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Glenn D. Odom, Ii v. Gary Pheral et al.

April 19, 2013



Plaintiff, Glenn D. Odom, II, proceeding pro se, in forma pauperis has filed an amended complaint (DN 47).*fn1 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). For the reasons set forth below, all claims and Defendants will be dismissed from this action with the exception of the claim against Defendants Vinson and the K.S.P. Mailroom Staff for opening two pieces of Plaintiff's incoming legal mail from the ACLU outside his presence.


Plaintiff brings this action against the following nineteen Defendants: (1) Gary Pheral, an "ex-law librarian" at Kentucky State Penitentiary [KSP]; (2) LaDonna Thompson,*fn2 Commissioner, Kentucky Department of Corrections [KDOC]; (3) Philip Parker, the "ex-Warden" at KSP; (4) Alan Brown, Warden at the Green River Correctional Complex; (5) Joel Dunlap, "Dep. Warden/Operations" at KSP; (6) Skyla Grief, "Grievance Coordinator/Program director" at KSP; (7) Duke Pettit, "Dep. Warden/Programs" at KSP; (8) Randy White, Warden, KSP; (9) Raymond Vinson, "Lt./Mailroom Supervisor/Property Supervisor, KSP; (10) Jamie Caraway, "Unit Administrator," KSP; (11) John Dunn, Ombudsman, KDOC; (12) James L. Erwin, "Dep. Commissioner," KDOC; (13) Josh Patton, "Case Worker," KSP; (14) C.A. Woodall, III, Circuit Judge, Lyon County; (15) Rebecca Howard, Circuit Court Clerk, Lyon County; (16) Lt. G. Thompson; (17) Lt. Hawkins; (18) "K.S.P. Mailroom Staff"; and (19) the KDOC. Plaintiff sues Defendants Thompson and Woodall in their official capacities only, Defendants Pheral, Parker, Brown, Grief, Caraway, and Patton in their individual capacities only, and Defendants Dunlap, Pettit, White, Vinson, Dunn, Erwin, and Howard in both their individual and official capacities. As to the remaining four Defendants, Lt. G. Thompson, Hawkins, KSP Mailroom Staff, and Kentucky DOC, Plaintiff fails to specify the capacity in which he sues them.*fn3 The relief Plaintiff seeks is monetary damages, punitive damages, and various kinds of injunctive relief.


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 it, if it determines that the complaint 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. § 1915A; McGore v. Wrigglesworth, 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 (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 Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). The court's duty "does not require [it] to conjure up unpled allegations," McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979), or to create a claim for 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).


The amended complaint is 71 pages in length. Plaintiff also filed a 15-page accompanying memorandum and a stack of exhibits which he marked A-WWW and 1-261 and which measures approximately 3.5 inches in depth. In the amended complaint, Plaintiff has set forth his allegations in chronological order including much superfluous factual detail. Rather than engaging in what would be a lengthy and needless recitation of the factual detail provided by Plaintiff, the Court will set forth a summary of relevant factual allegations in its discussion of the individual claims below. The Court notes that for purposes of initial review, the Court is not required to wade through lengthy exhibits to find support for Plaintiff's claims. See Jinadu v. Fitzgerald, No. 99-4259, 2000 WL 1359640, at *3-4 (6th Cir. Sept. 15, 2000) ("The district court's duty to construe Jinadu's pro se pleadings liberally did not obligate it to analyze attachments to Jinadu's complaint in order to speculate about the claims Jinadu may be attempting to bring."); Young Bey v. McGinnis, No. 98-1930, 1999 WL 776312, at *1 (6th Cir. Sept. 23, 1999) ("[A]t the conclusion of each section, [the plaintiff] refers the court to an attachment consisting of a minimum of fifty pages. The district court's duty to construe Young Bey's pro se pleadings liberally did not obligate it to analyze attachments to Young Bey's complaint in order to speculate about the claims Young Bey may be attempting to bring."). It is Plaintiff's responsibility to allege the facts supporting his claims in the body of his pleading.

