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Pasha v. Payton

United States District Court, E.D. Kentucky, Central Division, Lexington

February 4, 2019

JESSICA PAYTON, et al., Defendants.


          Danny C. Reeves, United States District Judge.

         Plaintiff 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.[1]

         The 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).


         The 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.]

         Although 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.

         Pasha's 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.

         Although 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, 118][2]
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, 128-132]
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 ¶123]
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 ¶111]
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]

         Pasha's 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. [Id.]

         Pasha's 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.[3] 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.

         The 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.


         First, 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.

         A. Claims against Weigel related to Use of the Prison Law Library

         Pasha 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 ¶114]

         To the 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.

         To 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).

         Here, 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.

         B. Pasha's Eighth Amendment Claims

         Pasha's 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).

         The 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 ...

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