Petition for Writ of Certiorari — William J. Daugherty, Petitioner v. Randy L. White, Warden

Case 5:17-cv-00141-TBR Document 18 Filed 05/01/18 Page 1 of 2 PagelD #: 52

FILED

No. 17-6536

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WILLIAM J. DAUGHERTY

Plaintiff-Appellant,

v.

RANDY L. WHITE, Warden,

Defendant-Appellee.

)

)

)

)

)

)

)

)

)

)

)

May 01,2018

DEBORAH S. HUNT, Clerk

ORDER

William J. Daugherty, a Kentucky prisoner proceeding pro se, appeals the district court’s

order dismissing his complaint under 42 U.S.C. § 1983. Daugherty has moved for leave to

proceed in forma pauperis.

Daugherty filed a § 1983 complaint, alleging that Randy White, the warden at the

Kentucky State Penitentiary, violated his constitutional rights. Daugherty specifically alleged

that, after a fight between correctional staff and inmates, White locked the prison down for sixtythree days, the first ten of which the inmates were not allowed to leave their cells, make phone

calls, or mail letters. Daugherty further alleged that correctional staff subsequently pushed him

into a wall, called him a coward, threatened to beat him, and degraded and embarrassed him in

the presence of female staff members.

Daugherty sought monetary relief.

Upon initial

screening, the district court dismissed the complaint for failure to state a claim upon which relief

could be granted.

Daugherty has moved for leave to proceed in forma pauperis. A party that makes the

requisite showing of poverty will be granted leave to proceed in forma pauperis if his or her

appeal is being taken in good faith, i.e., is not frivolous. See 28 U.S.C. § 1915(a); Callihan v.

Schneider, 178 F.3d 800, 804 (6th Cir. 1999). An appeal is frivolous “where it lacks an arguable

Case 5:17-cv-00141-TBR Document 18 Filed 05/01/18 Page 2 of 2 PagelD #: 53

No. 17-6536

-2basis either in law or in fact.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989).

To avoid

dismissal, a complaint must contain sufficient factual matter, accepted as true, to state a claim for

relief that is plausible on its face. Reilly v. Vadlamudi, 680 F.3d 617, 622-23 (6th Cir. 2012).

Daugherty’s appeal lacks an arguable basis because the allegations in his complaint fail

to set forth a viable claim for relief. Daugherty did not state a viable claim concerning the sixtythree-day lockdown and ten-day loss of privileges because his allegations fail to show that he

was deprived of the minimal civilized measure of life’s necessities, see Harden-Bey v. Rutter,

524 F.3d 789, 795 (6th Cir. 2008), or that he suffered an atypical and significant hardship in

relation to the ordinary incidents of prison life, see Langford v. Koskela, No. 16-1435, 2017 WL

6803554, at *3 (6th Cir. Jan. 24, 2017); Joseph v. Curtin, 410 F. App’x 865, 868 (6th Cir. 2010).

And Daugherty’s remaining allegations are insufficient to show that an Eighth Amendment

violation occurred. See Wilkins v. Gaddy, 559 U.S. 34, 38 (2010); Wingo v. Tenn. Dep’t of

Corn, 499 F. App’x 453, 455 (6th Cir. 2012); Johnson v. Dellatifa, 357 F.3d 539, 546 (6th Cir.

2004).

Accordingly, Daugherty’s motion for leave to proceed in forma pauperis is DENIED.

Unless Daugherty pays the $505 filing fee to the district court within thirty days of the entry of

this order, this appeal will be dismissed for want of prosecution.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

Case: 17-6536

Document: 8-2

Filed: 08/14/2018

Page: 1

No. 17-6536

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WILLIAM J. DAUGHERTY,

)

)

)

)

)

)

)

)

)

Plaintiff-Appellant,

v.

RANDY L. WHITE, Warden,

Defendant-Appellee.

Aug 14, 2018

DEBORAH S. HUNT, Clerk

ORDER

Before: KEITH, GRIFFIN, and LARSEN, Circuit Judges.

