United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. Reeves, United States District Judge.
Uriah Pasha is confined at the Kentucky State Penitentiary
(“KSP”) in Eddyville, Kentucky. Proceeding
without an attorney, he has filed a civil rights action
against prison officials at the Northpoint Training Center
(“Northpoint”), located in Burgin, Kentucky,
pursuant to 42 U.S.C. § 1983. The Court now conducts a
preliminary review of Pasha's Complaint pursuant to 28
U.S.C. §§ 1915(e)(2), 1915A.
Court evaluates Pasha's complaint under a more lenient
standard because he is not represented by an attorney.
Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003).
At this stage, the Court accepts the plaintiff's factual
allegations as true, and his legal claims are liberally
construed in his favor. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007). Even so, the
principles requiring generous construction of pro se
pleadings are not without limits. Wells v. Brown,
891 F.2d 591, 594 (6th Cir. 1989); Roberts v.
Lexington Fayette Urban County Government, No.
07-cv-95-KSF, 2007 WL 1136743 (E.D. Ky. April 16, 2007). The
Court is not required to create a claim for the plaintiff,
nor to “conjure up unpled allegations.”
Moorman v. Herrington, No. 4:08-CV-P127-M, 2009 WL
2020669, at *1 (W.D. Ky. July 9, 2009)(citations omitted).
Moreover, vague allegations that one or more of the
defendants acted wrongfully or violated the plaintiff's
constitutional rights are not sufficient. Laster v.
Pramstaller, No. 08-CV-10898, 2008 WL 1901250, at *2
(E.D. Mich. April 25, 2008).
original Complaint [Record No. 1] included claims brought by
Pasha and Blane Seeber. However, the Court previously
determined that the plaintiffs' claims were improperly
joined and severed those asserted by Seeber. [Record No. 7]
In addition, because Pasha's Complaint was not filed on a
form allowable under Local Rule 5.2(a)(4), the Court
forwarded the appropriate form to Pasha and directed him to
re-file his Complaint in compliance with the requirements of
the Court. [Id.]
Pasha has now re-filed a Complaint on the Court's form,
rather than complete the form as directed, he incorporated
his original Complaint by reference (with the exception of
Seeber's claims that were severed from this action). He
then makes new allegations regarding events that occurred
after he was transferred to KSP. [Record No. 14] Although
this approach does not comply with the Court's Order
directing him to re-file his Complaint on the appropriate
form, the Court will nevertheless review the claims alleged
by Pasha in both his original and amended Complaints. For
clarification, because the majority of Pasha's claims are
set forth in his original Complaint [Record No. 1], unless
specified otherwise, the Court will refer to that document.
original 30-page Complaint includes over 132 numbered
paragraphs and sets forth an exhaustive account of multiple
events occurring at Northpoint from approximately May 2018
through Pasha's transfer to KSP in approximately October
2018. Pasha asserts various constitutional claims under 42
U.S.C. § 1983 against 15 different defendants, including
various correctional officers, medical providers, and
administrative staff at Northpoint, as well as James Erwin,
Commissioner of the Kentucky Department of Corrections
(“KDOC”). The defendants are sued in their
individual and official capacities.
Pasha's factual allegations sweep broadly and relate to
multiple separate incidents, he narrows the nature and basis
of the claims that he seeks to assert in the “Claims
for Relief” section of his Complaint. [Record No. 1 at
¶¶111-132] As pled by Pasha, his claims may be
summarized as follows:
1) Defendant Michelle Weigel (the Legal Library Officer at
Northpoint) deprived him access to copies of legal documents
in violation of prison regulations and the First and
Fourteenth Amendments of the United States Constitution.
