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Cissell v. Myers

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

July 5, 2019

JOHNNY CISSELL, Plaintiff,
v.
WILLIAM MEYERS et al., Defendants.

          MEMORANDUM OPINION

          David J. Hale, Judge.

         Plaintiff Johnny Cissell filed the instant pro se 42 U.S.C. § 1983 action proceeding in forma pauperis.[1] This matter is before the Court on initial review of the complaint pursuant to 28 U.S.C. § 1915A. For the reasons stated below, the Court will dismiss the action.

         I. SUMMARY OF COMPLAINT

         Plaintiff is a convicted inmate at the Luther Luckett Correctional Complex (LLCC). He sues LLCC personnel, identifying their names and job titles as follows: William Myers, a correctional officer; Kevin Drake, a captain; Jesse Stack, a deputy warden; Scott Jordan, the Warden; Stephanie Chowning, a [Prison Rape Elimination Act] PREA compliance manager; Cathy Buck, a grievance coordinator; Timothy Forgy, an Internal Affairs captain; and Jane and John Doe, correctional employees. He also sues James Erwin, identifying him as a commissioner of the Kentucky Department of Corrections. He sues all Defendants in their individual and official capacities.

         Plaintiff states that on November 8, 2017, he was called to the “core-area” by Defendant Myers “due to washing my bowls in the bathroom sink, in which, he became very belligerant, and agressively started pointed his finger at me making threats, stating: ‘I'll take it to a whole nother level.'” Plaintiff states, “Such was an act of malice and recklessness in violation of the Eighth Amendment to the U.S. Constitution.”

         Plaintiff further asserts that on January 15, 2018, Defendant Myers “came to my cell to shake me down, however, as C/O Myers started his pat down, he (C/O Myers) became very aggressive - and out of nowhere - ‘wanton and intentionally' jacked my (Plaintiff's Cissell's) pants up his back side, as if giving him a ‘weggie' in the presence of other inmates . . . .” Plaintiff states that this was done “in retaliation for past grievance filed in order to intimidate, humiliate and harrass the Plaintiff, in violation of his First Amendment Right to the U.S. Const.”

         Plaintiff states that on May 5, 2018, a non-Defendant first shift corrections officer conducted a cell search and pat down search on him. According to the complaint, later that day, Defendant Myers “came directly to my cell to conduct a pat down/cell search on my cell . . . without just cause” and “even after informing him that I had just been searched by the 1st shift officers, he (C/O Myers) stated it wasn't his shift; he didn't care and that, he can shake me down anytime he wants.” Plaintiff continues, “Such acts of sexual misconduct; harassment; and wanton behavior as described herein constitute a violation of the Eighth Amendment.”

         Plaintiff asserts that on July 27, 2018, another non-Defendant officer conducted a cell search and pat down search of him. He states that the next day Defendant Myers “came directly to my cell being verbally abusive, yanking my door open yelling ‘Shake Down!' Such act was to intimidate, harass, and retaliate against me for exercising my right to file or address said issue of compl[ai]nt.” Plaintiff states that this violated the Eighth Amendment.

         Plaintiff reports that Defendant Drake is a second shift supervisor “responsible for the training and placement of staff duties.” Plaintiff states, “During the acts mentioned herein concerning C/O Myers, Captain Drake was fully aware and involved in the compl[ai]nts filed concerning the harassment, retaliation, verbal abuse, intimidation, and sexual assault being done by Officer Myers.” He maintains that Defendant Drake “chose to overlook the incident and continued to place C/O Myers in the dorm with these inmates who had complaints against him. Such unreasonable acts amounted to a ‘malicious and sadistic' act of negligence in violation of the Eighth Amendment.” Plaintiff states that he filed a “PREA grievance” on January 22, 2018, and a few days later Defendant Drake spoke to him about the incident with Defendant Myers. Plaintiff asserts that he informed him that another officer had already viewed camera footage of the incident and corroborated the story. Plaintiff states that Defendant Drake failed to “respond reasonably to this known risk” and showed deliberate indifference in violation of the Eighth Amendment.

         Plaintiff further maintains that Defendants Stack, Jordan, Erwin, and Chowning also disregarded his complaints about Defendant Myers, were negligent, and violated the Eighth Amendment and Due Process Clause. He asserts that Defendant Buck rejected his grievance “without the process of investigation” in violation of the Eighth Amendment and “retaliated against me for filing my compl[ai]nt being verbally abuse” in violation of the First Amendment. He also states that Defendant Forgy “failed to intervene by an investigation into the sexual misconduct against Defendant Myers, or; otherwise, failed to take action into the unreasonable risk of serious harm.” Plaintiff asserts that he sent a criminal complaint to the sheriff in LaGrange, Kentucky, “about C/O William Myers, and his sexual assault against inmates here at LLCC” but the complaint was returned and sent to Internal Affairs. Plaintiff states that Defendant Forgy told him that “any other complaints or issues must go through him” and “ignored the allegations concerning [Defendant Myers]; and placed him (Myers) back into the dorm which allowed him to continue targeting me” in violation of the Eighth Amendment.

         Plaintiff also states, “Defendants Jane and John Doe, are correctional employees at LLCC, who know or should have known about the violations which occurred herein.” As relief, Plaintiff seeks compensatory and punitive damages and injunctive relief.

         II. LEGAL STANDARD

         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 complaint, or any portion of it, if the court determines that the complaint 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 § 1915A(b)(1), (2); McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007).

         In order to survive dismissal for failure to state a claim, “a complaint 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[A] district court must (1) view the complaint in the light most favorable to the plaintiff and (2) take all well-pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)). “But the district court need not accept a ‘bare assertion of legal conclusions.'” Tackett, 561 F.3d at 488 (quoting Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). Although this Court recognizes that pro se pleadings are to be held to a less stringent standard than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519, ...


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