A. Supervisory Liability

Plaintiff seeks to hold Defendants Parker, Brown, Dunlap, Pettit, White, Dunn, and Erwin liable based on their supervisory positions. Essentially, the allegations made against each of these Defendants are that Plaintiff wrote to them about the alleged wrongful actions and they failed to rectify the situations about which Plaintiff complained. The doctrine of respondeat superior, or the right to control employees, does not apply in § 1983 actions to impute liability onto supervisors. Monell v. Dep't of Soc. Servs. of the City of N.Y., 436 U.S. 658, 691 (1978); Cardinal v. Metrish, 564 F.3d 794, 802-03 (6th Cir. 2009); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Additionally, "simple awareness of employees' misconduct does not lead to supervisor liability." Leary v. Daeschner, 349 F.3d 888, 903 (6th Cir. 2003) (citing Lillard v. Shelby Cnty. Bd. of Educ., 76 F.3d 716, 728 (6th Cir. 1996)). "The 'denial of 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 v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)). Rather, "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft

v. Iqbal, 556 U.S. at 676; see Shehee v. Luttrell, 199 F.3d at 300 (stating that supervisory liability "must be based on active unconstitutional behavior and cannot be based upon 'a mere failure to act'") (quoting Salehpour v. Univ. of Tenn., 159 F.3d 199, 206 (6th Cir. 1998)). To state a claim for relief, Plaintiff must show how each Defendant is accountable because that Defendant was personally involved in the acts about which Plaintiff complains. Rizzo v. Goode, 423 U.S. 362, 375-76 (1976).

Here, Plaintiff's claims against Defendants Parker, Brown, Dunlap, Pettit, White, Dunn, and Erwin are based on their denial of his grievances and failure to take the action he sought. Nothing in the complaint sets forth any action taken on the part of these Defendants or shows how these Defendants were personally involved in the alleged wrongful conduct. Thus, Plaintiff has failed to state a claim upon which relief may be granted against these Defendants. Therefore, the claims against Defendants Parker, Brown, Dunlap, Pettit, White, Dunn, and Erwin in their individual capacities will be dismissed from this action.

B. Eleventh Amendment Immunity

Under the Eleventh Amendment to the U.S. Constitution,*fn4 a state and its agencies may not be sued in federal court, regardless of the relief sought, unless the state has waived its immunity or Congress has overridden it. Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 124 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978). The Commonwealth of Kentucky has not waived its immunity, see Adams v. Morris, 90 F. App'x 856, 857 (6th Cir. 2004), and in enacting §§ 1983 and 1985, Congress did not intend to override the traditional sovereign immunity of the states. Whittington v. Milby, 928 F.2d 188 (6th Cir. 1991) (citing Quern v. Jordan, 440 U.S. 332 (1979)); see Ferritto v. Ohio Dep't of Highway Safety, No. 90-3475, 1991 WL 37824, at * 2 (6th Cir. Mar. 19, 1991) ("The Eleventh Amendment prohibits actions against states and state agencies under section 1983 and section 1985."). The Eleventh Amendment similarly bars the damages claims against state officials sued in their official capacity. See 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."); McCrary v. Ohio Dep't Human Servs., No. 99-3597, 2000 WL 1140750, at *3 (6th Cir. Aug. 8, 2000) (finding § 1985 claims against state agency and its employees in their official capacities for damages barred by Eleventh Amendment immunity).

Plaintiff indicates that he sues Defendants Commissioner Thompson, Dunlap, Pettit, White, Vinson, Dunn, Erwin, Woodall, and Howard in their official capacities. He identifies each of these Defendants as employees of the State of Kentucky. As such, the official capacity claims against them are barred by the Eleventh Amendment.

C. Judicial Immunity

The Supreme Court squarely addressed absolute judicial immunity in the seminal case, Stump v. Sparkman, 435 U.S. 349 (1978). The Court opined that judicial immunity is embedded in the long established principle that "a judicial officer, in exercising the authority vested in him, [should] be free to act upon his own convictions, without apprehension of personal consequences to himself." Id. at 355 (quoting Bradley v. Fisher, 13 Wall 335, 347 (1872)). The law is clear that a judge acting within the scope of his official duties and within his jurisdictional authority is absolutely immune from damages liability. Mireles v. Waco, 502 U.S. 9, 11-12 (1991); Stump v. Sparkman, 435 U.S. 349; Bolin v. Story,225 F.3d 1234, 1239 (11th Cir. 2000); Ireland v. Tunis, 113 ...

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