Applegate v. Eastern Kentucky Correctional Complex et al
Filing
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MEMORANDUM OPINION & ORDER: IT IS ORDERED that: 1. Applegate's original and amended complaints DEs 1 7 are DISMISSED WITH PREJUDICE. 2. The Court will enter an appropriate judgment. 3. This matter is STRICKEN from the active docket. Signed by Judge Henry R. Wilhoit, Jr on 4/27/16.(KSS)cc: COR, Applegate (via US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
ASHLAND
ROY APPLEGATE,
Plaintiff,
v.
EASTERN KENTUCKY CORR.
COMPLEX, et a!.,
Defendants.
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Civil No. 15-74-HRW
MEMORANDUM OPINION
ANDORDER
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Inmate Roy Applegate is confined at the Northpoint Training Center in
Burgin, Kentucky.
On September 24, 2015, the Court received a two-page letter
fi·om Applegate, which the Clerk docketed as a civil rights complaint pursuant to
42 U.S.C. § 1983. [D. E. No.1]
In his complaint, Applegate alleged that on the evening ofJune 15, 2015, he
was walking along the track at the Eastern Kentucky Correctional Complex
("EKCC") when he was struck from behind, hit with brass knuckles, and beaten for
four minutes, resulting in severe injuries to the bones in his face and mouth. [D. E
No. 1 at 1] Applegate alleged that he was taken to two outside hospitals for
treatment, and was coughing up blood for three weeks after the attack, but that
prison medical staff did not examine his mouth after he returned to custody.
Applegate sought $25 million in damages "because what happen to me." !d. at 2.
Applegate also asked to be released from custody because he contends the conduct
which precipitated his state criminal convictions did not violate federal law. ld.
Applegate named only EKCC and the Kentucky Department of Corrections
("KDOC") as defendants. [D. E. No. 1 at 1]
On November 4, 2015, the Court granted Applegate pauper status, and
conducted an initial screening of his complaint pursuant to 28 U.S.C. §§
1915(e)(2), 1915A.
[D. E. No. 6]
The Court concluded that Applegate's
complaint was subject to dismissal for at least three reasons. First, he must seek
release from custody through a petition for a writ of habeas corpus, not a civil
rights action. Wilkinson v. Dotson, 544 U.S. 74, 78 (2005). ("[A] prisoner in state
custody cannot use a § 1983 action to challenge 'the fact or duration of his
confinement."'). Second, Applegate's complaint did not explain whether he was
attacked by prison guards or by other inmates, and made no attempt to articulate a
legal basis for his claims, therefore failing to set forth sufficient allegations to
"state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Third, Applegate named only EKCC and KDOC as defendants,
two state agencies that the Eleventh Amendment immunizes from suit in federal
court and which are not suable entities under § 1983.
Cady v. Arenac Co., 574
F.3d 334, 342 (6th Cir. 2009); Kentucky v. Graham, 473 U.S. 159, 169 (1985);
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Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). The Court therefore
afforded Applegate an opportunity to correct these deficiencies by filing an
amended complaint, and provided him with form documents for this purpose. [D.
E. No. 6 at 2-4]
Applegate filed an amended complaint on November 18, 2015 using the
Court's complaint form. [D. E. No. 7] Applegate again named only EKCC and
KDOC as defendants. Id. at 1. Applegate left the majority of the form blank,
although he did clarify that he was "attack (sic) by 2 or 3 inmates." Id. at 2.
Applegate also stated that he had filed no inmate grievances regarding the assault
or his medical care. [D. E. No. 7 at 5]
The Court must conduct a preliminary review of Applegate's amended
complaint because he has been granted permission to pay the filing fee in
installments and because he asserts claims against government officials. 28 U.S.C.
§§ 1915(e)(2), 1915A. A district court must dismiss any claim that is frivolous or
malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief. Hill v. Lappin,
630 F. 3d 468, 470-71 (6th Cir. 2010).
When testing the sufficiency of
Applegate's complaint, the Court affords it a forgiving construction, accepting as
true all non-conclusory factual allegations and liberally construing its legal claims
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in the plaintiff's favor. Davis v. Prison Health Servs., 679 F.3d 433, 437-38 (6th
Cir. 2012).
Applegate's amended complaint must be dismissed for two reasons. 1 First,
while Applegate's allegation that he was attacked by other inmates at most
suggests a claim that prison guards failed to protect him from the assault,
Applegate does not actually make such a claim in his complaint. The Court is
obligated to liberally construe a complaint filed by a person proceeding pro se,
Haines v. Kerner, 404 U.S. 519, 596 (1972), but this does not extend so far as to
require it to manufacture a claim out of whole cloth on the plaintiff's behalf.
Coleman v. Shoney's, Inc., 79 F. App'x 155, 157 (6th Cir. 2003). Thus, "[w]hile
the allegations of the complaint are construed favorably to the plaintiff, the court
will not read causes of action into the complaint which are not alleged." Superior
Kitchen Designs, Inc. v. Valspar Indus. (U.S.A.), Inc., 263 F.Supp.2d 140, 148 (D.
Mass. 2003); see also United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)
("Judges are not like pigs, hunting for truffles buried in briefs."); Herman v. City of
Chicago, 870 F.2d 400, 404 (7th Cir. 1989) ("A district court need not scour the
record to make the case of a patty who does nothing.").
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Applegate's complaint is also likely subject to dismissal for failure to exhaust administrative
remedies prior to filing suit as required by 28 U.S.C. § 1997e(a), but the Cotnt does not reach
that question upon initial screening.
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In addition, to state a viable claim for failure to protect, an inmate must
allege that a prison guard was deliberately indifferent to the plaintiff's risk of
injury, Walker v. Norris, 917 F.2d 1449, 1453 (6th Cir. 1990), by alleging that the
prison guard was actually aware of a substantial risk that the plaintiff would be
attacked and knowingly disregarded that risk. Farmer v. Brennan, 511 U.S. 825,
837 (1994). Here, Applegate has not named any individual prison officer as a
defendant in this action, nor made any allegation that such an officer possessed
prior knowledge that Applegate was at risk of assault by inmates. Applegate's
failure to make such necessary allegations establishes that his complaint fails to
state an Eighth Amendment claim. Cf. Graham v. Murtland, No. 1: 16-CV-149,
2016 WL 878041, at *3 (W.D. Mich. Mar. 8, 2016).
Second, Applegate has again named only EKCC and KDOC as defendants
in this action, notwithstanding the Court's prior explanation that neither of those
two state agencies are amenable to suit under § 1983 in federal court. Cady v.
Arenac Co., 574 F.3d 334,342 (6th Cir. 2009); Kentuckyv. Graham, 473 U.S. 159,
169 (1985); Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). Because
Applegate's amended complaint fails to state viable claims under § 1983 against
any named defendant, the Comi must dismiss his complaint with prejudice.
Accordingly, IT IS ORDERED that:
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1.
Applegate's original and amended complaints [D. E. No. 1, 7] are
DISMISSED WITH PREJUDICE.
2.
The Comi will enter an appropriate judgment.
3.
This matter is STRICKEN from the active docket.
This 2ih day of April, 2016.
Signed By:
Honey R. Wilhoit Jr.
Unllad l.lltlt(lll\l Dlotrlct Judge
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