# Chapa v. Kenton County Judge Executive

> District Court, E.D. Kentucky · July 14, 2023

URL: https://www.frixlaw.com/law-library/cases/10180844

## Case

- **Court:** District Court, E.D. Kentucky
- **Decided:** July 14, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON

CIVIL ACTION NO. 21-22-DLB-MAS

GREGORY RICARDO CHAPA PLAINTIFF

v. MEMORANDUM OPINION AND ORDER

KENTON COUNTY JUDGE EXECUTIVE, et al. DEFENDANTS

* * * * * * * * * * *
I. INTRODUCTION
This matter is before the Court upon a Motion to Dismiss for Lack of Prosecution
filed by Defendants (Doc. # 39), and a Motion for Leave to Amend the Complaint filed by
Plaintiff. (Doc. # 42). Plaintiff has filed a Response to Defendants’ Motion (Doc. # 41),
and the time for filing a Reply has passed without one being filed. Defendants have not
responded to Plaintiff’s Motion, and the time for doing so has passed. Accordingly, both
motions are ripe for the Court’s review. For the reasons stated herein, Defendants’ Motion
to Dismiss (Doc. # 39) is granted, and Plaintiff’s Motion for Leave to Amend (Doc. # 42)
is denied as moot. Additionally, pursuant to 42 U.S.C § 1997e(c)(1), the Court has
reviewed Plaintiff’s Complaint and determined that it fails to state a claim upon which relief
can be granted. This action is accordingly dismissed with prejudice.
II. FACTUAL AND PROCEDURAL BACKGROUND
When this action was filed in July 2020, Plaintiff Gregory Ricardo Chapa was
incarcerated at the Kenton County Detention Center (“KCDC”) in Covington, Kentucky.
(Doc. # 1-1 at 8). According to Mr. Chapa, “[n]ot even the minimum precautionary and
cautionary measures were taken in response to COV[ID]-19 infection or to prevent the
spread of the virus” by KCDC and the county officials in charge of operating the jail. (Id.
at 12). More specifically, Mr. Chapa alleges that the jail did not appropriately socially
distance inmates (id.), that the jail did not provide an adequate amount of hand soap to
inmates (id. at 13), that the jail did not have enough germicidal chemicals on hand (id. at

14), that the jail did not have enough uniforms and linens to change them often enough
(id.), that the jail rationed toilet paper (id. at 15), and that the jail only provided him two
hot meals per day, “which surely cannot meet . . . federal institutional standards.” (Id.).
Mr. Chapa believes these actions violated his Constitutional rights, and in July 2020, he
filed a pro se lawsuit in Kenton Circuit Court against the Kenton County Judge Executive,
the Kenton County Jailer, KCDC, Kenton County Fiscal Board members, and Southern
Health Partners (“SHP”), the jail’s contracted healthcare provider. (See Doc. # 1-1). Mr.
Chapa’s lawsuit seeks declaratory and injunctive relief with respect to the jail’s COVID-
19 policies and monetary damages of $100,000.1 (Id.).

Defendants removed Mr. Chapa’s lawsuit to this Court in February 2021. (Doc. #
1). In April 2021, the Court granted a Motion to Dismiss filed by SHP on procedural
grounds, noting that Mr. Chapa had not responded to SHP’s Motion and that he had

1 Mr. Chapa’s claims for injunctive relief are now moot, considering the end of the COVID-
19 pandemic. See, e.g., Act of Apr. 10, 2023, Pub. L. No. 118-3, 137 Stat. 6 (a joint resolution
enacted by Congress and signed by President Biden ending the COVID-19 national emergency).

Additionally, despite later writing that he “DID NOT file this suit for monetary gain” (Doc. #
41 at 2) (emphasis in original), in a letter dated March 2023, Mr. Chapa has persisted to request
from Defendants “a simple settlement [of] $5,000 [because he is] struggling with alcohol and drug
addiction and trying to get [his] life together,” and the monetary settlement would be “a start for
[him] and [he] could and would use it to better [his] life.” (Doc. # 43 at 2). The Court commends
Mr. Chapa on attempting to better his life after incarceration, but seeking settlement money from
a lawsuit is not an accordingly commendable means for doing so.
otherwise indicated withdrawal of his claims against SHP. (Doc. # 16). Shortly thereafter,
Mr. Chapa moved to amend his complaint (Doc. # 19), and the parties filed proposed
discovery schedules. (Docs. # 21 and 22). The presiding Magistrate Judge entered a
Report and Recommendation recommending that Mr. Chapa’s Motion for Leave to
Amend be granted in part, insofar as it sought addition of Jailer Terry Carl individually,

and denied in part, insofar as it sought addition of individual members of the Kenton
County Fiscal Board. (Doc. # 33). The Court adopted the Report and Recommendation
in full after no objections were filed by either party. (Doc. # 36).
But Mr. Chapa never filed an Amended Complaint, and the Court entered a
Scheduling Order in March 2022, directing that fact discovery should be completed by
September 2, 2022, and that dispositive motions were due by January 13, 2023. (Doc. #
37). Mr. Chapa filed a Notice of Change of Address in May 2022, and then the case sat
dormant for several months until Defendants filed the instant Motion to Dismiss in
December 2022. (Doc. # 39). Mr. Chapa again filed a Notice of Change of Address a

