Johnson v. Wilson

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

AT BLUEFIELD

CARMEN JOHNSON,

Plaintiff,

v. CIVIL ACTION NO. 1:18-00416

DAVID WILSON, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

By Standing Order, this action was referred to United

States Magistrate Judge Omar J. Aboulhosn for submission of

findings and recommendations regarding disposition pursuant to

28 U.S.C. § 636(b)(1)(B). Magistrate Judge Aboulhosn submitted

to the court his Findings and Recommendation (“PF&R”) on April

11, 2018 (ECF No. 7), in which he recommended that the district

court dismiss plaintiff’s complaint as to plaintiff’s claims

against defendants Wilson, Grimes, Rickard, Arviza, Wickline,

Ray, Ambler, Harvey, Trainum, Kelley, Dickerson, McCabe,

Spradling, Bailey, the United States of America, Congressman

Jenkins, Caraway, and Connors, and refer this matter back to the

magistrate judge for further proceedings on plaintiff’s claims

against defendants Christine Anthony and Dana Renick.

In accordance with the provisions of 28 U.S.C. § 636(b),

the parties were allotted fourteen days, plus three mailing

days, in which to file any objections to Magistrate Judge

Aboulhosn’s Findings and Recommendation. The failure of any

party to file such objections constitutes a waiver of such

party's right to a de novo review by this court. Snyder v.

Ridenour, 889 F.2d 1363 (4th Cir. 1989).

The defendant submitted multiple objections to Magistrate

Judge Aboulhosn’s Findings and Recommendation. See ECF No. 23.

I. Background

A. Instant Complaint

On March 9, 2018, the plaintiff filed her complaint for

alleged violations of her constitutional and civil rights

pursuant to Bivens v. Six Unknown Federal Agents of Federal

Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 24 L.Ed.2d

619 (1971). ECF No.3.

B. PF&R and Plaintiff’s Objections

In his PF&R, filed on April 11, 2018, the magistrate

judge proposed that the district court dismiss plaintiff’s

complaint as to plaintiff’s claims against defendant’s Wilson,

Grimes, Rickard, Arviza, Wickline, Ray, Ambler, Harvey, Trainum,

Kelley, Dickerson, McCabe, Spradling, Bailey, the United States

of America, Congressman Jenkins, Caraway, and Connors, and refer

the matter back to the magistrate judge for further proceedings

on plaintiff’s claims against defendant’s Christine Anthony and

Dana Renick. ECF No. 7. The plaintiff makes objections to this

proposal of dismissing these plaintiffs, claiming that they

violated her constitutional rights regarding her administrative

remedy process, her conditions of confinement, her alleged

exposure to verbal abuse and harassment and continuous harsh

lighting, her liberty interests as they relate to attending the

literacy program, and her belief that supervisor liability

should be imposed. See ECF No. 23.1

II. Discussion

A. Improper Defendant:

Magistrate Judge Aboulhosn found that Bivens claims

are not actionable against the United States, and thus, the

United States must be dismissed from this action. (ECF NO.

7) (citing FDIC v. Meyer, 510 U.S. 471, 475 (1994); Berger

v. Pierce, 933 F.2d 393, 397 (6th Cir. 1991); Reingold v.

Evers, 187 F.3d 348, 355 n.7 (4th Cir. 1999). The

plaintiff objected to the magistrate judge’s finding by

stating that,

[p]laintiff is seeking relief for violations by: a.

Constitutional rights, Civil rights, Irreparable

Doctrine for Harm, Americans with Disability Act,

Religious Land Use and Institutional Person’s Act,

Religious Freedom Restoration Act, Civil Rights of

Institutionalized Person’s Act, Federal Tort, State

1 By Order of the court, the plaintiff’s request for

appointment of counsel (ECF NO. 8) was denied. ECF No. 45.

