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McKinney v. Kentucky Dept. of Corrections

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

February 12, 2018



          David J. Hale, Judge

         Plaintiff Robert McKinney filed the instant pro se 42 U.S.C. § 1983 action proceeding in forma pauperis (Docket Number 1). The complaint is now before the Court for initial screening pursuant to 28 U.S.C. § 1915A. For the reasons stated below, the Court will dismiss some of Plaintiff's claims and allow others to proceed for further development.


         Plaintiff, an inmate currently housed at the Northpoint Training Center, sues the Kentucky Department of Corrections (KDOC) and eighteen KDOC personnel. Their names and job titles as stated by Plaintiff are as follows: James Erwin, Commissioner of the Kentucky Department of Corrections; Gregory S. Howard, “Former Employee” of KDOC; Keith Helton, Acting Warden for Blackburn Correctional Complex (BCC); Charles Wilkerson, “Central Office Administrator (PREA)” of KDOC; Abby McIntire, Deputy Warden for BCC; Belinda Sanchez, Unit Classification Supervisor for BCC; Chad Hockinsmith, “Former Employee” of BCC; M. Burns, Sgt. of Internal Affairs for BCC; Jason Lotter, Adjustment Committee Officer for BCC; Jeff Hulker, “Internal Affairs (Central Office)” for KDOC; Miranda Rodgers, “Internal Affairs (Former Parole Officer)” for KDOC; John Dunn, State Wide Grievance Coordinator for KDOC; Philip A. Campbell, Administrative Section Supervisor at Kentucky State Reformatory

         (KSR); Eric Sizemore, “Correctional Captain (Internal Affairs)” for BCC; Jodi Williams, Records Supervisor for KSR; Aaron Smith, KSR Warden; Anna Valentine, Deputy Warden for KSR; and John Hall, Sexual Abuse Coordinator for KSR.[1] He[2] sues each Defendant in his or her individual and official capacities.

         Plaintiff alleges that he was assigned to an outside work program at the Kentucky State Penitentiary (KSP) in 2009. He states that he was assigned to live two doors down from Defendant Howard's home, where he was given duties, such as cleaning and yard work, which brought him into direct contact with Defendant Howard. Plaintiff states that he became fearful of Defendant Howard “as he started to make sexual comments, then . . . sexual demands upon him.” He states, “McKinney was forced by fear and . . . threat to commit oral sodomy upon Howard, this occurred eleven (11) times within Lyon County at the Prison.”[3]

         According to the complaint, Plaintiff was later released to a halfway house, but he returned to prison after violating his parole in August 2011. He asserts, “Howard used his authority to have McKinney moved to the Bell County Forestry Camp (BCFC) located in Pineville, Kentucky where he had been promoted as the Warden of this facility, in order to further assault and abuse McKinney.” During his incarceration there, Plaintiff was repeatedly “forced to perform oral sodomy on Howard . . . .” Plaintiff states, “Each time Howard's aggression and violence grew more intense and painful.”

         In 2014, Plaintiff was again released to a half-way house. He maintains that Defendant Rogers assigned him to a halfway house for a Substance Abuse Program where he had previously had problems with a staff member and therefore worried he would again have trouble there. He states, “McKinney had no one to turn to concerning this matter. McKinney turned to Gregory Howard, for help.” He states that he met with Defendant Howard in Louisville about what could be done about his assignment. Plaintiff states, “Howard told McKinney if he would go with him to a motel located down the street, he would do what he could to get that assignment changed. McKinney accompanied Howard to the motel” where Plaintiff states that he was again sexually abused by Defendant Howard. He states, “This was the last time Howard physically sexually abused him, but Miranda Rogers did, in fact change the assigned program that Plaintiff was released to . . . at Howard's request. Thus [Rogers] was intentionally and knowingly aiding him in these assaults etc.”

         Plaintiff reports that he was later temporarily transferred to the Luther Luckett Correctional Complex (LLCC). He states that upon arriving there he learned that Defendant Howard was now the warden of LLCC. According to the complaint, “Howard started threatening and sexually harassing McKinney at first sight, he also made the comment about ‘allowing' McKinney to remain at this location for housing in the minimum security section for inmates with the intent of continuing the sexual abuse of Plaintiff.” He asserts that he lived in fear of Defendant Howard and contemplated harming himself. He states that he worried that the sexual abuse would result in his death in prison “if Howard feared the plaintiff would tell someone about his assaults on Plaintiff or the information Howard had revealed about the ongoing RICO conspiracy. That is, Howard shared details of the LaGrange Wardens recycling scam, where they were profiting from recycled materials within the prison.”