few weeks later (Doc. # 40), and he filed a Response to the Motion to Dismiss on the last
day for doing so, December 30, 2022. (Doc. # 41).
In January 2023, Mr. Chapa filed a second Motion for Leave to Amend his
Complaint, again seeking to add Jailer Carl individually. (Doc. # 42). Mr. Chapa has also
filed a letter addressed to defense counsel dated March 2023, in which he seeks
discovery materials (Doc. # 43), and a final change of address (Doc. # 44), indicating that
he was living in a rehabilitation facility at Saint Catharine, Kentucky, as of March 2023.
(Doc. # 44). As of July 2023, no other filings have been made on the case’s docket.
III. ANALYSIS
The Court having reviewed the record, including the pending motions, has
concluded that Defendants’ Motion to Dismiss (Doc. # 39) will be granted for Mr. Chapa’s
failure to adhere to the Court’s deadlines and failure to prosecute his case in an efficient
and meaningful manner. As an alternative basis for dismissal, Mr. Chapa also fails to

state a claim upon which relief can be granted, which warrants a sua sponte dismissal of
his Complaint. Lastly, Mr. Chapa’s Motion for Leave to Amend (Doc. # 42) is duplicative
and futile, and will thus be denied. The Court will address each of these issues in turn.
A. Defendants’ Motion to Dismiss (Doc. # 39)
Rule 41(b) of the Federal Rules of Civil Procedure provides that if a plaintiff “fails
to prosecute or to comply with these rules or a court order, a defendant may move to
dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b). The Sixth Circuit has
provided four factors to guide a court’s decision of whether to dismiss an action for failure
to prosecute: “(1) whether the party’s failure is due to willfulness, bad faith, or fault; (2)

whether the adversary was prejudiced by the dismissed party’s conduct; (3) whether the
dismissed party was warned that failure to cooperate could lead to dismissal; and (4)
whether less drastic sanctions were imposed or considered before dismissal was
ordered.” Knoll v. AT&T, 176 F.3d 359, 363 (6th Cir. 1999) (citing Stough v. Mayville
Comm. Sch., 138 F.3d 612, 615 (6th Cir. 1998)). None of the factors are outcome
dispositive, but “it is said that a case is properly dismissed by the district court where there
is a clear record of delay or contumacious conduct.” Id. (citing Carter v. City of Memphis,
636 F.2d 159, 161 (6th Cir. 1980)).
Even though “pro se litigants may be entitled to some latitude when dealing with
sophisticated legal issues, acknowledging their lack of formal training, there is no cause
for extending this margin to straightforward procedural requirements that a layperson can
comprehend as easily as a lawyer.” Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991).
Examples of violated “straightforward procedural requirements” precipitating a Rule 41(b)

dismissal of a pro se case include a failure to conduct discovery by established deadlines,
id. at 108, an absence of docket activity besides requests for continuances, Vesely v.
Cuyahoga Metro. Hous. Auth., 130 F.R.D. 83, 84 (N.D. Ohio 1990), and failure to abide
by deadlines for pretrial disclosures. Norton v. Toth, 886 F.2d 1316 (6th Cir. 1989)
(unreported table case).
However, because dismissal is a severe penalty, the “dismissal of pro se lawsuits
is justified only when the pro se plaintiff acts deliberately, not when he does so through
misunderstanding.” Streeter v. NLRB, 835 F.2d 879 (6th Cir. 1987) (unreported table
case) (citing Salahuddin v. Harris, 782 F.2d 1127, 1132 (2d Cir. 1986)). Nonetheless, a

district court is given “substantial discretion” in dismissing cases for failure to prosecute
“as a tool to effect management of its docket and avoidance of unnecessary burdens on
the tax-supported courts and opposing parties.” Schafer v. City of Defiance Police Dep’t.,
529 F.3d 731, 736 (6th Cir. 2008) (quoting Knoll, 176 F.3d at 363).
Here, Defendants argue that Mr. Chapa “signaled that he has abandoned his
claims” by failing to obtain service on Jailer Carl or requesting a waiver of service and
failing to conduct any discovery in the two and a half years between the filing of his
Complaint in July 2020 and the filing of Defendants’ Motion in December 2022. (See Doc.
# 39 at 2). In his Response, which is the first substantive pleading Mr. Chapa filed (other
than a change of address) in the year-and-a-half between June 2021 and December
2022, Mr. Chapa does not contest his lack of activity in the case. (See Doc. # 41).
Instead, Mr. Chapa writes that since the filing, he has “been battling a drug and alcohol
addiction, [has] completed two 90-day [stints] in an [inpatient] rehab [] at K.C.D.C[,] . . .
been in and out of jail; homeless here and there and only God knows what else[.]” (Id. at

2). He also writes that the jail only gives two pieces of paper per week for indigent
inmates, and notes that since he filed the suit, the jail has “broke[n] out all sorts of new
uniforms, towels, sand[als], [and] linen.”2 (Id.). Importantly, Mr. Chapa does not dispute
that he completely failed to comply with the Court’s Scheduling Order, which provided
that discovery should end by September 2, 2022, and that dispositive motions should be
filed by January 13, 2023. (Doc. # 37). Considering these arguments within the four
factors provided by the Sixth Circuit in Knoll, the Court concludes that Defendants’ Motion
to Dismiss (Doc. # 39) will be granted, because the first three factors weigh in favor of
dismissal, and the fourth is neutral.

