Sharber v. Bolton et al

Filing 19

MEMORANDUM OPINION AND ORDER by Judge David J. Hale on 5/19/2017 - Claims against the LMDC, its PSU, and the City of Louisville and the official-capacity claims against all LMDC/Louisville Metro Government Defendants are DISMISSED without prejudice t o the continuing claims against Defendant Louisville Metro Government. All remaining claims are DISMISSED for failure to state a claim upon which relief may be granted. As all claims against Defendants Dr. Rozefort, Lt. Christopher, MobileX USA and its x-ray technician, CCS, Nurses Greene and Legan, grievance counselor Ms. Taylor, LMDC and its PSU, Sgt. Callahan, Ofc. Wimsatt, and LMDCs Entire Chain of Command Over the Grievance System are dismissed, the Clerk of Court is DIRECTED to terminate them from this action.cc: Plaintiff-pro se, Jefferson County Attorney, Defendants (DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
DARRYN BRETT SHARBER,

Plaintiff,

v.

Civil Action No. 3:16-cv-P526-DJH

THE CITY OF LOUISVILLE et al.,

Defendants.
* * * * *

MEMORANDUM OPINION AND ORDER
Plaintiff Darryn Brett Sharber, a prisoner currently incarcerated at the Little Sandy
Correctional Complex, filed a pro se complaint pursuant to 42 U.S.C. § 1983 (DN 1). Plaintiff’s
complaint is before the Court for initial review pursuant to 28 U.S.C. § 1915A. For the reasons
that follow, a portion of the claims will be dismissed, and the remaining claims will proceed.
I. SUMMARY OF CLAIMS
The claims in the complaint concern Plaintiff’s detention at the Louisville Metro
Department of Corrections (LMDC). He brings this action against the following twenty-four
Defendants: (1) City of Louisville; (2) LMDC; (3) Louisville/Jefferson Metro Government
(Louisville Metro Government); (4) Mayor Greg Fischer; (5) LMDC Director Mark Bolton;
(6) LMDC Asst. Director Iryt Troutman; (7) Dr. Robert Rozefort, LMDC/private contractor;
(8) LMDC Administration Lt. Roy Christopher; (9) MobileX USA; (10) MobileX USA unknown
x-ray technician; (11) Correct Care Services (CCS); (12) CCS LPN Cadie Greene; (13) CCS
LPN Kristi Legan; (14) “LMDC’s Entire Chain of Command Over the Grievance System”;
(15) LMDC grievance counselor Ms. Taylor; (16) LMDC Professional Standards Unit (PSU);
(17) LMDC PSU Sgt. Michael Callahan; (18) LMDC Sgt. Phillip Summers; (19) LMDC Ofc. D.
Johnson; (20) LMDC Ofc. Leonard Melvin; (21) LMDC Ofc. Laws; (22) LMDC Ofc. Jeremiah

Furman; (23) LMDC Ofc. Wimsatt; and (24) “Numerous Other Individual Supervisors and
Officers Serving with the LMDC as well as Related Defendants to be Supplemented when
Names are Ascertained” (“Doe” Defendants). Plaintiff sues Defendants in their individual and
official capacities.
In the complaint, Plaintiff reports that on April 28, 2016, at the LMDC, he was “brutally
and unjustifiably punched, choked, and attacked, and sexually assaulted and harassed by
[Defendant] Officer Jeremiah Furman.” He claims that Defendant Furman knew there was no
video surveillance where he attacked him. Plaintiff reports that for three weeks prior to the
assault, Defendant Furman called Plaintiff “offensive sexual and dehumanizing names such as
‘Goldilocks’ and ‘Blondie’ and winked at him often.”
Additionally, Plaintiff reports that on May 10, 2016, he was placed in a holding cell to
wait for a court escort officer to take him to court and that while in the holding cell he was
attacked by Defendants Summers, Johnson, and Melvin, while Defendant Laws and “other unnamed defendants looked on supportively or, at best impassively.” He claims that Defendant
Johnson used pepper spray on him and hit him with his knee to the ribs and kidney area and with
his fists to his head; that Defendant Summers hit Plaintiff on his side; that Defendant Melvin
kicked him; and that Defendant Laws just stood there grinning. He alleges that the attack was in
retaliation for Plaintiff’s “alleged assault 3rd against and LMDC officer T. Pierce; However once
the County Attorney reviewed the video tape evidence and testimony of another officer, it was
determined that Plaintiff did not assault C/O Pierce and the charge was amended to harassment
under an Alford [] plea.” Plaintiff also claims that Defendants “attempted to cover-up their