William J. Daugherty has filed a motion for reconsideration of this court’s order denying

his motion for leave to proceed in forma pauperis. Daugherty is appealing the district court’s

order dismissing his 42 U.S.C. § 1983 complaint.

Upon careful consideration, we conclude that this court did not misapprehend or overlook

any point of law or fact when it issued its order. See Fed. R. App. P. 40(a)(2). The motion for

reconsideration is DENIED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

Case: 17-6536

Document: 14-2

Filed: 09/25/2018

Page: 1

Case No. 17-6536

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ORDER

WILLIAM J. DAUGHERTY

Plaintiff - Appellant

v.

RANDY L. WHITE, Warden

Defendant - Appellee

Appellant having previously been advised that failure to satisfy certain specified

obligations would result in dismissal of the case for want of prosecution and it appearing that the

appellant has failed to satisfy the following obligation:

The proper fee was not paid by September 13, 2018.

It is therefore ORDERED that this cause be, and it hereby is, dismissed for want of

prosecution.

ENTERED PURSUANT TO RULE 45(a),

RULES OF THE SIXTH CIRCUIT

Deborah S. Hunt, Clerk

Issued: September 25, 2018

Case 5:17-cv-00141-TBR Document 9 Filed 11/30/17 Page 1 of 8 PagelD #: 26

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT PADUCAH

PLAINTIFF

WILLIAM J. DAUGHERTY

CIVIL ACTION NO. 5:17-CV-P141-TBR

v.

DEFENDANT

WARDEN RANDY WHITE

MEMORANDUM OPINION

This is a civil rights action brought by a convicted prisoner pursuant to 42 U.S.C. § 1983.

The Court has granted Plaintiff William J. Daugherty leave to proceed in forma pauperis. This

matter is before the Court for screening pursuant to 28 U.S.C. § 1915A. For the reasons set forth

below, the action will be dismissed.

I. SUMMARY OF COMPLAINT

Plaintiff brings this action against Kentucky State Penitentiary (KSP) Warden Randy

White in his individual capacity.

In his complaint, Plaintiff states as follows:

Cruel and Unusual Punishment ... On 6/28/2017, three dorms was let out at the

same time, and everyone was trying to get in the canteen line, and then out of

nowhere corrections staff came upon us and started to push inmates around, they

didn’t ask anyone to move, they just push who ever was in there way at the that

time, so the inmates started to push back, that is when the fight broke out on the

institution yard, between inmate and correction staff. It was then that everyone

was place on lock down, we were told by a cert team, that for the next 10 days,

there will be no phone call, and not letters sent out to anyone, that is when

everything became crazy on the institution we could not understand why so many

were being punished for what so few done, then came the threats upon everyone,

the cert team stood in my face and said he will beat my head in if he thought I was

trying to remember who said what to me, then I was push into a wall and call a

coward because I wouldn’t jump on the cert team, like it was said, they done to

corrections staff, I tried to explain to the cert team that I was not involved in the

fight, I was told that before it was over, I was going to wish I had been involved,

then we were told that every time a inmate jumps on correction staff, one hundred

would pay for it with blood .. . then they started to degrade me and inmbarrased

Case 5:17-cv-00141-TBR Document 9 Filed 11/30/17 Page 2 of 8 PagelD #: 27

me before Aramark staff which were women for reasons I still don’t understand,

and then the Senior Caption Will Thomas said this is not cruel and unusual

punishment, it is called getting back at a lot of you inmates who thought you

could jump on correction staff and get away with it, so understand what it feel

like, all of you, and it don’t matter if you were involved or not. ..

For everyone who believe they are being done wrong by the cert team that the

warden brought on the institution, they need to stand up and say so. Everyone

who spoke up, was place in segregation and beat up, and told that no one cares

about what you inmates think, but all of you need to understand something right

now, you all are being punishment for what took place on this institution,

something in which you all started, so understand why we are here, we came to

hurt you inmates, just like you thought you had done to correct staff, and it will

not stop until the Warden no longer wants to see just how frightened you all

became. . .

And for the first ten days of this lock down we were lock down for 24 hours, not

letting us out for anything, Warden Randy White could have stop this, but chose

to look over it, 63 days of lockdown for what some else done.