The first Knoll factor, whether the party’s failure is due to willfulness, bad faith, or
fault, “can be inferred where a party ‘display[s] either an intent to thwart judicial
proceedings or a reckless disregard for the effect of his conduct on those proceedings.’”
Cornett v. Dobson, 338 F.R.D. 97, 99 (E.D. Ky. 2021) (quoting Wu v. T.W. Wang, Inc.,
420 F.3d 641, 643 (6th Cir. 2005) (alterations in original). While Mr. Chapa has not

2 Within his Motion for Leave to Amend the Complaint (Doc. # 42), Mr. Chapa also seeks to
assert “additional counter response[s]” to the Motion to Dismiss, but the Court does not consider
these arguments, since they were filed out of time, and Mr. Chapa did not seek leave to file a sur-
reply. L.R. 7.1(g) (“A motion is submitted to the Court for decision . . . after the reply is filed, or
the time for filing the response or reply has expired.”); see also e.g., Chenault v. Randstad USA
Mfg. and Logistics, No. 5:18-CV-276-KKC, 2019 WL 1279211, at *3 (E.D. Ky. May 20, 2019)
(“Neither the Local Rules nor the Federal Rules of Civil Procedure permit litigants to file sur-
replies. Accordingly, such filings are not permitted absent leave of Court.”) (collecting cases).
displayed an intent to thwart this proceeding, he has conveyed a reckless disregard for
the effect of his conduct on the Court and opposing parties. As of the date of entry of this
Order, Mr. Chapa’s case has been filed for nearly three years. The first documented
effort by Mr. Chapa to conduct discovery in those three years is a letter dated March 4,
2023, in which Mr. Chapa writes to Assistant Kenton County Attorney Christopher Nordloh

that he “made a request for discovery pursuant to the applicable Fed. Civ. R. P. [sic] over
a week or so more ago.” (Doc. # 48). Mr. Chapa himself filed this letter into the record,
seemingly in support of his response to Defendants’ Motion to Dismiss. (Id.). But the
letter does little more than show that Mr. Chapa did not engage in discovery until March
2023, when the Court’s Scheduling Order, entered a full year previously in March 2022,
set a deadline for fact discovery of September 2, 2022. (Doc. # 37). In other words, Mr.
Chapa did not engage in discovery until six months after the deadline for fact discovery
ended, and otherwise disregarded deadlines in the Scheduling Order for a full year. Mr.
Chapa did not move the Court for leave to extend any of these deadlines, and the Court

knows that Mr. Chapa is aware of his ability to extend deadlines, as he has requested
extensions of Court-imposed deadlines before. (E.g., Doc. # 12, Motion for Extension of
Time).
As justification for his absence, Mr. Chapa only states that he has been in
complicated living situations and dealing with drug and alcohol dependence issues. (Doc.
# 41). More importantly, though, Mr. Chapa has not addressed the effect of his conduct
on the proceedings, which demonstrates a reckless disregard for his understanding of
how a multiple-year delay in litigation can backlog the Court and affect opposing parties.3
Cornett, 338 F.R.D. at 99. While the Court is certainly sympathetic to Mr. Chapa’s
situation, the Court must manage its docket and avoid burdens on the Judiciary and on
the parties. Schafer, 529 F.3d at 736. The first Knoll factor thus weighs in favor of
dismissal.

The second factor is whether the adversary was prejudiced by the dismissed
party’s conduct. Knoll, 176 F.3d at 363. More specifically, “a defendant is prejudiced by
a plaintiff’s dilatory conduct if the defendant is required to waste time, money, and effort
in pursuit of cooperation which the plaintiff was legally obligated to provide.” Johnson v.
Miller, 363 F. Supp. 3d 806, 810 (E.D. Ky. 2019) (citing Carpenter v. City of Flint, 723
F.3d 700, 707 (6th Cir. 2013)). Here, as previously stated, Mr. Chapa failed to conduct
any discovery until more than six months after the discovery deadline ended. (See Doc.
# 37). Only at that point, almost two years after filing, and after Defendants filed a Motion
to Dismiss, did Mr. Chapa attempt to engage in discovery, at which time he also attempted

to negotiate a settlement. (Doc. # 43). And even then, it is unclear how meaningful his
efforts were, as Mr. Chapa wrote that discovery “[wouldn’t] take long.” Supra note 3 (citing
Doc. # 37). Even though little or no evidence within the record exists to show that
Defendants expended resources pursuing Mr. Chapa’s cooperation, the law strongly
favors the expedient disposition of cases. Celotex Corp. v. Catrett, 477 U.S. 317, 327
(1986) (“[T]he Federal Rules as a whole . . . are designed ‘to secure the just, speedy, and

3 In fact, albeit in his improper sur-reply (see supra note 2), Mr. Chapa has written that he
“WILL SURVIVE ANY ATTEMPTS OF DISMISSAL . . . and actually, [he] can’t wait to proceed to
trial once [he] get[s] discovery together which won’t take long.” (Doc. # 42 at 5). This sentence,
dated January 17, 2023, alone demonstrates a fatal misunderstanding of deadlines and a reckless
disregard for the Court’s Scheduling Order, as discovery had ended in January 2023. (See Doc.
# 37).
inexpensive determination of every action.’” (quoting Fed. R. Civ. P. 1)). In consideration
of how Mr. Chapa’s inaction has prevented the “speedy determination” of this action,
thereby prejudicing Defendants, the second factor weighs in favor of dismissal. Fed. R.
Civ. P. 1.
The third Knoll factor addresses whether the dismissed party was warned that

failure to cooperate could lead to dismissal. 176 F.3d at 363. On this record, Mr. Chapa
was warned four times that his failure to properly litigate his case could result in a
dismissal, including for failure to prosecute. (Doc. # 9) (“If [Mr. Chapa] does not file a
timely response, the Court may dismiss the case for failure to prosecute.”); (Doc. # 11 at
2) (“The Court repeats its admonition that Chapa’s failure to file a timely response is
grounds for dismissal . . . for failure to prosecute.”); (Doc. # 13 at 1) (“Finally, Chapa is
cautioned that the Court will dismiss his claims . . . for failure to prosecute if he fails to
file a timely and substantive response[.]”) (emphasis in original); (Doc. # 16 at 3) (“The
Court will impose appropriate sanctions – up to and including dismissal of this action[.]”).