2

culpability by concealing the facts, fabricating evidence, intimidating, and defaming the
Plaintiff.”
After the May 10th assault, reports Plaintiff, he was afraid to tell Defendant Nurse Legan
the truth about what happened to his ribs because Defendants Summers and Johnson were
standing next to him and Defendant Johnson was squeezing his arm. Plaintiff, therefore, states
that he told her that he fell on the sink and that she “said ‘the sink?’” and ordered an x-ray.
Plaintiff indicates that Defendant Johnson took him back to his dorm and that when
Defendant Johnson left, Plaintiff called the Prison Rape Elimination Act (PREA) hotline seeking
help and stating, “‘Please, send someone up here to help me, the officers hurt me and are going
to kill me. They broke my ribs.’” Plaintiff reports calling again for help but alleges that no one
ever came.
Plaintiff also reports calling his lawyer who went to the jail to see him. Plaintiff claims
that Defendant Summers “was caught eavesdropping outside the lawyers door” by Plaintiff’s
attorney and that Defendant Summers “eavesdropped on [the attorney’s] phone call to his
supervisor to report the incident and to get his investigator over to take photos of Plaintiffs
injuries.” He alleges that this violated his “right to privacy between attorney/client.”
Later, reports Plaintiff, Defendant Summers took him to get x-rays performed by
Defendant MobileX USA’s x-ray technician. Plaintiff reports that when he entered the x-ray
room alone, he tried to tell the Defendant x-ray technician what happened but that the Defendant
“had no response and continued with the x-ray when Plaintiff told him ‘the officers did it to
me.’” Then, claims Plaintiff, as he exited the x-ray room, Defendant Summers looked at the
images and asked the Defendant x-ray technician “‘Are they broke?’” to which the x-ray

3

technician replied, “‘look here and here. Now look to this side and possibly here too.’” Plaintiff
claims that the Defendant x-ray technician violated his right to privacy under the Constitution
and the Health Insurance Portability and Accountability Act (HIPAA) by discussing the x-rays
with Defendant Summers.
Plaintiff alleges that he received one Tylenol and 600 mgs of ibuprofen within the 72
hours following the assault and was not examined by Defendant Dr. Rozefort or any other
LMDC medical practitioner. He reports that his x-rays confirmed at least two right rib fractures
and “possible multiple left rib fractures” but that they were “indeterminate.” He claims that the
results should have alerted Defendant Dr. Rozefort to order more x-rays for “a determinate
finding,” because more fractures, maintains Plaintiff, would have meant more pain. He contends
that he “was only prescribed 600 mgs. of Ibuprophen two times per day.” He claims that
Defendants Dr. Rozefort, CCS, and LMDC “knew the results of Plaintiffs x-rays and disregarded
an obvious substantial risk of serious harm that Plaintiff has additional broken ribs.”
Next, Plaintiff alleges that on May 17, 2016, at approximately 9:30 pm, Defendant
Wimsatt escorted Defendant Nurse Greene while she distributed pill call. He claims that
Defendant Wimsatt “grabbed Plaintiffs medicine from the med cart and taunted Plaintiff with his
Psych med’s and diabetic snack. Also, shouting slurs and obscenities toward him calling him a
‘pussy’ Check-in, defaming the Plaintiff and threatening to contaminate his food, and threaten to,
‘Bring back other officers to come in that cell and beat you down.’” He states that Defendant
Nurse Greene was laughing and allowing Defendant Wimsatt access to her medical cart.
Plaintiff contends that Defendant Wimsatt’s actions were “an intentional infliction of pain and

