Bonds v. Oldaker et al

Filing 5

MEMORANDUM OPINION AND ORDER by Chief Judge Joseph H. McKinley, Jr. on 5/4/17: IT IS ORDERED that on initial review of the complaint, the following claims shall proceed: the Eighth and Fourteenth Amendment individual-capacity claims against Defendan ts Nurses Brown and Oldaker for damages. 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 those Defendants. All other claims ar e DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted and pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii) for seeking damages from Defendants immune from such relief. As all claims against Defendants Nurse Patterson, CCS, KDOC, LLCC, and Sgt. Carmin are dismissed, the Clerk of Court is DIRECTED to terminate them from this action. cc: Plaintiff(pro se), Defendants, General Counsel (DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
TODD BONDS

PLAINTIFF

v.

CIVIL ACTION NO. 3:16CV-P724-JHM

DANIEL OLDAKER LPN et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Plaintiff Todd Bonds filed a pro se complaint pursuant to 42 U.S.C. § 1983 (DN 1),
which is before the Court for initial review pursuant to 28 U.S.C. § 1915(e)(2). For the reasons
that follow, a portion of the claims will be dismissed and the remaining claims will proceed.
I. SUMMARY OF CLAIMS
Plaintiff’s complaint concerns his detention at the Luther Luckett Correctional Complex
(LLCC). He is no longer incarcerated. He brings this action against the following seven
Defendants in their individual and official capacities: (1) Nurse Daniel Oldaker, LPN, employed
by Correct Care Solutions (CCS); (2) Nurse Shierra Brown, LPN, employed by CCS; (3) Nurse
Dawn Patterson, RN, employed by CCS; (4) CCS, an agency that provides medical assistance to
inmates at LLCC; (5) the Kentucky Department of Corrections (KDOC); (6) LLCC; and
(7) LLCC Sgt. Shawn Carmin.
In the complaint, Plaintiff alleges that on July 13, 2016, he was sent to LLCC’s Restricted
Housing Unit (RHU) “for allegedly using rude language to another unnamed corrections
employee.” He reports that when an inmate is sent to that unit, a medical examination is
performed by CCS nurses. Plaintiff claims that “it was widely known that [he] had high blood
pressure while he was committed to the ‘DOC.’” He states that Defendant Nurse Brown took his
vitals as part of the RHU procedures; that during the evaluation, his blood pressure “reached

dangerous emergency levels of at least 225/123”; that he reported being “dizzy and weak” during
that evaluation; and that Defendant Nurse Brown “purposely and maliciously record[ed] false
readings that weren’t significant such as 139/95.” Plaintiff reports that Defendant Nurse Brown
wrote down the proper reading once Plaintiff called a prison guard for help and that the prison
guard called for another nurse to assist Defendant Nurse Brown.
Plaintiff states that Defendant Nurse Oldaker arrived on the scene, at which time
Defendant Nurse Brown left. He claims that Defendant Nurse Oldaker “was obviously perturbed
by the events that were unfolding and told [Plaintiff] that his blood pressure always runs high.”
Plaintiff further claims that Defendant Nurse Oldaker told him that he “was ‘Super Nigger’ and
could handle the high blood pressure since his blood pressure was always high.” Plaintiff claims
that he “was incensed at ‘Oldaker’s’ racial slur and lack of concern for his failing condition and
asked, ‘What kind of sh-t is that to say to someone?’” He claims that Oldaker “replied with
‘Have a nice day’ and left [him] ailing as [he] began to vomit and become weaker by the
minute.” Plaintiff alleges that he “never received hospitalization during this time or any
medicines to lower his blood pressure such as Nitro pills.”
Plaintiff reports that based on the foregoing exchange with Oldaker, he was written up for
a charge of using disrespectful language to an employee and “charged for the infraction initiated
by” Defendant Sgt. Carmin. In the attached disciplinary report, Defendant Nurse Brown
indicated that during the pre-segregation medical evaluation, she got three high readings and
conferred with Defendant Oldaker about it; that Plaintiff told Nurse Brown that he was feeling
dizzy and was not able to walk; that when Nurse Oldaker went to inform Plaintiff of his
propensity to have a high blood pressure, Plaintiff told Nurse Oldaker to “‘f-ck off, you don’t

