Stewart v. Allen et al

Filing 6

MEMORANDUM OPINION AND ORDER by Judge David J. Hale. On screening pursuant to 28 U.S.C. § 1915A, Plaintiff's claims relating to his request to see the dentist and retaliation are DISMISSED for failure to state a claim. Plaintiff has 30 days to amend his complaint to name Defendants in their individual capacities and/or to seek different relief. The Clerk of Court is DIRECTED to send to Plaintiff a § 1983 form with this case number and AMENDED on it. After the time period to amend the complaint has run, the Court will enter a Scheduling Order to govern the development of this case. cc: Plaintiff, pro se; Defendants; Hardin County Attorney (SG)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
MICHAEL STEWART,

Plaintiff,

v.

Civil Action No. 3:16-cv-P71-DJH

JAILER DANNY ALLEN et al.,

Defendants.
* * * * *

MEMORANDUM OPINION AND ORDER
Plaintiff, Michael Stewart, filed a pro se, in forma pauperis complaint pursuant to 42
U.S.C. § 1983. This matter is before the Court for screening pursuant to 28 U.S.C. § 1915A and
McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), overruled on other grounds by Jones v.
Bock, 549 U.S. 199 (2007). For the following reasons, the complaint will be dismissed in part
and allowed to continue in part.
I. SUMMARY OF CLAIMS
Plaintiff is a pretrial detainee at the Hardin County Detention Center (HCDC). He sues
HCDC Jailer Danny Allen and Southern Health Partners Registered Nurse Christy. He indicates
that he is suing them in their official capacities by putting a mark next to “official capacity” on
the complaint form. He alleges that he was struck by a car on May 16, 2014, while crossing the
road and sustained a shattered left fibula, a fractured left wrist, and multiple pelvis fractures, all
of which required surgery at University Hospital in Louisville, Kentucky. He states that at his
last doctor’s appointment, in August 2014, he was told that the steel plate and a bone fragment in
his left knee would have to be removed at some point. He states that he did not make another
appointment due to “a lot of drug use.”

Plaintiff states that he was arrested on November 18, 2015, and that within a month he
requested x-rays on his left leg and right pelvis at HCDC. He states that he explained to Nurse
Erin that he had a titanium rod in his left leg, a metal plate on his left knee, and ten screws in his
right hip “that needed to be looked at because of severe pain.” He states that he was told that he
had to sign a paper giving permission for releasing his records to the jail. However, he alleges
that after he signed the paper he was “told it didn’t matter because they never do anything
anyway.” He states that on January 18, 2016, he sent a request asking if “they received my
records and if they would please x-ray my leg and pelvis.” According to the complaint, he was
told that the medical issue is old and that he was non-compliant because he did not return to the
doctor while he was not incarcerated. He asserts,
I made some poor decisions in the past but I still have a right to medical
treatment. I have Passport insurance. I would gladly send my medical records if
they (medical) would allow it. I now have to fear everyone (jail staff, medical
staff, etc.) because of filing this. I stand a chance of severe infections and
possible amputation.
The complaint also states: “Be advised that my left leg is longer than my right leg due to the
injury. This causes pain and discomfort.”
Plaintiff also alleges that he “signed up” for the dentist in early December 2015. On
January 12, 2016,1 he confirmed that he still wanted to see the dentist. The next day the dentist
came, but Plaintiff was not seen. According to the complaint, “[t]he excuse given was because
they only take 45 names and then try and get it down to 15 and because they didn’t I would have
to wait until February.”
As relief, Plaintiff requests $3,000,000 in punitive damages.
Attached to his complaint are copies of four inmate request forms filled out by Plaintiff
and responded to by Defendant Christy. The earliest is dated January 18, 2016. In it, Plaintiff
1

The complaint gives the date as January 12, 2015, but the Court presumes that Plaintiff intended to refer to 2016.