4

for the sole purpose of causing him extreme emotional distress-outrage” and that Defendants
CCS, Nurse Greene, and Wimsatt violation his right to privacy/HIPAA and right to medical care.
Plaintiff reports filing grievances but never receiving a response from Defendant Lt.
Christopher or any other staff member, and he reports contacting the PREA hotline but no one
came. He claims that Defendant Director Bolton and his staff failed to come to his aid. He
states that after four to five weeks he wrote the PSU and asked them why they did not help him
or respond to his grievances or PREA calls. Plaintiff alleges that Defendant Sgt. Callahan
replied that they never received any grievances from him and that his PREA calls were not
PREA related. Plaintiff asserts that he had the right to be protected “by the LMDC chain of
command, the Louisville Metro Gov. including it’s supervisors and Mark Bolton.”
Additionally, Plaintiff claims that the April 28th and May 10th assaults were “also a
direct product of certain deficient policies, practices, and customs implemented, maintained, and
tolerated by the Louisville Metro Depts. Corrections and ‘Metro-Gov’ with respect to LMDC
tactics, hiring, training, supervising (including but not limited to LMDC’S surveillance polices)
and the disciplining of officers.” Plaintiff alleges that there was no video surveillance in any
holding cells, which was “a decision by Mark Bolton, LMDC Director, NOT to supervise it’s
employees.” He contends that the LMDC maintained “an unsafe and dangerous atmosphere ripe
with excessive force amongst LMDC officers, and represent the deliberate indifference of the
Louisville Metro Government and their Corrections Department, to the physical safety and
Constitutional rights of its inhabitants.” He asserts that Defendants Director Bolton, Deputy
Director Troutman, Mayor Fischer, “and other un-named officials, supervisory personnel and
policy makers of the Metro Government and the LMDC” either had “actual knowledge of,”

5

“acquiesced in and condoned,” and/or “were deliberately indifferent to” the deficient policies,
practices, and customs at the LMDC.
Plaintiff alleges violations of the First, Fourth, Fifth, Eighth and Fourteenth Amendments
to the U.S. Constitution, violations of HIPAA, and violations of state-law, including assault,
battery, negligence, conspiracy, and intentional infliction of mental distress.
As relief, Plaintiff seeks compensatory damages, punitive damages, and “emotional and
psychic trauma damages,” and the issuance of injunctive relief ordering the administration to
follow up on all PREA calls with inmates; to reorganize the grievance system with a new chain
of command; and to place cameras in “ALL Hold-Cells.”
II. STANDARD OF REVIEW
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 v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir.
1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007).
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.

6

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 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)). “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 courts are to hold pro se pleadings “to less stringent standards than formal
pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519 (1972), this duty to be less
stringent “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 courts “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).

7

III. ANALYSIS
As a preliminary matter, the Court will discuss the parties. Plaintiff sues Defendants in
their individual and official capacities. Individual-capacity “suits seek to impose personal
liability upon a government official for actions he takes under color of state law.” Kentucky v.
Graham, 473 U.S. 159, 165 (1985). “Official-capacity suits, in contrast, ‘generally represent
only another way of pleading an action against an entity of which an officer is an agent.’” Id.
Accordingly, the official-capacity claims against Defendants Mayor Fischer, Director
Bolton, Assistant Director Troutman, Lt. Christopher, “LMDC’s Entire Chain of Command Over
the Grievance System,” Ms. Taylor, Sgt. Callahan, Sgt. Summers, Ofc. Johnson, Ofc. Melvin,
Ofc. Laws, Ofc. Furman, Ofc. Wimsatt, and LMDC Doe Defendants, all of whom are employees
of the LMDC/Louisville Metro Government, actually are against the Louisville Metro
Government. Additionally, the claims against LMDC and its PSU, which are not entities subject
to suit under § 1983, are actually against the Louisville Metro Government as the real party in
interest. See Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994) (“Since the Police
Department is not an entity which may be sued, Jefferson County is the proper party to address
the allegations of Matthews’s complaint.”). The Court construes the claims against the City of
Louisville also as being brought against the merged Louisville Metro Government.1 See Metro
Louisville/Jefferson Cty. Gov’t v. Abma, 326 S.W.3d 1, 14 (Ky. Ct. App. 2009) (indicating that
“Louisville/Jefferson Metro Government is the post-merger successor to the City of Louisville”);
St. Matthews Fire Prot. Dist. v. Aubrey, 304 S.W.3d 56, 60 (Ky. Ct. App. 2009) (stating that

1

In 2003, the City of Louisville government merged with the surrounding Jefferson County government
and formed what is now referred to as the Louisville/Jefferson County Metro Government (Louisville
Metro Government). See http://www.louisvilleky.gov. Therefore, the separate governmental entity of the
City of Louisville no longer exists.

