failure to state a claim upon which relief may be granted.
2. Individual-capacity claims a. Claim One
Plaintiff alleges that Jailer Herrington violated the Constitution when he unnecessarily delayed Plaintiff's arraignment. He reports that he was detained at HCDC from May 2, 2007, and not arraigned until May 9, 2007.
*4 The statute of limitations for 42 U.S.C. § 1983 actions is governed by the limitations period for personal injury cases in the state in which the cause of action arose. Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). In Kentucky § 1983 actions are limited by the one-year statute of limitations found in Ky. Rev. Stat. Ann. § 413.140(1). Collard v. Ky. Bd. of Nursing, 896 F.2d 179, 182 (6th Cir. 1990). Although state law establishes the statute of limitations for § 1983 actions, federal law controls on the issue of when the statute of limitations begins to run. Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984). Federal law establishes that the § 1983 statute of limitations accrues when the plaintiff knew or should have known of the injury that forms the basis of the claim alleged in the complaint. Ruff v. Runyon, 258 F.3d 498, 500 (6th Cir. 2001). The Supreme Court has recently held that when the face of the complaint shows that an action is time barred, the case may be dismissed summarily upon screening. Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).
Plaintiff's claim against Jailer Herrington regarding the delayed arraignment accrued on May 9, 2007, when he was finally taken before the court, and expired one year later on May 9, 2008. Because Plaintiff did not file the complaint until October 9, 2008,FN1 five months after the expiration of the limitations period, Claim One is time-barred and must be dismissed.
FN1. Under the "prison mailbox rule," "a pro se prisoner's complaint is deemed filed when it is handed over to prison officials for mailing to the court." Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008). Plaintiff certifies that the complaint was delivered to the prisoner mail system for mailing on October 9, 2008.
b. Claim Two
As to Plaintiff's second claim, he contends that Jailer Herrington and Major Gibson violated the Eighth Amendment. He reports that on October 19, 2007, he was placed in a segregated cell with a female inmate "Exposing me to an act of Indecent Sexual Assault." He contends that neither Defendant took him seriously as they failed to investigate the matter and placed him "in segregation when I done nothing wrong." In construing the complaint in a light most favorable to the pro se litigant, the Court will allow this Eighth Amendment claim of deliberate indifference to Plaintiff's safety to proceed against Defendants Herrington and Gibson in their individual capacity. In permitting this claim to proceed, the Court passes no judgment on the merits and ultimate outcome of the claim.
c. Claim Three
Lastly, Plaintiff alleges that on March 24, 2008, during court and in front of the general population, Deputy Baker made a statement about Plaintiff, which, upon review, the Court characterizes as lewd. Plaintiff reports filing a grievance and speaking with Major Gibson about the incident but receiving no response.
"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, 954 (6th Cir. 1987). Verbal abuse by prison officials is such an unpleasantry which fails to state a constitutional violation under § 1983. Id. at 955. Moreover, "[s]ection 1983 liability may not be imposed simply because a defendant denied an administrative grievance or failed to act based upon information contained in a grievance." Lee v. Mich. Parole Bd., 104 F. App'x 490, 493 (6th Cir. 2004) (citing Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)).
*5 For these reasons, Plaintiff's third claim must be dismissed for failure to state a claim upon which relief may granted.
The Court will enter a separate Scheduling Order governing the development of the remaining claim and enter a separate Order dismissing all other claims.
W.D.Ky., 2009.
Moorman v. Herrington
Slip Copy, 2009 WL 2020669 (W.D.Ky.)