United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge
Corey De'Andre Hood is a federal inmate who is currently
confined at the United States Penitentiary (USP) - Big Sandy
located in Inez, Kentucky. Proceeding without counsel, Hood
has filed a civil rights action against prison officials
pursuant to Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971). [R. 1.] By separate order,
the Court has granted Hood's motion to proceed without
prepayment of the filing fee. [R. 6.] Thus, the Court must
conduct a preliminary review of Hood's complaint pursuant
to 28 U.S.C. §§ 1915(e)(2), 1915A. A district court
must dismiss any claim that 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. McGore v. Wrigglesworth, 114 F.3d 601,
607-08 (6th Cir. 1997).
Court evaluates Hood'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). However, the
principles requiring generous construction of pro se
pleadings are not without limits. Wells v. Brown,
891 F.2d 591, 594 (6th Cir. 1989); Wilson v. Lexington
Fayette Urban County Government, No. 07-cv-95-KSF, 2007
WL 1136743 (E.D. Ky. April 16, 2007). A complaint must set
forth claims in a clear and concise manner, and must contain
sufficient factual matter, accepted as true, to “state
a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Hill v. Lappin, 630 F.3d 468, 470 (6th Cir. 2010).
See also Fed. R. Civ. P. 8. In addition, “a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of a cause
of action's elements will not do.”
Twombly, 550 U.S. at 555.
although the Court has an obligation to liberally construe a
complaint filed by a person proceeding without counsel, that
obligation does not extend so far as to require or permit it
to create arguments or claims that the plaintiff has not
made. Coleman v. Shoney's, Inc., 79 Fed.Appx.
155, 157 (6th Cir. 2003) (“Pro se parties must still
brief the issues advanced with some effort at developed
argumentation.”). Thus, 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) (“Neither
the Court nor Defendants are obligated to search through the
Complaint and its voluminous exhibits in order to glean a
clear and succinct statement of each claim for relief. It is
Plaintiffs' responsibility to edit and organize their
claims and supporting allegations into a manageable
format.”). 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,
substantive allegations of Hood's complaint are set forth
in numbered paragraphs in Section III of the complaint. [R. 1
at 4-7.] Hood first alleges that defendant Lieutenant Moore
retaliated against Hood after Hood stated he would be filing
a grievance, resulting in Hood's placement in restraints
for sixteen hours and otherwise subjecting Hood to allegedly
harsh prison conditions. Id. at 4. Hood also alleges
that defendants Correctional Officer (“C.O.”)
Howard and C.O. Harshbarger assaulted Hood in his cell,
causing physical injury, and that defendant Lieutenant
Compton failed to preserve video evidence of the assault on
Hood by C.O. Howard and C.O. Harshbarger. Id. Hood
alleges that, after the assault, Hood was transferred to the
“Psychology Department, ” where Hood was confined
to a room and allegedly subjected to harsh prison conditions
for four consecutive days. Id. at 4-5. Hood claims
that, when he told the psychologist (whom he does not
identify) that he needed his psychotropic medicine and asked
why he was being subjected to such harsh treatment, he was
told that it is BOP policy. Id. Next, Hood alleges
that defendant Nurse Plumley lied about Hood's housing
conditions and denied him medical care. Id. at 5-6.
Hood also alleges that, after Hood refused to sign some
papers, defendant Case Manager Webb made derogatory comments
about Hood in the presence of other inmates in an effort to
“create a hostile environment” for Hood and that
Webb threatened to sabotage Hood's disciplinary hearing.
He also claims that “A.W.'s” (presumably
referring to defendant Acting Warden Garza) have made
misleading statements about cold temperatures. Id.
at 6-7. Finally, Hood alleges that, although he does not
believe that he should not have been placed in a maximum
security prison and his custody points have been
miscalculated, his attempts to show proof of this to Case
Manager Webb have been ignored and Webb has refused to
transfer him for what Hood believes are personal reasons.
Id. at 7.
does not identify any particular constitutional right that he
claims has been violated. Rather, he broadly alleges that
“I feel everything that happened is a violation of my
civil rights.” Id. at 9. He seeks punitive and
compensatory damages, transfer to a low-security institution,
and evaluation and treatment for his medical and
psychological issues. Id. at 13.
seeks to pursue his claims pursuant to Bivens, which
held that an individual may “recover money damages for
any injuries...suffered as a result of [federal] agents'
violation of” his constitutional rights.”