8

“Jefferson County and the City of Louisville have merged to form the Louisville Metro
Government”).
Similarly, the official-capacity claims against the MobileX USA x-ray technician are
against his employer, MobileX USA, and the official-capacity claims against CCS Dr. Rozefort
and Nurses Greene and Legan are against their employer, CCS.
For this reason, the Court will dismiss the claims against the LMDC, its PSU, and the
City of Louisville and the official-capacity claims against all LMDC/Louisville Metro
Government Defendants as redundant to and subsumed by the claims against their employer, the
Louisville Metro Government. See Von Herbert v. City of St. Clair Shores, 61 F. App’x 133,
140 n.4 (6th Cir. 2003) (Krupansky, dissenting) (“Herbert’s official-capacity federal claims
against [the individual defendants] were redundant, because they were subsumed by her § 1983
charge against the city.”); Smith v. Brevard Cty., 461 F. Supp. 2d 1243, 1251 (M.D. Fla. 2006)
(dismissing claims against individuals sued in their official capacity as redundant where their
employer was also named as a defendant); Smith v. Bd. of Cty. Comm’rs of Cty. of Lyon, 216 F.
Supp. 2d 1209, 1219-20 (D. Kan. 2002) (dismissing the claim against the sheriff sued only in his
official capacity as redundant since the governmental entity of which he was an officer or agent
was also a defendant in the action). The Court will also dismiss the official-capacity claims
against the MobileX USA and CCS Defendants as redundant to and subsumed by the claims
against their employers.
The Court now will turn to the claims alleged by Plaintiff.

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A. Injunctive Relief
An inmate’s claim for injunctive relief regarding the conditions of his confinement
becomes moot due to his release from confinement or transfer to another facility. See Wilson v.
Yaklich, 148 F.3d 596, 601 (6th Cir. 1998) (holding that a prisoner’s claims for injunctive relief
became moot after he was transferred to another facility); Kensu v. Haigh, 87 F.3d 172, 175 (6th
Cir. 1996) (same). Because Plaintiff is no longer incarcerated in LMDC, his claims for
injunctive relief are moot and will be dismissed.
B. Retaliation
Retaliation for the exercise of a constitutional right is itself a violation of the Constitution
actionable under § 1983. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc).
A retaliation claim essentially entails three elements: (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—that is, the
adverse action was motivated at least in part by the plaintiff’s protected conduct.
Id.
Here, Plaintiff contends that Defendants assaulted him on May 10th in retaliation for his
alleged assault on another LMDC officer, not because he was engaged in any protected conduct.
Accordingly, Plaintiff fails to state a retaliation claim, and that claim will be dismissed.
C. Unanswered Grievances
Plaintiff alleges that he filed grievances that went unanswered. Prisoners, however, do
not possess a constitutional right to a prison grievance proceeding, see Hewitt v. Helms, 459 U.S.
460, 467 (1983); Spencer v. Moore, 638 F. Supp. 315 (E.D. Mo. 1986); O’Bryan v. Cty. of
Saganaw, 437 F. Supp. 582, 601 (E.D. Mich. 1977), and state law does not create a liberty

