Reynolds v. LNU et al
Filing
12
MEMORANDUM AND OPINION by Chief Judge Joseph H. McKinley, Jr on 4/20/12: The official-capacity and individual-capacity claims against Defendants Jackie Strode, Gayle, and William Etheridge and the official-capacity claims against Defendants Joanna an d Elizabeth are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be granted. IT IS FURTHER ORDERED that the following claims will proceed: (1) the claims of deliberate indifference to a serious med ical need against Defendants Joanna and Elizabeth in their individual capacities; (2) the retaliation claim against Defendant Joanna in her individual capacity; and (3) the medical-malpractice claim against Defendants Joanna and Elizabeth. The Court will enter a separate Scheduling Order governing the development of the continuing claims. cc: Plaintiff (pro se), Defendants, Warren County Attorney, USA (JBM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT BOWLING GREEN
ROBERT A. REYNOLDS
PLAINTIFF
v.
CIVIL ACTION NO. 1:11CV-P142-M
ELIZABETH et al.
DEFENDANTS
MEMORANDUM OPINION
This matter is before the Court on initial review of the pro se complaint (DN 1) and
supplement (DN 6) pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth, 114 F.3d 601
(6th Cir. 1997). For the reasons that follow, a portion of the claims will be dismissed and the
others will continue.
I.
Plaintiff Robert A. Reynolds is currently a convicted federal inmate incarcerated at
U.S.P. McCreary. The allegations in his complaint concern denied medical treatment while
incarcerated as a federal pretrial detainee in the Warren County Jail (WCJ). As Defendants, he
names “Elizabeth (Southern Health Partners),” a nurse practitioner at the WCJ; “Joanna
(Southern Health Partners),” a health administrator at WCJ; Jackie Strode, WCJ Jailer; Gayle, a
jail administrator at WCJ; and U.S. Marshal William Etheridge of the U.S. Marshals Service
(USMS) in Nashville, Tennessee. He sues each Defendant in his or her individual and official
capacities.
Plaintiff reports that during the time of the alleged wrongdoing described in his
complaint, he was a pretrial detainee for the USMS in Nashville, Tennessee, being detained in
the WCJ. On October 10, 2010, he was involved in an altercation with two other inmates (a
federal inmate and a county or state inmate) and sustained an injury to his right side. He
assumed he had broken his ribs given “the extreme pain, hard time breathing, [and] any
movement was excruciating.”
Plaintiff reports being “immediately taken to the medical unit” in the jail, where Jennifer,
a nurse, said that he was sore and would be fine. He states that he was then taken to the
segregation unit for administrative or disciplinary reasons and given “3 Advil (200mg. each).”
He alleges that he had a serious medical need that was ignored. He reports filing a medical
request everyday for four days and finally being seen by Defendant Nurse Practitioner Elizabeth,
who evaluated him by listening to his breathing and performing a visual examination of his ribs.
Defendant Elizabeth determined that Plaintiff “was fine” and “just sore” and prescribed Tylenol,
two times daily for three days.
Plaintiff reports being placed back into maximum security cell A-8, where the altercation
occurred, and filing a medical request and/or grievance almost everyday. After about ten days,
he was called to the medical department by Defendant Joanna to discuss his requests. Plaintiff
claims that “she responded with a arrogant, hateful attitude. telling me my ribs were not broken.
I was merely sore.” He advised her that he knew his body, was having trouble breathing, was
unable to move around, was unable to sleep, and was in “serious pain.” Plaintiff asked
Defendant Joanna how she knew his ribs were not broken, and “[h]er response was how do you
think they did it in the old days . . . and then threatened me with the ‘hole’ (segregation) for so
much paper work.”
Plaintiff decided to call his attorney with the Nashville Public Defenders Office. After
Plaintiff explained to his counsel what happened and what was not being done, his counsel
contacted Defendant Etheridge of the USMS in Nashville, who contacted the WCJ about
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Plaintiff’s medical needs not being met. The WCJ replied that Plaintiff had been seen, that
nothing was wrong, and that he was merely sore. Plaintiff states that his counsel received an
email from the USMS with the WCJ’s response and “left it at that. Totally agreeing with their
medical assessment without finding if their facts were even correct.” In the description of his
claim, Plaintiff states that this exchange occurred ten to twelve days after the incident, but an
attached email between Plaintiff’s public defender and Defendant Etheridge is dated October 14,
2010, only four days after the incident.
