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Duncan v. Grief

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

July 12, 2017



          Greg N. Stivers, United States District Judge.

         Plaintiff Emoshia L. Duncan, a prisoner presently incarcerated at Kentucky State Penitentiary (KSP), filed a pro se complaint under 42 U.S.C. § 1983. This matter is before the Court for initial review of the complaint pursuant to 28 U.S.C. § 1915A 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 allow the Eighth Amendment failure-to-protect claim to proceed against Defendant Robertson in her individual capacity. All other claims and Defendants will be dismissed.


         Plaintiff identifies the following six Defendants in this action: (1) Skyla Grief, the Deputy Warden at KSP; (2) Joy Myers, “Social Service Clin.” at KSP; (3) Jill Robertson, “Unit Administration” at KSP; (4) Seth Mitchell, “PREA (Prison Rape Elimination Act) Investigation”; (5) Dan White;[1] and (6) Randy White, [2] the Warden at KSP. Plaintiff sues Defendants in their individual and official capacities. Plaintiff seeks monetary and punitive damages. He states he wants “immediately CR. 65.04” as injunctive relief. He further seeks the Court to “Grant Temporary injunction & TRO.” The Court has already addressed Plaintiff's request for preliminary injunctive relief and a temporary restraining order (DN 6).

         In his complaint, Plaintiff states that he was approved to participate in the KSP transitional program, and he was to be “transfered immediately from Little Sandy Correctional Complex.” Plaintiff asserts that the “former Ex. Secretary, Mr. J. Michael Brown And the deputy Commissioner James Erwin of Justice And Public Safety Cabinet Department of Corrections and had made arrangements and agreement that the Plaintiff could participate only if Plaintiff would not be around any his conflicts due to Plaintiff having several unknown and documentive . . . conflicts.” Following this introduction, Plaintiff asserts claims under the Eighth and Fourteenth Amendments. He breaks his statement of claims down into specific claims; thus, the Court will present them in a similar manner.

         First Claim

         Plaintiff states that in the past at a different institution, he had been in a physical altercation with another inmate, Kyrus Cawl. Plaintiff states that he had a concern about being in the transitional program with inmate Cawl. According to Plaintiff, he “address[ed] the problem before the conflict stimulated into another physical altercation” with inmate Cawl. Plaintiff states that he advised Defendant Robertson “that it would be in the best of interest to allow both inmate Kyrus Cawl and the Plaintiff into the transitional program together because it could be a life and death situation happen between both inmates.” Plaintiff asserts that Defendant Robertson knew Plaintiff “had a conflict with inmate Kyrus Cawl and had faced a substantial risk of serious harm and disregarded that risk by failing to take reasonable measures . . . .” Plaintiff further asserts that Defendant Robertson “created an indifference by being ‘aware' of the problem before the transitional program committee still decided to make decision to deliberately place inmate Kyrus Cawl in the transitional program regardless of what had occurred.”

         Second Claim

         Plaintiff states that on April 9, 2016, he was in a physical altercation with inmate Kyrus Cawl while housed in “3 cell house.” According to Plaintiff, Sgt. O'Bryan “grabbed the pepper ball launcher and started to fire it without any formal (training) of how to fire this device properly and effectively.” Plaintiff states that Sgt. O'Bryan's actions “placed plaintiff life in jeopardy due to not shooting each inmate equally with the amount of O.C. pepper balls fired at each individual.” Plaintiff states that inmate Cawl “did not get hit with any O.C. pepper balls, which placed plaintiff at a disadvantage . . . .” Plaintiff states that Sgt. O'Bryan “fired several rounds at plaintiff blinding him and enabling for him to breathe and leaving plaintiff defenseless while being assaulted and sexual degraded. Sgt. O'Bryan placed Plaintiff life endanger.”

         Third Claim

         As to this claim, Plaintiff states as follows: Defendant Mitchell “deliberately failed to go through the appropriate steps of conducting a P.R.E.A. [Prison Rape Elimination Act] investigation by not exercising general precaution and responding immediately to [Plaintiff's] safty and concerns.”

         Fourth Claim

         As to this claim, Plaintiff states that Dan Smith “has contunuously deliberated refuse plaintiff rights to redress his Grievances, Dan Smith prematurely rejecting plaintiff's complaints. and over stepping his boundary by violating the policies which are being maintained in Governing Accordance to Kentucky C.P.P. (Corrections Policies and Procedures) (14.6 et. Seq. plaintiff's constitutional Rights ..... interfering with an inmate's ability to present his grievances in court.” (ellipses in original).

         Fifth Claim

         As to this claim, Plaintiff states that Defendant Randy White “is held liable for failing to take action to maintain his employees and officers under his authority that are involved in wrongful and illegal acts.”


         Because Plaintiff is a prisoner seeking relief against governmental entities, officers, and/or employees, this Court must review the instant action under 28 U.S.C. § 1915A. Under § 1915A, the trial court must review the complaint and dismiss the complaint, or any portion of the complaint, 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 § 1915A(b)(1), (2); McGore v. Wrigglesworth, 114 F.3d at 608.

         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 Atl. 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 & G Polymers, USA, LLC, 561 F.3d at 488 (quoting Columbia Nat. 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'l 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 ...

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