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know what you are talking about!’”; and that Nurse Oldaker told Plaintiff “to have a good
evening and left [Plaintiff] in the holding cell, requiring no further medical attention at this
time.”
In the complaint, Plaintiff additionally alleges that on July 28, 2016, upon walking into
the medical department for an appointment, he noticed “a sign that had his and nine other
inmates’ names on the white board with a sign that read, ‘(these inmates) sign in for Foot
Assessment.’” Plaintiff alleges that this was a violation of his “medical privacy rights ([]
‘HIPPA’); and his protected health information ([]’PHI’) as anyone walking by this room with a
clear window could; or anyone else in the waiting room could see what [Plaintiff] and the other
inmates were there in the department for.” Plaintiff alleges that he “got teased by several gay
men asking to rub his feet, nearly causing an altercation between [him] and one of the men.”
Plaintiff reports that he filed a grievance about the alleged privacy violation and that
Defendant Nurse Patterson disagreed with Plaintiff at the informal resolution stage. He claims
that because of this grievance, he “began to receive retaliatory behavior from the medical
employees, most notably ‘Brown’ and “Patterson.’”
Plaintiff claims that during a medical appointment on September 14, 2016, Defendant
Nurse Brown, who “was very combative and supercilious” and who knew Plaintiff had a
documented fear of needles at Blackburn Correctional Complex, was drawing Plaintiff’s blood
and then “stopped drawing his blood for no apparent reason, other than to stick him again with
the needle to terrorize [him].” Plaintiff states that he “again filed a grievance as clearly this was
retaliation by ‘Brown’ as it was clear that [Plaintiff] was a marked man with an upcoming release
due in late October/early November.” Plaintiff claims that Defendant Nurse Patterson called him

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to the medical department to discuss the grievance “and began to berate” him. Plaintiff states
that he “immediately left the area fearing more retaliation from ‘Patterson’ and/or her cohorts
and henchmen.”
Plaintiff alleges violations of the First Amendment (retaliation), the Eighth Amendment
(deliberate indifference to his high blood pressure), the Fourteenth Amendment (denial of equal
protection), and violation of HIPAA (privacy violation).
As relief, Plaintiff seeks compensatory and punitive damages and various forms of
injunctive relief.
II. STANDARD OF REVIEW
Because Plaintiff is proceeding in forma pauperis, the Court must review the complaint
under 28 U.S.C. § 1915(e). McGore v. Wrigglesworth, 114 F.3d 601, 608-09 (6th Cir. 1997),
overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). On review, a district court
must dismiss a case at any time if it 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. § 1915(e)(2)(B).
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,

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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)).
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).
III. ANALYSIS
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

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Cir. 1996) (same). Because Plaintiff is no longer incarcerated at LLCC, his claims for injunctive
relief are moot and will be dismissed.
B. Damages
1. Claims Against KDOC and LLCC and
Official-Capacity Claims Against Defendant Sgt. Carmin
The Eleventh Amendment1 “bars all suits, whether for injunctive, declaratory or
monetary relief, against the state and its departments,” Thiokol Corp. v. Dep’t of Treasury, State
of Mich., Revenue Div., 987 F.2d 376, 381 (6th Cir. 1993), unless Congress has validly abrogated
the state’s immunity or the state has waived its immunity. Nev. Dep’t of Human Res. v. Hibbs,
538 U.S. 721, 726 (2003); Alabama v. Pugh, 438 U.S. 78l, 782 (1978). The Commonwealth of
Kentucky has not waived its immunity, see Adams v. Morris, 90 F. App’x 856, 857 (6th Cir.
2004), and in enacting § 1983, Congress did not intend to override the traditional sovereign
immunity of the states. Whittington v. Milby, 928 F.2d 188, 193-94 (6th Cir. 1991) (citing Quern
v. Jordan, 440 U.S. 332, 341 (1979)). The Eleventh Amendment, therefore, bars this § 1983
action against KDOC and LLCC.
“This [Eleventh Amendment] bar remains in effect when State officials are sued for
damages in their official capacity.” Kentucky v. Graham, 473 U.S. 159, 169 (1985) (quoting
Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 n.55 (1978)). Consequently,
the official-capacity claims for damages against Defendant LLCC Sgt. Carmin are barred by the
Eleventh Amendment.
The Eleventh Amendment to the United States Constitution provides, “The Judicial power of the United
States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one
of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
Const. amend. XI. “Although the amendment does not address the possibility of suit against a state by
one of its own citizens, unassailable case law has interpreted the amendment in such a way as to close that
gap.” Barton v. Summers, 293 F.3d 944, 948 (6th Cir. 2002) (citing Hans v. Louisiana, 134 U.S. 1
(1890)).
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In addition, “neither a State nor its officials acting in their official capacities are ‘persons’
under § 1983.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).
Thus, the claims against LLCC and KDOC and the official-capacity claims against
Defendant Sgt. Carmin are barred by the Eleventh Amendment and fail to state a claim upon
which relief may be granted.
2. Claims Against CCS and Official-Capacity Claims
Against Defendant Nurses Oldaker, Brown, and Patterson
The official-capacity claims against Defendants CCS Nurses Oldaker, Brown, and
Patterson are actually against their employer, CCS. See, e.g., Griffin v. S. Health Partners, Inc.,
No. 1:12CV-P174-M, 2013 WL 530841, at *5 (W.D. Ky. Feb. 11, 2013). “It 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)). For purposes of initial review, the Court presumes that CCS is a state
actor. However, a private corporation, like CCS, “is not liable under § 1983 for torts committed
by its employees when such liability is predicated solely upon a theory of respondeat superior.”
Austin v. Paramount Parks, Inc., 195 F.3d 715, 728 (4th Cir. 1999). Rather, like a municipality,
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 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.”). To demonstrate
municipal liability, a plaintiff “must (1) identify the municipal policy or custom, (2) connect the