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asks, “Have you received my records from University? Can I please get my leg and my pelvis
xrayed? Could you please keep me informed?” Defendant Christy responded, “We have not
received your records. I have reviewed your charge and according to what you have reported,
this issue is old and you were non-compliant. We are not sending you to ortho for this surgery.”
The next day, Plaintiff requested: “Why would you even send out for my records if I’m noncompliant? What do you mean by old? This is an injury that will affect me for the rest of my
life.” Defendant Christy responded, “You reported going for your follow up in July 2014 but did
not return. This should have been taken care of before were booked in this facility on
November 18, 2015.” On January 23, 2016, Plaintiff submitted a request for his medical records
for the past two years including the ones from University Hospital, to which Defendant Christy
responded, “Your medical records can be requested after your release.” Finally, on January 25,
2016, he requested “Christy the RN’s” last name, for which the response was: “We do not give
out last names.”
II. ANALYSIS
When a prisoner initiates a civil action seeking redress from a governmental entity,
officer, or employee, the trial court must review the complaint and dismiss the action, 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 28
U.S.C. § 1915A(b)(1) and (2). 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 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. When determining whether a plaintiff
has stated a claim upon which relief can be granted, the Court must construe the complaint in a

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light most favorable to Plaintiff and accept all of the factual allegations as true. Prater v. City of
Burnside, Ky., 289 F.3d 417, 424 (6th Cir. 2002). While a reviewing court must liberally
construe pro se pleadings, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam), to avoid
dismissal, a complaint must include “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Claim regarding requests for medical treatment
“The Eighth Amendment prohibits prison officials from ‘unnecessarily and wantonly
inflicting pain’ on prisoners by acting with ‘deliberate indifference’ towards the inmate’s serious
medical needs.” Blackmore v. Kalamazoo Cty., 390 F.3d 890, 895 (6th Cir. 2004) (quoting
Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The Fourteenth Amendment “affords pretrial
detainees a due process right to adequate medical treatment that is analogous to the Eighth
Amendment rights of prisoners.” Graham v. Cty. of Washtenaw, 358 F.3d 377, 382 n.3 (6th Cir.
2004). Thus, although the Eighth Amendment is not directly applicable to Plaintiff as a pretrial
detainee, its deliberate-indifference standard is applied under the Fourteenth Amendment.
A claim of deliberate indifference has both an objective and subjective component.
Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008). The objective component requires an inmate
to show that the alleged deprivation is “sufficiently serious.” Farmer v. Brennan, 511 U.S. 825,
834 (1994). To satisfy the subjective component, an inmate must demonstrate that prison
officials had “a sufficiently culpable state of mind,” i.e., the official knew of and disregarded an
excessive risk to inmate health or safety. Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000)
(internal citation omitted).
Plaintiff sues HCDC Jailer Allen in his official capacity. If an action is brought against
an official of a governmental entity in his official capacity, the suit should be construed as

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brought against the governmental entity. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
(1989). Therefore, in the case at bar, Plaintiff’s claims against the HCDC Jailer in his official
capacity are actually brought against the Hardin County government. See Matthews v. Jones, 35
F.3d 1046, 1049 (6th Cir. 1994).
When a § 1983 claim is made against a municipality, like Hardin County, a court must
analyze not only whether the plaintiff’s harm was caused by a constitutional violation, but also
whether the municipality is responsible for that violation. Collins v. City of Harker Heights,
Tex., 503 U.S. 115, 120 (1992). “[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 v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691
(1978) (emphasis in original); 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 Pembaur).
A municipality cannot be held responsible for a constitutional deprivation unless there is
a direct causal link between a municipal policy or custom and the alleged constitutional
deprivation. Monell, 436 U.S. at 691; Deaton v. Montgomery Cty., Ohio, 989 F.2d 885, 889 (6th
Cir. 1993). Simply stated, the plaintiff must “identify the policy, connect the policy to the city
itself and show that the particular injury was incurred because of the execution of that policy.”
Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993) (quoting Coogan v. City of
Wixom, 820 F.2d 170, 176 (6th Cir. 1987), overruled on other grounds, Frantz v. Vill. of