[Id. at ¶114]
2) Defendants Davis Brown (security officer at Northpoint),
Lee N. May (a Sergeant at Northpoint), and William Miller
(the Internal Affairs Officer at Northpoint) subjected him to
unlawful use of excessive physical force on multiple
occasions in violation of the Eighth and Fourteenth
Amendments. [Id. at ¶¶115,
3) Defendants Michael Long (Corrections Security Lieutenant
at Northpoint) and Mrs. Rainwater (Corrections Security
Sergeant at Northpoint) subjected him to cruel and unusual
punishment in violation of the Eighth and Fourteenth
Amendments by watching and laughing as Pasha was sexually
abused. [Id. at ¶117]
4) Defendants Long, Rainwater, Margaret Franchere
(contractually employed nurse at Northpoint), Pond, Brown,
Shearer, Jessica Payton (Administrative Section Supervisor at
Northpoint), Stephanie Thompson (Medical Administrator at
Northpoint), James Erwin (Commissioner of the KDOC), Mendalyn
Cochran (Deputy Warden of Security at Northpoint), Craig
Hughes (Deputy Warden of Operations at Northpoint), James
Smith (Correction Security Lieutenant at Northpoint), May,
Miller, and Brad Adams (Warden at Northpoint), on multiple
occasions, acted with deliberate indifference to his serious
medical needs in violation of the Eighth and Fourteenth
Amendments. [Id. at ¶¶119-122, 124-126,
5) Defendants Brown and Shearer subjected him to sexual
contact while he was incapable of consent in violation of KRS
§ 510.110. [Id. at ¶116]
6) Defendant Payton's finding that his claim alleging a
violation of the Prison Rape Elimination Act
(“PREA”), 42 U.S.C. § 15601 et
seq., was unsubstantiated, then her later amendment of
findings to “unfounded, ” is in violation of the
First, Eighth and Fourteenth Amendments. [Id. at
7) Defendant Erwin's response to one of his grievances
was inadequate in violation of the First, Eighth, and
Fourteenth Amendments. [Id. at ¶127]
8) Defendants Erwin, Cochran, Payton, Thompson, Hughes, and
Adams transferred him to KSP, a maximum-security facility,
with a custody score of eight in retaliation for filing a
PREA complaint against staff in violation of the First,
Eighth, and Fourteenth Amendments. [Id. at
9) Defendants Erwin, Cochran, and Adams assigned Brown to a
duty post in Northpoint's general population supervising
inmates during a period in which Brown had criminal charges
of assault and related offenses pending in the Boyle Circuit
Court in violation of the Eighth and Fourteenth Amendments.
[Id. at ¶112]
Amended Complaint alleges that, after his transfer to KSP,
Psychologist Keith Feck, MS, referred him to CPTU to
participate in the PRIVE Program. [Record No. 14 at p. 3]
Pasha also alleges that at KSP, he has been “forced to
shower in an Open Bay where a Corrections Officers sits in a
booth and watches Plaintiff Pasha shower, as if it were a
Peep-show.” [Id.] He states that he filed a
grievance and was instructed to contact mental health.
[Id.] Although he followed these instructions,
mental health has not responded to his request, nor has he
been issued any low-cut work-shoes or a hearing device.
Amended Complaint does not name any additional defendants,
nor does it purport to bring any separate constitutional
claims based on these allegations of events occurring since
his transfer to KSP. Nor does Pasha's Amended Complaint
include any additional allegations of conduct by any of the
previously-named defendants. Rather, it incorporates the
claims previously made against the defendants in the original
Complaint. [Record No. 14 at p. 3-4] Thus, to avoid
confusion, going forward, the Court will disregard the
additional allegations contained in the Amended complaint and
consider only the original Complaint as the operative
pleading, limiting analysis to the affirmative claims for
relief alleged therein.
Court has conducted an extensive review of the original
Complaint and its attachments and concludes that some of the
defendants must be served with process to address the claims
alleged against them. However, as explained more fully below,
some of the claims and/or defendants will be dismissed from
this action because the allegations in the Complaint do not
state a claim against them for which relief may be granted.
claims will be dismissed to the extent that Pasha seeks to
assert them against the defendants in their “official
capacities.” Notwithstanding its label, an
“official capacity” claim against a state officer
is not a claim against the officer arising out of his or her
conduct as an employee of the state but is actually a claim
directly against the state agency which employs them.