Thus, the defendant’s request for counsel in her objection

will not be discussed. Therefore, consistent with the

court’s previous Order, Plaintiff’s second Motion for

Request for Court Appointed Attorney (ECF No. 23) is also

DENIED.

Torts, BIVENS, Section 504 Rehabilitation Act,

American Federal Disability Statutes. Plaintiff is

asking for a Judicial review and appointed counsel to

assist with complexities and different violations in

this case.

(ECF No. 23, p. 2).

The court finds that the magistrate judge correctly

concluded that well-settled law establishes that, based

upon sovereign immunity, the United States of America

cannot be a defendant, unless sovereign immunity is waived.

B. Administrative Remedy Process:

The magistrate judge construed the plaintiff’s complaint

as alleging that defendant’s Rickard, Arviza, Wickline, Ambler,

Caraway, and Connors violated the plaintiff’s constitutional

rights by rendering the BOP’s Administrative Remedy process

futile. (ECF NO. 7). The magistrate judge recommended that

this court dismiss the plaintiff’s claim as futile. Id. The

magistrate judge, citing Adams v. Rice, 40 F.3d 72, 75 (4th

Cir.), cert denied, 514 U.S. 1022, 115 S. Ct. 1371, 131 L.Ed.2d

227 (1994), and Booker v. South Carolina Dept. of Corrections,

855 F.3d 533 (4th Cir. 2017), reasoned that the plaintiff’s

claim was futile because federal inmates have no constitutional

right to participate in the BOP’s administrative grievance

proceedings. (ECF No. 7). The magistrate judge explained that

although an inmate does not have a constitutional entitlement to

or a due process interest in accessing a grievance procedure, an

inmate does have a First Amendment right to be free from

retaliation when they do file a grievance. Booker, 855 F.3d at

542; Martin v. Duffy, 858 F.3d 239 (4th Cir. June 1, 2017).

The magistrate judge explains, however, that the plaintiff does

not allege the defendants retaliated against plaintiff for

filing administrative remedies; and therefore, the plaintiff’s

claims for constitutional violations are not actionable. Id.

In her objections, the plaintiff argues that her

complaints relating to her incarceration were “pushed under the

rug” and turned a “blind eye” to. (ECF No. 23, p. 2). The

plaintiff states in her objections that “[b]ased on the

Constitution a person has a right to report an [sic] government

entity to another free from abuse and retaliation.” Id. She

argues that she “was deprived of basic human needs an [sic]

exposed to series [sic] harm and these Defendants listed knew

Plaintiff was being harmed and did not respond reasonably or

report the abuse.” Id.

While the plaintiff states that a person has a right to

report a government entity and be free from retaliation, she

does not allege she has been retaliated against, nor does she

explain any facts or circumstances where the court could find

she was retaliated against. See ECF No. 23. Therefore, the

court adopts the magistrate judge’s proposed finding that the

plaintiff’s claim as to the alleged insufficiency of the

administrative remedy process is futile. See ECF No. 7.

C. Conditions of Confinement:

In her objections, the plaintiff argues that her Eighth

Amendment constitutional rights were violated. (ECF No. 23, p

3). Specifically, the plaintiff contends the following

occurrences constitute cruel and unusual punishment by the

defendants in violation of the Eight Amendment:

(a) “denial of medical care and mental health care”;

(b) “denial of sanitation, shower and clean water to

drink and beg for sanitary napkins on suicide watch”;

(c) “plaintiff was dragged on floor by unknown nurse

Jan 2017”; (d) “personal safety, made to scrub outside

freezers 98 degrees being called NIGGER by guards

May/June 2016”; (e) “held hostage in a back room with

3 staff being forced to sign papers Oct 2016”; and (f)

“personal safety, made to sleep under T5 cancer

causing hot lights at Bus Stop for 32 days, burnt

Plaintiff skin.”

(ECF No. 23, p. 3).

Prison officials have a duty under the Eight Amendment to

provide prisoners with adequate food, shelter, clothing, and

medical care. Farmer v. Brennan, 511 U.S. 825, 832 (1994).