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Bradford, 245 F.3d 869 (6th Cir. 2001)). The policy or custom “must be ‘the moving force of
the constitutional violation’ in order to establish the liability of a government body under
§ 1983.” Searcy, 38 F.3d at 286 (quoting Polk Cty. v. Dodson, 454 U.S. 312, 326 (1981)
(citation omitted)); Bd. of Cty. Comm’rs of Bryan Cty., Okla. v. Brown, 520 U.S. 397, 404 (1997)
(indicating that plaintiff must demonstrate “deliberate conduct”).
Plaintiff also names Southern Health Partners employee Christy in her official capacity.
Southern Health Partners is a private entity that contracts to provide medical care to the inmates
of HCDC. A private entity that contracts with the State to perform a traditional state function,
such as providing medical care to inmates, acts under color of state law and may be sued under
§ 1983. Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Thus, Southern Health
Partners is amenable to suit under § 1983. As stated above, § 1983, however, does not permit the
imposition of liability based upon respondeat superior. Polk Cty. v. Dodson, 454 U.S. at 325.
Rather, a private corporation is liable under § 1983 only when an official policy or custom of the
corporation causes the alleged deprivation of federal rights. See Street v. Corr. Corp. of Am.,
102 F.3d at 817.
In the instant case, the complaint and attachments read liberally identify a policy or
policies causing the alleged constitutional violations. The Court will allow the official capacity
claims against Defendants involving Plaintiff’s claimed denial of medical treatment to continue.
However, Plaintiff’s only request for relief is punitive damages. Punitive damages can
only be assessed against an individual. White v. Dr., No. 3:11-00353, 2011 WL 5027543, at *3
(M.D. Tenn. Oct. 19, 2011). Requesting punitive damages in the complaint provides “some
notice” of an intent to hold a defendant personally liable, but is not dispositive. Rodgers v.
Banks, 344 F.3d 587, 594 (6th Cir. 2003). Therefore, the Court will provide Plaintiff an

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opportunity to amend his complaint to name Defendants in their individual capacities and/or seek
different relief. See LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013) (“[U]nder Rule
15(a) a district court can allow a plaintiff to amend his complaint even when the complaint is
subject to dismissal under the PLRA.”).
Claim regarding request to see dentist
Plaintiff alleges that he requested to see a dentist in early December 15, 2015; that the
dentist came to HCDC on January 13, 2016, but Plaintiff was not seen; and that he was told that
he would have to wait until February to see the dentist. According to the complaint, “[t]he
excuse given was because they only take 45 names and then try and get it down to 15 and
because they didn’t I would have to wait until February.” Plaintiff’s complaint was signed on
February 2, 2016.
Plaintiff fails to allege that his desire to see a dentist arose from a serious medical need.
As such, he fails to state a claim about the apparent one-month delay in seeing the dentist. Even
if he had alleged a serious medical need, it appears from the allegations in his complaint that the
delay in seeing the dentist had to do with availability and was not out of deliberate indifference.
Where a “delay in treatment [arises] out of issues of priority and availability, [s]uch delay fails to
show deliberate indifference to [Plaintiff’s] serious medical needs.” Foushee v. Wiggins, No.
3:05CV7357, 2006 WL 1966611, at *2 (N.D. Ohio July 11, 2006). Thus, this claim will be
dismissed.
Claim regarding retaliation
To the extent that Plaintiff may be alleging a retaliation claim in alleging “I now have to
fear everyone (jail staff, medical staff, etc.) because of filing this,” such claim fails.

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There are three elements of a retaliation claim: “(1) the plaintiff engaged in protected
conduct; (2) an adverse action was taken against the plaintiff that would deter a person of
ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection
between elements one and two.” Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
Here, Plaintiff fails to allege that any adverse action was taken against him. Instead, he states
only that he now has “to fear everyone (jail, staff, medical staff, etc.) because of filing this.”
Plaintiff has not alleged that he suffered an adverse action. Plaintiff may state a claim for
retaliation “only if retaliation actually occurs and is not just feared.” Bryan v. Washington Cty.
Sheriff's Dep’t, No. 2:10-CV-169, 2012 WL 523653, at *2 (E.D. Tenn. Feb. 15, 2012) (citing
Wilson v. Yaklich, 148 F.3d 596, 601 (6th Cir. 1998)). Without an allegation that an adverse
action was taken against him, to the extent he raises a retaliation claim, it fails to state a claim.
III. CONCLUSION AND ORDER
For the foregoing reasons,
IT IS ORDERED that Plaintiff’s claims relating to his request to see the dentist and
retaliation are DISMISSED for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that Plaintiff shall have 30 days from entry of this
Memorandum Opinion and Order to amend his complaint to name Defendants in their individual
capacities and/or to seek different relief. The Clerk of Court is DIRECTED to send to Plaintiff
a § 1983 form with this case number and “AMENDED” on it.

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After the time period to amend the complaint has run, the Court will enter a Scheduling
Order to govern the development of this case.
Date:

May 27, 2016

David J. Hale, Judge
United States District Court
cc:

Plaintiff, pro se
Defendants
Hardin County Attorney
4415.009

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