Plaintiff continued daily to file medical requests and inmate grievances. On about the
fourteenth day, Plaintiff was called to the medical department, where Defendant Joanna was
present with someone contracted with WCJ to perform x-rays. X-rays were performed, and three
days later, Plaintiff was informed by “a medical tech. nurse named Kimber” that he had two
fractured ribs. Despite the findings, he reports that he still received no medical attention,
including no pain medication. Thereafter, for 30 days, he filed medical requests and grievances.
To deal with the pain while incarcerated at the WCJ, Plaintiff reports faking a shoulder
injury. To his surprise, there was no hassle, and he was given ten days worth of Advil. After
those ten days, he faked a toothache and received ten more days of Advil for pain.
Plaintiff states that it has been months since his injury and that his ribs still hurt; he has
trouble breathing in deep; and he cannot lie on his right side or participate in physical activity.
X-rays taken at USP McCreary, his current place of incarceration, were abnormal and showed a
“poorly healing right sided 9th and 10th rib fx” and an “Old 9th right rib fracture non-union.”
Plaintiff alleges that his right to proper medical care was violated by Defendants Joanna
and Elizabeth from October 10, 2010, until April 2011; that his right to be properly treated was
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violated by Defendant Etheridge; that he was denied any assistance through the grievance
procedure by Defendants Strode and Gayle; and that all five Defendants violated his “right to
proper medical attention, cruel and unusual punishment, refusal to treat a serious medical need
‘broken bones,’ deliberate indifference.” Plaintiff also alleges medical malpractice, and in
alleging that Defendant Joanna threatened him with segregation for filing so much paperwork in
the form of medical requests and grievances, the Court also construes the complaint as alleging a
retaliation claim.
As relief, Plaintiff seeks monetary and punitive damages.
II.
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)(1), (2); McGore, 114 F.3d at 604.
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989). The trial court may, therefore, dismiss a claim as
frivolous where it is based on an indisputably meritless legal theory or where the factual
contentions are clearly baseless. Id. at 327. 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)). “A claim has facial plausibility when the
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plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[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)). “But the district court need not accept a ‘bare assertion of legal
conclusions.’” Tackett, 561 F.3d at 488 (quoting Columbia Natural Res., Inc. v. Tatum, 58 F.3d
1101, 1109 (6th Cir. 1995)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it
tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555, 557).
Although this Court recognizes that pro se pleadings are to be held to a less stringent
standard than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519 (1972), the
duty “does not require us to conjure up unpled allegations,” McDonald v. Hall, 610 F.2d 16, 19
(1st Cir. 1979), or to create a claim for a plaintiff. Clark v. Nat’l 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 of Hampton,
775 F.2d 1274, 1278 (4th Cir. 1985).
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III.
A.
Federal claims
1. 42 U.S.C. § 1983
“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 allegations are required to state a claim under § 1983. Gomez v.
Toledo, 446 U.S. 635, 640 (1980). First, “a plaintiff must allege the violation of a right secured
by the Constitution and laws of the United States,” West v. Atkins, 487 U.S. 42, 48 (1988), and
second, he “must show that the alleged deprivation was committed by a person acting under
color of state law.” Id. “Absent either element, a section 1983 claim will not lie.” Christy v.
Randlett, 932 F.2d 502, 504 (6th Cir. 1991).
a. Official-capacity claims
i. WCJ Defendants
“Official-capacity suits . . . ‘generally represent [] another way of pleading an action
against an entity of which an officer is an agent.’” Kentucky v. Graham, 473 U.S. 159, 166
(1985) (quoting Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 n.55 (1978)).
Plaintiff’s official-capacity claims against Defendants Strode and Gayle, therefore, are actually
against Warren County. See Lambert v. Hartman, 517 F.3d 433, 440 (6th Cir. 2008) (stating that
civil rights suit against county clerk of courts in his official capacity was equivalent of suing
clerk’s employer, the county).
When a § 1983 claim is made against a municipality, this Court must analyze two distinct
issues: (1) whether Plaintiff’s harm was caused by a constitutional violation; and (2) if so,
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whether the municipality is responsible for that violation. Collins v. City of Harker Heights,
Tex., 503 U.S. 115, 120 (1992). The Court will address the issues in reverse order.
