United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
L. Banning United States District Judge
Rodger Williams (aka, “Willow Williams”) is an
inmate confined at the Campbell County Detention Center
(“CCDC”) in Newport, Kentucky. Proceeding without
counsel, Williams has filed a civil-rights complaint pursuant
to 42 U.S.C. § 1983. (Doc. # 1). Williams has also filed
a Motion to Proceed in forma pauperis (Doc. # 2), as
well as a Motion for a Temporary Restraining Order (Doc. #
Court has reviewed the fee motion and will grant the request
on the terms established by 28 U.S.C. § 1915(b). Because
the Plaintiff has been granted pauper status in this
proceeding, the separate $50.00 administrative fee is waived.
See District Court Miscellaneous Fee Schedule,
to the substance of the Plaintiff's Complaint, the Court
must conduct a preliminary review of the Complaint because
Plaintiff has been granted permission to pay the filing fee
in installments and because she 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 the 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.
Complaint alleges two separate incidents giving rise to her
claims. First, she alleges that a fellow inmate, Richard
McBee, exposed himself to her several times. (Doc. # 1 at 2).
She alleges that, when she reported the incident, she was
moved immediately. Id. Thus, her claim does not
appear to be based on the exposure incident itself. Rather,
she alleges that despite her reporting of the incident, the
officers failed to take a signed statement, failed to store
any footage on a media device, and failed to write a report
within thirty days as to the disposition of the complaint,
all of which she alleges are in violation of the Prison Rape
Elimination Act (“PREA”), 42 U.S.C. § 15601
et seq. Id.
the Plaintiff alleges that Officer Taylor and Officer
Shoulties searched her body during a cell/pod search for
contraband, despite her protests and requests for a female
officer to search her. Id. The day after Officer
Shoulties searched her, the Plaintiff claims that she was
told future searches would be conducted by whomever she felt
comfortable. Id. However, she alleges that, on March
28, 2018, she was once again searched by a male officer,
Officer Hatcher. Id. She alleges that, because she
is a transgender inmate with breasts, this search violated
the PREA. Id.
on all of these allegations, the Plaintiff alleges violations
of her rights to equal protection, due process, the PREA, and
the Americans with Disabilities Act, 42 U.S.C. § 12101
et seq. (“ADA”). Id. at 3. The
only Defendant named in Williams's Complaint is James
Daley, the Jailer at the CCDC. Id. at 1.
as currently drafted, Williams's claims must be dismissed
for failure to state a claim for relief pursuant to Federal
Rule of Civil Procedure 8. A complaint must set forth claims
in a clear and concise manner, and 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); Hill v.
Lappin, 630 F.3d 468, 470 (6th Cir. 2010). Although the
Court has an obligation to liberally construe a complaint
filed by a person proceeding without counsel, it has no
authority to create arguments or claims that the plaintiff
has not made. Coleman v. Shoney's, Inc., 79
Fed.Appx. 155, 157 (6th Cir. 2003) (“Pro se parties
must still brief the issues advanced with some effort at
developed argumentation.”). Vague allegations that one
or more of the defendants acted wrongfully or violated the
plaintiff's constitutional rights are insufficient.
Laster v. Pramstaller, No. 08-cv-10898, 2008 WL
1901250, at *2 (E.D. Mich. Apr. 25, 2008).
to the extent that the Plaintiff seeks to bring a claim
pursuant to the PREA, “the PREA does not create a
private cause of action which can be brought by an individual
plaintiff.” Montgomery v. Harper, No.
5:14-cv-38-TBR, 2014 WL 4104163, at *2 (W.D. Ky. Aug. 19,
2014) (collecting cases); see also Hodge v.
Burkhart, No. 15-cv-105-GFVT, 2016 WL 2986262, at *5
(E.D. Ky. May 20, 2016); Duncan v. Grief, No.
5:17-cv-42-GNS, 2017 WL 3014827, at *4 (W.D. Ky. July 14,
2017). “The PREA is intended to address the problem of
rape in prison, authorizes grant money, and creates a
commission to study the issue.” Hodge, 2016 WL
2986262, at *5 (quoting Chinnici v. Edwards, No.
