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Jones-Bey v. Jefferson County Government

United States District Court, W.D. Kentucky, Louisville Division

March 6, 2017

GARY JONES-BEY PLAINTIFF
v.
JEFFERSON COUNTY GOVERNMENT et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          THOMAS B. RUSSELL, SENIOR JUDGE

         Plaintiff Gary Jones-Bey, a recently-released prisoner, filed this pro se complaint under 42 U.S.C. § 1983 when he was incarcerated at the Louisville Metro Department of Corrections (LMDC). This matter is before the Court for initial review of the complaint pursuant to 28 U.S.C. § 1915(e)(2) and McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). For the reasons that follow, the Court will dismiss some claims, allow some claims to proceed, and allow Plaintiff to amend as to some claims.

         I. SUMMARY OF CLAIMS

         Plaintiff identifies nine Defendants in this action: (1) Jefferson County Government (JCG); (2) Mark E. Bolton, Director of the LMDC; (3) Stephen P. Durham, Assistant Director of LMDC; (4) Dwayne Clark, Chief of Staff at LMDC; (5) Martin Baker, the Head of Classification at LMDC; (6) Walker, Classification Supervisor at LMDC; (7) Taylor, the Grievance Coordinator at LMDC; (8) Eric Troutman, Senior Operator of Inmate Records; and (9) Correctional Care Solutions (CCS), the provider of medical services to inmates at LMDC. All of the persons named as Defendants are being sued in their individual and official capacities. Plaintiff seeks two forms of injunctive relief. First, he requests the Court to "[i]ssue an injunction ordering the Defendant [CCS] to immediately care and treat Plaintiffs broken and infected tooth." Second, he requests the Court to "[i]ssue an injunction ordering Defendants JCG and Bolton [to] reduce the number of convicted felons confined in the Jefferson County Jail, and to transfer each convicted felon confined herein to a state penal facility . . . ." Plaintiff also requests compensatory damages against JCG and CCS for their "deliberate failure to provide Dental care to Plaintiff." Finally, he requests punitive damages against all Defendants.

         Plaintiff includes a section in his complaint regarding "Exhaustion Of All Available Remedies." Therein, Plaintiff complains that no one ever responded to the grievance that he filed regarding the issues he raises in this complaint. Thus, Plaintiff states, after the required wait, he filed an "Action Request" requesting a hearing on the grievance which "served as an Appeal to Plaintiffs original Grievance." Plaintiff states that he received no response to this request. Plaintiff states that he "considers this action also a challenge to the Grievance Mechanism instituted as is at LMDC itself." The Court construes this first claim to be a challenge to the alleged failure to respond to Plaintiffs grievance.

         Plaintiffs second claim involves alleged overcrowding at the LMDC where he was incarcerated at the time the complaint was filed. Plaintiff states that the LMDC is designed to hold a maximum of approximately 1, 793 inmates, but "count regularly clears ... as high as 2, 338." Plaintiff sets forth a "list of ursurpations and long term violations [which] give rise to a Constitutional magnitude." According to Plaintiff, the overcrowding "has directly caused breakdowns in classification, " and "[a]vailable space (not necessarily bed space) takes precedence over inmates classified as members of a Security Risk Group Threat. . . ." Plaintiff states that the overcrowding causes "excessive noise infringing upon sleeping or resting inmates as noise levels often exceed 90 decibels." Plaintiff complains that when the "dormitory populations exceed limitations, 'out of cell' time for activities (gym call) is not increased." Further, Plaintiff states that "inmates sleeping on/in boats are doing so in common areas . . . where inmates eat, use the telephone, play cards . . . ." Plaintiff states that "unsanitary conditions are exaggerated simply due to overpopulation." Some of the unsanitary conditions alleged by Plaintiff are that on some days inmates are not given a mop or broom. Sometimes inmates clean the toilet with a mop because there are no toilet brushes, and "limited use of cleaning fluids provided." Even though there are additional inmates at LMDC, Plaintiff complains that there is not an increase in the number of toilets, sinks, and showers to account for the additional number of inmates. Plaintiff states that some of the sinks and showers are "often clogged for extended periods of time before [being] fixed, if repaired." Plaintiff states that this contributes to unsanitary conditions including "Black Mold in and around ventilation and air ducts." Finally, Plaintiff alleges that Defendant Bolton "opened a condemned, jail located over the Louisville Police Department's Headquarters while simultaneously having open bed space at the main jail." Plaintiff states this was a "purely economical move."