10

interest in grievance proceedings. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983); Corn v.
Lewis, No. 92-0098, 1993 WL 210702, at *1 (6th Cir. June 15, 1993); Mann v. Adams, 855 F.2d
639, 640 (9th Cir. 1988). Furthermore, if the prison provides a grievance process, violations of
its procedures do not rise to the level of a federal constitutional right, Spencer v. Moore, 638 F.
Supp. at 316, and a plaintiff has no right to an effective grievance procedure. See Ishaaq v.
Compton, 900 F. Supp. 935, 940-41 (W.D. Tenn. 1995); Flowers v. Tate, Nos. 90-3742, 903796, 1991 WL 22009 (6th Cir. Feb. 22, 1991). Plaintiff’s allegation concerning grievances,
therefore, does not give rise to a § 1983 claim, see Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D.
Ill. 1982), and that claim will be dismissed.
D. PREA Claims
Plaintiff also alleges that Defendants failed to respond to his PREA calls.
“[W]here the text and structure of a statute provide no indication that Congress intends to
create new individual rights, there is no basis for a private suit, whether under § 1983 or under an
implied right of action.” Gonzaga Univ. v. Doe, 536 U.S. 273, 286 (2002). Although not
addressed by the Sixth Circuit, district courts, including the Western District of Kentucky, have
found that the PREA does not create a private cause of action which can be brought by an
individual plaintiff. See Simmons v. Solozano, No. 3:14CV-P354-H, 2014 WL 4627278, at *4
(W.D. Ky. Sept. 16, 2014); Montgomery v. Harper, No. 5:14CV-P38-R, 2014 WL 4104163, at
*3 (W.D. Ky. Aug. 19, 2014) (“[T]his Court concludes that the PREA creates no private right of
action.”); Chapman v. Willis, No. 7:12-CV-00389, 2013 WL 2322947, at *4 (W.D. Va. May 28,
2013) (“There is no basis in law for a private cause of action to enforce a PREA violation.”);
Holloway v. Dep’t of Corr., No. 3:11VCV1290 (VLB), 2013 WL 628648, at *2 (D. Conn. Feb.

11

20, 2013) (“There is nothing in the PREA that suggests that Congress intended it to create a
private right of action for inmates to sue prison officials for non-compliance to the Act.”); Faz v.
N. Kern State Prison, No. CV-F-11-0610-LJO-JLT, 2011 WL 4565918, at *5 (E.D. Cal. Sept.
29, 2011) (“[T]he PREA does not create a private right of action . . . .”); Woodstock v. Golder,
No. 10-CV-00348-ZLW-KLM, 2011 WL 1060566, at * 9 (D. Colo. Feb. 7, 2011) (“PREA
provides no private right of action.”) (citation omitted). “The PREA is intended to address the
problem of rape in prison, authorizes grant money, and creates a commission to study the issue.
The statute does not grant prisoners any specific rights.” Chinnici v. Edwards, No. 1:07-cv-229,
2008 WL 3851294, at *3 (D. Vt. Aug. 12, 2008) (internal citation omitted).
Upon consideration, this Court concludes that the PREA creates no private right of
action. Plaintiff’s claim under that Act must, therefore, be dismissed.
E. Disclosure of Medical Information
Plaintiff alleges that his privacy rights were violated when Defendant MobileX USA xray technician discussed Plaintiff’s x-ray results with Defendant Summers and when Defendant
Nurse Greene allowed Defendant Wimsatt around her medical cart.
The Sixth Circuit narrowly applies the right to informational privacy “only to interests
that implicate a fundamental liberty interest.”2 Bloch v. Ribar, 156 F.3d 673, 684 (6th Cir.
1998). The Sixth Circuit has limited such a violation to only two instances: “(1) where the
release of personal information could lead to bodily harm, [citing Kallstrom v. City of Columbus,

2

The right to informational privacy arises from the Fourteenth Amendment. Moore v. Prevo, 379 F.
App’x 425, 428 (6th Cir. 2010) (“[I]nmates have a Fourteenth Amendment privacy interest in guarding
against disclosure of sensitive medical information from other inmates subject to legitimate penological
interests.”). Plaintiff also alleges a violation of the Fourth Amendment with respect to the incidents
involving his medical information. However, “[t]he right to nondisclosure of one’s medical information
emanates from a different source and protects different interests than the right to be free from
unreasonable searches and seizures.” Doe v. Delie, 257 F.3d 309, 316 (3d Cir. 2001).