While none of these warnings were directly prompted by the delays at issue now, Mr.
Chapa is and has been well aware that dismissal for lack of prosecution is a penalty that
the Court is empowered to consider and implement.
In addition to the warnings contained within this record, Mr. Chapa is a historically
frequent litigant before the Eastern District of Kentucky, as he has been subject to the
“three strikes” bar of 28 U.S.C. § 1915(g) for twenty years. (Doc. # 9); see also Chapa v.
Jailer, Kenton County Detention Center, No. 2:20-CV-112-GFVT (E.D. Ky. 2020), at ECF
No. 4 (outlining Chapa’s history of litigation within the Eastern District of Kentucky). In
other words, the Court’s warnings in this case and in prior cases have put Mr. Chapa on
sufficient notice that his failure to cooperate with established deadlines and rules of
procedure would lead to dismissal of his case, and the third factor thus weighs in favor of
dismissal. Cf. Schafer, 529 F.3d at 737; Carthon v. Cent. State Univ., 290 F.R.D. 83, 87
(S.D. Ohio 2013).
The fourth factor is whether less drastic sanctions were imposed or considered

before dismissal was ordered. Knoll, 176 F.3d at 363. Within this action, the Court did
not impose less drastic sanctions on Mr. Chapa, but this Court has previously imposed
sanctions on Mr. Chapa due to his history of contumacious conduct in other actions. (See
Doc. # 9). Those sanctions still stand, and Mr. Chapa was only permitted to litigate this
case because he filed it in state court, and it was removed here by one of the Defendants.
(See id.). However, because the Court did not impose a less drastic sanction on Mr.
Chapa in this specific action, the Court will assess the final factor as neutral.
The first three factors weigh in favor of dismissal, and the fourth is neutral, meaning
that under Knoll’s analysis of Rule 41(b), dismissal of this action for failure to prosecute

is warranted. More importantly, the filings (and lack thereof) show “a clear record of delay
or contumacious conduct” by Mr. Chapa, which means this action is “properly dismissed.”
Schafer, 529 F.3d at 737 (quoting Knoll, 176 F.3d at 363).
B. Failure to State a Claim
As an alternative basis, Mr. Chapa’s Complaint is also subject to dismissal for
failure to state a claim upon which relief can be granted. Even though Defendants did
not raise Rule 12(b)(6) in their Motion to Dismiss, 42 U.S.C. § 1997e(c)(1) (the Prison
Litigation Reform Act, hereinafter “PLRA”) provides that “[t]he court shall on its own
motion . . . dismiss any action brought with respect to prison conditions . . . if the court is
satisfied that the action is frivolous, malicious, [or] fails to state a claim upon which relief
can be granted[.]” Unlike the “three strikes” bar of 28 U.S.C. § 1915(g), another provision
of the PLRA, 42 U.S.C. § 1997(e)(c)(1)’s dismissal power applies in full force to cases
like this one: § 1983 actions filed in state court which invoke federal law and are later
removed to federal court under federal question jurisdiction.4 See, e.g., Hodge v.

Louisville/Jefferson Cnty. Metro Jail, No. 3:05-CV-P831-S, 2006 WL 1984723, at *4 (W.D.
Ky. July 12, 2006) (discussing § 1997e(a)’s usage of “no action,” making it applicable to
§ 1983 actions filed in state court) (internal citations omitted); Taylor v. Woods, No. 2:17-
CV-85, 2017 WL 5380897, at *2-3 (W.D. Mich. Nov. 14, 2017) (applying § 1997e(c)(1)’s
dismissal power for failure to state a claim to § 1983 action filed in state court); but see
Maldonado v. Baker Cnty. Sheriff’s Office, 23 F. 4th 1299, 1304 (11th Cir. 2022) (“Indeed,
§ 1997e(e) does not apply to prisoner lawsuits unrelated to prison conditions filed in state
court based solely on state law and removed . . . on diversity jurisdiction.’” (quoting
Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1317 (11th Cir. 2002)

(emphasis added).
When the Court evaluates a pro se complaint under the PLRA, it uses the same
standard for deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim upon
which relief can be granted. See Taylor, 2017 WL 5380897, at *2; see also Flanory v.
Bonn, 604 F.3d 249, 252-53 (6th Cir. 2010). In evaluating a 12(b)(6) motion to dismiss,
a court is called to assess whether the plaintiff has “state[d] a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.