As relief, Plaintiff seeks compensatory damages.

II. LEGAL STANDARD

Because Plaintiff is a prisoner seeking relief against governmental entities, officers,

and/or employees, this Court must review the instant action under 28 U.S.C. § 1915A. Under

§ 1915A, the trial court must review the complaint and dismiss the complaint, or any portion of

the complaint, if the court determines that it 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)(l), (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)).

2

Case 5:17-cv-00141-TBR Document 9 Filed 11/30/17 Page 3 of 8 PagelD #: 28

“[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)). “[A] pro se complaint, however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89,

94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, while liberal, this

standard of review does require more than the bare assertion of legal conclusions. See Columbia

Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995). The Court’s duty “does not

require [it] to conjure up unpled allegations,” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979),

or to create a claim for Plaintiff. Clark v. Nat 7 Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th

Cir. 1975). To command otherwise would require the Court “to explore exhaustively all

potential claims of a pro se plaintiff, [and] would also transform the district court from its

legitimate advisory role to the improper role of an advocate seeking out the strongest arguments

and most successful strategies for a party.” Beaudett v. City ofHampton, 775 F.2d 1274, 1278

(4th Cir. 1985).

III. ANALYSIS

“Section 1983 creates no substantive rights, but merely provides remedies for

deprivations of rights established elsewhere.” Flint ex rel. Flint v. Ky. Dep’t of Corr., 270 F.3d

340, 351 (6th Cir. 2001). Two elements are required to state a claim under § 1983. Gomez v.

Toledo, 446 U.S. 635 (1980). “[A] plaintiff must allege the violation of a right secured by the

Constitution and laws of the United States, and must show that the alleged deprivation was

committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

3

Case 5:17-cv-00141-TBR Document 9 Filed 11/30/17 Page 4 of 8 PagelD #: 29

“Absent either element, a section 1983 claim will not lie.” Christy v. Randiett, 932 F.2d 502,

504 (6th Cir. 1991).

A. The Lockdown

Plaintiffs first allegation against Defendant White seems to be that he violated Plaintiff s

rights by placing Plaintiff and other inmates at KSP on lockdown for 63 days for actions that

Plaintiff allegedly did not commit. Plaintiff also states that, for the first 10 days of the lockdown,

inmates were not allowed to leave their cells, make phone calls, or mail letters. The Court finds

that these allegations fail to state a constitutional claim against Defendant White.

The Due Process Clause of the Fourteenth Amendment does not protect every change in

the conditions of confinement having an impact on a prisoner. See Meachum v. Fano, 427 U.S.

215, 225 (1976). In Sandin v. Conner, 515 U.S. 472, 484 (1995), the Court set forth the standard

for determining when a prisoner’s loss of liberty implicates a federally cognizable liberty interest

protected by the Due Process Clause. According to Sandin, a prisoner is entitled to the

protections of due process only when a deprivation “will inevitably affect the duration of his

sentence” or imposes an “atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life.” Sandin, 515 U.S. at 486-87; see also Jones v. Baker, 155 F.3d

810, 812 (6th Cir. 1998); Rimmer-Beyv. Brown, 62 F.3d 789, 790-91 (6th Cir. 1995). Generally,

courts consider the nature and duration of a stay in segregation in determining whether it

imposes an “atypical and significant hardship.” Harden-Bey v. Rutter, 524 F.3d 789, 795-96

(6th Cir. 2008).

Here, the Court finds that Plaintiffs allegation of a 63-day lockdown fails to meet this

standard. First, Plaintiff has not alleged the duration of his sentence was affected by the

4

Case 5:17-cv-00141-TBR Document 9 Filed 11/30/17 Page 5 of 8 PagelD #: 30

lockdown. Moreover, in Sandin, the Supreme Court concluded that the segregation at issue in

that case (disciplinary segregation for 30 days) did not impose an atypical and significant

hardship. Sandin, 515 U.S. at 484. Similarly, the Sixth Circuit has held that placement in

administrative segregation for a relatively limited period of time does not require the protections

of due process. Joseph v. Curtin, 410 F. App’x 865, 868 (6th Cir. 2010) (61 days in segregation

is not atypical and significant); Rimmer-Bey, 62 F.3d at 790-91. See also Walton v. Sing, No.

