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Sublett v. White

United States District Court, Sixth Circuit

May 22, 2013

DAMIEN A. SUBLETT, Plaintiff,
v.
RANDY WHITE et al., Defendants.

MEMORANDUM OPINION AND ORDER

THOMAS B. RUSSELL, District Judge.

Plaintiff Damien A. Sublett filed the instant pro se 28 U.S.C. § 1983 action proceeding in forma pauperis. This matter is before the Court on the initial review pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).

I.

Before conducting initial screening, however, the Court will address several documents filed by Plaintiff subsequent to filing the complaint in which Plaintiff alleges additional facts and/or claims. Plaintiff filed a "Memorandum In Support of Claim(s) two (2) and Addendum; Claim (1) one...." (DN 5). While the filing is not entirely clear, the Court will construe it as a motion to amend the complaint. Upon review, IT IS ORDERED that the motion to amend the complaint (DN 5) is GRANTED. See Fed.R.Civ.P. 15(a)(1).

In addition, Plaintiff filed a motion for preliminary injunction (DN 8), a reply in support of the motion for preliminary injunction (DN 14), and reply to Defendants' sur-reply (DN 18). In these filings he makes factual allegations not alleged in the complaint concerning a "hit" placed on his life by Level 5 prisoners in a white supremacist prison gang. This motion was fully briefed by the parties and was denied by separate Memorandum and Order (DN 19) for the reasons stated therein. However, because the motion and reply briefs contain additional facts not contained in the complaint or amendment, the Court will construe them as motions to amend the complaint. IT IS ORDERED that, to the extent the motions (DN 8, 14, and 18) seek to amend the complaint, they are GRANTED. See Fed.R.Civ.P. 15(a)(2).

Upon initial review of the complaint and amendments, for the reasons that follow, some of Plaintiff's claims will be dismissed and some will be permitted to proceed for further development for the reasons that follow.

II.

Plaintiff is an inmate at the Kentucky State Penitentiary (KSP). He sues KSP Warden Randy White; Deputy Warden of Program Duke Pettit; Unit Administrator Bruce Von Dwigelo; Correctional Treatment Officer Daniel Smith; and Lieutenant James Beavers. He sues each Defendant in his individual capacity only.

Plaintiff's "Claim (1)" states that Defendants deprived him "of his Statutory due process right under KRS 197.065; Classification and Segregation of prisoners in penal institution.' By intergrating, plaintiff, a Level (3) prisoner, with Level (5) prisoners. In violation of KRS 197.065." He states this is a violation of the Fourteenth Amendment's Due Process Clause.

In "Claim (2)" Plaintiff states that he filed a previous 42 U.S.C. § 1983 action in this Court against KSP officials. On October 23, 2012, he prepared a motion to be filed in that action addressed to the Court and gave it to a prison staff member for mailing. Plaintiff states that Defendant Smith "intercepted Sublett's legal mail, and placed a notation on it" and placed it in the desk where it was found. Plaintiff states, "Plaintiff legal mail never made it out of the institution." He later filed a complaint with KSP's Internal Affairs concerning the mailing. He states that an Internal Affairs officer conducted an investigation and corrections officer Wilson "stated that he did find Sublett's legal mail in the c/o desk." Wilson stated that he retrieved the legal mail from the desk and gave it back to Plaintiff four days after Plaintiff gave the legal mail to Defendant Smith. He also states that "c/o Howard, stated, he picked up Sublett's legal mail and it was placed in the cage operator's mailing bag, to be forwarded to the mail room. Out going." Plaintiff further states that "c/o Wilson was repremended for givening Sublett, his legal mail to Sublett." Plaintiff states that his First Amendment right of access to the courts has been violated.

Plaintiff amended his first claim to state that integrating Level 3 inmates with Level 5 inmates violates the Equal Protection Clause, as well as Ky. Rev. Stat. § 197.065. He also amended his second claim to state that his legal mail was censored under a KSP policy that requires indigent inmates to give legal mail to the mailroom unsealed so that it can be verified. He states that this is a violation of the First Amendment and the Equal Protection Clause. He also attaches a memorandum addressed to him from Defendant Von Dwigelo stating that his legal mail must be given to the mailroom staff unsealed for inspection because he is an indigent prisoner.

Plaintiff further amended the complaint to add factual allegations concerning a "hit" placed on him by Level 5 prisoners in a white supremacist prison gang. He states that he "has been extorted by way of food and labor in order to be allowed to come out of his cell for recreation." He states that he has lost 33 pounds "for lack of food, because Plaintiff pay with food because Plaintiff has no money." Plaintiff further states that the white supremacist prison gang is "now seeking sexual payments" but he has refused because of fear of HIV or AIDS. He states that he informed Defendants Von Dwigelo, Beaver, Smith, Pettit, and White, as well as several non-Defendant KSP staff members, about the threat of a "hit" by the white supremacist prison gang and that they did not transfer Plaintiff to another prison unit.

As relief, he seeks compensatory and punitive damages and ...


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