United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
HORN BOOM, UNITED STATES DISTRICT COURT JUDGE
Demirovic is an inmate confined at the Grayson County
Detention Center. Demirovic has filed a pro se civil
rights complaint pursuant to 42 U.S.C. § 1983. [R. 1]
The Court has granted his motion to proceed in forma
pauperis by separate Order [R. 9].
matter is before the Court to conduct the initial screening
required by 28 U.S.C. §§ 1915(e)(2), 1915A.
Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir.
2010). When testing the sufficiency of the plaintiffs
complaint, the Court affords it a forgiving construction,
accepting as true all non-conclusory factual allegations and
liberally construing its legal claims in the plaintiffs
favor. Davis v. Prison Health Servs., 679 F.3d 433,
437-38 (6th Cir. 2012). 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).
preliminary discussion of Demirovic's federal criminal
proceedings sheds some light on the claims set forth in his
current complaint. In December 2009 Demirovic was indicted
along with more than a dozen others for his role in a
conspiracy to traffic in cocaine in Laurel County,
Kentucky. Demirovic was not taken into custody at
that time because he had fled to France. In pretrial
proceedings it was noted that during several recorded phone
conversations many conspirators had spoken in one or more of
the closely-related Southern Slavic tongues, including
Bosnian, Croatian, Herzegovinian, Montenegrin, and Serbian.
Demirovic speaks primarily Bosnian, and while he is fluent in
spoken English he is "not comfortable" reading
written English. Accordingly, since his arrest in 2015 the
Court has provided him with an interpreter in his criminal
October 2017, Demirovic reached a plea agreement with the
government. Prior to sentencing, his counsel moved for a
psychological evaluation to determine his competency to plead
guilty, noting that while Demirovic had appeared fully
competent during plea negotiations, he had become palpably
more anxious since the issuance of his Presentence
Investigation Report. Counsel further noted that Demirovic
self-reported being a war refugee from Bosnia; had previously
attempted suicide in a French jail; and had been placed on
suicide watch in December 2017 while housed at the Pulaski
County Detention Center ("PCDC").
psychological evaluation was conducted by Dr. Jessica Micono
in May 2018 at a federal prison in Englewood, Colorado. Her
report indicated that Demirovic's mother was abusive when
he was growing up and that he was abused while in a group
home in Bosnia. It further indicated that beginning in France
in 2015 he was treated for post-traumatic stress disorder
with prescriptions for antidepressants, anti-anxiety
medication, and an antipsychotic. Notable for its possible
relevance to this case, Demirovic reported to Dr. Micono that
after he returned to the United States and was returned to
federal custody in 2015, he had twice attempted suicide by
hanging while in jail, and that he had been abused by a
correctional officer. Notwithstanding that very troubling
past, Dr. Micono found Demirovic to be alert and oriented
during her evaluation, and concluded that he was aware of the
nature of the charges against him and capable of assisting
his counsel with his case. During a hearing on July 11, 2018,
no party objected to that conclusion. Magistrate Judge Ingram
of this Court has therefore issued a recommendation that
Demirovic be found competent to plead guilty based upon Dr.
Micono's testing and report. That recommended disposition
remains pending as of this writing. United States v.
Demerovic, No. 6:09-CR-63-GFVT-HAI-12 (E.D. Ky. 2009)
[R. 172, 384, 520, 787, 819, 841 therein].
that background in mind, Demirovic filed his complaint in
this action on June 28, 2018. [R. 1 at 6]. A note
accompanying the complaint states that it was prepared in
English by Perry Shananaquet on Demirovic's behalf
because he speaks Bosnian. [R. 1-1]. Demirovic states from
November 2016 to December 2017 while confined at PCDC, an
officer Bishop harassed and "made passes" at him
by: (1) winking at him; (2) saying "hey sexy" to
him; and (3) through a window, looked at Demirovic and moved
his hands to mime the act of fellatio. Id. at p. 4.
Demirovic further alleges that in November 2017, Bishop
touched Demirovic's nose, told him to smell his
(Bishop's) hands, and then suggested to Demirovic that he
had "touched his private area" with his hand before
touching Demirovic's nose. Id. Demirovic finally
alleges that on one occasion in December 2017 Bishop grabbed
his waist, although he does not suggest that there was any
inappropriate sexual touching. Id. at 5. Demirovic
states that he attempted to commit suicide during this period
because this harassment caused other inmates to call him a
homosexual. Id. In December 2017, federal marshals
relocated Demirovic to another prison at the urging of his
defense counsel. Id. at pp. 4-5. Demirovic has sued
officer Bishop and David Moss, the Jailer of PCDC, in both
their individual and official capacities, and seeks
compensatory and punitive damages. Id. at pp. 2, 6.
respect to the official capacity claims against both
defendants, notwithstanding the implications of its label, an
"official capacity" claim against a government
employee is not a claim against the employee himself arising
out of his conduct as an employee. Instead, it is actually a
claim directly against the state or local 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). Demirovic's official capacity claims are
therefore civil rights claims against Laurel County,
Kentucky. But Demirovic makes no allegation that officer
Bishop acted pursuant to either a formal policy or an
informal custom of Laurel County, and hence his complaint
fails to state a claim against it. Cf D 'Ambrosio v.
