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Violett v. Dowden

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

November 29, 2017



          Thomas B. Russell, Senior Judge United States District Court.

         Plaintiff Donald R. Violett, [1] a prisoner presently incarcerated at Kentucky State Reformatory (KSR), filed a pro se complaint (DN 1) alleging discrimination and constitutional violations. Subsequent to the filing of the complaint, Plaintiff filed a “Motion to Amend Complaint and Add Additional Defendants” (DN 7). In this motion, he seeks to add Correct-Care Solution (CCS) as a new Defendant to this action, and he asserts claims of retaliation, discrimination, and violations of the Eighth Amendment. Thereafter, Plaintiff filed a “Motion to Name Specific Defendant And Submit Proof Of Retaliation” (DN 11). Therein, Plaintiff seeks to add LPN Domalewski as a Defendant and asserts a claim of retaliation and a claim of deliberate indifference as to Plaintiff's safety against this Defendant. Upon consideration, IT IS ORDERED that Plaintiff's motions to amend (DNs 7 & 11) are GRANTED.

         The complaint and amendments are before the Court for initial review 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 reasons that follow, the Court will allow the following claims to proceed: (1) the claim against Defendant Turner in her individual capacity alleging that she retaliated against Plaintiff by filing a disciplinary report; (2) the claim against Defendants Dowden, Turner, Hall, and Valentine in their individual capacities alleging that they retaliated against Plaintiff by barring him from the law library and the use of computers to draft legal documents; (3) the claim against Defendant Domalewski in his individual capacity for retaliation by filing a false report; (4) the equal protection claim against Defendants Dowden, Turner, Hall, and Valentine in their individual capacities; (5) the access-to-courts claim against Defendants Dowden, Turner, Hall, and Valentine in their individual capacities; and (6) the Eighth Amendment claim against Defendant Domalewski in his individual capacity for deliberate indifference to Plaintiff's safety. Further, the Court will allow Plaintiff to amend the following three claims: (1) the claim brought under Title II of the Americans with Disabilities Act (ADA); (2) the retaliation claim regarding being placed in the Restricted Housing Unit; and (3) the Eighth Amendment claim regarding Plaintiff slipping and falling because he was denied use of his walker and assistance. The remaining claims will be dismissed.


         Plaintiff names four Defendants in his complaint and two additional Defendants in his amendments. He identifies the six Defendants as follows: (1) Casey Dowden, a Case Worker at KSR; (2) Teresa Turner, a Case Worker at KSR; (3) John Hall, a Unit Administrator at KSR; (4) Anna Valentine, a Deputy Warden at KSR; (5) CCS; and (6) Mr. Domalewski, an LPN with CCS. Plaintiff asserts claims of retaliation; claims under the Fifth, Eighth, and Fourteenth Amendments; and claims under the Americans with Disabilities Act (ADA). Plaintiff sues Defendants in their individual capacities. As relief, Plaintiff seeks monetary damages, an order restraining Defendants from retaliating against him, restoration of his right to use program computers to prepare legal documents, and costs.

         In his complaint, Plaintiff states that he is designated by the KSR “medical department to be handicap, having to use a rolling walker, at all times during the incidents” about which he complains. Plaintiff states that he uses the walker because of problems with numbness in his feet and legs and because he “is subject to falls, causing serious pain and suffering, and has had a heart attack and surgery.” Plaintiff states that up until April 7, 2016, he was “involved in the work assignment program as an assigned legal aide, in the [KSR] legal office, having been in that program since 2006.” Plaintiff asserts that because of his handicap, he is not to use the steps to the building where the KSR legal office is located, but he is to use “only the designated handicap door to enter or exi[t] that building, as the Plaintiff is subject [to] fall trying to carry the rolling walker up or down the steps.” Plaintiff states that the KSR Fire & Safety Coordinator, Mr. Hillebrandt, gave Plaintiff a direct order to “use the designated handicap door to enter or exi[t] the building where the [KSR] legal office is located.” Plaintiff states that prior to April 6, 2016, he “had multiple problems with [KSR] staff locking the designated handicap door so handicap people could not enter or exi[t] the building where the [KSR] legal office is located.”

         According to Plaintiff, when he tried to report to the KSR legal office on April 6, 2016, the “designated handicap door was locked.” Plaintiff had to enlist someone to get a KSR staff member to unlock the door “so he and other handicap people could enter the building.” The staff member who unlocked the door informed Plaintiff that she had been told to keep the door locked and that Plaintiff and others need to “use the regular door to enter the building.” Shortly thereafter, Plaintiff states, he tried to exit the building to go to the canteen. According to Plaintiff, when he tried to do so, the “designated handicap door” was locked, and he needed to get a staff member to open the door so he could exit. Again, according to Plaintiff, when he tried to return to the legal office, the same thing happened. Plaintiff states that locking the door violated KSR “post orders to keep the designated handicap door unlocked when there are handicap people in the building.”

