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Marshall v. Erwin

United States District Court, W.D. Kentucky, Louisville Division

April 15, 2019

STEPHEN MARSHALL PLAINTIFF
v.
COMMISSIONER JAMES ERWIN et al. DEFENDANTS

          MEMORANDUM OPINION

          Joseph H. McKinley Jr., District Judge

         Plaintiff Stephen Marshall, pro se, filed this in forma pauperis civil-rights action pursuant to 42 U.S.C. § 1983. This case is before the Court for screening pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). For the following reasons, this case will be dismissed.

         I. STATEMENT OF CLAIMS

         Plaintiff is a prisoner at the Luther Luckett Correctional Complex (LLCC). He names as Defendants Kentucky Department of Corrections Commissioner James Erwin and the following employees of LLCC: Warden Scott Jordan, Captain Tim Forgy, and Sgt. Klayton Rodgers. Each Defendant is sued in his individual and official capacities.

         Plaintiff alleges First, Eighth, and Fourteenth Amendment violations from the intentional, willful, and malicious upholding of an arbitrary administrative decision in denying restoration of visitation privileges. He states that on June 30, 2018, at LLCC, his 69-year old mother was visiting him. During that visitation his mother informed the visitation staff at the control booth that she needed to use the bathroom. Plaintiff states, “She was informed that she had to have a doctor's note in order to use it, although she was never notified of this requirement via posted rule, oral or any other viable written communication.”

         Plaintiff attaches a number of documents to his complaint. Included in these attachments is the incident report from the visitor log from June 30, 2018. That incident report contains the following narrative:

On June 30, 2018 at approximately 10:45 am I, Sergeant Klayton Rodgers was stopped by [Plaintiff] in the visitation room. [Plaintiff] informed me that his mother Civilian Suzanne Parker had to use the bathroom. I informed [Plaintiff] that if the visitor or yourself have to use the bathroom, the visit would be over. [Plaintiff] got upset with myself and stated, “this is bullshit. She is not a prisoner she needs to use the damn bathroom.” I informed [Plaintiff] that if he got upset with myself or staff that his visit would be over. Civilian Suzanne Parker came out to the visiting lobby and told P&P Gilkey that she needed to use the restroom. P&P Gilkey told civilian Parker that the visit would be over if she used the bathroom. Civilian stated, “Okay that's fine. It's about to get Stinkey in here.” [Plaintiff] stated, “Go ahead and make it stinkey.” I then ended [Plaintiff's] visit and escorted civilian Parker out of LLCC. Civilian Parker stated to me on the way, “I shit my pants, this is fucking bullshit, I am going to call the Warden.”

         That report states “Terminated - Inmate/Visitor Behavior” and “Reason: Disruptive Behavior.”

         An Incident Report Summary from that date gives essentially the same narrative but includes a timeline. According to that Summary, at approximately 10:45 a.m. Plaintiff asked Defendant Rodgers if his mother could use the bathroom, at which time Defendant Rodgers told him that if either he or his mother used the bathroom the visit would be terminated. At approximately 11:05 a.m. Officer Gilkey told Plaintiff's mother after she asked to use the bathroom that if she did the visit would be terminated, to which Plaintiff's mother stated, “'That's fine. It's about to get stinky in here, '” and then went back into the visitation room. That Summary further provides, “At approximately 12:20 p.m. Mrs. Parker's visit was terminated after she defecated herself. Mrs. Parker admitted that she defecated herself to Sergeant Rodgers.”

         It appears from the complaint that a disciplinary action was brought against Plaintiff but that Warden Jordan dismissed it. However, Warden Jordan banned Plaintiff's mother from visiting LLCC.

         Plaintiff asks for monetary damages for the “emotional and mental instability by the intentional and malicious weakening of his familial bonds by the permanent visitation ban against his mother.” He also requests punitive damages and injunctive relief in the form of lifting the permanent visitation ban against his mother and cessation of “administering this unauthorized rule.”

         II. ANALYSIS

         When a prisoner initiates a civil action seeking redress from a governmental entity, officer, or employee, the trial court must review the complaint and dismiss the action, if the Court determines that it 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. See 28 U.S.C. § 1915A(b)(1) and (2). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). The Court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Id. at 327. When determining whether Plaintiff has stated a claim upon which relief can be granted, the Court must construe the complaint in a light most favorable to Plaintiff and accept all factual allegations as true. Prater v. City of Burnside, Ky., 289 F.3d 417, 424 (6th Cir. 2002). While a reviewing court must liberally construe pro se pleadings, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam), to avoid dismissal, a complaint must include “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         First ...


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