1:07-cv-229, 2008 WL 3851294, at *3 (D. Vt. Aug. 12, 2008)).
However, the “statute does not grant prisoners any
specific rights, ” and “[i]n the absence of an
‘unambiguous' intent to conger individual rights
… courts will not imply such a right.”
Id. (citing Chinnici, 2008 WL 3851294, at
*3). Thus, Plaintiff's claims alleging violations of the
PREA must be dismissed for failure to state a claim upon
which relief can be granted.
does the Plaintiff's Complaint state a claim for a
violation of the ADA. Although the Plaintiff fails to specify
her alleged disability upon which her claim is based,
presumably she is inferring that she is disabled because she
is transgendered. However, transsexualism and/or gender
identity disorders not related to a physical impairment are
not “disabilities” under the ADA. See 42
U.S.C. §§ 12211(b), 12102; see also Johnson v.
Fresh Mark, Inc., 337 F.Supp.2d 996, 1001 (N.D. Ohio
2003), aff'd, 98 Fed.Appx. 461 (6th Cir. 2004).
with respect to Plaintiff's remaining equal-protection
and due-process claims, she fails to name a viable defendant
against whom these claims may proceed. The only defendant
named in her Complaint is James Daley, the Jailer of the
CCDC. However, Williams alleges no facts whatsoever
connecting Daley to any alleged violations of her
equal-protection or due-process rights. Under 42 U.S.C.
§ 1983, “[g]overnment officials may not be held
liable for the unconstitutional conduct of their subordinates
under a theory of respondeat superior.” Iqbal,
556 U.S. at 676; see also Bellamy v. Bradley, 729
F.2d 416, 421 (6th Cir. 1984). A plaintiff must “plead
that each Government-official defendant, through the
official's own individual actions, has violated the
Constitution.” Iqbal, 556 U.S. at 676 (citing
Monell v. New York City Dep't of Soc. Servs.,
436 U.S. 658, 691 (1978)). Therefore, for a supervisor (such
as Jailer Daley) to be held liable under § 1983, he must
have personal involvement in the alleged unconstitutional
conduct in order to be held liable for the conduct about
which the Plaintiff complains. Shehee v. Luttrell,
199 F.3d 295, 300 (6th Cir. 1999). The mere fact that a
defendant acted in a supervisory capacity is not enough:
respondeat superior (vicarious liability) is not an
available theory of liability in a § 1983 action.
Polk County v. Dodson, 454 U.S. 312, 325-26 (1981).
the Plaintiff makes allegations regarding the conduct of
other individual guards and officers, the Complaint does not
name any of these officers as defendants. Simply put, as
there are no allegations regarding any purported conduct by
Jailer Daley, there is no basis for imposing liability on
Daley. Thus, Plaintiff's claims against Daley must be
the Plaintiff's due-process and equal-protection claims
against Daley were construed to be brought against him in his
“official” capacity, an “official
capacity” claim against a state officer is not a claim
against the officer arising out of his conduct as an employee
of the state, but is actually a claim directly against the
state agency which employs him. Lambert v. Hartman,
517 F.3d 433, 439-40 (6th Cir. 2008); Alkire v.
Irving, 330 F.3d 802, 810 (6th Cir. 2003) (“While
personal-capacity suits seek to impose personal liability
upon a government official for actions he takes under color
of state law, individuals sued in their official capacities
stand in the shoes of the entity they represent.”)
(internal quotation marks omitted). Thus, to the extent that
the Plaintiff seeks to bring claims against Daley in his
“official capacity, ” such claims are construed
as civil-rights claims against the municipality, Campbell
while the Plaintiff claims that the actions of the jail staff
were wrongful, she does not assert that these actions were
taken pursuant to an established policy or custom of Campbell
County. Because a county government is only responsible under
§ 1983 when its employees cause injury by carrying out
the county's formal policies or practices, a plaintiff
must set forth sufficient factual allegations regarding the