United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE.
Steven Bandhauer has filed a pro se civil rights complaint
pursuant to 42 U.S.C. § 1983. [R. 1] The Court conducts
a preliminary review of Bandhauer's complaint because he
has been granted permission to pay the filing fee in
installments and because he asserts claims against government
officials. 28 U.S.C. §§ 1915(e)(2), 1915A. A
district court must dismiss any claim that 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. Hill v. Lappin, 630 F.3d
468, 470-71 (6th Cir. 2010). When testing the sufficiency of
Bandhauer's complaint, the Court affords it a forgiving
construction, accepting as true all non-conclusory factual
allegations and liberally construing its legal claims in the
plaintiff's favor. Davis v. Prison Health
Servs., 679 F.3d 433, 437-38 (6th Cir. 2012).
is presently confined at the Fayette County Detention Center
in Lexington, Kentucky. He indicates that on June 18, 2017
during an evening shift in the kitchen, female officer J.
Bishop directed a group of inmates to move into the
“stripout room.” Once there, she ordered the
inmates to remove all of their clothing, to lift their
“privates, ” and to bend over and cough.
Bandhauer alleges that she also made comments that were
“way out of line.” As a result, he states that he
felt embarrassed. [R. 1 at 2-4] This incident was reported to
Captain Jones, the jail's Internal Affairs / PREA
Investigator, who concluded on July 10, 2017, that there was
a foundation for the allegation of misconduct and referred
the matter to the Director of the jail for further
consideration. [R. 1-1] Bandhauer contends that the
officer's actions violated his rights under the
Fourteenth Amendment and the Prison Rape Elimination Act, 42
U.S.C, § 15601, et seq. (“PREA”), and seeks
unspecified punitive damages. [R. 1 at 4, 8]
Court has thoroughly review plaintiff's complaint, but
concludes that it must be dismissed. First, Bandhauer has
named the Lexington-Fayette Urban County Government
(“LFUCG”) as the sole defendant in this action.
But to state a viable claim against a county for a violation
of civil rights, the plaintiff must allege that those rights
were violated because its employees were acting pursuant to
and consistent with an established county policy or custom -
a county “may not be sued under § 1983 for an
injury inflicted solely by its employees or agents.”
Monell v. Dep't of Social Servs., 436 U.S. 658,
694 (1978). See Thomas v. City of Chattanooga, 398
F.3d 426, 429 (6th Cir. 2005). Bandhauer makes no such
allegation, and his complaint against LFUCG is therefore
subject to dismissal on that ground alone.
addition, Bandhauer asserts that LFUCG violated the PREA and
the Fourteenth Amendment, but neither provides him with a
viable claim. As to the former:
The PREA is intended to address the problem of rape in
prison, authorizes grant money, and creates a commission to
study the issue. 42 U.S.C. § 15601 et seq. The statute
does not grant prisoners any specific rights. In the absence
of “an ‘unambiguous' intent to confer
individual rights, ” such as a right to sue, courts
will not imply such a right in a federal funding provision.
Chinnici v. Edwards, No. 1: 07-CV-229, 2008 WL
3851294, at *3 (D. Vt. Aug. 12, 2008). See also Jones v.
Schofield, No. 1:08-CV-7 (WLS), 2009 WL 902154, at *2
(M.D. Ga. Mar. 30, 2009) (“A reading of the Prison Rape
Elimination Act makes clear that its goal is to lessen the
occurrence of rapes in prisons across this Country. Its focus
concentrates on statistics, standards, developing
information, and regulating federal funding in an effort to
lessen prison rapes. Nowhere in the language of the Act can
it be interpreted to create a private right which may be
enforced in a § 1983 action.”). When “the
text and structure of a statute provide no indication that
Congress intends to create new individual rights, there is no
basis for a private suit, whether under § 1983 or under
an implied right of action.” Gonzaga Univ. v.
Doe, 536 U.S. 273, 286 (2002). Bandhauer there cannot
assert any claim under PREA.
reference to the Fourteenth Amendment appears to assert a
claim that the officer's conduct violated his due process
rights. But plaintiff's allegation of sexual misconduct
is a conditions of confinement claim governed by the Eighth
Amendment's prohibition against cruel and unusual
punishment, not a due process claim. Where a constitutional
claim is covered by a specific constitutional provision, the
claim must be analyzed under the standard appropriate to that
specific provision, not under the broad rubric of substantive
due process. County of Sacramento v. Lewis, 523 U.S.
833, 843 (1998); see also Graham v. Connor, 490 U.S.
386, 395 (1989) (“Where a particular Amendment provides
an explicit textual source of constitutional protection
against a particular sort of government behavior, that
Amendment, not the more generalized notion of substantive due
process, must be the guide for analyzing these
claims.”). Because the Eighth Amendment is the proper
vehicle to assert a claim related to the conditions of
confinement, a due process claim under the Fourteenth
Amendment fails as a matter of law, and must be dismissed.
Cf. Bell v. Johnson, 308 F.3d 594, 609-10 (6th Cir.
liberally construing Bandhauer's allegations as asserting
an Eighth Amendment claim, that claim would fail for two
reasons. First, while the officer's conduct might be
deemed unprofessional or a violation of state law, not every
malevolent touching by a prison guard, sexual or otherwise,
gives rise to a federal cause of action. Hudson v.
McMillan, 503 U.S. 1, 9 (1992). When an inmate claims
sexual harassment by a guard, the inmate must allege severe
or repeated sexual abuse to satisfy the objective element of
an Eighth Amendment claim. Miller v. Coning, No.
11-CV-377, 2011 WL 2708649 (D. Del. Jul. 12, 2011)
(collecting cases). Here Bandhauer alleges only an isolated
incident which was not sufficiently serious to implicate the
Eighth Amendment. Cf. Wade v. Cain, No.
09-695-RET-CN, 2011 WL 612732, at *5 (M.D. La. Jan. 13,
2011); Colston v. McLeod, No. 2: 09-CV-240, 2011 WL
673941, at *5 (W.D. Mich. Feb. 17, 2011) (“Circuit
courts consistently have held that sexual harassment, absent
contact or touching, does not satisfy the objective
requirement because such conduct does not constitute the
unnecessary and wanton infliction of pain.”).
federal law provides that “[n]o Federal civil action
may be brought by a prisoner confined in a jail, prison, or
other correctional facility for mental or emotional injury
suffered while in custody without a prior showing of physical
injury.” 42 U.S.C, § 1997e(e). Bandhauer's
indication that he suffered embarrassment as a result of the
incident fails to satisfy this threshold requirement.
Wilson v. Yaklich, 148 F.3d 596, 601 (6th Cir. 1999)
(“[A] claim of psychological injury does not reflect
the deprivation of ‘the minimal civilized measures of
life's necessities, ' that is the touchstone of a
conditions-of-confinement case”); Flanory v.
Bonn, 604 F.3d 249, 254 (6th Cir. 2010); Jarriett v.
Wilson, 162 F. App'x 394, 400 (6th Cir. 2005). This
bar applies to both statutory and constitutional claims.
Robinson v. Corrections Corp. of America, 14 F.
App'x 382, 383 (6th Cir. 2001). For each of these
reasons, Bandhauer's complaint must be dismissed.
IT IS ORDERED that:
Bandhauer's complaint [R. 1] is DISMISSED WITH
Court will enter an appropriate judgment.
matter is STRICKEN ...