CIV S-10-3167 JAM GGH P, 2011 U.S. Dist. LEXIS 119798, at *11(E.D. Cal. Oct. 17, 2011)

(holding that a prisoner who alleged that he was subjected to a prison lockdown for thirty days

after a prison riot failed to demonstrate an atypical and significant hardship under Sandin)

(citing Wade v. Maddock, No. 99-15565, 2000 U.S. App. LEXIS 16030, at *3 (9th Cir. July 7,

2000) (“[W]e do not believe that the two-month lockdown can, as a matter of law, constitute a

protected liberty interest under Sandin ....”).

Moreover, Plaintiffs allegations that he was not allowed to use the telephone or send

mail during the first 10 days of the lockdown do not change this analysis. See, e.g., Boriboune v.

Litscher, 91 F. App’x 498, 500 (7th Cir. 2003) (short-term loss of telephone privileges and

disciplinary segregation implicated no liberty interest and triggered no due process protection);

Blum v. Fed. Bureau ofPrisons, No. 98-1055, 1999 U.S. App. LEXIS 20051, at *8-9 (10th Cir.

Aug. 23, 1999) (protected liberty interest not triggered by restrictions on store privileges,

telephone calls, and access to a radio during disciplinary segregation); Larue v. Blodgett, No. 9535936, 1996 U.S. App. LEXIS 11739, at *3-4 (9th Cir. May 6, 1996) (temporary loss of

telephone privileges, possession of a radio, and visitation did not meet Sandin requirements);

Kennedy v. Blankenship, 100 F.3d 640, 642-43, n.2 (8th Cir. 1996) (temporary restriction

of mail, telephone, visitation, commissary, and personal-possession privileges was not a

5

Case 5:17-cv-00141-TBR Document 9 Filed 11/30/17 Page 6 of 8 PagelD #: 31

constitutional violation); Allen v. Alexsander, No. 2:16-cv-245, 2017 U.S. Dist. LEXIS 106698

at *12 (W.D. Mich. July 11, 2017) (90-day phone restriction does not violate right to procedural

due process).

Therefore, Plaintiffs claims against Defendant White related to the lockdown at KSP

must be dismissed for failure to state a claim.

B. Actions by Members of the “Cert Team”

Plaintiff also appears to make claims against Defendant White liable for the alleged

actions taken by members of the “cert team” against Plaintiff during the lockdown. The

specific allegations that Plaintiff makes against members of the “cert team” regarding himself

seem to be that they verbally harassed and threatened him and pushed him into a wall. The

doctrine of respondeat superior does not apply in § 1983 lawsuits to impute liability onto

supervisory personnel, see Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691-95 (1978), unless it

is shown “that the supervisor encouraged the specific incident of misconduct or in some other

way directly participated in it.” Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Put

another way, a supervisor’s failure to supervise, train or control an employee is not actionable

under § 1983, unless the plaintiff shows “the official at least implicitly authorized, approved, or

knowingly acquiesced in the unconstitutional conduct. . . .” Hays v. Jefferson Cty., Ky., 668

F.2d 869, 874 (6th Cir. 1982) (emphasis added).

Here, Defendant White cannot be held liable for members of the “cert team” allegedly

verbally harassing and threatening Plaintiff because these actions do not constitute

unconstitutional conduct. Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987); see also Violett v.

Reynolds, 76 F. App’x 24, 27 (6th Cir. 2003) (“[VJerbal abuse and harassment do not constitute

punishment that would support an Eighth Amendment claim.”); Clark v. Turner, No. 96-3265,

6

Case 5:17-cv-00141-TBR Document 9 Filed 11/30/17 Page 7 of 8 PagelD #: 32

1996 U.S. App. LEXIS 331113, at *4 (6th Cir. Dec. 13, 1996) (“Verbal harassment or idle

threats are generally not sufficient to constitute an invasion of an inmate’s constitutional

rights.”); George v. Ballard, No. 5:16-482-KKC, 2017 U.S. Dist. LEXIS 2564, at *8 (E.D. Ky.

