United States District Court, W.D. Kentucky, Paducah
EMOSHIA L. DUNCAN PLAINTIFF
SKYLA GRIEF DEFENDANTS
MEMORANDUM OPINION AND ORDER
N. Stivers, United States District Judge.
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.
SUMMARY OF CLAIMS
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; and (6) Randy White,
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).
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.
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.”
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.”
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
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
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.”
STANDARD OF REVIEW
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.
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)).
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 ...