United States District Court, E.D. Kentucky, Northern Division, Ashland
TOMMY T. SUMSER, Plaintiff,
JAILER JEFF LYKINS, et al., Defendants.
MEMORANDUM OPINION AND ORDER
R. Wilboit, Jr. United 8tatt1 District Judge
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]
through counsel, have each filed motions to dismiss [D.E. No.
25, 34] to which Sumser has filed responses. [D.E. No. 37,
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). 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
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]
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
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]
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.
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]
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.]
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.
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.
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 ...