United States District Court, Western District of Kentucky, Louisville
Plaintiff, pro se.
Defendants Jefferson County Attorney.
MEMORANDUM OPINION AND ORDER
John G. Heyburn II, Senior Judge.
Plaintiff, Antwain Rashan Porter, filed a pro se, in forma pauperis complaint under 42 U.S.C. § 1983, the Prison Rape Elimination Act (PREA), the Americans with Disabilities Act (ADA), the Federal Tort Claims Act (FTCA), and Title VII (DN 1). This matter is before the Court for screening pursuant to 28 U.S.C. § 1915(e)(2) 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 set forth below, the action will be dismissed in part and allowed to proceed in part.
I. SUMMARY OF CLAIMS
Plaintiff’s complaint, which he filed on his own paper, is lengthy and, at times, confusing.He names as Defendants the Louisville Jefferson County Metro Government; the City of Louisville; the Louisville Metro Police Department (LMPD); Sgt. Matthew Glass, LMPD; and the Louisville Metro Corrections Department (LMDC). He also sues the following LMDC employees: Director Mark E. Bolton; Deputy Director Kathy Bingham, Chief of Staff Dwayne Clark; Major Cathy Butler; Captains Martin Baker, Armon Walker, and Christopher Chapman; Lt. Michael Hogan; Corrections Officers Lester J. Padilla-Archilla and Nicholas Gravette; Classification Coordinator Jamie Allen; Arthur C. Eggers; and Sgt. Gregory Joiner. He also sues Corizon Health Services (CHS) and the following CHS employees: Angeleta Hendrickson; Mental Health Director Lee Zellars; Dr. David Preston Easley; Beverly Haskins; Mental Health Professional Kibibi Woods; Maxwell Henderson; Nurse Mike Grubbs; Head Registered Nurse Jessica Muncy; Dr. Leon D. French; and Marilyn Brown-Anderson, DMD. Finally, Plaintiff names as Defendants Seven Counties Services, Inc. (SCS), and the following SCS employees: Charlotte Van Meter; Kara Easley; Thomas Reiss; Aaron Bates; Andrea Grigsby; Dr. Manshadi Sharifo; and Anthony M. Zipple. He sues all Defendants in their individual and official capacities, except for Defendant Bingham, who is sued only in her individual capacity.
Plaintiff states that he was incarcerated at LMDC from December 27, 2010, until September 11, 2012. He states that he had some mental health issues when he entered custody. He alleges that on December 27, 2010, he was sexually assaulted by Defendant Padilla, an LMDC corrections officer. He alleges that on June 15, 2012, he was placed on grievance restriction, which he states violated his due process rights. He further alleges that he was “forced” to go the emergency room, several dentists, doctors, counselors, sex-abuse counselors, mental health professionals, and psychologists “due to suffering from very serious ‘ongoing’ complaints, medical, dental and mental health conditions, because of the 12-27-2010 sexual assault, medical negligence and because of malpractice(s), conspired discrimination and conspired retaliation from Defendant(s) from 12-27-2010 until 9-11-2012 and after.”
It appears that during his incarceration and afterwards he received some mental health counseling at Seven Counties Services. He states that in June 2011, Defendants SCS, Van Meter, and Bates “deliberately and intentionally conspired to lie and provide faulty, incorrect, and ‘false’ information about Plaintiff” to a state-court judge.
He states that at his release from LMDC on September 11, 2012, he “still had ‘several’ open investigations, open grievances, grievance appeals and ‘open claims’ against the Defendant(s), Seven Counties staff members, LMDC employees, the City of Louisville employees and Corizon Health Services.” According to Plaintiff, on November 9, 2012, his last internal grievance with LMDC was answered, officially exhausting his remedies.
Plaintiff states that on September 25, 2012, Defendants French and Brown-Anderson told Plaintiff that they would not pull any of his teeth because of grievances he filed.
Plaintiff further states that, after his release from LMDC in September through October 2012 Defendant Padilla stalked and sexually harassed him. Plaintiff states that on October 17, 2012, he called 911 to report ongoing harassment from Defendant Padilla. He stated that he filed for and received an EPO against Defendant Padilla, but that police-officer Defendant Glass refused to issue a warrant for the arrest of Defendant Padilla.
He next alleges that on January 7, 2013, SCS retaliated by conspiring with LMDC and Defendant Bingham to have “an illicit Family Court Warrant issued against the Plaintiff, for ‘failure(s) to complete and finish’ SCS, as court-ordered.” This resulted in his arrest on January 7, 2013. He also states he was wrongfully rearrested on April 12, 2013, due to conspired retaliation by LMDC, Defendant Bingham, and SCS. He states that then while reincarcerated at LMDC he confirmed that he was about to file his civil lawsuit and shortly thereafter, Defendants and CHS conspired to retaliate against him by prescribing life-threatening medications to which he had an allergic reaction, and placed him in an “un-safe room and cell with absolutely no bunk(s) . . . and the toilet was broke and was ‘out-of-use’ the entire time (two days) the Plaintiff was incarcerated.” He also asserts that the LMDC cell was “scattered with feces, stool and the strong smell of ‘old’ feces all over room.” He states that on April 13, 2013, a family court judge dismissed the “false” warrant and told Plaintiff he no longer had to attend SCS. He was released from LMDC custody on April 13, 2013. He also alleges that as retaliation CHS and Defendant Henderson conspired with LMDC to refuse to provide adequate medical and mental health treatment, stating: “Maxwell Henderson walked right by Plaintiff without-out providing any mental health treatment.” Plaintiff claims false imprisonment and negligent maintenance of a building under the Tort Claims Act. He further states that he is asserting claims under various federal constitutional provisions and for state-law negligent and intentional infliction of emotional distress.