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136 F.3d 1055, 1061 (6th Cir. 1998)]; and (2) where the information released was of a ‘sexual,
personal, and humiliating nature.’” Townsend v. Reaume, No. 1:13-cv-729, 2013 WL 3872173,
at *4 (W.D. Mich. July 25, 2013) (quoting Lambert v. Hartman, 517 F.3d 433, 440 (6th Cir.
2008)). The alleged disclosure of Plaintiff’s medical information does not meet either of these
circumstances. See Lee v. City of Columbus, 636 F.3d 245, 261 (6th Cir. 2011) (“[U]nder our
interpretation of privacy rights, we have not yet confronted circumstances involving the
disclosure of medical records that, in our view, are tantamount to the breach of a ‘fundamental
liberty interest’ under the Constitution.”); Townsend, 2013 WL 3872173, at *4 (“[E]ven
assuming arguendo that protecting a prisoner’s HIV status is a ‘fundamental interest,’ it does not
follow that protection of all medical and/or mental health information rises to the same level.”);
cf. Bloch, 156 F.3d at 687 (holding that the right to informational privacy was triggered by a
press conference in which a sheriff released highly personal and extremely humiliating details of
the plaintiff’s rape). Finding no constitutional violation in the alleged disclosure of Plaintiff’s
medical information, the Court will dismiss this claim.
Plaintiff also alleges violations of HIPAA. Title II of HIPAA, codified at 42 U.S.C.
§ 1320a et seq., was created to protect against the unauthorized disclosure of health records and
information. Gratton v. United Parcel Serv., Inc., No. 07-3071, 2008 WL 4934056, at *4
(E.D.N.Y. Nov. 14, 2008). However, only the Secretary of the Department of Health and
Human Services may file suit to enforce its provisions. 42 U.S.C. § 1320d-5(d); Sneed v. Pan
Am. Hosp., 370 F. App’x 47, 50 (11th Cir. 2010). Private citizens have no standing to sue a
covered entity for a violation of HIPAA. Adams v. Eureka Fire Prot. Dist., 352 F. App’x 137,
139 (8th Cir. 2009) (holding that HIPAA cannot be enforced through either an implied private

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right of action or through § 1983); see also Carpenter v. Phillips, 419 F. App’x 658, 658 (7th
Cir. 2011); Siegler v. Ohio State Univ., No. 2:11-cv-170, 2011 WL 1990570, at *8 (S.D. Ohio
May 23, 2011). Plaintiff, therefore, has failed to state a claim upon which relief may be granted
under HIPAA, and that claim will be dismissed.
F. Eavesdropping on Plaintiff and His Attorney
Plaintiff alleges that Defendant Summers eavesdropped on Plaintiff and his attorney at
the prison. The Court will allow the eavesdropping claim to proceed.
G. Fifth Amendment
Plaintiff also claims that Defendants’ actions violated the Fifth Amendment. The Fifth
Amendment of the United States Constitution provides:
No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any person be subject for
the same offense to be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of law; nor shall
private property be taken for public use, without just compensation.
U.S. Const. amend. V.
Plaintiff fails to explain how the Fifth Amendment applies to his claims. Based on the
facts as alleged by Plaintiff, the Court does not find that Plaintiff has a cognizable Fifth
Amendment claim against Defendants in this instance. Specifically, the Court notes that to the
extent Plaintiff is attempting to rely on the Due Process Clause of the Fifth Amendment, it
circumscribes only the actions of the federal government. See, e.g., Sturgell v. Creasy, 640 F.2d
843, 850 (6th Cir. 1981); Walker v. Hughes, 558 F.2d 1247, 1257 (6th Cir. 1977). Here, the
actions of state officials are at issue. Thus, the Court will dismiss the Fifth Amendment claim.
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H. Eighth and Fourteenth Amendments
Plaintiff alleges that he was subjected to cruel and unusual punishment in violation of the
Eighth Amendment and alleges due process violations under the Fourteenth Amendment.
Because Plaintiff alleges that he was in a holding cell awaiting court, it appears that he was a
pretrial detainee during the complained-of incidents at LMDC. For this reason, the Eighth
Amendment’s proscription against cruel and unusual punishment does not apply to him. Miller
v. Calhoun Cty., 408 F.3d 803, 812 (6th Cir. 2005) (“[T]he Eighth Amendment’s protections
apply specifically to post-conviction inmates[.]”). Rather, a pretrial detainee is protected by the
Due Process Clause of the Fourteenth Amendment. Watkins v. City of Battle Creek, 273 F.3d
682, 685 (6th Cir. 2001).
1. Deliberate Indifference to a Serious Medical Need
“Under the Fourteenth Amendment Due Process Clause, . . . pretrial detainees have a
right to adequate medical treatment that is analogous to the Eighth Amendment rights of
prisoners.” Id. at 685-86. “To 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; see also Estelle v. Gamble, 429 U.S. 97, 104-06 (1976).
The Fourteenth Amendment “claim has two components, one objective and one
subjective.” Comstock v. McCrary, 273 F.3d 693, 702-03 (6th Cir. 2001). To satisfy the
objective component, “‘the inmate [must] show that he is incarcerated under conditions posing a
substantial risk of serious harm.’” Blackmore v. Kalamazoo Cty., 390 F.3d 890, 896 (6th Cir.
2004) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). “[T]he evidence need only show
that ‘the medical need at issue is sufficiently serious.’” Blackmore, 390 F.3d at 896 (quoting