Jan. 9, 2017) (“It has long been established that a prison guard’s verbal abuse or general

harassment of an inmate does not violate the Eighth Amendment.”); Searcy v. Gardner, No.

3:07-0361, 2008 U.S. Dist. LEXIS 118217, at *10 (M.D. Term. Feb. 11, 2008) (“A claim

under 42 U.S.C. § 1983 cannot be based on mere threats, abusive language, racial slurs, or verbal

harassment by prison officials.”).

The Court also finds that Plaintiffs claim against Defendant White based upon members

of the “cert team” allegedly pushing him into a wall fails for the same reason. Under the Eighth

Amendment, an official’s conduct will be found to amount to cruel and unusual punishment

“when their offending conduct reflects an unnecessary and wanton infliction of pain.” Cordell v.

McKinney, 759 F.3d 573, 580 (6th Cir. 2014) (quoting Williams v. Curtin, 631 F.3d 380, 383

(6th Cir. 2011)). In examining an excessive-force claim under the Eighth Amendment, the

constitutional analysis has both a subjective and an objective component, requiring the court to

determine “whether the force was applied in a good-faith effort to maintain or restore discipline,

or maliciously and sadistically to cause harm,” and whether “the pain inflicted [is] sufficiently

serious.” Cordell, 759 F.3d at 580 (internal quotation marks and citations omitted). The inmate

is not required to suffer a serious injury, but the extent of his injuries may be considered in

determining whether the force used was wanton and unnecessary. Wilkins v. Gaddy, 559 U.S.

34, 38-40 (2010); Hudson v. McMillian, 503 U.S. 1, 7 (1992). Thus, “[a]n inmate who

complains of a ‘push or shove’ that causes no discernible injury almost certainly fails to state a

7

Case 5:17-cv-00141-TBR Document 9 Filed 11/30/17 Page 8 of 8 PagelD #: 33

valid excessive force claim.” Tuttle v. Carroll Cty. Det. Ctr., 500 F. App’x 480, 482 (6th Cir.

2012) (citing Wilkins, 559 U.S. at 38).

Here, the Court finds that because Plaintiffs excessive-force claim is based on no more

than an alleged shove into a wall, Plaintiff fails to meet the objective standard of an excessiveforce claim. See, e.g., Tuttle v. Carroll Cty. Det. Ctr., 500 F. App’x at 482 (affirming that

plaintiffs “bare-bones allegation that [a] female deputy “grabbed his privates and squeezed them

really hard” was simply too subjective and vague to state an excessive-force claim); Wicker v.

Lawless, No. l:15-cv-00237, 2017 U.S. Dist. LEXIS 162076, at *42 (S.D. Ohio Sept. 30, 2017)

(finding that an alleged “shove” that caused the plaintiff to “bump” her head - “causing no

discemable harm of record - is insufficient harm under Wilkins”)-, Cline v. Cruse, No. 3:14 CV

1678, 2016 U.S. Dist. LEXIS 84357, at *9 (N.D. Ohio June 8, 2016) (holding that an officer’s

grabbing of the plaintiffs thumb, applying pressure to it, and bending in backward, which

resulted only in “a small reddening of the skin” was not sufficiently serious to meet the objective

prong of an excessive force claim).

Thus, because Plaintiffs allegations of a “shove” suggest no underlying constitutional

violation, Plaintiffs claim against Defendant White for this alleged act must also be dismissed.

IV. CONCLUSION

For the foregoing reasons, the Court will dismiss this action for failure to state a claim

upon which relief may be granted. The Court will enter a separate order of dismissal.

Date: November 29, 2017

cc:

Thomas B. Russell, Senior Judge

United States District Court

Plaintiff, pro se

Defendant

General Counsel, Justice & Public Safety Cabinet, Office of Legal Counsel

4413.011

8

Additional material

from this filing is

available in the

Clerk's Office.