4 As the Magistrate Judge discussed in his Report and Recommendation, Mr. Chapa’s
claims are properly construed as being brought under 42 U.S.C. § 1983, as Mr. Chapa’s
Complaint asserts that his Constitutional rights have been violated by the aggrieved conduct.
(See Doc. # 33 at 5-6) (citing Doc. # 1-1).
v. Twombly, 550 U.S. 544, 555 (2007)) (emphasis added). In making that assessment,
a court should accept the plaintiff’s allegations as true, and then determine whether the
plaintiff has pled sufficient “factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. In other words, “if
the plaintiff[] do[es] ‘not nudge [his] claims across the line from conceivable to plausible,

[his] complaint must be dismissed.’” Jackson v. Sedgwick Claims Mgmt. Servs., 731 F.3d
556, 562 (6th Cir. 2013) (en banc), (quoting Twombly, 550 U.S. at 570), cert. denied, 572
U.S. 1100 (2014).
To give rise to plausibility, the complaint must contain factual allegations that speak
to all a claim’s material elements “under some viable legal theory.” Eidson v. Tenn. Dep’t
of Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007). In short, a claim cannot pass
muster if the plaintiff has not pleaded sufficiently plausible facts to support a “viable legal
theory” with respect to all material elements of each claim. See id. The plaintiff’s burden
in doing so is not onerous, though, as a court should “construe the complaint in the light

most favorable to the plaintiff.” Hill v. Snyder, 878 F.3d 193, 203 (6th Cir. 2017). That
burden with respect to a pro se plaintiff is slightly even lower, as “the arguments and
filings of pro se litigants should be liberally construed.” Lamb v. Howe, 677 F. App’x 204,
207 (6th Cir. 2017) (citing El Bey v. Roop, 530 F.3d 407, 413 (6th Cir. 2008)).
Nonetheless, however, “mere conclusory statements[] do not suffice,” and legal
conclusions “must be supported by factual allegations.” Ashcroft, 556 U.S. at 678.
Accordingly, the “Court’s duty to construe a pro se complaint liberally does not absolve a
plaintiff of the duty to comply with the Federal Rules of Civil Procedure[.]” (Doc. # 33 at
6 n.2) (citing Swerkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)).
As previously stated, Mr. Chapa’s Complaint is liberally construed to state claims
for relief under 42 U.S.C. § 1983 for alleged violations of his Constitutional rights. See
supra note 4; (Doc. # 33 at 5-6). More specifically, Mr. Chapa has alleged that KCDC’s
acts and omissions during the COVID-19 pandemic violated his Eighth Amendment rights
to be free from cruel and unusual punishment and his Fourteenth Amendment rights to

due process of law. (See Doc. # 1-1 at 15-16). Even under the liberal pleading standard
afforded to pro se litigants, Mr. Chapa fails to state cognizable claims for relief, and his
Complaint will be dismissed for the following reasons.
The Eighth Amendment protects against “cruel and unusual punishments.” U.S.
Const. amend. VIII. In the context of modern incarceration, the Eighth Amendment
requires “that inmates receive adequate food, clothing, shelter, and medical care.”
Farmer v. Brennan, 511 U.S. 825, 832 (1994). However, “conditions that cannot be said
to be cruel and unusual under contemporary standards are not unconstitutional. To the
extent that [prison] conditions are restrictive and even harsh, they are part of the penalty

that criminal offenders pay for their offenses against society.” Rhodes v. Chapman, 452
U.S. 337, 347 (1981). Rather, the Eighth Amendment is violated when prison officials
exhibit “deliberate indifference” to a “substantial risk of serious harm” stemming from
conditions of confinement. Farmer, 511 U.S. at 828.
The Fourteenth Amendment is used similarly to litigate conditions of confinement,
but it is usually used to extend the Eighth Amendment’s protections to pretrial detainees,
as pretrial detainees are not “punished’ for Eighth Amendment purposes. Ruiz-Bueno v.
Scott, 639 F. App’x 354, 358-59 (6th Cir. 2016) (collecting cases) (explaining applicability
of Eighth and Fourteenth Amendment to types of conditions-of-confinement cases).
Even so, when a conditions-of-confinement claim is brought by an incarcerated person
serving a criminal sentence (as opposed to a pretrial detainee), the Constitutional
standards for evaluating the conditions of confinement are the same, irrespective of which
amendment the plaintiff styles his claim under. E.g., Woodcock v. Correct Care Sols.,
861 F. App’x 654, 659 (6th Cir. 2021). In other words, claims brought by incarcerated

prisoners under the Eighth and Fourteenth Amendments “are analyzed under the same
rubric” – the deliberate indifference standard.5 Villegas v. Metro Gov’t of Nashville, 709
F.3d 563, 569 (6th Cir. 2013); see also Cameron v. Bouchard, 815 F. App’x 978, 984 (6th
Cir. 2020) (addressing a claim brought under the Eighth and Fourteenth Amendments
and noting only that “[c]onditions-of-confinement claims are assessed under the
‘deliberate indifference’ framework.” (citing Villegas, 709 F.3d at 568)). Accordingly, Mr.
Chapa’s claims, brought under both the Eighth and Fourteenth Amendments, can be
analyzed together as one cohesive Eighth Amendment claim. Cf. Villegas, 709 F.3d at
569.

