United States District Court, W.D. Kentucky, Owensboro Division
MEMORANDUM OPINION AND ORDER
H. McKinley, Jr., Chief Judge
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.
SUMMARY OF CLAIMS
is a convicted inmate housed at the Hopkins County Detention
Center (HCDC). He names as Defendant HCDC Captain Mike Lewis
in his official capacity.
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
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.
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.
asks for monetary and punitive damages.
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).
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).
§ 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
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).
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 ...