Abney v. Thompson et al - Document 19
MEMORANDUM OPINION AND ORDER by Judge John G. Heyburn, II on 7/16/2011; for the reasons set forth re 1 Complaint, filed by Everett Abney, all official-capacity claims for monetary damages against all Defendants are DISMISSED; Claims for injunctive relief against all Defendants are DISMISSED as moot; and all claims against Defendants Thompson, Schantz, and Dotson are DISMISSED. The Clerk of Court is DIRECTED to terminate Defendants Thompson, Schantz, and Dotson as parties to this action. IT I S FURTHER ORDERED that within 30 days, Plaintiff may amend his complaint. IT IS FURTHER ORDERED that certain claims shall move forward against Defendant's Brunner, Crews, Gimmel, Anderson, Dr. Keeman and Washington. IT IS ORDERED that: The Cle rk of Court forward a copy of the complaint (DN 1), the amended complaint (DN 18), and this Scheduling Order, to the Justice & Public Safety Cabinet, Office of Legal Counsel, Frankfort, Kentucky. Plaintiff is WARNED that his failure to notify the Clerk of Court of any address change or failure to comply with this or any subsequent order MAY RESULT IN A DISMISSAL OF THIS CASE.cc:Plaintiff, pro se, Defendants, General Counsel, Justice & Public Safety Cabinet, Office of Legal Counsel (SC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 3:10CV-606-H
LADONNA THOMPSON et al.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on initial review of the complaint (DN 1) and amended
complaint (DN 18) pursuant to 28 U.S.C. § 1915(e) and McGore v. Wrigglesworth, 114 F.3d 601
(6th Cir. 1997). For the reasons that follow, a portion of the claims will be dismissed and the
others will continue.
I. SUMMARY OF CLAIMS
Currently on parole, Plaintiff filed this action while incarcerated at the Kentucky State
Reformatory (KSR). He brings suit pursuant to 42 U.S.C. § 1983. In the complaint, he sues
Kentucky Department of Corrections (KDOC) Commissioner LaDonna Thompson; KSR
Internal Affairs Lt. Carlos Schantz; KSR Chief Engineer Robert Gimmell; KSR Engineer Terry
Anderson; KSR “CUA 2” Glenn Dotson; KSR Engineering Supervisor Marvin Brunner; and
KSR Warden Cookie Crews. In the amended complaint, he additionally sues F.W. Keeman,
M.D., the “Head of Medical, Correct-Care” at KSR and KSR Nurse Practitioner Roy
Washington. He sues all Defendants in their individual and official capacities.
In the complaint and amended complaint, Plaintiff asserts four claims. First, he alleges
that while working at KSR he was repeatedly subjected to verbal and physical sexual harassment
(including being touched and rubbed on his buttocks and groin area) by Defendant Brunner.1
Plaintiff alleges that he presented his claims to Defendant Dotson, who failed to report the sexual
threats to Defendant Schantz of Internal Affairs, and who had a “negative temper toward
providing assistance.” Plaintiff advises that he, himself, nevertheless, complained to Defendant
Schantz, who apparently conducted an investigation but failed to question any of the inmates or
staff who witnessed the touching and persistent verbal harassment by Defendant Brunner against
Second, Plaintiff contends that “I was threatened with segregation after bringing
[the sexual harassment] situation to internal affairs” and that “[f]or a period of (6) months I was
continually harassed and threatened with segregation time, loss of good time and other denied
Third, Plaintiff alleges that he was exposed to and required to work without proper safety
equipment in an area containing friable asbestos and lead paint dust and fumes. He claims that
“[t]he units listed as the basement in seg, admin bldg. Crawl spaces, and other area’s were listed
as contaminated.” As a result of this exposure, Plaintiff reports experiencing dizziness,
weakness, blurred vision, difficulty breathing, and persistent coughing.
Plaintiff filed a grievance regarding his being denied the proper safety equipment. On
the Warden’s Review, Defendant Crews indicated that she advised Defendant Chief Engineer
“Gimmel to ensure that proper safety equipment is worn by both inmates and staff when working
in or around potentially dangerous materials.” On appeal, Defendant Commissioner Thompson
advised, “Warden Crews had directed that inmates and staff working around potential dangerous
To the complaint, Plaintiff attaches affidavits from other inmates who also experienced the
sexual harassment by Defendant Brunner and/or who witnessed Defendant Brunner’s harassment of
materials be provided the proper safety equipment. In addition, you have provided no evidence
that the work material is in fact hazardous to your health. Therefore, it appears that the
institution is addressing your concerns.” Plaintiff claims that the proper safety equipment was
Finally, Plaintiff, in the amended complaint, sues Defendants Washington and Dr.
