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Barassi v. Lewis

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

June 12, 2017

NORMAN MARTIN BARASSI PLAINTIFF
v.
CAPTAIN MIKE LEWIS DEFENDANT

          MEMORANDUM OPINION AND ORDER

          Joseph H. McKinley, Jr., Chief Judge

         Plaintiff, Norman Martin Barassi, proceeding pro se and in forma pauperis, initiated this 42 U.S.C. § 1983 action. This matter is before the Court for screening 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 following reasons, Plaintiff will be provided the opportunity to amend his complaint.

         I. SUMMARY OF CLAIMS

         Plaintiff is a convicted inmate housed at the Hopkins County Detention Center (HCDC). He names as Defendant HCDC Captain Mike Lewis in his official capacity.

         Plaintiff states that he has been housed at HCDC since May 9, 2014. He states that death threats began against him at HCDC almost immediately after his incarceration began because he was charged in a very high profile case. Plaintiff states that he notified staff when the threats began and he was told that he would be put into protective custody until he wished to be removed.

         According to the complaint, Plaintiff was initially kept on the floor of a detox cell until July 6, 2014. He states that since then he has been treated as if he is on discipline status with the exception of not having his mattress taken daily. He states that he is only allowed to use the phone for one hour per week, has no TV, and has no indoor or outdoor recreation. Plaintiff alleges that every inmate at HCDC no matter their classification “(general pop/max/protective custody) is allowed three hours [of recreation] per week.” He states that in almost three years he has not been allowed even one hour of recreation.

         Plaintiff further states that, after writing a letter to the Kentucky Department of Corrections, an investigator and Defendant Lewis came to his cell in August 2015. He alleges that when he explained his situation, Defendant Lewis told him that if he wants to use the phone or take recreation he can take himself out of protective custody.

         Plaintiff asks for monetary and punitive damages.

         II. ANALYSIS

         When a prisoner initiates a civil action seeking redress from a governmental entity, officer, or employee, the trial court must review the complaint and dismiss the action, 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 28 U.S.C. § 1915A(b)(1) and (2). 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 Plaintiff and accept all of the factual allegations as true. Prater v. City of Burnside, Ky., 289 F.3d 417, 424 (6th Cir. 2002). 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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         Plaintiff names Defendant Lewis in his official capacity only. If an action is brought against an official of a governmental entity in his official capacity, the suit should be construed as brought against the governmental entity. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). Therefore, in the case at bar, Plaintiff's claim against an employee of HCDC in his official capacity is actually brought against the Hopkins County government. See Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994).

         When a § 1983 claim is made against a municipality, like Hopkins County, a court must analyze two distinct issues: (1) whether the plaintiff's harm was caused by a constitutional violation; and (2) if so, whether the municipality is responsible for that violation. Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992). The Court will address the issues in reverse order.

         “[A] municipality cannot be held liable solely because it employs a tortfeasor - or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 691 (1978) (emphasis in original); Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994); Berry v. City of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994). “[T]he touchstone of ‘official policy' is designed ‘to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.'” City of St. Louis v. Praprotnik, 485 U.S. 112, 138 (1988) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479-80 (1986)) (emphasis in Pembaur).

         A municipality cannot be held responsible for a constitutional deprivation unless there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation. Monell, 436 U.S. at 691; Deaton v. Montgomery Cty., Ohio, 989 F.2d 885, 889 (6th Cir. 1993). Simply stated, the plaintiff must “identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of that policy.” Garner v. Memphis Police Dep't, 8 F.3d 358, 364 (6th Cir. 1993) (quoting Coogan v. City of Wixom, 820 F.2d 170, 176 (6th Cir. 1987), overruled on other grounds, Frantz v. Vill. of Bradford, 245 F.3d 869 (6th Cir. 2001)). The policy or custom “must be ‘the moving force of the constitutional violation' in order to establish the liability of a government body under § 1983.” Searcy, 38 F.3d at ...


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