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Farmer, 511 U.S. at 834). To satisfy the subjective component, the plaintiff must allege facts
which, if true, would show that the official being sued subjectively perceived facts from which to
infer substantial risk to the prisoner, that he did in fact draw the inference, and that he then
disregarded that risk. Comstock, 273 F.3d at 702-03.
As to medical treatment following the May 10th assault, Plaintiff complains that he was
not examined by Dr. Rozefort and that Dr. Rozefort should have ordered additional, clearer xrays. Despite these complaints, Plaintiff acknowledges that x-rays were performed and that
medication was prescribed. He fails to show how his desire for an examination and additional xrays rises to the level of a constitutional claim. To be sure, a patient’s disagreement with his
physician over the proper medical treatment alleges no more than a medical malpractice claim,
which is a tort actionable in state court, but is not cognizable under § 1983. Street v. Corr. Corp.
of Am., 102 F.3d 810, 816 n.13 (6th Cir. 1996); Sanderfer v. Nichols, 62 F.3d 151, 154-55 (6th
Cir. 1995). Further, the question of whether diagnostic techniques or other forms of treatment
are indicated is a classic example of a matter for medical judgment. At most, a medical decision
not to order an x-ray or like measures represents medical malpractice. Estelle, 429 U.S. at 107.
“[M]edical malpractice does not become a constitutional violation merely because the victim is a
prisoner.” Id. at 106. Plaintiff, therefore, fails to state a claim of deliberate indifference to a
serious medical need against Dr. Rozefort.
Plaintiff additionally claims that CCS and LMDC/Louisville Metro Government “knew
the results of Plaintiffs x-rays and disregarded an obvious substantial risk of serious harm that
Plaintiff has additional broken ribs.” This is a conclusory statement devoid of factual support.
Further, Plaintiff fails to allege a policy or custom on the part of CCS or the Louisville Metro

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Government which caused him any harm. See Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003)
(indicating that 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”); Street v. Corr. Corp. of Am., 102 F.3d at
818 (“Monell involved a municipal corporation, but every circuit to consider the issue has
extended the holding to private corporations as well.”). Consequently, Plaintiff fails to state a
claim against CCS and the Louisville Metro Government.
Plaintiff also sues Defendant Nurse Legan. However, Plaintiff alleges no wrongdoing by
her and even indicates that she ordered x-rays for him. None of the allegations involving
Defendant Nurse Legan constitute deliberate indifference to a serious medical need.
As to the May 17th medical cart incident involving Defendant Wimsatt and Nurse
Greene, Plaintiff also fails to state a constitutional claim. While Plaintiff alleges that Defendant
Wimsatt grabbed his medication and diabetic snack and that Defendant Nurse Greene allowed
Defendant Wimsatt access to her medical cart, Plaintiff fails to allege that he was not given his
medication or snack, and even if he had made such an allegation, he fails to allege how this onetime incident harmed him. Additionally, Plaintiff’s claims that Defendant Wimsatt shouted slurs
and obscenities at him and threatened him do not state a constitutional claim. Although
reprehensible and not condoned, verbal abuse, harassment, and threats are insufficient to state a
constitutional violation under § 1983. See 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) (“[V]erbal abuse and harassment do
not constitute punishment that would support an Eighth Amendment claim.”); Clark v. Turner,
No. 96-3265, 1996 WL 721798, at *2 (6th Cir. Dec. 13, 1996) (“Verbal harassment or idle

