Wettstein v. Medical Center of Bowling Green, et al

Filing 17

MEMORANDUM OPINION & ORDER by Senior Judge Charles R. Simpson, III on 03/27/2024. Wettstein's Motion for appointment of counsel, DN 16 , is DENIED. Wettstein's Complaint will be dismissed in its entirety for failure to state a claim upon which relief may be granted. Although this action will be dismissed, Wettstein remains obligated to pay the filing fee in full. The court's prior Order, DN 10 , directing the Warren County Regional Jail to send to the Clerk of Court monthly payments from Wettstein's trust account each time the amount in the account exceeds $10.00 until the statutory filing fee of $350.00 is paid in full remains in full effect. cc: Plaintiff (pro se), Warren County Regional Jail (HMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT BOWLING GREEN
CIVIL ACTION NO. 1:23-CV-78-CRS
PRESTON ALAN WETTSTEIN

PLAINTIFF

v.
MEDICAL CENTER OF BOWLING GREEN, et al.

DEFENDANTS

MEMORANDUM OPINION & ORDER
On June 14, 2023, plaintiff Preston Alan Wettstein filed this pro se 42 U.S.C. § 1983
prisoner civil rights action. DN 1. Simultaneously, Wettstein petitioned the court for leave to
proceed in forma pauperis. DN 2. The court granted Wettstein leave. DN 10. This matter is now
before the court on initial review of Wettstein’s Complaint pursuant to 28 U.S.C. § 1915A and for
consideration of Wettstein’s Motion for appointment of counsel. DN 16. For the reasons stated
below, the court will deny Wettstein’s Motion and dismiss his Complaint in its entirety.
I. Motion to Appoint Counsel
Wettstein moved for appointment of counsel. DN 16. As grounds for his Motion, Wettstein
explains that his discovery efforts have been futile, that he lacks “lawsuit experience,” and that the
law library at his institution is deficient. Id. at PageID# 75.
“Appointment of counsel in a civil case is not a constitutional right.” Lavado v. Keohane,
992 F.2d 601, 605 (6th Cir. 1993). That is so because “the Sixth Amendment does not govern civil
cases.” Turner v. Rogers, 564 U.S. 431, 441 (2011). Accordingly, “there is no right to counsel in
prisoner civil rights cases” like this one. Bennett v. Smith, 110 F. App’x 633, 635 (6th Cir. 2004).
Nonetheless, under 28 U.S.C. § 1915(e), the “court may request an attorney to represent
any person unable to afford counsel.” Such decision is “within the discretion of the trial court,”
Childs v. Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987), and “is a privilege that is justified only

