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Kick v. Christian County

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

May 26, 2017



          Thomas B. Russell, Senior Judge

         John D. Kick, proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 action alleging violations of his Sixth, Eighth, and Fourteenth Amendment rights. [DN 1; DN 12.] Following this Court's initial review pursuant to 28 U.S.C. § 1915A, Kick's only remaining allegation is an Eighth Amendment violation against Defendant Christian County, Kentucky. [DN 16 at 8-9.] Defendant now moves for summary judgment as to that claim. Because there is no genuine dispute of material fact, and Defendant is entitled to judgment as a matter of law, its Motion for Summary Judgment, [DN 23], is GRANTED.


         This suit arises out of events that occurred during Kick's transport from Toledo, Ohio, to Kenasha, Wisconsin between January 26, 2016 and February 5, 2016 by Prisoner Transport Services, LLC. [DN 1 at 1-3 (Complaint).] On January 28, during a stop along the journey to Wisconsin, Kick arrived at the Christian County Jail in Hopkinsville, Kentucky, where he alleges he was strip-searched in the presence of another inmate when he was told to “lift [his] unit, sack, turn around squat, spread [his] buttocks and cough.” [Id. at 4.]

         King brought the instant suit on March 21, 2016 against Prisoner Transport Services, the Hopkinsville, Kentucky County Jail, and the Hopkinsville, Kentucky County Executive, alleging violations of his Sixth, Eighth, and Fourteenth Amendment rights. [Id. at 1, 5.] The only claim that withstood the Court's initial review under 28 U.S.C. § 1915A was Kick's allegation of an unlawful strip search against Christian County, Kentucky, [DN 16 at 8-9], which now moves for summary judgment, [DN 23 (Motion for Summary Judgment).] More than four months later, Kick has not responded to Defendant's motion.


         Summary judgment is appropriate when the record, viewed in the light most favorable to the nonmoving party, reveals “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists where “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court “may not make credibility determinations nor weigh the evidence when determining whether an issue of fact remains for trial.” Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014) (citing Logan v. Denny's, Inc., 259 F.3d 558, 566 (6th Cir. 2001); Ahlers v. Schebil, 188 F.3d 365, 369 (6th Cir. 1999)). “The ultimate question is ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'” Back v. Nestlé USA, Inc., 694 F.3d 571, 575 (6th Cir. 2012) (quoting Anderson, 477 U.S. at 251-52).

         As the party moving for summary judgment, Defendant must shoulder the burden of showing the absence of a genuine dispute of material fact as to at least one essential element of Kick's claims. Fed.R.Civ.P. 56(c); see also Laster, 746 F.3d at 726 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Assuming Defendant satisfies its burden of production, Kick “must-by deposition, answers to interrogatories, affidavits, and admissions on file-show specific facts that reveal a genuine issue for trial.” Laster, 746 F.3d at 726 (citing Celotex Corp., 477 U.S. at 324.

         When, as here, the nonmoving party decides not to file a response, the Court still holds “the moving party to the burden established by the plain language of [Civil] Rule 56.” Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 410 (6th Cir. 1992). In other words, the Court cannot “grant summary judgment in favor of the movant simply because the adverse party has not responded.” Carver v. Bunch, 946 F.2d 451, 455 (6th Cir. 1991). Instead, the Court is required, at a minimum, “to examine the movant's motion for summary judgment to ensure that he has discharged [his] burden.” Id. In performing its task, though, the Court may “rely on the moving party's unrebutted recitation of the evidence, or pertinent portions thereof, in reaching a conclusion that certain evidence and inferences from evidence demonstrate facts which are ‘uncontroverted.'” Guarino, 980 F.2d at 410. It need not “comb the record from the partisan perspective of an advocate for the [nonmoving] party.” Id.


         Kick sues Christian County under 42 U.S.C. § 1983 for violating his Eighth Amendment rights. [See DN 1 at 1-5; DN 12 at 1.] In its motion for summary judgment, Christian County claims that it is entitled to judgment in its favor for three reasons. First, it argues it is immune from suit under the doctrine of sovereign immunity. [DN 23-1 at 2-3 (Memorandum in Support of Motion for Summary Judgment).] Second, it argues that Kick failed to exhaust his administrative remedies under the Prison Litigation Reform Act (PLRA). [Id. at 3-4.] Third, it argues that it is entitled to summary judgment as to Kick's strip search claim because Kick has failed to offer any evidence to show that a strip search actually occurred or that, if it did occur, that it was administered in an unlawful manner. [Id. at 4.]

         With regard to state law claims for damages, Kentucky counties “share[ ] the [sovereign] immunity of the Commonwealth of Kentucky.” Lotton v. Se. Indiana Gov't, No. 6:14-CV-175-GFVT, 2015 WL 429549, at *2 (E.D. Ky. Feb. 2, 2015), appeal dismissed (Dec. 18, 2015) (citing Franklin Cty., Ky. v. Malone, 957 S.W.2d 195, 203 (Ky. 1997) (“[I]t is well settled that in the absence of waiver, the county is immune from tort liability.”), overruled on other grounds by Com. v. Harris, 59 S.W.3d 896 (Ky. 2001) and Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001)). By contrast, “in federal cases, counties are considered municipal entities for sovereign-immunity purposes.” Dennison v. Ky. Dep't of Corr., No. 3:14-CV-P679-DJH, 2015 WL 1957079, at *3 n.4 (W.D. Ky. Apr. 29, 2015) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977) (“The bar of the Eleventh Amendment to suit in federal courts extends to States and state officials in appropriate circumstances, but does not extend to counties and similar municipal corporations.”) (internal citations omitted)). And “[i]n order for a . . . municipality to be held ‘liable under § 1983, ' there must be proof that, ‘through its deliberate conduct, it was the moving force behind the injury alleged.'” King v. Storm, No. 6:15-CV-00172-GFVT, 2017 WL 2174959, at *9 (E.D. Ky. May 17, 2017) (quoting Shadrick v. Hopkins Cty., Ky., 805 F.3d 724, 751 (6th Cir. 2015)).

         To evaluate Kick's claim, the Court must determine “(1) whether [Kick]'s harm was caused by a constitutional violation; and (2) if so, whether [Christian County] is responsible for that violation. Dennison, 2015 WL 1957079, at *4 (citing Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992)). Christian County cannot be responsible for Kick's alleged “constitutional deprivation unless there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation.” Id. at *3 (citing Monell v. Dep't of Soc. Servs. of the City of N.Y., 436 U.S. 658, 694 (1978)).

         Kick has not established that the alleged strip search of his person violated his constitutional rights. As an initial matter, Kick pled his claim as an Eighth Amendment violation. [See DN 1 at 5.] The Sixth Circuit has made clear that allegations of unlawful strip searches under the Eighth Amendment, absent accompanying allegations of physical injuries resulting therefrom, are impermissible under § 1997e(e) of the PLRA. See Adams v. Rockafellow, 66 F. App'x 584, 586 (6th Cir. 2003) (Plaintiff did not “suggest that he was subjected to any physical injury whatsoever as a result of the strip-searches. Rather, [he] claims a mental or emotional injury as a result of the strip-searches. Title 42 U.S.C. § 1997e(e) precludes any claim by a prisoner ‘for mental or emotional injury suffered while in custody without a prior showing of physical ...

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