Conditions which “deprive the inmates of the minimal civilized

measure of life’s necessities” may amount to cruel and unusual

punishment. Rhodes v. Chapman, 452 U.S. 337, 347 (1981).

However, conditions which are merely restrictive or even harsh,

“are part of the penalty that criminal offenders pay for their

offenses against society.” Id. In order to establish the

imposition of cruel and unusual punishment, a prisoner must

prove that deprivation of a basic human need was objectively

sufficiently serious and that subjectively the officials acted

with a sufficiently culpable state of mind. Shakka v. Smith, 71

F.3d 162, 166 (4th Cir. 1995); Jehovah v. Clarke, 798 F.3d 169,

181 (4th Cir. 2015) (citing De’Lonta v. Angelone, 330 F.3d 630,

634 (4th Cir. 2003)).

a. Verbal abuse and Harassment

The plaintiff contends that defendants Wilson, Dickerson,

McCabe, and Spadlin violated her constitutional rights by

subjecting her to verbal abuse or harassment. (ECF No. 3, pp 7,

23).

The magistrate judge determined that the plaintiff’s

claims of verbal abuse/harassment and failure to protect from

verbal abuse/harassment fail to state a cognizable claim under

the Eight Amendment for which relief can be granted. (ECF No.

7, p. 16).

The court agrees with the magistrate judge and finds that

the plaintiffs’ argument that being required to scrub freezers

outside in warm weather, while being called names does not

satisfy the threshold requirement for establishing cruel and

unusual punishment. See ECF No. 23, p.3. While the conditions

could be categorized as “harsh,” as previously stated, the eight

amendment does not protect against harsh treatment. Rhodes, 452

U.S. at 347 (explaining that conditions which are merely

restrictive or even harsh, “are part of the penalty that

criminal offenders pay for their offenses against society).

Thus, the court does not find this circumstance rose to the

level of depriving the plaintiff of a basic human need that was

objectively sufficiently serious, nor that, subjectively, the

officials acted with a sufficiently culpable state of mind. See

Shakka, 71 F.3d at 166.

Regarding defendant Ray, in the plaintiff’s objections to

the PF&R, under the heading “Verbal Abuse and Harassment

Objections,” the plaintiff states that she never argued that

defendant Ray did not protect her from verbal abuse from inmates

but, rather, makes the following allegation:

Plaintiff accused Defendant Ray of verbal abuse and

the start of retaliation and abuse with other staff on

Plaintiff because he ordered the hit. As the Case

Manager the suicide letter from the BOP state [sic] if

you are having mental health issues go to staff to

seek help. Plaintiff asked Defendant for mental

health treatment and help and was refused. Defendant

Ray met Plaintiff 4 days after she arrived at Alderson

and he knew she had Mental Health disability and to

make matter more sufficiently articulated, Plaintiff’s

attorney mailed, faxed and called Defendant Ray to

advise him of the Plaintiff’s Mental Health.

(ECF NO. 23, p. 4). Furthermore, the plaintiff contends that

defendant Ray “knew there was something mentally wrong with her”

because he allegedly asked her is “she was crazy or retarded.”

(ECF No. 23, p. 5).

To state a claim for denial of medical care or inadequate

medical treatment under the Eight Amendment, an inmate must

allege facts sufficient to demonstrate deliberate indifference

to a serious need. See Estelle v. Gamble, 429 U.S. 97, 104-05

(1976); see also DePaola v. Clarke, 884 F.3d 481, 486 (4th Cir.