         Plaintiffs third claim involves "Underpaid, Understaffed, Overworked" LMDC staff. According to Plaintiff, there are many vacancies in the LMDC leading to staff working "mandatory overtime hours, " staff "quitting, resigning or accepting the punishment for refusing forced overtime." Plaintiff states that "[o]vercrowded and understaffed equals unsafe conditions." Plaintiff states that the overcrowding may be a fire hazard. He contends that the "occupancy violations coupled by dormitories devoid of any sprinkler system are illegal, unconstitutional and deliberately indifferent." Plaintiff asserts that the fire safety equipment is not properly maintained and repaired, and there is a lack of sufficient staff in the event an evacuation is necessary. He further states that correctional officers and administrative staff are "all underpaid." Plaintiff asserts that "[a] new contract is needed immediately" that should include a "substantial pay raise" and "cost of living increases." Likewise, Plaintiff asserts, that "inmate jobs deserve additional pay raises." Plaintiff states that "work credits and higher pay are inherently necessary for reward, motivation, self sufficiency and habilitation." Finally, Plaintiff states that "[u]nderpayed, understaffed, overworked staff all contribute directly and indirectly to conditions and an environment that is conducive to constitutional infringements safety and security are part of a [Correctional Officer's] duties and responsibilities." As to this claim, Plaintiff asserts Eighth and Fourteenth Amendment violations.

         Plaintiffs fourth claim involves "[f]ood and personal hygiene." Plaintiff asserts that the two-week wait period for indigent inmates to receive "an initial package" is "to[o] long." He states that the travel size toothpaste provided is not enough to stretch for two weeks. Plaintiff complains that female inmates are not provided sanitary napkins for three to five days, and that this is "repugnant, " "immoral, " and "certainly unconstitutional." Further, Plaintiff complains that the food is not nutritional, and that the "caloric intake is below the nationally attributed/required standards." Plaintiff states that the portions are "undersized" and served cold. He states that "failure to maintain food at the proper temperature constitutes a serious health hazard by fostering the growth of bacteria." Plaintiff asserts that the practice of "giving inmates late night sandwiches while following up with a noon brunch is hilarious, " and that this custom is "refered to by prisoners as 'Starvation Sunday.'" Plaintiff states that the vegetables are raw or undercooked "rendering them inedible." He states that LMDC serves food that is below budget and that is "tatamount to below standards." He contends the food provided is "cruel and unusual, " and that it is an Eighth Amendment violation.

         Plaintiffs fifth claim involves "[r]eligion." He states that the "policy, practice or custom that inmates whom attend basic Islamic Service(s) be on an approved list" violates the First Amendment. He states that Catholic and Christian services "do not require adherents to be on an approved list." Plaintiff asserts this is an equal protection violation. Plaintiff states that he has been denied "Islamic Service" for five consecutive weeks. Further, he states that "Islamic believers that request Halal Meals similar to the Kosher diet allowed Jewish inmates are simply denied." Plaintiff further states that "[e]xcluding disciplinary and administrative segregated prisoners from attending Jumu'ah services may be compelling but denial to attend Jumu'ah over a protracted period for non-security reasons or whim is a denial of the First Amendments Free Exercise of Religion."

         Plaintiffs sixth claim involves the alleged denial of medical treatment. Plaintiff states that he requested doctors' appointments for various reasons, including treatment for "severly burned skin conditions, " and that "[a] 30 (thirty) day hiatus and longer is equal to a denial where Plaintiff experiences severe pain and discomfort." Plaintiff states that due to the delay in treatment, he "has opted to endure the pain and discomfort until transferred to a Kentucky Department of Corrections . . . facility or released." Plaintiff states that on or about September 15, 2016, he requested an emergency dental appointment because he had swelling in his mouth, bleeding, and pain. He states that his "tooth [had] broken off when brushing." Plaintiff states that on October 2, 2016, he "voiced his dental concerns to a [CCS] nurse." According to Plaintiff, the nurse told him to "wait a couple of more weeks and if he hasn't seen anybody fill out another" request for an appointment. Plaintiff states that delaying treatment is a violation of the Fifth, Eighth, and Fourteenth Amendments.

         Plaintiffs seventh and final claim is against Defendant Troutman. As to this claim, Plaintiff states as follows:

Defendant Troutman is misappropriating inmate funds, claiming monies from interest bearing accounts, failure to timely release court ordered inmates, failure to properly administer commissary profits and diverting those profits for purposes other than those intended, overcharging inmates for restitution of lost of damaged County Jail property and failure to deduct the $35 booking fee from the $100 per day allotment all violation of Due Process and Equal Protection clauses of the Fifth and Fourteenth Amendments to the Constitution.

         II. STANDARD OF REVIEW

         Upon review under 28 U.S.C. § 1915(e), a district 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, 556 U.S. 662, 678 (2009) (quoting Bell Ail. 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& GPolymers, 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 7 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).