         Plaintiff reports that he was again transferred to a halfway house. He maintains that he later was informed that Defendant Howard had been terminated from the KDOC. He states, “However, Howard was allowed to continue to reap the benefit of his retirement package due to the fact his superior LaDonna Thompson had allowed him to retire and walk way, utilizing the retirement funds paid to Howard as hush money.” Plaintiff asserts that Defendant Howard received his retirement even after “Central Office I.A. investigators” discovered that Howard was involved in fraud and theft of state property. He states as follows:

That is, the recycling company was paying Howard and other KDOC Officials by check directly into their personal banking accounts. His superiors allowed this fact to not be reported to the Commonwealth's Attorney General or the Oldham County Commonwealth's Attorney's Office, because they knew, revealing such would result in Howard implicating them as well. Based upon information and belief, this is nothing less than a continuation of criminal activity/enterprise (RICO Act Offense committed at several LaGrange Facilities of the KDOC, with complete knowledge of Justice Cabinet Supervisors etc.) and the conspirators cover up of these crimes by these Department of Corrections and Justice and Public Safety Cabinet Officials.

         Plaintiff further maintains that he “was retaliated against as set forth herein, in an effort to deter Plaintiff from revealing the facts and knowledge [he] obtained regarding these matters, from Gregory Howard.” He states, “Furthermore, many other Justice Cabinet Officials were, and are, constantly operating in fear, under threat of further retaliation if they involve themselves in this matter, or cooperate with plaintiff in seeking justice herein.”

         Plaintiff was again returned to the LLCC for failure to report to his halfway house, which he maintains was reduced from a major to a minor offense. The disciplinary write-up attached to the complaint is dated April 29, 2016. Plaintiff states that he “then initiated reporting the rape etc., of the sexual abuse he endured. This report was made at the [LLCC] . . . .” He states that LLCC officers sent emails to BCFC and KSP “to initiate the criminal and internal investigations.” He states, “Plaintiff was interviewed by an investigator from [KSP] . . . for almost five (5) minutes on the telephone as he asked how many times this occurred and where. This was all the information that was required from Plaintiff for his investigation.” He further states, “Plaintiff was interviewed by Kentucky State Police Detective Sanu . . . . This interview was brief, lasting only a few minutes . . . . I was never contacted again by this State Police Detective.” He maintains, “Plaintiff has written several requests for information regarding the conclusion of his findings without any response.” He asserts that non-Defendant LLCC employees were present during these interviews.

         Plaintiff reports that he was not sent back to the half-way house from where he was transferred, which KDOC policy would have required. He was instead “sent to the BCC (a more secure facility), where Howard had close relationships with staff and could direct staff's actions in retaliation against Plaintiff.” Once he arrived at BCC, Plaintiff states that he was visited by a counselor from the Bluegrass Rape Crisis Center, which “is contracted through the [KDOC] Prison Rape Elimination Act (PREA) grant from the United States Department of Justice. This advocate[] works independently from the [KDOC].” Plaintiff states that he was also interviewed by the investigator from the BCFC and that the interview took place in person with the Bluegrass Rape Crisis Center counselor present. He states, “This interview was very detailed and the investigator allowed the plaintiff the time and patience required to bring forth the details of the sexual abuse. This interview was recorded and transcribed into a written transcript . . . .”

         Plaintiff states that he “applied for an outside work detail as he was [in] community custody, Plaintiff submitted the application for the on the job training and the goodtime that is earned to shorten his sentence as other community custody inmates earn.” According to the complaint, he was notified on June 22, 2016, that his application was denied due to the fact that he had pending disciplinary reports. However, he learned through an Open Records Request on June 27, 2016, that he had no pending disciplinary reports. Plaintiff asserts, “Plaintiff was denied the good time awards and the training based on retaliation. Belinda Sanchez had been hired at [BCFC] by Gregory Howard and the Deputy Warden that also denied the request Abby McIntire had also worked with Gregory Howard.”

         Plaintiff states that also on June 27, 2016, the KSP investigator completed his report and investigation. According to the complaint, the investigator spoke with Defendant Howard who “admitted that we had e-mailed but stated he had not had sexual contact, therefore the investigation was deemed ‘unsubstantiated.'” Plaintiff states that on June 28, 2016, the BCFC investigator completed his investigation and found the allegations to be “‘Unsubstantiated.'”

         Plaintiff asserts that he received the April 29, 2016, Disciplinary Report which caused him to be sent to LLCC “in an effort by unidentified KDOC/Justice and Public Safety Cabinet Staff to justify/facilitate returning Plaintiff to the custody” of LLCC, which had a new Warden, non-Defendant Mervin Haddix, who was “close friends, and coconspirators in an ongoing organized criminal organization within the KDOC, whom were committing thefts, frauds and other acts for profit utilizing their positions as wardens at LLCC and prior institutions.” Plaintiff states that Haddix, “at the behest of Howard, accomplished the return transfer of Plaintiff to LLCC, for the purpose of obstructing the initial investigation into the rape allegations which had begun to circulate in the KDOC staff circles in LaGrange Kentucky.” Plaintiff further states that on the same day he was transferred to LLCC Haddix was removed as Warden when KDOC officials “caught wind of the criminal conspiracy and attempts to obstruct justice by Haddix[]” and that he “was allowed to retire, just as Howard had, in an effort to utilize the retirement funds as hush money.”

