United States District Court, W.D. Kentucky, Louisville Division
YALE L. BALCAR et al. PLAINTIFFS
KENTUCKY STATE REFORMATORY et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
B. Russell, Senior Judge United States District Court
Yale Larry Balcar, Carl J. Perry, Jr., and Clarence Russell,
pro se, filed a complaint on this Court's 42
U.S.C. § 1983 form. However, Plaintiff Balcar has been
dismissed from this action. This matter is before the Court
for screening 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), on the claims raised by the two
remaining Plaintiffs. For the following reasons, the
complaint will be dismissed in part and allowed to continue
SUMMARY OF CLAIMS
Perry and Russell (hereinafter “Plaintiffs”) are
incarcerated at the Kentucky State Reformatory (KSR). They
name as Defendants KSR and, in their individual and official
capacities, KSR Warden Smith; Kentucky Department of
Corrections (KDOC) Commissioner James Erwin; and Kentucky
Governor Matthew Bevin. They allege that they are
experiencing retaliation in the form of closing “the
law office which has the law library, legal copy, and
grievances of KSR.” They allege that in doing so
Defendant Smith is violating the First Amendment and their
due-process rights under the Fifth and Fourteenth Amendments.
They assert that Plaintiffs will suffer “actual injury
or harm . . . by not getting to legal books for research and
file legal documents on time and no copy of legal
further allege that they “are stop from contact the
Media or the Prison Commissioner or the Governor Matthew
Bevin for help on KSP Warden Smith wrongdoing. Warden Smith
has order the mail room to stop and destroy this type of mail
from going out.”
allege that, in retaliation by Warden Smith and Aramark,
their meals are “denied or cut down with very little
food as retaliation and is being deprivation of a life
necessity, violating the Eighth Amendment.” They also
complain that the food is not nutritious and is prepared in
complain that there are gangs at KSR who rob handicapped
prisoners. They also assert that African Americans at KSR
“received better housing, better job and better food
and as much as they want of it. This intent discrimination on
Warden Smith.” Plaintiffs allege that Defendants Erwin
and Bevin have been informed of the gang violence at KSR and
have failed to remedy it. They allege that Defendants Erwin
and Bevin are grossly negligent in not acting on information
that Warden Smith is not doing his job right.
Perry alleges that he is diabetic and cannot receive a
diabetic diet at KSR “because of Warden Smith.”
Plaintiff Perry cites to the Americans with Disabilities Act
and the Rehabilitation Act, asserting that he has been denied
diabetic meals, shoes, a safe wheelchair, “and other
Russell asserts that he has received half the food served to
relief, Plaintiffs request compensatory and punitive damages
and declaratory relief.
prisoner initiates a civil action seeking redress from a
governmental entity, officer, or employee, the trial court
must review the complaint and dismiss the action, 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 28 U.S.C. § 1915A(b)(1) and (2). 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 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. When determining
whether a plaintiff has stated a claim upon which relief can
be granted, the Court must construe the complaint in a light
most favorable to Plaintiff and accept all of the factual
allegations as true. Prater v. City of Burnside,
Ky., 289 F.3d 417, 424 (6th Cir. 2002). While a
reviewing court must liberally construe pro se
pleadings, Boag v. MacDougall, 454 U.S. 364, 365
(1982) (per curiam), to avoid dismissal, a complaint must
include “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
42 of the United States Code, Section 1983 creates no
substantive rights, but merely provides remedies for
deprivations of rights established elsewhere. As such, it has
two basic requirements: (1) the deprivation of federal
statutory or constitutional rights by (2) a person acting
under color of state law. West v. Atkins, 487 U.S.
42, 48 (1988); Flint v. Ky. Dep't of Corr., 270
F.3d 340, 351 (6th Cir. 2001). KSR is part of the KDOC. The
KDOC is a department within the Justice and Public Safety
Cabinet of the Commonwealth of Kentucky. See Exec.
Order No. 2004-730 (July 9, 2004); Ky. Rev. Stat. §
12.250. A state and its agencies, however, are not
“persons” subject to suit under § 1983.
Will v. Mich. Dep't of State Police, 491 U.S.
58, 71 (1989); see also Crockett v. Turney Ctr. Indus.
Prison, No. 96-6067, 1997 WL 436563, at *1 (6th Cir.
Aug. 1, 1997) ...