2018). Deliberate indifference to a serious medical need

requires proof that, objectively, the prisoner was suffering

from a serious medical need and that, subjectively, prison staff

was aware of the need for medical attention but failed either to

provide it or ensure it was available. Farmer v. Brennan, 511

U.S. 825, 834-7 (1994); Heyer v. U.S. Bureau of Prisons, 849

F.3d 202, 209-10 (4th Cir. 2017); King v. Rubenstein, 825 F.3d

206, 218 (4th Cir. 2016); Iko v. Shreve, 535 F.3d 225, 241 (4th

Cir. 2008).2 “‘A serious medical need’ is ‘one that has been

diagnosed by a physician as mandating treatment or one that is

so obvious that even a lay person would easily recognize the

necessity for a doctor’s attention.’” Heyer, 849 F.3d at 210

(quoting Iko, 553 F.3d at 241). The subjective component has

two slightly different aspects: (1) the official must have

“actual knowledge of the risk of harm to the inmate,” and (2)

the official must have “recognized that his actions were

2 There is no essential distinction between the right to medical

care for a physical ailment and the right to psychiatric or

psychological care for mental ailments. See Bowring v. Godwin,

551 F.2d 44, 47 (4th Cir. 1977).

insufficient to mitigate the risk of harm to the inmate arising

from his medical needs.” Iko, 535 F.3d at 241 (4th Cir. 2008)

(citations omitted)

Here, the plaintiff has failed to demonstrate sufficient

facts that the objective and subjective standards of denying

medical treatment were present. Specifically, the plaintiff’s

allegation that defendant “knew there was something mentally

wrong with her” based upon the fact that he allegedly called her

“stupid” and “retarded,” does not rise to the level of

demonstrating that the plaintiff had a medical need that “has

been diagnosed by a physician as mandating treatment or one that

is so obvious that even a lay person would easily recognize the

necessity for a doctor’s attention.” Heyer, 849 F.3d at 210

(internal quotations omitted). Furthermore, the plaintiff never

alleged that she has been diagnosed by a physician for a mental

disorder needing medical treatment.

Regarding defendant Bailey, the plaintiff objects to the

magistrate judge’s PF&R recommendation to dismiss Bailey. (ECF

No. 23, p. 5). The plaintiff continues to argue that defendant

Bailey’s requiring of her to make a written statement against

her wishes, and allegedly untruthfully, subjected her to verbal

abuse and humiliation and amounts to cruel and unusual

punishment in violation of the Eight Amendment.

The court finds that being required to make a written

statement against her will, without any application of physical

force or use of serious threats, does not demonstrate that the

plaintiff was deprived of a basic human need objectively

sufficiently serious and that subjectively the officials acted

with a sufficiently culpable state of mind. See Shakka, 71 F.3d

at 166 (4th Cir. 1995). Therefore, the court adopts the

magistrate judge’s findings on this issue.

b. Continuous Lighting

The plaintiff objects to the magistrate judges finding

that defendant Ambler should be dismissed from the case. (ECF

No. 23, p. 5). Defendant Ambler is allegedly who made the

decision for the plaintiff to sleep in an upper bunk at the “bus

stop” for 32 days. (See ECF No. 3, p. 17). The plaintiff

claims that the lighting was very harsh on her skin, and she had

to wrap towels and shirts over her head. (ECF No. 23, p.5).

The plaintiff claims she lost sleep, was particularly

uncomfortable because she suffers from PTSD, and had burns from

the light. Id. When she went to a nurse, the nurse recommended

that she purchase normal lotion and to apply it to her skin.

Id.

As explained by the magistrate judge in his PF&R,

“[a]lthough sleep constitutes a basic human need, plaintiff

fails to demonstrate an “extreme deprivation.” (ECF NO. 7, p.

16), citing Murry v. Edwards County Sheriff’s Dep’t., 248 Fed.

Appx. 993, 998-99 (10th Cir. Oct. 1, 2007). At worst, the court

finds that the lights caused the plaintiff to be uncomfortable

while sleeping and perhaps caused her skin to be drier. This

finding, however, does not support the plaintiff’s argument that

she was subject the cruel and unusual punishment by being

required to sleep in close proximity to a light fixture.