         Plaintiff also alleges that he was given a reclassification on November 16, 2016, “stating I was no longer qualified for Class D housing due to the Disciplinary Reports received at [BCC], this appeal was submitted on 06/08/2016.” He asserts that he was retaliated against by Defendants McIntire and Sanchez and alleges “the fact of the ongoing activity of retaliation to force Plaintiff not to pursue his report and request for assistance in the report of sexual abuse by Howard. The classification and the good time was denied for a false claim of pending disciplinary in June 22, 2016.”

         Plaintiff further states that Defendant Hockinsmith called Plaintiff to his office at BCC and explained that he was a PREA investigator and wanted to speak with him. According to the complaint, Defendant Hockinsmith “questioned me for more than two hours, is now believed he recorded the conversation to compound evidence against my claim against Gregory Howard, internal affairs officer entered the office as I was leaving.” Plaintiff states, “Some of the content of the questions would lead an abused person to think it was possible that the two was getting a sexual gratification from the conversation as the questions became graphic in detail. This was reported to the Depart of Justice PREA Crisis Line.” Plaintiff states, “Shortly after the report (recorded call), I was called to the Office once again and threatened ‘if' I called that line again he would find me another place to live I would not like as much June 29, 2[0]16.” Plaintiff then again called the line and “reported what he had said and that I was afraid of him, he had falsified his involvement in the investigation, he was not a PREA investigator for the investigation concerning my report, it was later discovered he had worked with Gregory Howard at an earlier date.”

         Plaintiff asserts that after he stated on the Department of Justice (DOJ) rape crisis line that he was going to write a letter to an “Attorney/State Representative (House Judiciary Committee Co-Chairman) reporting the sexual abuse by an employee and thefts state employees Howard and Mervin Haddix had committed June 29, 201[6].”[4] According to the complaint, Defendant Acting Warden Helton went to the legal office and took the letter. Plaintiff states, Defendant “Sgt. M. Burns Internal Affairs Officer presented me with a receipt on June 29, 2016.” Plaintiff reported this action to the DOJ rape crisis line “to preserve the record.” He states, “E-mails that was circulated between Hockinsmith and acting Warden Keith Helton, stating that the legal letter had been taken from the legal library, that Helton incorrectly states the letter was not to be typed in the legal library . . . .” Plaintiff asserts, “Hockinsmith stated in this June 29, 2016 e-mail that ‘he could find me a higher security level', and I reported this to the Crisis Line Operator. Keith Helton admits to taking the legal letter and keeping Charles Wilkerson informed of the content of the letter.” Plaintiff further states as follows:

Chad Hockinsmith then called me back to his office and threatened me after I had reported the taking of the letter on the same day, June 29, 2016 and his threats in the e-mail and that he had stated to me he could find me another place to live that I would not like as much. That he eventually did. I was transferred to North Point Training Center that had been burned to the ground just prior due to inmate rioting and violence. This atmosphere is threating and dangerous for . . . nonviolent offenders. The only way to achieve this goal is to continue to use disciplinary reports to elevate Plaintiffs custody from community to medium custody. This exact amount of disciplinary reports needed to achieve this custody and Plaintiff was transferred to that facility.

         Plaintiff states that he again called the DOJ rape crisis line and reported the continuation of retaliatory action. The operator told him to find someone who was not involved who was to call her directly. Plaintiff asserts that he gave the number to Defendant Sizemore who then contacted Defendant McIntire. He states that Defendant McIntire “retrieved the confidential/protected phone call from the rape crisis center and provided it to the Captain. He then used the information she gave him to issue yet another Disciplinary Report.” He states that the Warden later removed the Disciplinary Report from the record “due to the fact the call was unlawfully retrieved, and it had listed Abby McIntire as the sorce of the information . . . .” Plaintiff maintains that Defendant Hockinsmith told him to report to the control center and told Plaintiff that he “needed to be reviewed for possible detention (lockup) due to several pending major disciplinary reports . . . .” However, Defendant Helton determined that Plaintiff was not a flight risk, discovered there were no pending disciplinary reports, and released him to the yard. According to the complaint, Defendant Sizemore of Internal Affairs was present, and Plaintiff told him about Defendant Hockinsmith's threats, gave him the number for the rape crisis line operator, and “told him I was confused because I did not understand how Hockinsmith was aware of the content of my confidential phone calls.” Plaintiff reports that he asked Defendants Helton and Sizemore to be moved from the dorm controlled by Defendant Hockinsmith but they denied his request.

         Plaintiff states that the following day Defendant Hockinsmith entered a Disciplinary Report against him “for reporting that he had threatened me the day before ‘that he could find me a place I would not like as much', he stated this was a lie and that I was lying to an employee when I made that report to the confidential DOJ Rape Crisis Call line[.]” According to the complaint, the Disciplinary report stated that Defendant PREA Coordinator Wilkerson had e-mailed Defendant Hockinsmith that Plaintiff had reported his actions and attached the “actual recorded confidential phone call . . . .” Plaintiff states that at the disciplinary hearing, Hockinsmith denied having Plaintiff sent to the control center to have Plaintiff reviewed for possible flight risk. However, Plaintiff asserts, “Hester had testified that this was not true and in fact the e-mail that Hockinsmith had sent him was still available.” Plaintiff states that he was denied the use of the recorded phone call as evidence and ...

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