“[A] municipality cannot be held liable solely because it employs a tortfeasor -- or, in
other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.”
Monell, 436 U.S. at 691; Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994); Berry v.
City of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994). “[T]he touchstone of ‘official policy’ is
designed ‘to distinguish acts of the municipality from acts of employees of the municipality, and
thereby make clear that municipal liability is limited to action for which the municipality is
actually responsible.’” City of St. Louis v. Praprotnik, 485 U.S. 112, 138 (1988) (quoting
Pembaur v. Cincinnati, 475 U.S. 469, 479-80 (1986)) (emphasis in original). To demonstrate
municipal liability, a plaintiff “must (1) identify the municipal policy or custom, (2) connect the
policy to the municipality, and (3) show that his particular injury was incurred due to execution
of that policy.” Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003) (citing Garner v. Memphis
Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993)).
In the instant case, none of the allegations in the complaint or its supplement demonstrate
that any alleged wrongdoing occurred as a result of a policy or custom implemented or endorsed
by Warren County. Accordingly, the complaint fails to establish a basis of liability against the
municipality and fails to state a cognizable § 1983 claim.
Consequently, the official-capacity claims against Defendants Strode and Gayle must be
dismissed.
ii. SHP Defendants
The official-capacity claims against Defendants Joanna and Elizabeth are actually against
their employer, SHP. This same municipal-liability analysis applies to § 1983 claims against a
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private corporation like SHP.1 See Street v. Corr. Corp. of Am., 102 F.3d 810, 818 (6th Cir.
1996) (“Monell involved a municipal corporation, but every circuit to consider the issue has
extended the holding to private corporations as well.”). Liability must be based on a policy or
custom of the contracted private entity or “the inadequacy of [an employee’s] training.” Id.;
Starcher v. Corr. Med. Sys., Inc., 7 F. App’x 459, 465 (6th Cir. 2001) (“CMS’s [Correctional
Medical Systems, Inc.,] liability must also be premised on some policy that caused a deprivation
of [plaintiff’s] Eighth Amendment rights.”).
In the instant case, Plaintiff has not alleged that SHP’s medical staff acted pursuant to a
policy or custom in causing any alleged harm. Nothing in the complaint or its supplement
demonstrates that the action or inaction of any medical personnel occurred as a result of a policy
or custom implemented or endorsed by SHP. The complaint, therefore, fails to establish a basis
of liability against SHP and, therefore, fails to state a cognizable § 1983 claim against its
employees, Defendants Joanna and Elizabeth, in their official capacities.
b. Individual-capacity claims
i. WCJ Defendants
At the outset, the Court mentions that Plaintiff was not a convicted prisoner at the time of
the events alleged; he was a pretrial detainee. As such, the Eighth Amendment’s proscription
against cruel and unusual punishment does not apply to him. Watkins v. City of Battle Creek,
273 F.3d 682, 685 (6th Cir. 2001). “Under the Fourteenth Amendment Due Process Clause,
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The Sixth Circuit has held that “[i]t is clear that a private entity which contracts with the
state to perform a traditional state function such as providing medical services to prison inmates may
be sued under § 1983 as one acting ‘under color of state law.’” Hicks v. Frey, 992 F.2d 1450, 1458
(6th Cir. 1993) (quoting West v. Atkins, 487 U.S. 42, 54 (1988)). SHP has apparently contracted with
the WCJ to provide medical services to the inmates. Thus, on initial review of the complaint, the
Court presumes that SHP is a state actor.
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however, pretrial detainees have a right to adequate medical treatment that is analogous to the
Eighth Amendment rights of prisoners.” Id. at 685-86. Thus, “[t]o sustain a cause of action
under § 1983 for failure to provide medical treatment, plaintiff must establish that the defendants
acted with ‘deliberate indifference to serious medical needs.’” Id. at 686; Estelle v. Gamble, 429
U.S. 97, 104-06 (1976).
A viable Eighth Amendment claim must satisfy both an objective component and a
subjective component. Farmer v. Brennan, 511 U.S. at 834; Street v. Corr. Corp. of Am., 102
F.3d 810, 814 (6th Cir. 1996). The objective component requires that the deprivation be
“sufficiently serious.” Wilson v. Seiter, 501 U.S. 294, 298 (1991); see also Hudson v.