Keeman for denial of proper medical treatment under the Eighth Amendment. He alleges that
requests to be properly screened for exposure to known carcinogens and to be examined for
resulting symptoms, which worsened, were denied.
As relief in both the complaint and amended complaint, Plaintiff seeks monetary and
punitive damages and injunctions (1) directing that a memorandum be placed in dorms and
prisons regarding protective materials and proper respect for inmates regarding sexual advances
in the workplace; and (2) “[i]nvestigating other complaints and providing proper medical
II. STANDARD OF REVIEW
Because Plaintiff is proceeding in forma pauperis, this Court must review the instant
action. 28 U.S.C. § 1915(e)(2); McGore, 114 F.3d at 604-05. Upon review, this Court must
dismiss a case at any time if it determines that the action 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. 28 U.S.C. § 1915(e)(2)(B).
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, -- U.S. -- , 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[A] district court must (1) view
the complaint in the light most favorable to the plaintiff and (2) take all well-pleaded factual
allegations as true.” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009)
(citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)). “But the
district court need not accept a ‘bare assertion of legal conclusions.’” Tackett, 561 F.3d at 488
(quoting Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). “A
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555,
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 (1972), the
duty “does not require us 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 for damages against all Defendants
A state, its agencies, and 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); Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). Furthermore,
official-capacity claims for damages against state officials are barred by the Eleventh
Amendment to the United States Constitution. Will, 491 U.S. at 71; Kentucky v. Graham, 473
U.S. 159, 169 (1985) (“This [Eleventh Amendment] bar remains in effect when State officials
are sued for damages in their official capacity.”). Accordingly, the official-capacity claims for
damages against all Defendants must be dismissed.
B. Claim for injunctive relief
An inmate’s claim for injunctive relief regarding the conditions of his confinement
becomes moot due to the inmate’s release from confinement or transfer to another facility. See
Wilson v. Yaklich, 148 F.3d 596, 601 (6th Cir. 1998) (holding that a prisoner’s claims for
injunctive relief became moot after he was transferred to another facility); Kensu v. Haigh, 87
F.3d 172, 175 (6th Cir. 1996) (same). Here, because Plaintiff has been released from
incarceration and is no longer incarcerated at KSR, it is clear that he would derive no benefit
from granting the requested injunctive relief, and his claim for injunctive relief must be
C. LaDonna Thompson
Plaintiff claims that Defendant Thompson is responsible for overseeing that matters of
sexual harassment are dealt with by posting CPP’s, and the only involvement Plaintiff alleges
that Defendant Thompson had with respect to any of his claims is her adjudication of his
grievance regarding the need of protective safety equipment in contaminated areas of the prison.
Defendant Thompson’s position as KDOC Commissioner does not automatically make
her liable for the actions of her subordinates. “Respondeat superior2 is not a proper basis for
liability under § 1983.” McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 470 (6th Cir. 2006).
“Nor can the liability of supervisors be based solely on the right to control employees, or simple
awareness of employees’ misconduct.” Id. (internal quotations omitted). “In order for
supervisory liability to attach, a plaintiff must prove that the official ‘did more than play a
passive role in the alleged violation or showed mere tacit approval of the goings on.’” Loy v.
Sexton, 132 F. App’x 624, 626 (6th Cir. 2005) (quoting Bass v. Robinson, 167 F.3d 1041, 1048
(6th Cir. 1999)). In other words, “liability under § 1983 must be based on active
unconstitutional behavior.” Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999).
Likewise, Defendant Thompson’s adjudication of Plaintiff’s grievance does not subject
her to liability under § 1983. There is “no constitutionally protected due process interest in
unfettered access to a prison grievance procedure.” Walker v. Mich. Dep’t of Corr., 128 F.
App’x 441, 445 (6th Cir. 2005). By the same token, a plaintiff cannot maintain a claim against a
prison official based solely on his or her denial of the plaintiff’s grievance. “The ‘denial of
Respondeat superior is “the doctrine under which liability is imposed upon an employer for the
acts of his employees committed in the course and scope of their employment.” BALLENTINE’S LAW
DICTIONARY (3d ed. 1969).
administrative grievances or the failure to act’ by prison officials does not subject supervisors to
liability under § 1983.” Grinter v. Knight, 532 F.3d 567, 576 (6th Cir. 2008) (quoting Shehee,
199 F.3d at 300). “The mere denial of a prisoner’s grievance states no claim of constitutional
dimension.” Alder v. Corr. Med. Servs., 73 F. App’x 839, 841 (6th Cir. 2003). A plaintiff’s
claim is against the subjects of his grievances, not those who merely decided whether to grant or
deny the grievances. See Skinner v. Govorchin, 463 F.3d 518, 525 (6th Cir. 2006) (“Skinner’s
complaint regarding Wolfenbarger’s denial of Skinner’s grievance appeal, it is clear, fails to
state a claim.”). Thus, where the only allegation against a defendant relates to the denial of a
grievance, a plaintiff fails to allege any personal involvement by the defendant in the alleged
denial of medical treatment.
