United States District Court, W.D. Kentucky, Louisville
MEMORANDUM OPINION AND ORDER
JOHN G. HEYBURN, II, Senior District Judge.
Plaintiff, James Simmons, a prisoner proceeding in forma pauperis, has filed a pro se complaint pursuant to 42 U.S.C. § 1983 (DN 1). This matter is before the Court for initial review of the complaint 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 reasons that follow, the Court will allow the Eighth Amendment claim for sexual assault and harassment and the retaliation claim to proceed past initial review.
I. SUMMARY OF CLAIMS
Plaintiff brings this complaint against the following five Defendants: (1) Miquel Solozano, a corrections officer at Kentucky State Reformatory (KSR); (2) Clark Taylor, the warden at KSR; (3) LaDonna Thompson, the Commissioner of the Kentucky Department of Corrections (DOC); (4) Michael Williams, an internal affairs investigator for the Kentucky DOC; and (5) Darell SinClair, also an internal affairs investigator for the Kentucky DOC. Plaintiff sues Defendant Solozano in both his individual and official capacities; and he sues the remaining Defendants in only their official capacity. As relief, Plaintiff seeks monetary damages, punitive damages, and injunctive relief.
In his complaint, Plaintiff states that from "June to September 2013 [he] was subjected to Sexual Assault and Sexual Harassment" by Defendant Solozano. Plaintiff states that during this time period he was employed as a kitchen worker. Plaintiff states that Defendant Solozano would conduct searches and routine pat-downs when Plaintiff was released from his shift working in the kitchen. According to Plaintiff, during these searches and pat-downs, Defendant Solozano would "group, rack [his] testicals, fondle [his] penis by holding [his] penis to the side while racking [his] testicals and running [his] hand up and down [Plaintiff's] legs and around [his] crouch area." Plaintiff states that he "reported this behavior and assault to the corrections Lt. and the supervisor...." According to Plaintiff, he and two other inmates filed a grievance "which was not fully and answered and properly followed through according to procedures." Plaintiff states that he also reported the alleged wrongful behavior to the Prison Rape Elimination Act (PREA) coordinator and Internal Affairs. According to Plaintiff, the "Internal Affairs team Officers SinClair and Williams then subjected each of us to interrogation which consisted of threats of Disciplinary Actions and Segregation time if we didn't drop the matter and forget the incident."
Plaintiff alleges that his Eighth and Fourteenth Amendment rights were violated by Defendant Solozano's sexual assault and harassment and that his Eighth Amendment right was violated by the Kentucky DOC failing "to follow the PREA standards for reporting by inmates...." Further, Plaintiff alleges that he was retaliated against when he was "fired and released from [his] job duties, and repeatedly subjected to cell searches in the Honor Dorm by staff." He states that his injuries include "mental anguish, stress, humiliation, painful racking of [his] genitalia and testicals, [and that he] could not complete the programs [he] was enrolled in because the staff would not take the proper measures to protect [his] rights...."
II. STANDARD OF REVIEW
Because Plaintiff is a prisoner seeking relief against governmental entities, officers, and/or employees, this Court must review the instant action under 28 U.S.C. § 1915A. Under § 1915A, 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 § 1915A(b)(1), (2); 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).
A. Eleventh Amendment Immunity
Plaintiff sues Defendants in their official capacities. His claim for money damages against Defendants in their official capacities fails because it is barred by Eleventh Amendment immunity. Under the Eleventh Amendment to the U.S. Constitution,  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.Appx. 856, 857 (6th Cir. 2004), and in enacting § 1983, Congress did not intend to override the traditional sovereign immunity of the states. Whittington v. Milby, 928 F.2d 188, 193-94 (6th Cir. 1991) (citing Quern v. Jordan, 440 U.S. 332, 341 (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 of Human Servs., No. 99-3597, 2000 WL 1140750, at *3 (6th Cir. Aug. 8, 2000) (finding § 1983 and § 1985 claims against state agency and its employees in their official capacities for damages barred by Eleventh Amendment immunity).
Accordingly, the claim for money damages against Defendants in their official capacities will be ...