McMillian, 503 U.S. 1 (1992). An inmate must show that he was deprived of “the minimal
civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). The
subjective component requires the defendant to act with “deliberate indifference” to a prisoner’s
health or safety. Wilson v. Seiter, 501 U.S. at 302-03. “‘[A]cting or failing to act with deliberate
indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly
disregarding that risk.’” Street, 102 F.3d at 815 (quoting Farmer, 511 U.S. at 836).
Although Plaintiff claims that Jailer Strode and Jail Administrator Gayle denied him
proper medical care, that claim is a conclusory legal determination which is not to be taken as
true, and the facts asserted by Plaintiff in his complaint and supplement do not support such a
claim. Iqbal, 129 S. Ct. at 1949 (“[T]he tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions.”); Chapman v. City of
Detroit, 808 F.2d 459, 465 (6th Cir. 1986) (“It is not enough for a complaint . . . to contain
mere conclusory allegations of unconstitutional conduct by persons acting under color of state
law. Some factual basis for such claims must be set forth in the pleadings.”). He does not
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indicate that either Strode or Gayle was involved in any way in providing him with medical
treatment, only that they were involved in the grievance process, which does not subject them to
liability under § 1983.
There is “no constitutionally protected due process interest in unfettered access to a
prison grievance procedure.” Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 445 (6th Cir.
2005). By the same token, a plaintiff cannot maintain a claim against a prison official based
solely on his or her denial of the plaintiff’s grievance. “The ‘denial of administrative grievances
or the failure to act’ by prison officials does not subject supervisors to liability under § 1983.”
Grinter v. Knight, 532 F.3d 567, 576 (6th Cir. 2008) (quoting Shehee v. Luttrell, 199 F.3d 295,
300 (6th Cir. 1999)). “The mere denial of a prisoner’s grievance states no claim of constitutional
dimension.” Alder v. Corr. Med. Servs., 73 F. App’x 839, 841 (6th Cir. 2003). A plaintiff’s
claim is against the subjects of his grievances, not those who merely decided whether to grant or
deny the grievances. See Skinner v. Govorchin, 463 F.3d 518, 525 (6th Cir. 2006) (“Skinner’s
complaint regarding Wolfenbarger’s denial of Skinner’s grievance appeal, it is clear, fails to
state a claim.”); Lee v. Mich. Parole Bd., 104 F. App’x 490, 493 (6th Cir. 2004) (“Section 1983
liability may not be imposed simply because a defendant denied an administrative grievance or
failed to act based upon information contained in a grievance.”); Simpson v. Overton, 79 F.
App’x 117, 120 (6th Cir. 2003) (“[T]he denial of an appeal cannot in itself constitute sufficient
personal involvement to state a claim for a constitutional violation.”); Martin v. Harvey, 14 F.
App’x 307, 309 (6th Cir. 2001) (“The denial of the grievance is not the same as the denial of a
request to receive medical care.”). Thus, where the only allegation against a defendant relates to
the denial of a grievance, a plaintiff fails to allege any personal involvement by the defendant in
the alleged denial of medical treatment.
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To the extent Plaintiff seeks to hold Defendant Strode liable based on his position as
WCJ Jailer, the doctrine of respondeat superior, or the right to control employees, does not apply
in § 1983 actions to impute liability onto supervisors. Monell, 436 U.S. at 691; Taylor v. Mich.
Dep’t of Corr., 69 F.3d 76, 80-81 (6th Cir. 1995). Rather, to establish supervisory liability in a §
1983 action, “[t]here must be a showing that the supervisor encouraged the specific incident of
misconduct or in some other way directly participated in it. At a minimum, a § 1983 plaintiff
must show that a supervisory official at least implicitly authorized, approved or knowingly
acquiesced in the unconstitutional conduct of the offending subordinate.” Bellamy v. Bradley,
Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). “[L]iability of supervisory personnel
must be based on more than merely the right to control employees.” Hays v. Jefferson County,
Ky., 668 F.2d at 872. “Likewise, simple awareness of employees’ misconduct does not lead to
supervisor liability.” Leary v. Daeschner, 349 F.3d 888, 903 (6th Cir. 2003) (citing Lillard v.
Shelby County Bd. of Educ., 76 F.3d 716, 728 (6th Cir. 1996)). Supervisory liability “must be
based on active unconstitutional behavior and cannot be based upon ‘a mere failure to act.’”