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by exceptional circumstances.” Lavado, 992 F.2d at 606. “To determine whether these exceptional
circumstances exist, courts typically consider ‘the type of case and the ability of the plaintiff to
represent himself.’” Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003) (quoting Archie v.
Christian, 812 F.2d 250, 253 (5th Cir. 1987)). Generally, such tasks the district court with
determining the “complexity of the factual and legal issues involved.” Lavado, 992 F.2d at 606.
Wettstein’s Motion will be denied for a few reasons. First, the court notes that this case –
having yet to undergo initial review – is not in its discovery stage. Indeed, the defendants have yet
to be served because this court has yet to issue summonses. Thus, Wettstein’s perceived problems
with discovery are non-issues. Second, neither Wettstein’s status as a layman at law nor the
deficiency of his institution’s law library constitute circumstances different than those of other
incarcerated plaintiffs. See, e.g., Stewart v. United States, No. 2:13-cv-2896-STA, 2017 WL
939197, at *1 (W.D. Tenn. Mar. 7, 2017) (appointment of counsel unwarranted where “[n]othing
distinguishes” the “case from the numerous other petitions filed by indigent prisoners”). Third,
upon review of Wettstein’s Complaint, the court finds that the issues are not of sufficient
complexity to warrant appointment of counsel. Fourth, a review of all documents filed by
Wettstein reveal that he is sufficiently articulate and able to present his case to the court. For all
these reasons, the court finds that Wettstein has not set forth any exceptional circumstances
warranting appointment of counsel. Thus, his Motion will be denied.
II. Initial Review
A. Legal Standard
Because Wettstein is a prisoner seeking relief against governmental entities, officers,
and/or employees, the court must initially review the instant action. See 28 U.S.C. § 1915A;
McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997), overruled on other grounds,
Jones v. Bock, 549 U.S. 199, 203 (2007). Upon review, the court may dismiss a case at any time
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if the court determines that the action 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.
28 U.S.C. § 1915A(b)(1), (2). When screening the Complaint, the court must construe it in the
light most favorable to Wettstein and accept well-pleaded allegations as true. Hill v. Lappin,
630 F.3d 468, 471 (6th Cir. 2010). And while a reviewing court liberally construes pro se
pleadings, see id.; Boag v. McDonald, 454 U.S. 364, 365 (1982), a complaint must include
“enough facts to state a claim to relief that is plausible on its face” to avoid dismissal,
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
B. Wettstein’s Complaint
The following facts are gleaned from a review of Wettstein’s Complaint and its
accompanying exhibits: Bowling Green Police Officer Matthew Poore was dispatched to the
Medical Center of Bowling Green (“Medical Center”) on report of a man sitting “on the ground
with no clothes on.” Complaint, DN 1-1 at PageID# 7. That man was Wettstein. He had “slurred
speech and constricted pupils.” Id. Medical Center EMS assessed Wettstein and determined his
vitals were “within normal levels.” Id. Wettstein was then placed in custody for public intoxication
and second-degree disorderly conduct. Id. He was transported to Medical Center’s emergency
room for medical clearance before transfer to a jail facility.
While in the emergency room, “Wettstein began to scream and yell” and, after Medical
Center staff attempted to obtain a blood sample from him, he “became upset.” Id. Office Poore
and Medical Center security “had to hold Wettstein down” and place Wettstein in restraints “to
prevent Medical Center staff from being injured” Id. Such resulted in injury of a Medical Center
security staff member, for which Wettstein was charged with fourth-degree assault (no visible
injury). Id. at PageID# 7–8. In a supplemental citation, Officer Moore also reported that he suffered

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a small laceration to his index finger that “caused pain and a small amount of blood.” Id. at Page#
10. In the end, Wettstein was medically cleared and transferred to the Warren County Regional
Jail (“WCRJ”). Id.
Thereafter, Warren District Judge Kimberly Geoghegan issued a warrant that directed
Wettstein’s blood be drawn and tested for communicable diseases pursuant to KRS § 438.250.1
Id.; see also id. at PageID# 11. Nurse Kayton Willis, a “jail nurse”, drew Wettstein’s blood for
testing – Wettstein’s second blood draw. The sample returned positive for Hepatitis C. Id. at
PageID# 10. Wettstein alleges that Officer Moore lied to Judge Geoghegan to secure the blood
draw warrant. Id. at PageID# 4.
As a result of these interactions, Wettstein sues Medical Center in its official and individual
capacities, the Bowling Green Police Department (“BGPD”) in its official capacity, Southern
Health Partners in its official capacity, and Officer Matthew Poore in his official capacity for
alleged violations of the Fourth and Fourteenth Amendments. Id. at PageID# 5–6. Specifically,
Wettstein alleges that Officer Moore “stole” his blood with the help of Medical Center staff –
subjecting him to a warrantless search and cruel and unusual punishment – and that he “was

1

KRS § 438.250(1) requires the following:
When a public servant, as defined in KRS 521.010, a health care professional who
is licensed or certified under the laws of the Commonwealth, an employee of the
health care professional, an employee of a health care facility that is licensed
under the laws of the Commonwealth, or victim of a crime is bitten by, suffers a
puncture wound caused by, or is exposed to the blood or body fluids of a criminal
defendant, inmate, parolee, probationer, or patient or resident of any health facility
owned or operated by the Commonwealth, or the blood or body fluids of a
criminal defendant, inmate, parolee, or probationer have come into contact with
the skin or unprotected clothing of a public servant during any incident in which
the public servant and the criminal defendant, inmate, parolee, or probationer are
involved, the criminal defendant, inmate, parolee, or probationer shall be ordered
to submit to testing for human immunodeficiency virus (HIV), hepatitis B and C
viruses, and any other disease, if testing for that disease is recommended by the
most current guidelines of the Centers for Disease Control and Prevention, and if
testing for any of these conditions is recommended, then testing will be conducted
as recommended by the Centers for Disease Control and Prevention.