Because Plaintiff’s allegations against Defendant Thompson relate only to her role as
Commissioner and arise out of her decision to deny Plaintiff’s administrative grievance, Plaintiff
has failed to state a claim upon which relief may be granted against Defendant Thompson.
D. Lt. Schantz
Plaintiff alleges that Lt. Schantz failed to fully investigate the sexual harassment claims
against Defendant Brunner.
“The failure to conduct a full and fair investigation and prosecution of an alleged crime
does not state a claim unless there is a violation of another recognized constitutional right.”
Smallwood v. McDonald, No. 86-5522, 1986 WL 18183, at *1 (6th Cir. 1986) (citing Gomez v.
Whitney, 757 F.2d 1005, 1006 (9th Cir. 1985) (per curiam)).
It is true that law enforcement officials can be liable for their inaction when they fail
to perform a statutorily imposed duty to enforce the law equally and fairly.
However, a failure to adequately investigate an incident does not state a claim unless
the defendants violate a specific constitutional right of the plaintiff. Here [the
plaintiff] merely requested an investigation by the FBI, and he alleges that the
response was inadequate. On these facts, the district court was correct to conclude
that he had failed to state a claim.
Buerger v. Smith, No. 85-3307, 1985 WL 13876, at *1 (6th Cir. Oct. 9, 1985) (internal citations
Plaintiff does not allege that Defendant Schantz’s failure to investigate Defendant
Brunner’s conduct violated another recognized constitutional right. Plaintiff, therefore, fails to
state a claim against Defendant Schantz.
E. Glenn Dotson
Plaintiff claims that Defendant Dotson failed to turn over the claims of sexual harassment
to Internal Affairs and had a “negative temper toward providing assistance.” Plaintiff fails to
demonstrate how these actions or inactions in any way rise to the level of a constitutional
violation. Accordingly, the claims against Defendant Dotson will be dismissed.
F. Retaliation claim
Plaintiff contends that “I was threatened with segregation after bringing [the sexual
harassment] situation to internal affairs” and that “[f]or a period of (6) months I was continually
harassed and threatened with segregation time, loss of good time and other denied privilege’s.”
Plaintiff fails to sufficiently identify the person or persons who allegedly retaliated
against him. The Court, therefore, will provide Plaintiff with 30 days within which to amend his
complaint to more clearly set forth his retaliation claim and identify the person or persons who
allegedly retaliated against him.
G. Eighth Amendment claims
1. Verbal and physical sexual harassment
“Because sexual abuse by a corrections officer may constitute serious harm inflicted by
an officer with a sufficiently culpable state of mind, allegations of such abuse are cognizable as
Eighth Amendment claims.” Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997). However,
“[c]ircuit courts consistently have held that sexual harassment, absent contact or touching, does
not satisfy the objective requirement because such conduct does not constitute the unnecessary
and wanton infliction of pain.” White v. Brown, No. 1:07-cv-1154, 2007 WL 5253981, at *2
(W.D. Mich. Dec. 10, 2007) (listing cases).
Because Plaintiff alleges not only verbal sexual harassment for a period of six months but
also alleges repeated episodes of physical contact and touching over that same period and
attaches affidavits of other inmates in support of his allegations, the Court will allow Plaintiff’s
Eighth Amendment claim of sexual harassment to continue against Defendant Brunner in his
individual capacity for damages. Jackson v. Madery, 158 F. App’x 656, 662 (6th Cir. 2005)
“[T]here can be no doubt that severe or repetitive sexual abuse of an inmate by a prison officer
can be objectively, sufficiently serious enough to constitute an Eighth Amendment violation.”
(quoting Boddie, 105 F.3d at 861) (internal quotation marks omitted)); Seltzer-Bey v. Delo, 66
F.3d 961, 962-63 (8th Cir. 1995) (allegations that prison guard conducted daily strip searches,
made sexual comments about prisoner’s penis and buttocks, and rubbed prisoner’s buttocks with
nightstick were sufficient to withstand motion for summary judgment). In permitting this claim
to proceed, the Court passes no judgment on its merit and ultimate outcome following discovery.
2. Repeated exposure to friable asbestos and lead paint dust and fumes
The Court will allow the Eighth Amendment exposure claim to proceed against
Defendants Crews,3 Brunner, Gimmel, and Anderson in their individual capacities for damages.
