United States District Court, W.D. Kentucky, Owensboro Division
RONALD JAY HENDERSON SR. PLAINTIFF
TOMMY OATS et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
H. MCKINLEY, JR., CHIEF JUDGE.
matter is before the Court on initial review of Plaintiff
Ronald Jay Henderson Sr.'s pro se complaint
pursuant to 28 U.S.C. § 1915A. For the reasons that
follow, the Court will dismiss the complaint but allow
Plaintiff an opportunity to amend the retaliation claim.
SUMMARY OF COMPLAINT
is a convicted prisoner currently incarcerated at the Larue
County Detention Center. His complaint, however, raises
claims arising during his detention at the Muhlenberg County
Detention Center (MCDC). He brings this action under 42
U.S.C. § 1983 against MCDC Deputy Tommy Oats and Jailer
Mark Curry in their official capacities. Plaintiff alleges a
privacy violation and retaliation and seeks punitive damages.
to the complaint, in September 2017 while Plaintiff was at
MCDC “[a]t or around the hour of 12:30 am[, ] . . . the
entire cell was awaken and taken to the front of the jail. By
Deputy Vancleve and [Defendant] Deputy Oats.” Plaintiff
reports that he was taken to the “First Drunk tank cell
on the left” and told by Defendant Oats to remove all
clothes and turn around. Plaintiff reports that the drunk
tank had a camera so he asked if he could be taken to a
“dress out room were there was no camera.” He
states, “I was told by deputy Oats to just remove my
cloths or go to the hole and spend the remainder of my time.
He stated he did not have time to be F***ing with me. Just
take off your d**n cloths so we can get all this over
with.” Plaintiff reports doing as instructed but that
it was “very humiliating and made me very
indicates, “I filed a grievance to the jailer
[Defendant] Curry and was placed in the whole under
observation on the 21st of October. And was later shipped . .
. to Daviess County Detention Center on October 31st out of
retaliation to the grievance. . . . 1 hour from my home my
mother who is Disabled.” Plaintiff states that
Defendant Curry called him to the booking desk on October 29,
in the presence of four deputies, “and ask myself to
drop the grievance and I refused.” He further states
that Defendant Curry asked him about information “I had
given [Deputy] Groves about methamphetamine being brought
into the jail at the Class D, He said what was going on in
his class D wasnt any of my buisness and if I didnt drop my
claimes he would make sure I was somewhere I wouldnt want to
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 the court 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. See §
1915A(b)(1), (2); McGore v. Wrigglesworth, 114 F.3d
601, 604 (6th Cir. 1997), overruled on other grounds by
Jones v. Bock, 549 U.S. 199 (2007).
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
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550
U.S. at 556). “[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, 561 F.3d at 488 (quoting Columbia
Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th
Cir. 1995)). “A pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.' Nor does a
complaint suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555, 557).
this Court recognizes that pro se pleadings are to
be held to a less stringent standard than formal pleadings
drafted by lawyers, Haines v. Kerner, 404 U.S. 519,
520-21 (1972); Jourdan v. Jabe, 951 F.2d 108, 110
(6th Cir. 1991), “[o]ur duty to be ‘less
stringent' with pro se complaints does not require us to
conjure up unpled allegations.” McDonald v.
Hall, 610 F.2d 16, 19 (1st Cir. 1979) (citation
omitted). And this Court is not required to create a claim
for Plaintiff. Clark v. Nat'l Travelers Life
Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975). To
command otherwise would require the 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).
1983 creates no substantive rights, but merely provides
remedies for deprivations of rights established
elsewhere.” Flint ex rel. Flint v. Ky. Dep't of
Corr., 270 F.3d 340, 351 (6th Cir. 2001). Two elements
are required to state a claim under § 1983. Gomez v.
Toledo, 446 U.S. 635 (1980). “[A] plaintiff must
allege the violation of a right secured by the Constitution
and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48
(1988). “Absent either element, a section 1983 claim
will not lie.” Christy v. Randlett, 932 F.2d
502, 504 (6th Cir. 1991).
based upon an illegal strip search are usually analyzed under
the Fourth and/or Eighth Amendments. Here, however,
Plaintiff's allegations fail to state a constitutional
violation. See, e.g., Hubbert v. Myers, No.
92-1232, 1993 WL 326707, at *1 (6th Cir. Aug. 26, 1993)
(affirming summary judgment against a plaintiff who alleged
that the defendants “conducted a strip search which was
taped by a video camera operated by a female employee”
in violation of the Fourth, Eighth, and Fourteenth
Amendments); Sanchez v. Bauer, No.
14-CV-02804-MSK-KLM, 2015 WL 5026195, at *6 (D. Colo. Aug.
26, 2015) (finding allegation that the plaintiff was
“video recorded” while he was strip searched
failed to state a Fourth Amendment claim); Smith v. City
of N.Y., No. 14 Civ. 5934(JCF), 2015 WL 3929621, at *2
(S.D.N.Y. June 17, 2015) (recognizing that “neither the
presence of cameras nor the presence of other inmates and
employees of a correctional facility makes an otherwise
constitutional strip search unconstitutional”);
Peek v. City of N.Y., No. 13-cv-4488 (AJN), 2014 WL
4160229, at *2 (S.D.N.Y. Aug. 18, 2014) (dismissing a Fourth
Amendment claim based on a strip search in front of a camera
because “[w]ithout ...