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restrained, lied too [sic] repeatedly, and charged falsely.” Id. at PageID# 5. Moreover, Wettstein
alleges that Medical Center and Southern Health Partners each drew his blood without his consent
and declined to provide him with water. Id. at PageID# 5–6. Wettstein seeks $15,000 in
compensatory damages and $400,000 in punitive damages from Defendants. Id. at PageID# 6.
C. Analysis
In a § 1983 action, a plaintiff must allege that a person acting under color of state law —
that is, an employee or agent of a state or municipal government — subjected the plaintiff to “the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws” of the
United States. 42 U.S.C § 1983.
Thus, to maintain a § 1983 action, a plaintiff must show that the defendants acted under
color of state law. Here, Wettstein sues Medical Center in its official and individual capacities,
among other defendants. DN 1 at PageID# 2. However, Medical Center is a private hospital.
Consequently, it is not a state actor.
There are some circumstances in which a private actor may be deemed to have acted under
color of state law. Brentwood Academy v. Tennessee Secondary School Athletic Assn.,
531 U.S. 288, 295 (2001). However, that is the case only if “there is such a ‘close nexus between
the State and the challenged action’ that seemingly private behavior ‘may be treated as that of the
State itself.’” Id. (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349 (1974)).
Wettstein does not allege any facts supporting such a nexus here. Thus, Wettstein fails to assert a
cognizable § 1983 claim against Medical Center.
Wettstein’s remaining claims are against BGPD, Southern Health Partners (which
Wettstein alleges is the WCRJ’s contracted medical provider), and Officer Matthew Poore — all
in their official capacities. Suing an individual or entity in its official capacity is the same as suing

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a local government, like Warren County. Monell v. N.Y. City Dept. of Soc. Servs., 436 U.S. 658,
691 n.55 (1978). To state a cognizable official capacity claim against each defendant, then,
Wettstein must allege that each defendant had a policy or custom which resulted in his being
deprived of a constitutional right. Id. at 690–91. This requirement exists because a local
government cannot be, as a matter of law, liable for their employees’ actions simply as a result of
their employment status. Id. at 691.
Wettstein’s Complaint does not identify a policy or custom of Southern Health Partners
that resulted in his suffering a constitutional deprivation. See DN 1 at PageID# 5. Instead, he
simply sues Southern Health Partners for “stealing” his “blood without a warrant while in a
restraint chair” and for “refusing water.” Id. Thus, Wettstein’s Complaint fails to state a § 1983
claim against Southern Health Partners.
As to BGPD and Officer Poore, Wettstein vaguely alleges that BGPD “repeatedly” trains
its officers, like Officer Poore, to abuse their power and inflict cruel and unusual punishment. Id.
However, he does not identify the purported policy or custom. Instead, Wettstein states that “the
evidence of this is disgusting” and that he would “rather this settle without having to pull off that
band aid.” Id. Wettstein’s vague assertion as to the existence of a policy or custom is insufficient
to state a claim to relief against BGPD or Officer Poore under § 1983.
III. Conclusion
For the reasons expressed in section I above, Wettstein’s Motion for appointment of
counsel, DN 16, is DENIED.
Additionally, for the reasons expressed in section II above, Wettstein failed to state a
cognizable § 1983 claim against any named defendant. Accordingly, Wettstein’s Complaint will
be dismissed in its entirety for failure to state a claim upon which relief may be granted. 28 U.S.C.

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§ 1915A(b)(1). A separate Order will be entered contemporaneously with this Memorandum
Opinion.
Finally, Wettstein was previously ordered to pay the statutory filing fee of $350.00 under
an installment plan. DN 10. Although this action will be dismissed, Wettstein remains obligated
to pay the filing fee in full. McGore, 114 F.3d at 605 (“We conclude that by filing the complaint
or notice of appeal, the prisoner waives any objection to the fee assessment by the district court.”)
(emphasis added). Accordingly, the court’s prior Order, DN 10, directing the Warren County
Regional Jail to send to the Clerk of Court monthly payments from Wettstein’s trust account each
time the amount in the account exceeds $10.00 until the statutory filing fee of $350.00 is paid in
full remains in full effect.
IT IS SO ORDERED.
March 27, 2024

cc:

Plaintiff, pro se
Warren County Regional Jail

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