See LaBounty v. Coughlin, 137 F.3d 68, 74 (2d Cir. 1998) (denying qualified immunity because
a reasonable person would have understood that exposing an inmate to friable asbestos could
violate the Eighth Amendment); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1989)
(concluding that forcing inmate to remain in area contaminated with friable asbestos constituted
deliberate indifference in violation of the Eighth Amendment); Cody v. Hillard, 88 F. Supp. 2d
1049, 1055 (D.S.D. 2000) (acknowledging health risk of requiring inmate workers to scrape
3. Denial of medical treatment
The Court will allow the Eighth Amendment claim of denied medical treatment for his
symptoms related to his exposure to friable asbestos and lead paint dust and fumes to continue
against Defendants Dr. Keeman and Nurse Practitioner Washington in their individual capacities
Because Defendant Commissioner Thompson effectively advised that the matter was being taken
care of by Defendant Crews at the institutional level and since Defendant Warden Crews directed the
Engineering Department to ensure proper safety equipment, the Court finds, for purposes of initial
screening, that Plaintiff has alleged facts demonstrating sufficient involvement by Defendant Warden
Crews in the exposure claim to allow it proceed against her.
For the reasons set forth more fully above, and the Court being otherwise sufficiently
IT IS ORDERED that:
(1) All official-capacity claims for monetary damages against all Defendants are
DISMISSED for failure to state a claim upon which relief may be granted and for seeking
monetary damages from those immune from such relief pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)
and (iii), respectively;
(2) The claims for injunctive relief against all Defendants are DISMISSED as moot;
(3) All claims against Defendants Thompson, Schantz, and Dotson are DISMISSED for
failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii). The Clerk of Court is DIRECTED to terminate Defendants Thompson,
Schantz, and Dotson as parties to this action.
IT IS FURTHER ORDERED that within 30 days of entry of this Order, Plaintiff may
amend his complaint to identify the person or persons he claims retaliated against him.
IT IS FURTHER ORDERED that the following claims shall proceed beyond initial
screening pursuant to 28 U.S.C. § 1915(e)(2): (1) the Eighth Amendment claim of sexual
harassment against Defendant Brunner in his individual capacity for damages; (2) the Eighth
Amendment claim of exposure to friable asbestos and lead paint dust and fumes against
Defendants Crews, Brunner, Gimmel, and Anderson in their individual capacities for damages;
and (3) the Eighth Amendment claim of denied medical treatment against Defendants Dr.
Keeman and Washington in their individual capacities for damages.
Finally, because Plaintiff is proceeding in forma pauperis, IT IS ORDERED that:
The Clerk of Court shall forward by certified mail, return receipt requested,
one copy of the complaint (DN 1), the amended complaint (DN 18), and this Scheduling
Order, to the Justice & Public Safety Cabinet, Office of Legal Counsel, Frankfort,
Kentucky. General Counsel shall have 30 days after receipt by certified mail of the complaint,
amended complaint, and this Scheduling Order to complete and return a notice of waiver of
service for Defendants. Should counsel for the Justice & Public Safety Cabinet not
represent any Defendant, the Court requests, within the same 30-day period, that General
Counsel provide an address for that Defendant so that it may ensure service. If the address
is not public record, counsel shall file the information under seal.
The Clerk of Court shall prepare and issue summons and, by way of the U.S.
Marshals Service in accordance with Fed. R. Civ. P. 4(c)(3), cause a copy of the complaint
(DN 1), amended complaint (DN 18), and summons to be served on Defendants for whom
waiver is not returned. In the event the summons is returned to the Court unexecuted, the Clerk
of Court is DIRECTED to mail a copy of the returned, unexecuted summons and the USM-285
form to Plaintiff and to make a notation in the docket sheet of having done so. Plaintiff is
WARNED that in the event he receives such notification, he must take steps to remedy the
defect in service. Failure to do so within 120 days of entry of this Order may result in
dismissal of the Defendant at issue.
The answer to the complaint shall be filed no later than 60 days after waiver of
service. However, if service is required, the answer shall be filed no later than 21 days after
service of summons. Insofar as is practicable, the answer is to restate in separate paragraphs the
allegations of the complaint, followed by Defendants’ answer.
The parties shall serve upon opposing parties, or their counsel, a copy of each
document filed in this action as required by the Federal Rules of Civil Procedure, including a
certificate of service stating the date on which the copy was sent to opposing parties. Any paper
received by the Court which has not been filed with the Clerk, or which fails to include a
certificate of service, MAY BE DISREGARDED by the Court.
Should Plaintiff change addresses during the pendency of this matter, he must
provide written notice of a change of address to the Clerk of Court and to Defendants’ counsel.
See L.R. 5.2(d).
Plaintiff is WARNED that his failure to notify the Clerk of Court of any address
change or failure to comply with this or any subsequent order of the Court MAY RESULT IN A
DISMISSAL OF THIS CASE.
July 16, 2011
Plaintiff, pro se
General Counsel, Justice & Public Safety Cabinet, Office of Legal Counsel