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).
Pasha's official capacity claims are therefore civil
rights claims against KDOC. However, KDOC is not subject to
suit under § 1983 in federal court, both because a state
agency is not a “person” subject to liability
under § 1983, and because the Eleventh Amendment
deprives federal district courts of subject matter
jurisdiction over a claim for money damages against a state
and its agencies. Gibbons v. Kentucky Dept. of
Corrections, No. 3:07CV-P697-S, 2008 WL 412847, at *1
(W.D. Ky. Sept. 4, 2008) (citing Puerto Rico Aqueduct
& Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.
139, 687-88 (1993) (“Absent waiver, neither a State nor
agencies acting under its control may be subject to suit in
federal court.”) (internal quotation marks and citation
omitted)); Scott v. Kentucky Department of
Corrections, No. 08-CV-104-HRW, 2008 WL 4083002, at *2
(E.D. Ky. Aug. 29, 2008) (“the Eleventh Amendment has
also been interpreted to extend immunity to State employees
sued for damages in their official capacities.”).
Therefore, all of the § 1983 claims against the
defendants in their official capacities will be dismissed.
Claims against Weigel related to Use of the Prison Law
alleges that on May 22, 2018, he asked Weigel, the Legal
Library Officer at Northpoint, to send a copy of the Glossary
for the KDOC Policies and Procedures Manual. [Record No. 1 at
¶7] He alleges that she then cited Pasha with a
Disciplinary Report for asking her to contact another
facility. [Id. at ¶ 8] According to Pasha,
after this Disciplinary Report was dismissed without a
hearing [Id. at ¶10], Weigel began enforcing
policies related to copies by inmates by refusing to make
copies for Pasha (who did not have the funds to pay for
copies) “unless he would mail them out of the facility
through her via Privileged Mail immediately after the copies
were made.” [Id. at ¶¶11-15] Pasha
seeks to bring a claim against Weigel based on these
allegations for “depriving Pasha access to copies of
legal documents in violation of 501 K.A.R. 6:030 Policy CPP
14.4, ” as well as the First and Fourteenth Amendments
of the United States Constitution. [Id. at
extent that Pasha's claim is based on Weigel's
alleged violation of 501 K.A.R. 6:030 Policy CPP 14.4,
“[i]t has long been established that the violation of a
state statute or regulation is insufficient alone to make a
claim cognizable under § 1983.” Stanley v.
Vining, 602 F.3d 767, 769 (6th Cir. 2010). Pasha's
allegations that Weigel interfered with his ability to make
copies could be broadly construed to implicate his right of
access to the Courts guaranteed by the First and Fourteenth
Amendments. The constitutional right of access to the courts
“requires prison authorities to assist inmates in the
preparation and filing of meaningful legal papers by
providing prisoners with adequate law libraries or adequate
assistance from persons trained in the law.” Bounds
v. Smith, 430 U.S. 817, 828 (1977). By its terms, the
right of access to the courts extends only to an inmate's
direct criminal appeal, habeas corpus applications, and civil
rights claims related to the conditions of confinement.
Lewis v. Casey, 518 U.S. 343, 354-55 (1996). See
also Lewis v. Randle, 66 Fed.Appx. 560, 561-62 (6th Cir.
2003). “Impairment of any other litigating
capacity is simply of the incidental (and perfectly
constitutional) consequences of conviction and incarceration.
Lewis, 518 U.S. at 355.
state a claim for denial of access to the courts, a plaintiff
must show actual injury to a nonfrivolous legal claim.
Lewis, 518 U.S. at 353-55 (1996). “Examples of
actual prejudice to pending or contemplated litigation
include having a case dismissed, being unable to file a
complaint, and missing a court-imposed deadline.”