As previously stated, the Eighth Amendment is violated when prison officials act
with “deliberate indifference to a substantial risk of serious harm to an inmate[.]” Farmer,
511 U.S. at 828 (internal quotations omitted). The test for deliberate indifference
“includes both an objective and subjective prong.” Wilson v. Williams, 961 F.3d 829, 839
(6th Cir. 2020) (citing Farmer, 511 U.S. at 834). An inmate must satisfy both prongs to

5 Even though the Sixth Circuit has recently adopted a modified deliberate indifference
standard for pretrial detainees, the analysis remains the same for incarcerated prisoners.
Westmoreland v. Butler Cnty, 29 F.4th 721, 727 (6th Cir. 2022); see also Brown v. Clark, No.
3:22-CV-21-BJB, 2022 WL 3355805, at *3 (W.D. Ky. Aug. 12, 2022) (noting the new standard for
Fourteenth Amendment claims brought by pretrial detainees but remarking that the “difference,
however, should rarely matter in the Covid context: what prison official has been hiding under a
rock since March 2020 and remains unaware of the risks Covid poses to prisoners?” (citing
Cameron v. Bouchard, 815 F. App’x 978, 984-85 (6th Cir. 2020)).
successfully state a deliberate indifference claim. See id. The first prong requires a
substantial (objective) risk of serious harm, and the second prong requires the prison
official’s (subjective) knowledge and disregard of the substantial risk. Brown v. Clark, No.
3:22-CV-21-BJB, 2022 WL 3355805, at *2 (W.D. Ky. Aug. 12, 2022) (citing Farmer, 511
U.S. at 835). Usually, the subjective prong is most important, as deliberate indifference

“entails something more than mere negligence. Instead, the Eighth Amendment standard
is akin to criminal recklessness, requiring actual awareness [and disregard] of the
substantial risk.” Id. (internal quotations omitted).
On this record, the subjective prong is indeed the most important, as no reasonable
prison official could state that he was unaware of the COVID-19 pandemic and its
objectively substantial risk of serious harm. Cf. id. at *3 (noting that “the risks Covid poses
to prisoners” are well known, and “[i]instead, the analysis turns on whether the officials
responded to that risk in an objectively reasonable manner.”); see also Wilson, 961 F.3d
at 840. Accordingly, to state a claim upon which relief can be granted, Mr. Chapa’s

Complaint, construed as true, must plausibly show that Defendants “disregarded or
responded unreasonably” to the COVID-19 pandemic and associated risks of infection
with “a sufficiently culpable state of mind.” Downard v. Martin, 968 F.3d 594, 600 (6th
Cir. 2020) (citing Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001)); Trozzi v. Lake
Cnty., 29 F.4th 745, 752 (6th Cir. 2022) (citing Farmer, 511 U.S. at 834). Mr. Chapa has
not done so, and a look at analogous case law from the Sixth Circuit illuminates that his
Complaint must be dismissed.
Albeit in an unpublished decision, the Sixth Circuit recently upheld a similar
dismissal to this one in Dykes-Bey v. Washington, in which a Michigan inmate failed to
state an Eighth Amendment claim stemming from an alleged lack of COVID-19
precautions. No. 21-1260, 2021 WL 7540173 (6th Cir. Oct. 14, 2021). In Dykes-Bey, the
plaintiff made allegations almost identical to Mr. Chapa’s: that he did not receive adequate
quantities of soap, sanitizer, and other hygiene products; that facilities were not
adequately cleaned; and that he was not appropriately socially distanced from other

inmates. Id. at *1, 3. The district court dismissed his complaint sua sponte under the
PLRA, and the Sixth Circuit upheld that dismissal, writing that the inmate plaintiff had not
satisfied the subjective prong of the deliberate indifference test. Id. at *3. The Dykes-
Bey plaintiff complained that the prison’s COVID-19 precautions were inadequate, but not
nonexistent, and the plaintiff pleaded no facts which could demonstrate a culpable state
of mind by the defendants – which is a “key inquiry” in deliberate indifference cases. Id.
As the court explained: “[a]lthough he argues that those steps would ultimately be
insufficient to stop an outbreak, whether these steps were sufficient matters less than
what they say about the defendants’ states of mind.” Id. (citing Wilson, 961 F.3d at 841).

Mr. Chapa’s Complaint fails for the same reasons as the Dykes-Bey plaintiff’s:
while he has complained of conditions that may have been inadequate to fully stop the
spread of COVID-19 within the Kenton County Detention Center, he has provided no facts
which show “a subjective ‘state of mind more blameworthy than negligence,’ akin to
criminal recklessness.’” Cameron, 815 F. App’x at 984 (quoting Farmer, 511 U.S. at 835).
Instead, even construed in a light most favorable to Mr. Chapa, his Complaint shows that
Kenton County officials took precautions against COVID-19. At paragraphs 1 through 6,
Mr. Chapa details testing, quarantine, and social distancing precautions undertaken by
the jail, writing that his dormitory was tested, and that approximately 23 inmates were
removed from the dormitory after testing positive for COVID-19. (Doc. # 1-1 at 11-12,
14). At paragraphs 8A, 8B, and 8C, Mr. Chapa describes antibacterial soap dispensers
and germicidal chemicals that are present within the KCDC dormitory. (Id. at 13). At
paragraph 8D, Mr. Chapa writes about KCDC changing inmates’ uniforms and bed linens.
(Id. at 14). At paragraph 8E, Mr. Chapa provides more details about the jail’s social

distancing procedures, retelling that 23 inmates were removed from his dormitory after
testing positive for COVID-19. (Id.). To restate the Sixth Circuit’s holding in Dykes-Bey,
“whether these steps were sufficient matters less than what they say about the
defendants’ states of mind.” 2021 WL 7540173, at *3 (citing Wilson, 961 F.3d at 841).
Standing alone, Mr. Chapa’s allegations are insufficient to state a plausible claim for
deliberate indifference.
Furthermore, Mr. Chapa’s Complaint does not allege that he (or anyone else)
contracted COVID-19 because of KCDC’s practices – just that he and other inmates were
merely exposed to the virus. (Doc. # 1-1 at 14). With respect to the social distancing