Marino, 141 F.3d 378, 386 (6th Cir. 2014) ("... a
municipality is liable under § 1983 only if the
challenged conduct occurs pursuant to a municipality's
official policy, such that the municipality's
promulgation or adoption of the policy can be said to have
caused one of its employees to violate the plaintiffs
constitutional rights.") (internal quotation marks
omitted). The official capacity claims must therefore be
PCDC Jailer David Moss, Demirovic identifies him as a
defendant in the complaint, but he makes no factual
allegations against him at all. The Court assumes that as the
Jailer Moss plays a supervisory role over his officers, but
that role is not sufficient to impute liability against him
for the acts of his subordinates: respondeat
superior is not an available theory of liability in the
civil rights context. Polk County v. Dodson, 454
U.S. 312, 325-26 (1981). Accordingly, "[i]n a §
1983 suit or a Bivens action - where masters do not
answer for the torts of their servants - the term
'supervisory liability' is a misnomer."
Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). The
individual capacity claims against Jailer Moss will therefore
respect to the allegations against officer Bishop, the
conduct described, if true, unquestionably constitutes
harassment, is despicable, and cannot be condoned. However,
it did not violate Demirovic's constitutional rights. It
is well-established that verbal abuse or general harassment
by a prison guard does not constitute cruel and unusual
punishment in violation of the Eighth Amendment. Wingo v.
Term. Dep 't of Corr., 499 Fed.Appx. 453, 455 (6th
Cir. 2012) ("Verbal harassment or idle threats by a
state actor do not create a constitutional violation and are
insufficient to support a section 1983 claim for
relief"); Johnson v. Unknown Dellatifa, 357
F.3d 539, 546 (6th Cir. 2004) (holding harassment and verbal
abuse, while "shameful and utterly unprofessional ...
[they] do not constitute the type of infliction of pain that
the Eighth Amendment prohibits"); Ivey v.
Wilson, 832 F.2d 950, 955 (6th Cir. 1987) (per curiam);
see also DeWalt v. Carter, 224 F.3d 607, 612 (7th
Cir. 2000) ("[t]he use of racially derogatory language,
while unprofessional and deplorable, does not violate the
Constitution."); Jackson v. Hopkins Cnty. Det.
Ctr., No. 4:12CV-P82-M, 2012 WL 5472024, at *6 (W.D. Ky.
2012) ("[W]hile reprehensible and not condoned, racial
epithets and verbal abuse alone are insufficient to state a
constitutional violation under § 1983."). The
alleged verbal comments to the plaintiff cannot form the
basis of a valid Eighth Amendment claim.
Court separately notes that officer Bishop's actions, as
described by Demirovic, consisted of conduct that did not
involve any physical contact between the officer and inmate,
save for two occasions. On the first, Bishop allegedly
touched Demirovic's nose and then suggested - truthfully
or not - that he had touched his genitals before doing so. On
the second, Bishop allegedly grabbed Demirovic by the waist
during a phone call, a contact that Demirovic does not
suggest was in any way sexual in nature. While these events
are more troubling that the other, purely non-physical,
events described elsewhere, the Court concludes that these
two isolated incidents are not sufficient to implicate the
Eighth Amendment. As to the first incident, the officer's
alleged actions, while repellant, occurred briefly on a
single occasion, and hence was too isolated and fleeting to
constitute the kind of objectively serious harm - the
"unnecessary and wanton infliction of pain,"
Rhodes v. Chapman, 452 U.S. 337, 345-46 (1981) -that
the Eighth Amendment was designed to prevent. Cf Rowe v.
Bergh, No. 2: 08-CV-162, 2008 WL 4239018, at *4-5 (W.D.
Mich. Sept. 9, 2008) ("Although severe or repetitive
sexual abuse certainly could qualify under this standard, a
single incident of objectionable sexual touching does not
meet the objective component of an Eighth Amendment
claim."); see also Jackson v. Madery, 158
Fed.Appx. 656, 661 (6th Cir. 2005) (correction officer's
conduct in allegedly rubbing and grabbing prisoner's
buttocks in degrading manner was "isolated, brief, and
not severe" and so failed to meet Eighth Amendment
standards); Johnson v. Ward, 215 F.3d 1326 (6th Cir.
2000) (male prisoner's claim that a male officer placed
his hand on the prisoner's buttock in a sexual manner and
made an offensive sexual remark did not meet the objective
component of the Eighth Amendment) (unpublished decision).
light of the foregoing, the Court concludes that
Demirovic's allegations do not state a viable Eighth
Amendment claim against officer Murphy. This is not to say
that such misconduct should go unreported to the
officer's superiors, and the Court makes no judgment on
whether the conduct described might state a viable claim
under state law. Because it is plain, however, that the facts
alleged would not support the constitutional claims the
plaintiff asserts here, his complaint must be dismissed.
it is ORDERED as follows:
Clerk of the Court shall MODIFY the docket to reflect
"Irfan Demerovic" as an alternative ...