Harbin-Bey v. Rutter, 420 F.3d 571, 578 (6th Cir.
2005). See also Pilgrim v. Littlefield, 92 F.3d 413,
416 (6th Cir. 1996) (“Plaintiffs must demonstrate, for
example, that the inadequacy of the prison law library or the
available legal assistance caused such actual injury as the
late filing of a court document or the dismissal of an
otherwise meritorious claim.”). It is not enough for a
plaintiff to complain in the abstract of the alleged
insufficiency of the prison law library; rather; instead, the
inmate must demonstrate that he suffered an actual injury
because the defendants' conduct prevented or hindered his
efforts to pursue a particular non-frivolous legal claim.
Hadix v. Johnson, 182 F.3d 400, 404-06 (6th Cir.
1999); Barnett v. Luttrell, 414 Fed.Appx. 784, 787
(6th Cir. 2011).
Pasha fails to identify or refer to any particular case,
whether already pending or anticipated to be filed, or to
describe any particular legal claim that he was hindered or
prevented from asserting because of Weigel's alleged
conduct which he claims improperly restricted his ability to
make copies. The failure to plead these necessary allegations
in his Complaint with sufficient particularity requires
dismissal of his access-to-courts claim against Weigel.
Brown v. Matauszak, 415 Fed.Appx. 608, 612 (6th Cir.
2011) (adequate pleading of access-to-courts claim requires
allegation of actual injury to specific claim, allegation of
the facts and the law in the underlying claim, and
demonstration that underlying claim was non-frivolous)
(citing Christopher v. Harbury, 536 U.S. 403, 415
(2002)); Clark v. Johnston, 413 Fed.Appx. 804, 812
(6th Cir. 2011). Accordingly, Pasha's claim against
Weigel will be dismissed.
Pasha's Eighth Amendment Claims
Complaint alleges several separate claims based on
allegations of the use of excessive force or deliberate
indifference to his serious medical needs, each of which he
alleges constitute “cruel and unusual punishment
without due process” in violation of the Eighth and
Fourteenth Amendments of the United States Constitution.
[Record No. 1 at ¶¶111-113, 114, 117-122, 124-126,
128-132] But Pasha's allegations do not support claims
under the Fourteenth Amendment because he does not allege
that he was treated differently than any other persons
similarly situated to him. Moreover, the Supreme Court has
expressly held that, where a constitutional claim is covered
by a specific constitutional provision, the claim must be
analyzed under the standard appropriate to that specific
provision and not under the broad rubric of substantive due
process. County of Sacramento v. Lewis, 523 U.S.
833, 843 (1998); see also Graham v. Connor, 490 U.S.
386, 395 (1989) (“Where a particular Amendment provides
an explicit textual source of constitutional protection
against a particular sort of government behavior, that
Amendment, not the more generalized notion of substantive due
process, must be the guide for analyzing these
claims.”). Thus, although Pasha references the due
process clause of the Fourteenth Amendment, the Eighth
Amendment is the proper vehicle to assert his claims of
excessive force and deliberate indifference to his serious
medical needs. See Cooleen v. Lamanna, 248 Fed.Appx.
357, 362 (3rd Cir. 2007) (viability of claim under Eighth
Amendment to challenge medical care of prisoner forecloses
availability of substantive due process claim).
Eighth Amendment prohibits any punishment which violates
civilized standards of decency or “involve[s] the
unnecessary and wanton infliction of pain.” Estelle
v. Gamble, 429 U.S. 97, 102-03 (1976) (internal
quotation marks and citation omitted). An Eighth Amendment
claim has both an objective and subjective component: (1) a
sufficiently grave deprivation of a basic human need; and (2)
a sufficiently culpable state of mind. Wilson v.
Seiter,501 U.S. 294, 298 (1991). Thus, to state a
viable Eighth Amendment claim, an inmate must allege that a
prison official: 1) was actually ...