precautions and testing measures undertaken at KCDC, Mr. Chapa does not state what
issue he takes with these measures at all, and in that absence, Mr. Chapa’s Complaint
may even highlight that KCDC’s COVID precautions worked well, because Mr. Chapa
never contracted COVID. Even though actual injury isn’t a prerequisite for an Eighth
Amendment claim, the absence of any cognizable harm certainly suggests an absence
of deliberate indifference. Cf. Dykes-Bey, 2021 WL 7540173, at *3 (upholding PLRA
dismissal where the complaint did not “allege that the defendants knowingly housed
COVID-19 positive inmates alongside any plaintiff, or even that a COVID-19 outbreak
occurred[.]”); Brown, 2022 WL 3355805, at *5 (“Despite his understandable complaints .
. . [plaintiff] doesn’t actually allege that he lacks means of protecting himself.”). In other
words, Mr. Chapa does not allege that the conditions at KCDC were harmful, cruel, or
unusual. Mr. Chapa instead merely asserts that KCDC’s COVID-19 precautions should
have been better or more to his own liking – that the soap dispensers should have been
refilled more often, that “most of the time” there were not enough germicidal chemicals,

and that he should have received fresh laundry more often than he did. (Id. at 13-14).
In Eighth Amendment cases where the Sixth Circuit has determined that
incarcerated plaintiffs have stated viable COVID-related conditions-of-confinement
claims, the severity of the allegations are stark when contrasted to the allegations made
by Mr. Chapa. In Gordon v. Burt, the plaintiff alleged that Michigan prison officials
consciously disregarded COVID mitigation procedures “by purposefully housing him with
close-contact prisoners [who had knowingly been exposed to COVID], allowing close-
contact prisoners to commingle freely with other prisoners, and not sanitizing areas
occupied by close-contact prisoners.”6 No. 21-1832, slip op. at 7 (6th Cir. Aug. 17, 2022)

(emphasis added). Mr. Chapa has not alleged any similar facts to suggest that KCDC
officials purposefully disregarded COVID mitigation procedures.
Likewise, in Brooks v. Washington, the plaintiffs alleged that Michigan officials
consciously disregarded COVID mitigation procedures, moving freely between the
general population and isolation units, and allowing COVID-positive staff members to
work in close proximity to inmates, recklessly exposing them to COVID. No. 21-2639,
slip op. at 4-5 (6th Cir. Mar. 30, 2022). The Brooks court directly addressed Dykes-Bey

6 “Close-contact” refers to a label that the Michigan Department of Corrections assigned to
prisoners who had been in close contact with a prisoner who tested positive for COVID-19 – the
label would have been synonymous to COVID exposure-related quarantine for the non-
incarcerated public. Gordon, No. 21-1832, slip op. at 2 n.1 (explaining the term’s meaning).
in a footnote, writing that the Brooks plaintiffs’ claims were more severe than Dykes-Bey,
because in Dykes-Bey, “the plaintiff . . . conceded that prison officials took precautionary
steps to mitigate the threat of COVID-19,” and the Brooks plaintiffs “made no such
concession in their complaint[.]”7 Id. at 5 n.1. The Court’s analysis of Mr. Chapa’s
Complaint is analogous to these cases: he has conceded that KCDC officials took

precautionary steps to mitigate COVID-19, like Dykes-Bey; but he has failed to allege that
KCDC officials purposefully exposed him to COVID-19, unlike Brooks; and he has failed
to allege that KCDC officials deliberately disregarded COVID mitigation protocol, unlike
Gordon. See supra. As the Sixth Circuit stated in Brooks, these differences are outcome
determinative. No. 21-2639, slip op. at 5 n.1. With the court having affirmed a dismissal
in Dykes-Bey and having reversed dismissals in Brooks and Gordon, it is clear to this
Court that its dismissal of Mr. Chapa’s COVID-related deliberate indifference claims,
which are substantially similar to the claims in Dykes-Bey, is sound and supported by
case law.

Otherwise, Mr. Chapa complains about prison conditions unrelated to COVID-19
that are likewise insufficient to state an Eighth Amendment claim: that there were only
five rolls of toilet paper in his dormitory, and that he received only two hot meals per day.
(Id. at 15). These complaints follow a similar theme as Mr. Chapa’s COVID-related
complaints: that he believed KCDC should have provided more quantities of various
items. Mr. Chapa’s Complaint is silent as to how many more soap dispensers, cleaning

7 In Gordon and Brooks, the Sixth Circuit also noted that the district court improperly
considered materials beyond the complaint, further supporting reversal of the district court’s
dismissal. No. 21-1832, slip op. at 4; No. 21-2639, slip op. at 4-5. The footnote in Brooks further
distinguished Dykes-Bey on that basis. No. 21-2639, slip op at 5 n.1. No materials beyond Mr.
Chapa’s Complaint are being considered here.
chemicals, toilet paper, hot meals, fresh linens, and other amenities he believes KCDC
should be providing to inmates. (See id.). But more importantly, the Eighth Amendment
does not require the nation’s prisons and jails to supply inmates with as much of anything
as the inmate might desire – because the Constitution does not mandate comfortable
prisons – only humane ones. Farmer, 511 U.S. at 832.