         Plaintiff states that on April 7, 2016, he was transported to the University of Louisville Hospital for tests for heart problems. According to Plaintiff, when he returned to KSR he was called to the legal office and told that he “was released from his work assignment program because the Plaintiff complained about the designated handicap door being locked on April 6, 2016 four [4] times.” Plaintiff states that when he tried to file a grievance about the locking of the handicap door on this same date, Defendant Turner “said she would issue a disciplinary report against [him] if he filed a grievance, as she had decided the designated handicap door was to stay locked at all times.” Plaintiff states that he was not permitted to file a grievance until April 21, 2016. According to Plaintiff, on April 22, 2016, a disciplinary report was issued against him for using “disrespectful[] language toward staff when complaining about the designated handicap door being locked on April 6, 2016.” According to Plaintiff, the disciplinary report was dismissed on April 24, 2016.

         Plaintiff alleges that Defendant Turner and Defendant Hall worked ‘in collusion to bar the Plaintiff from having access to the legal library so the plaintiff could work on his criminal case and prepare legal pleadings to file a collateral attack against Plaintiff's illegal conviction, causing the Plaintiff to miss deadline . . . .” Plaintiff states that Defendant Turner was replaced by Defendant Dowden “who then work[ed] in collusion with [Defendant] Valentine and [Defendant] Hall to remove specific computers from the KSR legal library so the Plaintiff could not prepare any typed legal pleadings collaterally attacking his criminal conviction . . . .” According to Plaintiff, in June 2017, all legal work he had stored in a certain computer was destroyed so Plaintiff could not have copies; however, Defendants “permitted others to type, copy, their prepared legal pleadings and only the Plaintiff is not allowed to type on computers, because the Plaintiff is handicapped with mental illness issues.” According to Plaintiff, Defendants “are working in the collusion to prevent the Plaintiff to participate in a program enjoyed by non-handicap or mental illness inmates.” Plaintiff continues, “In short, the named Defendants are working in collusion with other inmates to stop the sex offenders from preparing legal pleadings while non-sex offenders enjoy the right to use program computers to prepare, type, copy legal work and this has caused irreparable injuries to the Plaintiff.”

         Plaintiff asserts that “[s]ex offenders are considered to have mental health issues.” Plaintiff states that they receive mental health treatment and, if convicted after 1998, are required to complete the Sex Offender Treatment Program. According to Plaintiff, “[t]his is what makes a sex offender ‘handicap' because he has a mental health illness issue.” Plaintiff alleges that Defendants do “not give a sex offender the same legal aid assistance as a non-sex offender.” Further, Plaintiff states that since Defendant Dowden replaced Defendant Turner, Defendants have “only hired non handicap people to work in the assigned programs as Legal Aides, grievance Aides, [and] legal clerks.” Plaintiff alleges that Defendants are discriminating against him because he is handicapped by not allowing him to participate in state-run programs. Further, Plaintiff alleges that Defendants retaliated against him because he exercised his right to complain about an ADA violation about the lack of access to a building where a state-run program was conducted.

         In Plaintiff's first amendment to the complaint (DN 7), he states that “Defendants and others retaliated [against him] by locking him up in Restricted Housing Unit (the Hole) and taking the Plaintiff's walker away so he could not have any assisted way to walk or get around.” Plaintiff states that he was placed in restricted housing on September 17, 2017. According to Plaintiff, the toilet in his restricted housing cell did not work, and he could not “use the toilet or clean himself” until September 19, 2017, when he was removed from the restricted housing cell “so staff could dry up the rain water and sewer water that was on the cell floor.” Plaintiff represents that when he was instructed to return to his cell, he attempted to do so without the assistance of a walker or a staff member, and he “fell in water, hitting his head, elbow, and hip on steel bars and concrete floor.” Plaintiff contends that this was an “act of delirate indifference and overt act of retaliation and discrimination to deny a handicap person assistance to walk without fear of additional injury.”