Shehee, 199 F.3d at 300 (6th Cir. 1999) (quoting Salehpour v. Univ. of Tenn., 159 F.3d 199, 206
(6th Cir. 1998)).
Here, Plaintiff fails to demonstrate any facts showing that Defendant Strode encouraged
any specific incidents or implicitly authorized, approved or knowingly acquiesced to any
unconstitutional conduct.
For these reasons, the individual-capacity claims against Defendants Strode and Gayle
fail to state a claim upon which relief may be granted.
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ii. SHP Defendants
aa. denial of medical treatment
Because Plaintiff alleges a continued refusal by Defendants Joanna and Elizabeth to
provide treatment for a rib injury from October 2010 to April 2011, the Court will allow the
claims of deliberate indifference to a serious medical need to proceed against those Defendants
in their individual capacities.
bb. retaliation
Plaintiff alleges that Defendant Joanna threatened him with the “hole”/segregation for
filing so much “paperwork.” In construing the facts in a light most favorable to Plaintiff, the
Court presumes that the “paperwork” is medical requests and grievances. The Court will allow
this retaliation claim to continue against Defendant Joanna in her individual capacity.
2. Bivens
Because Defendant Etheridge is a federal (not a state) actor, § 1983 does not apply to
him. In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), however, the U.S.
Supreme Court “recognized for the first time an implied private action for damages against
federal officers alleged to have violated a citizen’s constitutional rights.” Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 66 (2001). “Such claims are the counterpart to suits under 42 U.S.C.
§ 1983 against state officials who infringe plaintiffs’ federal constitutional or statutory rights,”
Vector Research, Inc. v. Howard & Howard Attorneys P.C., 76 F.3d 692, 698 (6th Cir. 1996),
and decisional law developed under § 1983 has been fully applied to Bivens-type suits. Butz v.
Economou, 438 U.S. 478, 498-504 (1978).
The Court construes the § 1983 claims against federal Defendant Etheridge as being
brought under Bivens. Because “a Bivens claim may not be asserted against a federal officer in
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his official capacity,” Berger v. Pierce, 933 F.2d 393, 397 (6th Cir. 1991), the Court will dismiss
the official-capacity claims against Defendant Etheridge.
As to the individual-capacity claim against that Defendant, the allegations in the
complaint demonstrate that upon being notified of Plaintiff’s rib problem, Defendant Etheridge
immediately sought information about his condition from the WCJ medical staff and then
relayed that information back to Plaintiff’s attorney. Defendant U.S. Marshal Etheridge is not a
medical professional, and given that Defendant Etheridge was located in Nashville during
Plaintiff’s incarceration at WCJ, he had no day-to-day contact with Plaintiff and no direct
involvement in his medical treatment. Plaintiff fails to show that Defendant Etheridge, a nonmedical professional who inquired of Plaintiff’s condition from medical personnel, was
deliberately indifferent to a serious medical need. See Harrison v. Ash, 539 F.3d 510, 518-20
(6th Cir. 2008) (finding that non-medical prison employees were not deliberately indifferent to
plaintiff’s medical needs for not responding to medical complaints from a prisoner who was
already under the care of the medical professionals); Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir.
2004) (“If a prisoner is under the care of medical experts . . ., a non-medical prison official will
generally be justified in believing that the prisoner is in capable hands.”). The individualcapacity claims will be dismissed.
B.
State-law claim
Plaintiff alleges a state-law, medical-malpractice claim. The Court will allow that claim
to continue against Defendants Joanna and Elizabeth.
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IV. ORDER
For the reasons set forth more fully above, and the Court being otherwise sufficiently
advised,
IT IS ORDERED that the official-capacity and individual-capacity claims against
Defendants Jackie Strode, Gayle, and William Etheridge and the official-capacity claims against
Defendants Joanna and Elizabeth are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1) for
failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that the following claims will proceed: (1) the claims of
deliberate indifference to a serious medical need against Defendants Joanna and Elizabeth in
their individual capacities; (2) the retaliation claim against Defendant Joanna in her individual
capacity; and (3) the medical-malpractice claim against Defendants Joanna and Elizabeth.
The Court will enter a separate Scheduling Order governing the development of the
continuing claims.
Date: April 20, 2012
cc:
Plaintiff, pro se
Defendants
Warren County Attorney
United States Attorney
4414.005
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