United States District Court, E.D. Kentucky, Southern Division, London
TONY T. CLARK, Plaintiff,
WARDEN ORMOND, et al., Defendants.
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT
Tony T. Clark has filed a complaint asserting civil rights
claims against federal officials pursuant to the doctrine
announced in Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971). [R. 1] The Court must
conduct a preliminary review of Clark's complaint because
he has been granted permission to pay the filing fee in
installments and because he asserts claims against government
officials. 28 U.S.C. §§ 1915(e)(2), 1915A;
Davis v. Prison Health Servs., 679 F.3d 433, 437-38
(6th Cir. 2012).
alleges that on January 5, 2016, Lt. Sturgill issued an
Incident Report charging him with refusing to obey a direct
order earlier that day. When Sturgill told Clark to sign the
Incident Report to acknowledge receipt of it, Clark refused
claiming that the charge was “bogus.” The two
exchanged words, resulting in Clark being placed against the
wall and handcuffed. Officers removed a digital music player
and headphones from Clark's person, and he was placed in
segregation. [R. 1-1 at 2-3] Clark indicates that his digital
music player, headphones, and a “homemade hat”
were then given to Officer Garland, the property officer on
duty at the time. [R. 1-1 at 3-4]
Mullins and another officer then directed Clark to remove the
shoes, sweat pants and sweat shirt he had been wearing so
that they could be replaced with clothes given to new
arrivals in segregation. Clark believed those would be
ordinary cotton clothing, but was informed the new warden
required recent arrivals to segregation to wear clothes made
of paper for the first week. Clark protested and refused to
change clothing, even when advised that a use-of-force team
would be brought in if necessary to enforce compliance.
Further efforts by officers to convince Clark to voluntarily
comply fell on deaf ears. When the six or seven man
use-of-force team entered his cell, Clark attempted to fight
them off, but was quickly subdued. Clark indicates that Lt.
Mullins and others then placed him in restraints and cut his
sweat pants with scissors to remove them from his body. [R.
1-1 at 4-6]
alleges that at the UDC hearing, Counselor Day stated that he
would punish Clark by taking his digital music player. [R.
1-1 at 6] Clark was released from segregation on February 19,
2016. However, he indicates that his digital music player,
headphones, homemade hat, sweat pants, sweat shirt, and
athletic shoes were missing from his property upon his
return. [R. 1-1 at 7]
Clark states without explanation that unidentified staff
members have instigated false rumors about him for filing
grievances, which has placed him at risk and caused him to be
placed in protective custody in segregation. [R. 1-1 at 8] He
further states that staff members have “played
with” his food, which he asserts a “religious
meal.” [R. 1-1 at 9] Documents filed by Clark suggest
that he is a follower of the Moorish Science Temple of
America. [R. 1-1 at 7]
complaint sets forth eight claims. [R. 1-1 at 9-11] The Court
will discuss each in turn.
Clark contends that the failure of unidentified officers to
provide him with administrative remedy forms constitutes an
obstruction of justice and violated his rights to due
process, equal protection under the law, and right to seek
redress for grievances. [R. 1-1 at 9] However, Clark does not
attribute this conduct to any defendant named in the
complaint. Having failed to allege that any defendant was
“personally involved in the alleged deprivation of
federal rights, ” this claim must be dismissed for
failure to state a claim. Nwaebo v. Hawk-Sawyer, 83
Fed.Appx. 85, 86 (6th Cir. 2003) (citing Rizzo v.
Goode, 423 U.S. 362, 373-77 (1976)). In addition, there
is no constitutional right to an available or effective
grievance procedure at all. Argue v. Hoffmeyer, 80
Fed.Appx. 427, 430 (6th Cir. 2003) (“[T]here is no
inherent constitutional right to an effective prison
grievance procedure.”) (citing Hewitt v.
Helms, 459 U.S. 460, 467 (1983)).
next claims that unidentified officers violated BOP Program
Statement § 3420.11, which prohibits staff from
subjecting inmates to intimidation, harassment, or demeaning
or humiliating conditions. As before, Clark does not identify
an officers who allegedly violated this provision, and does
not explain what conduct constituted the harassment or
humiliation about which he complains. Clark might be
referring to the forcible removal of his sweat pants, but
federal notice pleading rules do not require a defendant to
guess the factual basis for a plaintiff's claim.
Regardless, this claim fails because BOP Program Statements
do not carry the force of law; they are merely internal
agency documents used to interpret federal statutes and
regulations. Reno v. Koray, 515 U.S. 50 (1995). In
addition, any embarrassment or humiliation Clark suffered
would be insufficient to state a claim because he makes no
allegation that he suffered physical injury as a direct
result of that conduct. 42 U.S.C. § 1997e(e).
third claim asserts without explanation that “the
officers” violated his right to be free from cruel and
unusual punishment in violation of the Eighth Amendment and
his right to equal protection under the law pursuant to the
Fourteenth Amendment. However, Federal Rule of Civil
Procedure 8 requires a plaintiff to set forth in his
complaint 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). Here, Clark fails to explain how his constitutional
rights were violated and by whom, and his “formulaic
recitation of a cause of action's elements will not
do.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007); Scheid v. Fanny Farmer Candy Shops,
Inc., 859 F.2d 434, 436 (6th Cir. 1988) (“More
than bare assertions of legal conclusions is ordinarily
required to satisfy federal notice pleading
requirements.”). His equal protection claim necessarily
fails to state a claim as he makes no allegation anywhere in
his complaint that he was discriminated against or treated
differently than anyone else similarly situated. The
only Eighth Amendment claim even suggested by his factual
allegations relates to the application of a use-of-force team
to remove him from his cell in segregation. [R. 1-1 at 4-6]
But Clark did not name any members of that team as defendants
in his complaint. And the allegations regarding Lt. Mullins,
who merely made a video recording of the use of force by the
team and then cut Clark's sweat pants with scissors to
remove them from his body, manifestly fail to state a claim
under the Eighth Amendment.
sixth claim, which asserts only that “[a]n assault has
been committed in violation of the Fourth Amendment...,
” fails for the same reasons stated immediately above.
Additionally, it is well-established that “[a]fter
conviction, the Eighth Amendment ‘serves as the primary
source of substantive protection ... in cases ... where the
deliberate use of force is challenged as excessive and
unjustified.'” Graham v. Connor, 490 U.S.
386, 395 n.10 (1989). Thus, the Sixth Circuit holds the
Eighth Amendment, not the Fourth Amendment, provides the sole
basis for such a claim by a convicted inmate. Cornwell v.
Dahlberg, 963 F.3d 912, 915 (6th Cir. 1992). The sixth
claim is therefore essentially duplicative of the third
claim, and is subject to dismissal on the same grounds.
fourth claim contends that the loss of Clark's
headphones, digital music player, handmade hat, sweat pants,
sweat shirt, and athletic shoes violated his due process
rights under the Fourth, Fifth, and Fourteenth Amendments.
Clark's fifth “claim” merely asserts that the
Seventh Amendment entitles him to trial by jury on his fourth
claim. Because Clark's claims are based solely on the
conduct of federal ...