United States District Court, E.D. Kentucky, Central Division, Lexington
ANDRE S. PENDERMON, Plaintiff,
MADISON COUNTY DETENTION CENTER, et al., Defendants.
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge.
Andre Pendermon has filed a pro se civil rights
complaint pursuant to 42 U.S.C. § 1983. [Record No. 1]
This matter is pending for initial screening required by 28
U.S.C. §§ 1915(e)(2), 1915A.
indicates that was employed in the spring of 2019 as an
inmate trustee in the kitchen area of the Madison County
Detention Center (“MCDC”). He alleges that during
a two-month period he engaged in sexual relations with Erika
Jackson, a supervisory employee of Kellwell Food Service
(“Kellwell”), while another inmate stood watch.
Pendermon further claims that Jackson gave the two food in
exchange for keeping quiet. Further, she allegedly advised
the two that they would lose status as trustees if they told
anyone of her actions. Jackson was later arrested by state
police and charged with rape and sodomy. Pendermon alleges
that he these events caused trauma and bumps on his genitals.
He seeks $3.5 million in damages from MCDC and Kellwell.
[Record No. 1 at 4-5] But at a minimum, Pendermon's
Complaint is subject to dismissal without prejudice because
he admits that MCDC has a grievance policy but that he never
filed an inmate grievance, either while he was incarcerated
in Madison County or after his transfer to the Montgomery
County Jail. [Record No. 1 at 6, 7]
law requires a prisoner to pursue and exhaust any available
administrative remedies before filing suit. 42 U.S.C. §
1997e(a); Jones v. Bock, 549 U.S. 199, 211 (2007)
(“There is no question that exhaustion is mandatory
under the PLRA and that unexhausted claims cannot be brought
in court.”). Pendermon claims that he did not file a
grievance because he feared losing his position as a trustee
and retaliation from other inmates for disclosing
Jackson's conduct. [Record No. 1 at 8] These professed
fears, however, did not stop Pendermon from telling Lt.
Deanna Anglin and Chief Tom Jones about Jackson's
conduct, resulting in the involvement of the Kentucky State
Police. Id. These alleged fears, therefore, were
manifestly insufficient to render the grievance process
wholly unavailable, and Pendermon's failure to pursue
MCDC's formal grievance process renders his claims
only claim is that the defendants violated the Prison Rape
Elimination Act, 42 U.S.C. § 15601 et seq.
(“PREA”). [Record No. 1 at 3] PREA is primarily a
funding statute: it does not create rights enforceable by a
private party in a civil action. Krieg v. Steele,
599 Fed.Appx. 231, 232-33 (5th Cir. 2015) (collecting cases);
see also Montgomery v. Harper, No. 5: 14CV-P38-R,
2014 WL 4104163, at *2 (W.D. Ky. Aug. 19, 2014) (“...
PREA does not create a private cause of action which can be
brought by an individual plaintiff.”); Chapman v.
Willis, No. 7: 12-CV-389, 2013 WL 2322947, at *4 (W.D.
Va. May 28, 2013) (“There is no basis in law for a
private cause of action to enforce a PREA violation.”).
Thus, dismissal would be required even if Pendermon had
exhausted his available remedies.
Pendermon does not allege violation of any of his
constitutional rights, but any such claims would fail if he
had made such claims. Even liberally construing his claim
against MCDC as asserted against Madison County itself
(see Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir.
1994) (“Since the Police Department is not an entity
which may be sued, Jefferson County is the proper party to
address the allegations of Matthews's
complaint.”)), Pendermon does not allege that
Jackson's conduct was undertaken pursuant to an
established policy or custom of either Madison County or
Kellwell. A county government (or a private company operating
under contract with one) is only liable under § 1983
when its employees cause injury by carrying out their
employer's formal policies or practices. Monell v.
Dept. of Social Services, 436 U.S. 658, 694 (1978);
Rouster v. Cty. of Saginaw, 749 F.3d 437, 446 (6th
Cir. 2014). As a result, to proceed with such a claim, a
plaintiff must specify the county policy or custom which he
alleges caused his injury. Paige v. Coyner, 614 F.3d
273, 284 (6th Cir. 2010). Here, Pendermon points to no such
policy. Therefore, his Complaint is subject to dismissal for
failure to state a claim upon which relief may be granted.
Bright v. Gallia County, Ohio, 753 F.3d 639, 660
(6th Cir. 2014); Brown v. Cuyahoga County, Ohio, 517
Fed.Appx. 431, 436 (6th Cir. 2013).
reasons discussed above, it is hereby
1. Plaintiff Andre Pendermon's Complaint [Record No. 1 ]
is DISMISSED, with prejudice.
2. This matter is DISMISSED and
STRICKEN from the Court's docket.
 When testing the sufficiency of the
plaintiff's Complaint, the Court affords it a forgiving
construction, accepting as true all non-conclusory factual
allegations and liberally construing its legal claims in the
plaintiff's favor. Davis v. Prison Health
Servs.,679 F.3d 433, 437-38 (6th Cir. 2012). However,
the 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 ...