         According to Plaintiff, KSR staff called Defendant CCS “to give aid to Plaintiff because [he] was knocked out and bleeding from his right elbow.” Plaintiff states that CCS staff was unable to put him in a wheelchair because he was “knocked-out and hurt in his back.” Further, Plaintiff states that the door was too small for a wheelchair. According to Plaintiff, this was “[a]nother A.D.A. violation.” Plaintiff continues by stating that CCS staff placed him on a back board, but dropped him back onto the concrete floor causing him additional injury. Plaintiff states that KSR staff then called the “KSR medical ambulance, ” and Plaintiff was transported to the hospital “[f]or proper medical care.”

         In this first amendment to the complaint, Plaintiff alleges the “named Defendants” retaliated and discriminated against him. He further asserts an Eighth Amendment violation alleging that the conditions in the restricted housing cell contributed to his fall and being dropped from the back board.

         In Plaintiff's second amendment to the complaint (DN 11), he begins by stating that his prior allegations are “covered under [the] American[s] with Disabilities Act.” He states that Defendants use “known ‘hit-men' inmates to assault the Plaintiff, causing physical injury to Plaintiff then Defendants awards the hit-men for their actions.” Plaintiff states that since the filing of his complaint, he was injured “when he was denied access to his rolling walker and fell.” Further, he alleges he was dropped by a CCS employee “face-first into the concrete floor while Plaintiff was belly-handicapped and strapped to a back board, causing a neck, elbow and hip injury to the Plaintiff.” Plaintiff continues,

Now, in retaliation for filing this complaint, one of the [CCS] employees has filed a false report by not telling the truth why Plaintiff was injured. LPN Domalewski is not qualified to state if Plaintiff has internal injuries to the Plaintiff's neck, elbow or hip after LPN Domalewski did not report he dropped the Plaintiff while Plaintiff was strapped to the back board. KSR staff witnessed the deliberate indifference to the Plaintiff's medical care, and KSR-EMT staff told LPN Domalewski he was not qualified to move or try to transport the Plaintiff on a back board.


         When a prisoner initiates a civil action seeking redress from a governmental entity, officer, or employee, the trial court must review the complaint and dismiss the complaint, or any portion of it, if it determines that the complaint 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. 28 U.S.C. § 1915A; McGore v. Wrigglesworth, 114 F.3d at 604. A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 90 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 district court “to explore exhaustively all potential claims of a pro se plaintiff, [and] would also transform the district court from its legitimate advisory role to the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).


         A. Claims Pursuant to Title II of the ADA

         Plaintiff alleges that Defendants discriminated against him by denying him access to the law library and computers to draft documents. The ADA “forbids discrimination against persons with disabilities in three major areas of public life: employment, which is covered by Title I of the statute; public services, programs, and activities, which are the subject of Title II; and public accommodations, which are covered by Title III.” Tennessee v. Lane, 541 U.S. 509, 516-17 (2004). Title II of the ADA prohibits a public entity from discriminating against disabled individuals and states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The term “public entity” is defined, in relevant part, as “any State or local government.” 42 U.S.C. § 12131(1)(A). The Sixth Circuit has held that the ADA does not permit public employees or supervisors to be sued in their individual capacities. Williams v. McLemore, 247 Fed.Appx. 1, 8 (6th Cir. 2007) (“We have held repeatedly that the ADA does not permit public employees or supervisors to be sued in their individual capacities.”); Lee v. Mich. Parole Bd., 104 Fed.Appx. 490, 493 (6th Cir. 2004) (“[N]either the ADA nor the RA impose liability upon individuals.”); Tanney v. Boles, 400 F.Supp.2d 1027, 1044 (E.D. Mich. 2005) (“[N]either the ADA nor the RA allows suits against government officials in their individual capacity.”). Consequently, since Plaintiff brings his ADA claims against Defendants in their individual capacities, these claims will be dismissed.

         Accordingly, claims brought pursuant to Title II of the ADA against Defendants in their individual capacities will be dismissed from this action.

         However, “under Rule 15(a) a district court can allow a plaintiff to amend his complaint even when the complaint is subject to dismissal under the PLRA [Prison Litigation Reform Act].” LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013). The Court will allow Plaintiff an opportunity to amend his complaint to name Defendants in their official capacities as to the claim under Title II of the ADA, if he so chooses.

         B. Claims Pursuant to Title III of the ADA

         Plaintiff alleges that Defendants discriminated against him by denying him access to the law library and computers to draft documents. Title III of the ADA prohibits discrimination in places of public accommodation against persons with disabilities. 42 U.S.C. § 12182(a). Title III of the ADA defines “public accommodation” as follows:

         The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce-

(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;
(B) a restaurant, bar, or other establishment serving food or drink;
(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
(D) an auditorium, convention center, lecture hall, or other place of public gathering;
(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
(F) a Laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health ...

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