Plaintiff alleges that he is a member of the NAACP. Plaintiff alleges that Defendants intentionally discriminated against him “because he was a member of a protected class and that Plaintiff was deliberately bullied, sexually assaulted, abuse[d] and harassed based on his disabilities and race.” (Emphasis deleted.) He further alleges, “Defendants deliberately, intentionally and maliciously classified and placed Plaintiff in harm’s way and in solitary confinement, without a ‘proper’ hearing.” He alleges, “Defendants ‘refused’ to ‘protect’ Plaintiff’s health, well-being, life and safety, and Defendants treated Plaintiff differently than similarly situated individuals.” He asks for injunctive relief and compensatory and punitive damages.
This Court must review the instant action. See 28 U.S.C. § 1915(e)(2); McGore v. Wrigglesworth, 114 F.3d at 604-05. Upon review, this Court must dismiss a case at any time if the Court 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 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. When determining whether a plaintiff has stated a claim upon which relief can be granted, the court must construe the complaint in a light most favorable to the plaintiff and accept all of the factual allegations as true. Prater v. City of Burnside, Ky., 289 F.3d 417, 424 (6th Cir. 2002). A complaint, or portion thereof, should be dismissed for failure to state a claim upon which relief may be granted “only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000).
While a reviewing court must liberally construe pro se pleadings, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam), to avoid dismissal, a complaint must include “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
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. Cnty. 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 Univ. v. Doe, 536 U.S. 273, 280 (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.
In the portion of his complaint under the heading “Americans with Disabilities Act, ” Plaintiff states that LMDC and Defendants denied him access to programs and services including social services, religious services, substance abuse classes, academics, and recreation. Elsewhere, under the heading “Count III: Violation of the Americans with Disabilities Act, ” Plaintiff alleges that Defendants failed to accommodate his mental disability.
To make out a claim under the ADA, Plaintiff must allege that: (1) he is a qualified individual with a disability, (2) who was excluded from participation in or denied the benefits of the services, programs, or activities of a public entity, and (3) such exclusion, denial of benefits, or discrimination was because of a disability. 42 U.S.C. § 12132. A “public entity” under the Act does not include an individual prison official, and therefore, Plaintiff fails to state a claim against the individual defendants under the ADA. See Lee v. Mich. Parole Bd., 104 F. App’x 490, 493 (6th Cir. 2004). The proper defendant under the ADA is the public entity or an official acting in his official capacity. Carten v. Kent State Univ., 282 F.3d 391, 396-97 (6th Cir. 2002).
However, most of Plaintiff's claims against Defendants in their official capacities also fail because his allegations that he was denied various services, i.e., social and academic services and recreation, based on his disability are purely conclusory. See Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996); Jones v. Martin, No. 99-1255, 2000 WL 191807, at *1 (6th Cir. Feb. 7, 2000) (affirming dismissal of ADA claim where plaintiff failed to allege that defendants discriminated against him because of disability); Sandison v. Mich. High Sch. Athletic Ass’n, 64 F.3d 1026, 1030, 1036 (6th Cir. 1995)). However, attached to the complaint is a grievance filed by Plaintiff stating that he has been denied his right to go to church. The response to that grievance was that per LMDC policy, because Plaintiff was housed in the Mental Health Unit, Plaintiff could not “attend church services with the general population” but could request to speak to a religious service volunteer at his dorm and receive visits from the chaplain and/or other clergy. The Court finds that Plaintiff has stated a claim under the ADA against the Louisville Metro Government as to his participation in church services.
A claim under the FTCA may only be asserted against the United States. See 28 U.S.C. § 2674. Plaintiff sues no federal entities or officers. Because a claim under the FTCA may only be asserted against the United States itself, § 2674; Allgeier v. United States, 909 F.2d 869, 871 (6th Cir. 1990), this claim will be dismissed.
D. Title VII
A claim under Title VII makes it unlawful to discriminate in respect to employment. 42 U.S.C. § 2000e et seq.; Ricci v. DeStefano, 557 U.S. 557, 580 (2009) (stating that “our decision must be consistent with the important purpose of Title VII-that the workplace be an environment free of discrimination”). Plaintiff’s allegations do not involve discrimination in employment, and as such, will be dismissed for failure to state a claim.
E. § 1983 claims
Claims for conspiracy
“A civil conspiracy is an agreement between two or more persons to injure another by unlawful action.” Moore v. City of Paducah, 890 F.2d 831, 834 (6th Cir. 1989); Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir. 1985). In order to state a claim of civil conspiracy under § 1983, a plaintiff must show that there was a single plan, that the coconspirators shared in the objective of the conspiracy, violating the plaintiff’s constitutional rights, and that an overt act was committed in furtherance of the conspiracy. Moore, 890 F.2d at 834; Hooks, 771 F.2d at 943-44. A plaintiff must plead a conspiracy with particularity, as vague and conclusory allegations unsupported by material facts are insufficient. Twombly, 550 U.S. at 566 (recognizing that allegations of conspiracy must be supported by allegations of fact that support a “plausible suggestion of conspiracy”); Fieger v. Cox, 524 F.3d 770, 776 (6th Cir. 2008).
The Court finds that Plaintiff’s conspiracy claims do not survive initial review, with the exception of the conspiracy claims against Defendants Bingham and CHS as explained below.
Claims against Louisville Metro employees in their official capacities, the City of Louisville, the ...