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Burke v. Thompson

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

August 4, 2017



          Thomas B. Russell, Senior Judge.

         Two Kentucky State Penitentiary (KSP) prisoners, Thomas Edward Burke, Jr., and Jeremy Todd West, who are proceeding without the assistance of counsel, filed a complaint pursuant to 42 U.S.C. § 1983 (DN 1) and an amendment (DN 11) thereto. This matter is before the Court on initial screening of the complaint and its amendment pursuant to 28 U.S.C. § 1915A. For the reasons that follow, the Court will dismiss the action.


         Plaintiffs bring this action against the following nineteen Defendants in their individual and official capacities: (1) LaDonna Thompson, former Commissioner of the Kentucky Department of Corrections (KDOC); (2) Randy White, KSP Warden; (3) Joel Dunlap, KSP Deputy Warden of Security; (4) Skyla Grief, KSP Warden of Programs; (5) James Beavers, KSP Internal Affairs Officer; (6) Timothy White, KSP Kitchen Supervisor; (7) Josh Patton, KSP Unit Administrator I; (8) Timothy Lane, KSP Unit Administrator II; (9) Justin Hughes, KSP Classification and Treatment Officer and member of “Cert Team”; (10) Micah Melton, KSP “CTO/cert team member”; (11) Amy Fisher, KSP “CTO”; (12) Adam Noel, KSP “CTO” and Grievance Committee member; (13) Dan Smith, KSP Grievance Coordinator; (14) Lt. Morris; (15) Kevin Winfrey, KSP Kitchen Supervisor; (16) KSP; (17) Aramark Food Service, employer of Defendants Kitchen Supervisors White and Winfrey; (18) KDOC; and (19) James L. Erwin, KDOC Deputy Commissioner, Adult Institutions. Plaintiffs allege retaliation, deliberate indifference in violation of the Eighth Amendment, and violations of due process under the Fourteenth Amendment.

         According to the complaint, Plaintiffs were kitchen workers at KSP. On January 20, 2015, non-Defendant Lt. Hines called Plaintiffs to the yard office, where they were handcuffed. Plaintiffs told staff that their personal property was still in the kitchen. Plaintiffs were placed in segregation - Plaintiff West was taken to “3 cellhouse, ” and Plaintiff Burke was taken to “7 cellhouse that is supermax.”

         Two days later, on January 22, 2015, Defendant Beavers met with Plaintiff West to investigate the situation. At this meeting, Plaintiff West found out that he was placed in segregation because he “was accused of planning an action against [Defendant] Kevin Winfrey of Aramark.” Plaintiff West told Defendant Beavers that he had no reason to take action against Defendant Winfrey and that “he and Kevin may not agree on some things but it was not severe enough to bring harm to the man.” Defendant Beavers advised Plaintiff West that if Plaintiff Burke's statements were similar to Plaintiff West's, then they would both be released soon. Three days later on January 25, 2015, both Plaintiffs were released from segregation.

         On January 26, 2015, Plaintiff West filed a theft report and a grievance regarding his missing property. Plaintiffs claim that Defendant Morris violated Plaintiff West's grievance process resulting in KSP denying him a reimbursement. Also on January 26th, both Plaintiffs filed a grievance “because they were being denied their jobs after being cleared of any wrong doing's.” Defendant Grievance Coordinator Smith rejected the grievance claiming it was a non-grievable issue as it was a classification issue. Plaintiffs report, “[w]e lost our seniority and pay, along with Burke's program completion, because [Defendant] Tim White would not listen to reason” and hire them back in the kitchen.

         At a classification hearing on February 2, 2015, Defendant Patton told Plaintiffs that he was giving them seven days to find a job; that they were not being listed as “‘unassigned'”; and that they would not be given back their kitchen jobs “based on ‘Security issues.'” Plaintiffs report that on February 6, 2015, Plaintiff West was assigned a “‘Yard Runners' position” that paid $0.80 per day and that Plaintiff Burke was placed “into ‘Yard Detail'” at the same pay rate. Plaintiffs claim that Defendant Patton “put [them] in those positions. His reasoning for doing so, was to keep us off unassigned.”