Therefore, the court agrees with the Magistrate Judge’s finding

that plaintiff’s claim based upon the continuous lighting at the

“bus stop” be dismissed. (See ECF No. 7, p. 20).

D. Challenge Concerning Plaintiff’s Disciplinary Hearing:

In his PF&R, the magistrate judge made the following

findings regarding the plaintiff’s claim: (1) the plaintiff

alleges that she was denied due process in connection with her

prison disciplinary hearing; (2) her contentions imply the

invalidity of the disciplinary hearings and the review and

appeal process; (3) there has been no invalidation of the

disciplinary hearing; and (4) her claim is therefore barred.

(ECF No. 7, p. 22).

As pointed out by the magistrate judge, the Supreme Court

established the following test to determine whether a prisoner’s

claim for violation of due process in the context of a criminal

proceeding is cognizable under 42 U.S.C. § 1983:

In order to recover damages for allegedly

unconstitutional conviction or imprisonment, or for

other harm caused by actions whose unlawfulness would

render a conviction or sentence invalid, a § 1983

plaintiff must prove that the conviction or sentence

has been reversed on direct appeal, expunged by

executive order, declared invalid by a state tribunal

authorized to make such determination, or called into

question by a federal court’s issuance of a writ of

habeas corpus, 28 U.S.C. § 2254. A claim for damages

bearing that relationship to a conviction or sentence

that has not been so invalidated is not cognizable

under § 1983. Thus, when a state prisoner seeks

damages in a § 1983 suit, the district court must

consider whether a judgment in favor of the plaintiff

would necessarily imply that invalidity of his

conviction or sentence; if it would, the complaint

must be dismissed unless the plaintiff can demonstrate

that the conviction or sentence has already been

invalidated. But if the district court determines

that the plaintiff’s action, even if successful, will

not demonstrate the invalidity of any outstanding

criminal judgment against the plaintiff, the action

should be allowed to proceed, in the absence of some

other bar to the suit.

Heck, 512 U.S. at 487; see also Poston v. Shappert, 222 Fed.

Appx. 301 (4th Cir. 2007) (applying Heck rationale to bar claims

for damages under Section 1983 and Bivens); Messer v. Kelly, 129

F.3d 1259 (4th Cir. 1997) (stating that the rationale in Heck

applies in Bivens actions).

In plaintiff’s objections, she continues to maintain that

her due process rights were violated with her disciplinary

hearing. (ECF no. 23, p. 6). In support of her argument that

she was denied due process, the plaintiff states that “[c]ourts

have found due process violations when prisoners are disciplined

without the chance to get witness testimony, having a hear

[sic], or present evidence. Courts have also found due process

violations when punishment is based on vague claims.” Id.

The court finds that the plaintiff’s objection that she

was denied the ability to present witness testimony or other

forms of evidence fails. The Supreme Court has held that prison

disciplinary proceedings are not part of a criminal prosecution;

therefore, the full panoply of rights due in a criminal

proceeding do not apply. Wolff v. McDonnell, 418 U.S. 539, 556

(1974). Therefore, in accordance with the above-cited case law,

the court adopts the magistrate judges finding on the issue

that, regarding the plaintiff’s claim: (1) the plaintiff alleges

that she was denied due process in connection with her prison

disciplinary hearing; (2) her contentions imply the invalidity

of the disciplinary hearings and the review and appeal process;

(3) there has been no invalidation of the disciplinary hearing;

and thus, (4) her claim is barred.

E. No Constitutional Violation as to the Literacy Program:

The plaintiff alleges that defendants Spradling,

Dickerson, and McCade improperly required her to attend a G.E.D.

program against her will, thereby violating her liberty

interests. (ECF No. 23, p.6). Specifically, the plaintiff

argues that she should have been placed on a waiting list for

the class, and not actually placed in the class because at the

time, there was a waiting list for the class. Id. She states

that she did not want to be placed in the class at the time she

was because she needed time to recover from her mental health

ailments and she wanted to obtain her G.E.D. diploma from the

Education archives in Washington, D.C. Id. The plaintiff

contends that the above-named defendants wanted her in the class

so they could fraudulently obtain funding. Id. The plaintiff

alleges that being placed in the course, when she qualified for

the waiting list, was a form of punishment based upon racial

discrimination and her mental disabilities. Id.