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threats are generally not sufficient to constitute an invasion of an inmate’s constitutional
rights.”); Searcy v. Gardner, Civil No. 3:07-0361, 2008 WL 400424, at *4 (M.D. Tenn. 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.”).
For the foregoing reasons, Plaintiff fails to state a Fourteenth Amendment claim of
deliberate indifference to a serious medical need.
2. Claims of Excessive Force and Failure to Protect/Intervene
The Fourteenth Amendment’s Due Process Clause protects a pretrial detainee from the
use of excessive force that amounts to punishment. Lamb v. Telle, No. 5:12-CV-00070-TBR,
2013 WL 5970422, at *5 (W.D. Ky. Nov. 8, 2013).
Upon consideration, the Court will allow the following claims to proceed beyond initial
screening: Plaintiff’s April 28, 2016, excessive-force claim against Defendant Furman in his
individual capacity; his May 10, 2016, excessive-force, failure-to-protect/intervene, and
conspiracy claims against Defendants Summers, Johnson, Melvin, Laws, and Unknown Officers
in their individual capacities; and the claims against Defendants Bolton, Troutman, Fischer, and
Unknown Supervisors in their individual capacities that they made decisions that allowed for the
April and May assaults and against the LMDC/Louisville Metro Government that their
policies/customs created an atmosphere allowing for the assaults.
I. State-Law Claims
The Court will allow the following state-law claims to proceed: the assault and
intentional-infliction-of-emotional-distress claims against Defendant Furman arising out of the
April 28th assault; the assault, battery, and negligence claims against Defendant Bolton arising

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out of the April 28th assault; and the assault, battery, negligence, and conspiracy claims against
Defendants Summers, Johnson, Melvin, Laws, and Unknown Officers arising out of the May
10th assault.
IV. ORDER
For the foregoing reasons,
IT IS ORDERED that the following claims will proceed: Plaintiff’s April 28, 2016,
§ 1983 excessive-force claim and state-law assault and intentional-infliction-of-emotionaldistress claims against Defendant Furman in his individual capacity; the state-law assault,
battery, and negligence claims against Defendant Bolton arising out of the April 28th assault; the
May 10, 2016, § 1983 excessive-force, failure-to-protect/intervene, and conspiracy claims and
state-law assault, battery, negligence, and conspiracy claims against Defendants Summers,
Johnson, Melvin, Laws, and Unknown Officers in their individual capacities; the claims against
Defendants Bolton, Troutman, Fischer, and Unknown Supervisors in their individual capacities
that they made decisions that allowed for the April and May assaults and against the LMDC/
Louisville Metro Government that their policies/customs created an atmosphere allowing for the
assaults; and the § 1983 claim against Dr. Summers for eavesdropping on conversations of
Plaintiff and his attorney.
In permitting these claims to proceed, the Court passes no judgment on the merits and
ultimate outcome of the action. A separate Order will be entered directing service on Defendants
and governing the development of the continuing claims.

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IT IS ORDERED that the claims against the LMDC, its PSU, and the City of Louisville
and the official-capacity claims against all LMDC/Louisville Metro Government Defendants are
DISMISSED without prejudice to the continuing claims against Defendant Louisville
Metro Government.
IT IS ORDERED that all remaining claims are DISMISSED pursuant to 28 U.S.C.
§ 1915A(b)(1) for failure to state a claim upon which relief may be granted.
As all claims against Defendants Dr. Rozefort, Lt. Christopher, MobileX USA and its xray technician, CCS, Nurses Greene and Legan, grievance counselor Ms. Taylor, LMDC and its
PSU, Sgt. Callahan, Ofc. Wimsatt, and “LMDC’s Entire Chain of Command Over the Grievance
System” are dismissed, the Clerk of Court is DIRECTED to terminate them from this action.
Date:

May 19, 2017

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

Plaintiff, pro se
Defendants
Jefferson County Attorney
4415.005

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