         Plaintiffs filed a classification appeal to Defendant Grief, arguing that they “are not a security risk due to the facts that [Defendant] Lt. Beavers cleared our situation of any wrong doings.” They claim that on March 3, 2015, Defendant Grief concurred with the decision of the classification committee “because we were reassigned forceably to jobs that we never requested.”

         Plaintiffs report that they “started putting in for higher paying jobs, but we were not accepted to any of them. Only then did we find out we were put into a 90 day lock from [Defendant] Tim Lane and debated the issue to [Defendant] Josh Patton about being denied higher paying jobs.”

         Plaintiffs also sent a letter to Defendant Beavers requesting a copy of his facts and findings of his investigation but received no response. They also sent a letter to Defendant Grief, disagreeing with her concurrence with the classification committee, debating the 90-day lockdown and denial of their job requests, and arguing that Defendant Timothy White, an Aramark employee, was “overstepping his bounds as a contractor.” Defendant Grief did not respond to their letter. On March 23, 2015, Plaintiffs “wrote a mass request” to Defendants Dunlap, Grief, and Beavers and non-Defendant Rodgers for a meeting with Plaintiffs and Aramark Defendants Timothy White and Winfrey, but Plaintiffs never received a response.

         On April 24, 2015, Defendant Grief told Plaintiffs that they “could put in for the kitchen again since we waited out her time frame.” Plaintiffs report that they started submitting applications to the kitchen but were not hired back. On May 1, 2015, Plaintiffs talked to Defendant Winfrey, who told Plaintiff Burke that he could talk to Defendant Timothy White about returning to the kitchen. Defendant Winfrey told Plaintiff West, however, that his return was questionable due to “past issues of disagreement” over Plaintiff West's illness in January and sick days. On May 4, 2015, Plaintiffs approached Defendant Timothy White about their prior kitchen jobs, and Defendant White said that he was withholding their jobs due to lack of clarification from Defendant Beavers regarding his investigation. Plaintiffs submitted a request to Defendant Beavers for his investigation report, and Defendant Beavers told them that he could not submit a written response without Defendant Warden Randy White's approval.

         On May 12, 2015, Plaintiffs again submitted kitchen applications. Later that day Defendant Timothy White told them that he refused to hire either of them and that he will not hire Plaintiff West back because of a past disagreement. Defendant Timothy White did not indicate why Plaintiff Burke's position was being denied and said that Plaintiffs “can ‘apply' all we want, but I won't hire you or Burke till I see fit to do so!”

         Plaintiffs report that they talked to Defendant Noel in the presence of Defendant Melton and that Defendant Noel referred them to Defendants Patton and Grief, who Plaintiffs advised they already dealt with. Plaintiffs wrote to Defendant Warden Randy White on May 26, 2015, but received no response. On June 2, 2015, Plaintiffs talked to Defendant Dunlap about Defendant Timothy White. Defendant Dunlap then went to talk to Defendant Timothy White. When Defendant Dunlap returned, he stated, “‘I'm done talking!'” and asked Plaintiffs where they are from. Plaintiffs state, “We assume that Joel Dunlap is attempting to have us transfered after asking about Tim Whites actions.” Plaintiffs then wrote Defendant former Commissioner Thompson about their issues and to prevent their transfer.

         In the amendment (DN 11), Plaintiffs report that the letter that they sent to Defendant former Commissioner Thompson was responded to by Defendant Deputy Commissioner Erwin. They claim that Defendant Erwin advised them that their “job placements are only handled no higher than the institutional Warden, and it would be forwarded to Warden Randy White.” They further claim that Defendant Erwin “inadvertantly states that by having 2 or more inmates sign that I [Plaintiff West] can be punished by D.O.C. for ‘involvement in the writing, circulation, or signing of petitions which may lead to disruptions of institutional ...

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