As explained in the magistrate judge’s PF&R, the Attorney

General requires the BOP to conduct adult literacy programs in

federal prisons. See 18 U.S.C. § 3624(f); 28 C.F.R. §§ 544.70 –

75. Section 554.70 requires that inmates attend adult literacy

programs for a minimum of 240 hours or be subject to

disciplinary sanctions. 28 C.F.R. § 544.75.

As stated by the magistrate judge, the Fifth Amendment

protects against deprivations of life, liberty, or property by

the federal government. U.S. Const. amdn. V. Prisoners have a

liberty interest in avoiding confine conditions that impose

“atypical and significant hardship on the inmate in relation to

the ordinary incidents of prison life.” Sandin v. Conner, 515

U.S. 472, 484 (1995). In order to prevail on a due process

claim, a plaintiff must show that the government has interfered

with a protected liberty or property interest and that the

procedures that led to the deprivation were constitutionally

sufficient. Thus, the plaintiff must first demonstrate that she

had a protected liberty interest. The fact of conviction and

imprisonment implies the inmate’s transfer of her liberty to

prison officials who in their broad discretion, administer her

sentence. Gaston v. Taylor, 946 F.2d 340, 343 (4th Cir. 1991).

However, inmates do not have a constitutionally protected right

to “remain uneducated.” Rutherford v. Hutto, 377 F. Supp. 268,

272 (E.D. Ark. June 18, 1974) (stating that “[t]he

‘constitutional right to be ignorant’ or ‘the constitutional

right to remain uneducated’ which petitioner postulates, simply

does not exist.”).

Here, the plaintiff does not have a constitutionally

protected liberty interest in not attending the literacy

program. Thus, the court cannot conclude that the plaintiff’s

due process rights have been violated by depriving her of her

alleged liberty interest. Furthermore, the plaintiff does not

qualify under 28 C.F.R. § 544.71 to be “temporarily unable to

participate in the literacy program,” because the staff did not

determine that the plaintiff was still on a waiting list for

initial placement. Therefore, the court agrees with the

magistrate judge’s finding that plaintiff’s allegations cannot

be construed to implicate a constitutional right for the

violation of which relief can be granted under Bivens. Thus,

the court dismisses the plaintiff’s claim based upon the above

allegations.

F. Supervisory Liability

The magistrate judge found that the plaintiff’s

allegation against defendants Wilson and Grimes are improperly

based upon a theory of respondeat superior. (ECF No. 7, p. 27).

Furthermore, the magistrate judge found that the plaintiff

failed to specify any action taken by defendants Wilson, Grimes,

Rickard, Arviza, Wickline, Caraway, and Connors that violated

plaintiff’s constitutional rights. Id. at p. 28. Thus, the

magistrate judge found that the plaintiff improperly raised her

claim against the foregoing defendants under the doctrine of

respondeat superior and found her claims regarding supervisory

liability should be dismissed. Id.

In her objections, the plaintiff contends that:

Defendant Wilson and Defendant Grimms are liable for

acts of their subordinates and their owns actions

which are supervisory indifference or tacit

authorization of subordinates misconduct is a

causative fact in the constitutional injuries they

inflicted on Plaintiff whom was in their care. This

conduct directly caused the deprivation was [sic] done

to effectuate an official policy of custom which is

liable. Defendant Grimms and Defendant Wilson was

told by Plaintiff of the abuse, fraud, retaliation and

mental health difficulties plaintiff was experiencing

and they both violated Plaintiff’s rights and

protection of the law because it was the Job of the

Warden and the Captain to investigate this or report

it to an outside agency but they covered it up and let

the abuse and fraud continue. This behavior on both

Defendants was wanton, grossly negligent, obdurately

and deliberately indifference that created on going

pervasive risk and harm which will affect her the rest

of her life by their staff.