C. Mr. Chapa’s Motion for Leave to Amend (Doc. # 42)
Lastly, Mr. Chapa has filed a Motion for Leave to Amend (Doc. # 42), seeking to
add former Jailer Terry Carl in his individual capacity, to waive service of process on Jailer
Carl,8 to provide notice to the Court that he has sought a settlement from Defendants,
and to add arguments in further response to the Motion to Dismiss. As previously noted,
the Court will not consider Mr. Chapa’s arguments in response to the Motion to Dismiss
because they were filed after the Motion was submitted for consideration. Supra part III.A
n.2. Otherwise, Mr. Chapa’s Motion for Leave to Amend will be denied because it is
duplicative and futile.

Mr. Chapa first moved for leave to amend to add Jailer Carl in April 2021. (Doc. #
19). The Court granted that motion in March 2022, “to the extent set forth in the [Report
and Recommendation] (Doc. # 36), which stated that Mr. Chapa’s motion would be
granted “insofar as it seeks addition of Jailer Carl individually.” (Doc. # 33 at 7). But Mr.
Chapa never filed an Amended Complaint. To the extent that Mr. Chapa now seeks

8 The Court finds it noteworthy that Mr. Chapa has only now moved to seek a waiver of
service with respect to Jailer Carl after Defendants raised Mr. Chapa’s lack of doing so in their
Motion to Dismiss. (See Doc. # 39 at 2).
further leave to amend his Complaint on the same basis, that motion will be denied as
duplicative and untimely.9
Otherwise, the Court notes that the Sixth Circuit has “emphasized that the case
law in this Circuit manifests ‘liberality in allowing amendments to a complaint,” especially
in the context of pro se Eighth Amendment claims. Lucas v. Chalk, 785 F. App’x 288,

292 (6th Cir. 2019) (quoting Parchman v. SLM Corp., 896 F.3d 728, 736 (6th Cir. 2018)).
However, “leave to amend should be denied if the amendment would be futile.”
LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013). Here, granting Mr. Chapa’s
duplicative motion for leave to amend would do nothing to cure the deficiencies previously
identified and discussed at length. Supra parts III.A, III.B. Mr. Chapa’s motion seeks to
add no additional facts to his Complaint that would make any of his claims more plausible,
and so his motion is futile.
Finally, the Court acknowledges that when sua sponte dismissing a pro se
complaint under 42 U.S.C § 1997e for failure to state a claim, some courts prefer to grant

the plaintiff leave to amend, even when such leave is not requested – or, as in this case,
when leave is not requested on such basis. Brown v. Mautaszak, 415 F. App’x 608, 615-
16 (6th Cir. 2011) (collecting cases). Nonetheless, “[t]here is currently no rule of law in
this circuit that requires a district court, sua sponte, to give a pro se plaintiff leave to
amend his complaint absent a request . . . and so generally, a district court does not
abuse its discretion in failing to grant a party leave to amend where such leave is not
sought.” Id. (citing Berndt v. Tennessee, 796 F.2d 879, 882 (6th Cir. 1986); see also

9 The Court entered a Scheduling Order in March 2022 directing that “any motions to amend
or join additional parties” must be filed on or before April 1, 2022. (Doc. # 37). The duplicative
motion at issue now was filed in January 2023, further underscoring Mr. Chapa’s lack of
prosecution. Supra part III.A.
Deryke v. Carson City Corr. Health Care, No. 22-1792, slip op. at 2 (6th Cir. Mar. 15,
2023) (citing id.). That is because “’[a]lthough a district court may allow a plaintiff to
amend his complaint before entering a sua sponte dismissal’ after screening a complaint
under the PLRA, ‘it is not required to do so.’” Deryke, No. 22-1792, slip op. at 2 (quoting
Bishawi v. Ne. Ohio Corr. Ctr., 628 F. App’x 339, 347 (6th Cir. 2014) (alterations in

original)). For all the reasons previously stated, in the absence of a request from Mr.
Chapa to amend his complaint and plead additional facts, the Court will not prolong this
litigation by granting him leave to do so on the Court’s own motion.
IV. CONCLUSION
The Court recognizes and appreciates that inmates have a right to access the
courts to assert their Constitutional rights, and the Court further appreciates that the
COVID-19 pandemic caused tough times everywhere – and especially inside our nation’s
prisons and jails. However, there are myriad issues on this case’s record to show that
the claims asserted here are without substantive merit. Mr. Chapa’s Complaint is

accordingly subject to dismissal with prejudice for multiple reasons: first, for failure to
prosecute; second, for failure to state a claim upon which relief can be granted; and third,
because amendment of his complaint would be futile and is further unwarranted.
Accordingly, IT IS ORDERED that:
(1) Defendants’ Motion to Dismiss (Doc. # 39) is GRANTED;
(2) Upon the Court’s further review of the Complaint, pursuant to 42 U.S.C §
1997e(c)(1), Plaintiff fails to state a claim upon which relief can be granted;
(3) Plaintiff’s Complaint (Doc. # 1-1) is DISMISSED WITH PREJUDICE;
(4) Plaintiff’s Motion for Leave to Amend (Doc. # 42) is DENIED; and
(5) | Acorresponding Judgment is entered contemporaneously herewith.
This 14th day of July, 2023.
seme ‘ 1 .
ieee Signed By:
We Py: David. Bunning DO
QenaK
“ms —=Ss«; United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10180844. Public record. Not legal advice.