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Violett v. Dowden

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

February 26, 2018

DONALD R. VIOLETT PLAINTIFF
v.
CASEY DOWDEN et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          Thomas B. Russell, Senior Judge

         Plaintiff Donald R. Violett, a prisoner incarcerated at Kentucky State Reformatory (KSR), filed a pro se complaint (DN 1). Subsequently he filed two motions to amend (DNs 7 & 11), which the Court granted. On November 29, 2017, the Court performed initial review of the complaint and amendments (DN 12). Upon initial review, the Court allowed 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 allowed Plaintiff 30 days to file an amended complaint as to 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 (RHU); and (3) the Eighth Amendment claim regarding Plaintiff slipping and falling because he was denied the use of his walker and assistance.

         On December 19, 2017, Plaintiff filed an amended complaint (DN 16). The amended complaint is now before the Court for 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 raised in the amended complaint to proceed: (1) the official-capacity claims under Title II of the ADA against Defendants Lefebvre and Royalty; and (2) the Eighth Amendment claim regarding the conditions of his confinement while Plaintiff was housed in the RHU against Defendant Valentine in her individual capacity for monetary damages. The following claims will be dismissed: (1) the claim under Title I of the ADA; (2) the Eighth Amendment claim regarding slipping and falling; (3) the Eighth Amendment claims against Defendants Lefebvre and Royalty regarding the conditions of confinement while Plaintiff was housed in the RHU; (4) the claim regarding Defendants using inmates as hit men; and (5) the retaliation claims.

         I. STANDARD OF REVIEW

         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).

         II. SUMMARY AND ANALYSIS OF CLAIMS

         In the “Parties” section of the amended complaint, Plaintiff names the same five Defendants that he named in his original complaint and amendments: Dowden, Turner, Hall, Valentine, and Domalewski. He indicates that he sues Defendants Dowden, Hall, and Turner in their individual and official capacities. He indicates that he sues Defendant Domalewski in his individual capacity only, and he fails to state in what capacity he sues Defendant Valentine. However, in the original complaint, Plaintiff sued Defendant Valentine in her individual capacity; thus, the Court construes Plaintiff's amended complaint as suing her in her individual capacity. Additionally, in the body of the amended complaint, Plaintiff seeks to add Sgt. Lefebvre and Sgt. Royalty as additional Defendants; he provides summonses for these two Defendants. Plaintiff states that he sues Defendants Lefebvre and Royalty in their official capacities only. As relief, Plaintiff seeks monetary damages, legal expenses, and to be “restored to state run programs.”

         In the amended complaint, Plaintiff sets forth facts that he set forth in the complaint and amendments that have already been reviewed by the Court. In the present review, the Court will not address these repeated allegations. As to these matters, the Court's prior Memorandum Opinion and Order (DN 12) remains in effect unless altered herein. The Court will only address the claims it gave Plaintiff an opportunity to amend and any new claims asserted by Plaintiff.

         A. Claim under Title I of the ADA

         In the amended complaint, Plaintiff asserts a new claim under Title I of the ADA. It is difficult to ascertain what Plaintiff is alleging as a violation of Title I of the ADA. He states that he seeks to bring a claim under Title I and Title II of the ADA against Defendants Lefebvre and Royalty because he, a “designated handicapped” individual, was denied access to a walker while in the RHU “because the gate is too small for walkers and wheelchairs to go through.” 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). As set out by the statute, Title I provides:

No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment .

42 U.S.C. § 12112(a). It does not appear that Plaintiff is asserting a claim that he lost his employment as a result of discrimination by Defendants Lefebvre and Royalty.

         Accordingly, Plaintiff's claim under Title I of the ADA against Defendants Lefebvre and Royalty will be dismissed.

         B. Claims under ...


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