ECF No. 23, p. 7.

“Government officials may not be held liable for the

unconstitutional conduct of their subordinates under a theory of

respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676

(2009) (“Because liability is inapplicable to Bivens and § 1983

suits, a plaintiff must plead that each Government-official

defendant, through the official’s own individual actions, has

violated the Constitution.”). Liability, however, may attach to

a supervisory official if “conduct directly causing the

deprivation was done to effectuate an official policy or custom

for which [the official] could be liable.” Fisher v. Washington

Metro. Area Transit Auth., 690 F.2d 1133, 1142-43 (4th Cir.

1982), abrogated on other grounds by County of Riverside v.

McLaughlin, 500 U.S. 44, (1991). Furthermore, supervisory

officials may be liable for acts of their subordinates where

“supervisory indifference or tacit authorization of

subordinates’ misconduct may be a causative fact in the

constitutional injuries they inflict on those committed to their

care.” Slakan v. Porter, 737 F.2d 368, 373 (4th Cir. 1984).

Thus, a plaintiff must show “a pervasive and unreasonable risk

of harm from some specified source and that the supervisor’s

corrective inaction amounts to deliberate indifference or ‘tacit

authorization of the offensive [practices].” Id. A

supervisor’s mere knowledge of a subordinate’s unconstitutional

conduct is not enough. Rather, Bivens, liability may be imposed

upon a supervisor only on the basis of purposeful “violations of

his or her supervisory responsibilities.” Ashcroft, 556 U.S. at

676. Therefore, the injury for the court is whether the

defendant individually “acted wantonly, obdurately, or with

deliberate indifference to the pervasive risk of harm.” Moore

v. Winebrenner, 927 F.2d 1312, 1315 (4th Cir. 1991).

Here, the court finds that the plaintiff’s objections do

not shed any additional light on how the plaintiff was exposed

to “a pervasive and unreasonable risk of harm from some

specified sourced and that the supervisor’s corrective inaction

amounts to deliberate indifference and tacit authorization of

the offensive [practices].” See Slakan v. Porter, 737 F.2d at

373. Thus, the court agrees with the magistrate judge’s finding

that because the plaintiff has failed to specify any violation

of her constitutional rights by Wilson, Grimes, Rickard, Arviza,

Wickline, Caraway, and Connors, the claims against Wilson and

Grimes under the theory of respondeat superior are unsupported

and should be dismissed.

G. Legislative Immunity

In the plaintiff’s objections, she wrote that “Plaintiff

Johnson understand that Congressman Jenkins have ‘Absolute or

Qualified Immunity.’ With that said agrees and understand he is

to be dismissed from this case.” ECF No. 23, p. 7. Therefore,

the plaintiff has raised no objection to dismissing Congressman

Jenkins from the matter.

III. Conclusion

Upon conducting a de novo review of the record, for the

forgoing reasons, the court hereby DISMISSES plaintiff's

complaint as to the plaintiff’s claims against defendants

Wilson, Grimes, Rickard, Arviza, Wickline, Ray, Ambler, Harvey,

Trainum, Kelley, Dickerson, McCabe, Spradling, Bailey, the

United States of America, Congressman Jenkins, Caraway, and

Connors, and refers this matter back to the magistrate judge for

further proceedings on plaintiff’s claims against defendants

Christine Anthony and Dana Renick; and DENIES Plaintiff’s Motion

for Request for Court Appointed Attorney (ECF No. 23).

The Clerk is directed to send copies of this Order to

plaintiff pro se and to all counsel of record.

IT IS SO ORDERED this 29th day of March, 2019.

ENTER:

Raut O Dabo

David A. Faber

Senior United States District Judge

20