Bivens v. Six Unknown Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 397 (1971). However, to the
extent that Hood seeks to sue the defendants in their
official capacities, his claims fail. A suit against a
government employee in his or her “official
capacity” is not a suit against the employee for his or
her conduct while performing job duties for the government
but is instead a suit against the government agency that
employs the individual. Thus, an official capacity suit
against an employee of the Bureau of Prisons (BOP) is a suit
against the BOP, which is a federal agency. While
Bivens authorizes suits against federal employees
for violations of civil rights, it does not waive the
sovereign immunity enjoyed by the United States and its
agencies. Ctr. for Bio-Ethical Reform, Inc. v.
Napolitano, 648 F.3d 365, 370 (6th Cir. 2011)
(Bivens claims may be asserted against federal
officials only in their individual capacities); Okoro v.
Scibana, 63 Fed.Appx. 182, 184 (6th Cir. 2003).
while Bivens expressly validated the availability of
a claim for damages against a federal official in his or her
individual capacity, an officer is only responsible for his
or her own conduct. Ashcroft v. Iqbal, 556 U.S. 662,
676-77 (2009); see also Ziglar v. Abbasi, 137 S.Ct.
1843, 1860 (2017). Thus, in order to recover against a given
defendant in a Bivens action, the plaintiff
“must allege that the defendant [was] personally
involved in the alleged deprivation of federal rights.”
Nwaebo v. Hawk-Sawyer, 83 Fed.Appx. 85, 86 (6th Cir.
2003) (citing Rizzo v. Goode, 423 U.S. 362, 373-77
(1976)). Indeed, “[e]ven a pro se prisoner must link
his allegations to material facts…and indicate what
each defendant did to violate his rights…”
Sampson v. Garrett, 917 F.3d 880, 882 (6th Cir.
2019) (citing Hill v. Lappin, 630 F.3d 468, 471 (6th
Cir. 2010); Lanman v. Hinson, 529 F.3d 673, 684 (6th
Cir. 2008)). Thus, to proceed with each of his
Bivens claims against each defendant, Hood must: 1)
allege the violation of a constitutional right; 2) link his
allegations to material facts; and 3) indicate what each
individual defendant against whom he asserts a particular
claim did to violate his constitutional rights.
Hood does not identify any particular constitutional rights
which he claims to have been violated, construed broadly, his
complaint generally appears to suggest violations of the
Eighth Amendment. 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). To
establish an Eighth Amendment violation, a prisoner must
demonstrate that he was deprived of “the minimal
civilized measure of life's necessities.”
Rhodes v. Chapman, 452 U.S. 337, 347 (1981);
Wilson v. Seiter, 501 U.S. 294 (1991) (an Eighth
Amendment claim is stated where a prisoner is denied some
element of civilized human existence due to deliberate
indifference or wantonness); Street v. Corrections Corp.
of America, 102 F.3d 810, 814 (6th Cir. 1996).
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, 501 U.S. at 298. Thus, to state a viable
Eighth Amendment claim, an inmate must allege that a prison
official: 1) was actually aware of a substantial risk that
the plaintiff would suffer serious harm; and 2) knowingly
disregarded that risk. Farmer v. Brennan, 511 U.S.
825, 837 (1994).
42 U.S.C. § 1997e(e) provides, “[n]o Federal civil
action may be brought by a prisoner confined in a jail,
prison, or other correctional facility, for mental or
emotional injury suffered while in custody without a prior
showing of physical injury.” The United States Court of
Appeals for the Sixth Circuit has repeatedly found Eighth
Amendment claims for monetary relief precluded by 42 U.S.C.
§ 1997e(e) absent a showing of physical injury. See
Jennings v. Weberg, No. 2:06-CV-235, 2007 WL 80875, at
*3 (W.D. Mich. Jan.8, 2007) (collecting cases). “[E]ven
though the physical injury required by § 1997e(e) for a
§ 1983 claim need not be significant, it must be more
than de minimis for an Eighth Amendment claim to go
forward.” Flanory v. Bonn, 604 F.3d 249, 254
(6th Cir. 2010).
these standards in mind, the Court has reviewed Hood's
claims against Lt. Moore [R. 1 at 4 (¶ 1)] and his
claims against C.O.'s Howard and Harshbarger [R. 1 at 4
(¶ 2)]. A response is required from those defendants