         III. ANALYSIS

         A. Grievance Claim

         In the instant case, Plaintiff claims that he filed a grievance regarding the alleged overcrowding at LMDC and the alleged unconstitutional violations arising as a result of this overcrowding. Plaintiff states that he waited the requisite time, but he received no response to his grievance. Thereafter, according to Plaintiff, he filed an "Action Request" that "served as an Appeal to Plaintiffs original Grievance." As of the filing of this complaint, states Plaintiff, he has not received any response to this appeal.

         Prisoners do not possess a constitutional right to a prison grievance procedure. See Young v. Gundy, 30 F.App'x 568, 569-70 (6th Cir. 2002) ("A grievance appeal does not implicate the First Amendment right of access to the courts because there is no inherent constitutional right to an effective prison grievance procedure."); LaFlame v. Montgomery Cty. Sheriff's Dep % 3 F.App'x 346, 348 (6th Cir. 2001) (holding that plaintiffs allegation that jail staff ignored the grievances he filed did not state a § 1983 claim "because there is no inherent constitutional right to an effective prison grievance procedure"); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996) (finding that plaintiffs allegation that the institution's grievance procedures were inadequate to redress his grievances did not violate the Due Process Clause and did not "give rise to a liberty interest protected by the Due Process Clause"); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (holding that "no constitutional right was violated by the defendants' failure, if any, to process all of the grievances [plaintiff] submitted for consideration"). Nor does state law create a liberty interest in the grievance procedures. Olim v. Wakinekona, 461 U.S. 238, 249 (1983). Further, if the prison provides a grievance process, violations of its procedures or its ineffectiveness do not rise to the level of a federal constitutional right. See Walker v. Mich. Dep 't o/Corr., 128 F.App'x 441, 445 (6th Cir. 2005) ("All circuits to consider this issue have . . . found that there is no constitutionally protected due process right to unfettered access to prison grievance procedures."); Argue v. Hofmeyer, 80 F.App'x 427, 430 (6th Cir. 2003) (stating that "there is no inherent constitutional right to an effective prison grievance procedure") (citing cases).

         Accordingly, Plaintiffs claim regarding his unanswered grievances will be dismissed. Further, it appearing that this is the only claim Plaintiff brings against Defendant Taylor, she will be dismissed from this action.

         B. Overcrowding Claim

         Plaintiff alleges that LMDC is regularly overcrowded, and that this overcrowding causes "breakdowns in classification, " and "[a]vailable space (not necessarily bed space) takes precedence over inmates classified as members of a Security Risk Group Threat. . . ." Plaintiff states that the overcrowding causes "excessive noise" which interrupts sleeping or resting. He states that inmates have to sleep in common areas interfering with the activities that go on there and causing unsanitary conditions. Plaintiff states that the overcrowding causes unsanitary conditions. Some of the unsanitary conditions alleged by Plaintiff are that on some days inmates are not given a mop or broom, that the lack of toilet brushes has led inmates to clean the toilet with a mop, and that "limited use of cleaning fluids [is] provided." Even though there are additional inmates at LMDC, Plaintiff complains that there is not an increase in the number of toilets, sinks, and showers to account for the additional number of inmates. Plaintiff states that some of the sinks and showers are "often clogged for extended periods of time before [being] fixed, if repaired." Plaintiff states that this contributes to unsanitary conditions including "Black Mold in and around ventilation and air ducts." Additionally, Plaintiff alleges that this overcrowding is a safety risk to inmates in the event an evacuation might be necessary.

         "[O]vercrowding is not, in itself, a constitutional violation." Agramonte v. Shartle, 491 F.App'x 557, 560 (6th Cir. 2012). "'[E]xtreme deprivations' must be alleged in order to support a prison-overcrowding claim." Id. (quoting Hudson v. McMillian,503 U.S. 1, 9 (1992)). If the overcrowding results in "deprivations denying 'the minimal civilized measure of life's necessities, '" that would be a constitutional wrong. Wilson v. Seiter,501 U.S. 294, 298 (1991). Plaintiff has failed to allege conditions rising to the level of an Eighth Amendment violation. See Agramonte v. Shartle, 491 F.App'x at 559-60 (finding that plaintiffs allegations that the number of toilets, showers, wash basis, and showers had not increased with the increased population, that there were lines to use the bathrooms and showers, that there were no comfortable places to sit to watch television of write letters, and that there would be difficulty evacuating the building in the event of a fire, failed to state an overcrowding claim because plaintiffs failed to allege an unconstitutional denial of basic needs); Keeling v. Louisville Metro Corr. Dep't, No. 314-CV-P697-DJH, 2015 WL 3457847, at *3 (W.D. Ky. May 29, 2015), appeal dismissed (Nov. 19, 2015) (finding that plaintiffs allegations that the cell pods are crowded and that there was fighting over toiletries, soap, seating, and beds are not deprivations of the minimal civilized measure of life's necessities; thus, ...


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