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Sumser v. Lykins

United States District Court, E.D. Kentucky, Northern Division, Ashland

March 14, 2019

TOMMY T. SUMSER, Plaintiff,
v.
JAILER JEFF LYKINS, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Henry R. Wilboit, Jr. United 8tatt1 District Judge

         Plaintiff Tommy T. Sumser is an inmate confined at the Hart County Jail located in Munfordville, Kentucky. Proceeding without an attorney, Sumser filed a civil rights action against Defendants, Lewis County Jailer Jeff Lykins and Mark Riley, pursuant to 42 U.S.C. § 1983. [D.E. No. 1]

         Defendants, through counsel, have each filed motions to dismiss [D.E. No. 25, 34] to which Sumser has filed responses. [D.E. No. 37, 39][1] Lykins and Riley have also filed replies in further support of their motions. [D.E. No. 36, 42] However, Sumser, Lykins, and Riley all attached exhibits extrinsic to the pleadings to their motions and responses and relied upon these exhibits in support of their arguments made therein. [D.E. No. 25-1, 34-1, 36-(l-3), 39-(l-3)] Thus, on February 22, 2019, the Court entered an Order [D.E. No. 53] notifying the parties that, pursuant to Federal Rule of Civil Procedure 12(d), the motions to dismiss the complaint would be treated as motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(d); Wysocki v. Int'l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010). The Court further provided the parties with an additional 10 days within which to submit to the Court any additional responses and/or evidence relevant to the issues raised by the motions to dismiss. Tackett v. M&G Polymers, USA, LLC, 561 F.3d 478, 487 (6th Cir. 2009).[2] Both parties have now submitted responses to this order. [D.E. No. 56, 59] Thus, this matter has been fully briefed and is ripe for review.

         I.

         Sumser's complaint arises from three separate incidents that he alleges occurred while he was housed in the Lewis County Detention Center ("LCDC") in Lewis County, Kentucky. According to Sumser, on January 7, 2017, he was being strip searched by deputy Jailer Mark Riley when, during the course of the search, Riley touched Sumser's buttocks and said that he "had a nice butt." Sumser further alleges that a similar incident occurred on January 15, 2017. He states that he reported both incidents to Jailer Jeff Lykins and that, although Lykins said he would take care of it, he never did. [D.E. No. 1 at p. 4][3]

         Sumser further alleges that, on January 21, 2017, he was raped by Riley while he was handcuffed in the back seat of a jail car returning from the Meadowview Regional Center in Maysville, Kentucky. [Id. at p. 4-5] According to Sumser, Riley threatened to hurt Sumser and his family if he reported the rape. [Id. at p. 5] Sumser states that he reported the rape to Lykins on January 25, 2017, and that Lykins said that he would "take care of it," but that Lykins did not do anything about it. [Id. at p. 5] However, Sumser states that the LCDC does not have a way to report a "PREA" (referring to a violation of the Prison Rape Elimination Act ("PREA"), 42 U.S.C. § 15601 et seq.).

         Sumser states that he was in fear of Riley until Sumser was transferred to the Harlan County Detention Center in August 2017. He states that he reported the rape to Michelle Floyd at the Kentucky Department of Corrections on October 27, 2017 and Floyd, in turn, contacted the Kentucky State Police. According to documents submitted by Sumser, the Kentucky State Police presented the case to the Lewis County Grand Jury, which issued a No. True Bill, meaning that they did not find enough evidence to pursue charges against Riley. [D.E. No. 39-1, 39-2]

         Sumser also alleges that, on January 25, 2017, he asked Jailer Lykins to take Sumser to the hospital or doctor for medical treatment and counseling in light of the rape. [D.E. No. 1 at p. 5] According to Sumser, although Lykins said that he would, Lykins never arranged for medical care for Sumser, despite being asked again several times. [Id. at p. 5]

         Based on these allegations, Sumser originally brought claims against Deputy Riley and Jailer Lykins in their official capacities for multiple violations of Sumser's "right to be free of a sexual crime (PREA)" and his right to appropriate medical care. [Id. at p. 5] Notably, Sumser's complaint makes clear that he is suing the Defendants in their official capacities only. [D.E. No. 1 at p. 2] Thus, he does not allege claims against either Defendant in his individual capacity. As relief, Sumser seeks injunctive relief in the form of an Order requiring that Jailer Lykins and Deputy Riley be fired, as well as the posting of PREA posters all over the jail. Sumser also seeks $350, 000.00 in punitive damages. [Id. at p. 6]

         After screening the complaint pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A, the Court dismissed Sumser's PREA claim, as "the PREA does not create a private cause of action which can be brought by an individual plaintiff." [D.E. No. 18, quoting Montgomery v. Harper, No. 5:14CV-P38-R, 2014 WL 4104163, at *2 (W.D. Ky. Aug. 19, 2014)(collecting cases)] However, the Court found that a response was required with respect to Sumser's complaint to the extent that it alleges claims under the Eighth Amendment of the United States Constitution based on his allegations of deliberate indifference to his serious medical needs, as well as his allegation that the Lewis County Detention Center does not have any way to report "a PREA" (presumably meaning a rape), suggesting an intent to pursue an Eighth Amendment "failure to train" deliberate indifference claim. [Id.]

         In their motions, Defendants argue that Sumser's complaint must be dismissed because: (1) Sumser failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e; and (2) any claim that Sumser has arising from the January 7, 2017 incident is barred by the applicable statute of limitations. [D.E. No. 25, 34] Lykins also argues that Sumser fails to state a claim for which relief may be granted against him both because Sumser fails to allege any acts or omissions by Lykins sufficient to state a claim for relief and because Sumser fails to make any allegations that the incidents described in his complaint are the product of any policy, custom, or practice of the LCDC, which is required to impose liability on Lykins in his official capacity. [D.E. No. 25]

         II.

         A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the sufficiency of the plaintiffs complaint. Gardner v. Quicken Loans, Inc., 567 Fed.Appx. 362, 364 (6th Cir. 2014). When addressing a motion to dismiss, the Court views the complaint in the light most favorable to the plaintiff and accepts as true all 'well-pleaded facts' in the complaint. D'Ambrosio v. Marino, 141 F.3d 378, 383 (6th Cir. 2014). Because Sumser is proceeding without the benefit of an attorney, the Court reads his complaint to include all fairly and reasonably inferred claims. Davis v. Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir. 2012).

         Here, although Defendants' motions are styled as motions to dismiss, Defendants and Sumser attach and rely upon exhibits extrinsic to the pleadings in support of their respective motions and responses. [D.E. No. 25-1, 34-1, 36-(l-3), 39-(l-3)] Thus, as the Court previously notified the parties [D.E. No. 53], the Court will treat Defendants' motions to dismiss the complaint as motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(d); Wysocki v. Int'l Bus. Mach. Corp.,607 F.3d 1102, 1104 (6th Cir. 2010). See also Ball v. Union Carbide Corp.,385 F.3d 713, 719 (6th Cir. 2004) (where defendant moves both to dismiss and for summary judgment, plaintiff is on ...


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