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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).
In the instant case, Plaintiff has not alleged that CCS’s medical staff acted pursuant to a
policy or custom in causing any alleged harm. Nothing in the complaint demonstrates that the
action or inaction of any medical personnel occurred as a result of a policy or custom
implemented or endorsed by CCS. The complaint, therefore, fails to establish a basis of liability
against CCS. Consequently, the claims against CCS and the official-capacity claims against
Defendants CCS Nurses Oldaker, Brown, and Patterson will be dismissed for failure to state a
claim.
3. First Amendment
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. “Although the elements of a First Amendment retaliation claim [are] constant, the underlying
concepts that they signify will vary with the setting—whether activity is protected or an action is
adverse will depend on context.” Bell v. Johnson, 308 F.3d 594, 602-03 (6th Cir. 2002) (quoting
Thaddeus-X, 175 F.3d at 388) (internal quotation marks omitted). The adverse action necessary
to state a constitutional violation must be such that it would “‘deter a person of ordinary
firmness’ from the exercise of the right at stake.” Thaddeus-X, 175 F.3d at 396 (quoting Bart v.
Telford, 677 F.2d 622, 625 (7th Cir. 1982)).

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Plaintiff meets the first element of a retaliation claim in that he was engaged in protected
conduct by filing grievances. Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000) (“An
inmate has an undisputed First Amendment right to file grievances against prison officials on his
own behalf.”).
As to the second element, Plaintiff claims that Defendant Nurse Brown needlessly stuck
him with a needle a second time while drawing blood. The Court has a difficult time concluding
that this conduct constituted an adverse action which would deter a person of ordinary firmness
from filing grievances. See Bell v. Johnson, 308 F.3d at 606 (“[T]the adverseness inquiry is an
objective one, and does not depend upon how the particular plaintiff reacted.”). Nevertheless,
even if the Court were to assume that Defendant Nurse Brown’s conduct was an adverse action,
the Court finds that Plaintiff fails to meet the third element of a retaliation claim; that is, he fails
to allege facts showing a causal connection between filing a grievance and Nurse Brown’s
sticking him again with a needle. Review of the privacy grievance (the only grievance Plaintiff
filed prior to Nurse Brown’s taking of his blood) reveals that Plaintiff does not mention Nurse
Brown in the grievance, that the grievance does not relate to her in any way, and that she did not
respond to the grievance. Plaintiff states no facts indicating that Nurse Brown otherwise had any
occasion to know about the grievance prior to the drawing of blood. Plaintiff merely makes a
conclusory statement that he “clearly felt this was retaliation by ‘Brown.’” See Hardy v.
Beckwith, No. 06-CV-11856, 2006 WL 1195866, at *2 (E.D. Mich. May 3, 2006) (“Conclusory
allegations of retaliatory motive ‘with no concrete and relevant particulars’ fail to state a claim
upon which relief may be granted.”) (citing Murray v. Unknown Evert, 84 F. App’x 553, 556
(6th Cir. 2003) (citing cases)).

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As to Plaintiff’s claim that Defendant Nurse Patterson berated him in retaliation for filing
grievances, the Court finds that this did not constitute an adverse action. See, e.g., Wombles v.
Ky. State Reformatory, No. 3:09CV-P245-H, 2009 WL 3756998, at *4 (W.D. Ky. Nov. 9, 2009)
(“Plaintiff’s retaliation claim against Sims for harassing and berating him does not state a
cognizable claim. Verbal harassment would not deter a person of ordinary firmness from
engaging in protected conduct.”) (citing Smith v. Craven, 61 F. App’x 159, 162 (6th Cir. 2003)).
For these reasons, Plaintiff’s retaliation claims against Defendants Nurses Brown and
Patterson will be dismissed for failure to state a claim upon which relief may be granted.
4. Eighth and Fourteenth Amendments
Plaintiff alleges that Defendants Nurses Brown and Oldaker were deliberately indifferent
to a serious medical need, his high blood pressure, and that Defendant Nurse Oldaker
discriminated against him/denied him medical treatment because of his race. Upon
consideration, the Court will allow these Eighth and Fourteenth Amendment individualcapacity claims to proceed for further development against Defendants Nurses Brown and
Oldaker for damages.
5. Privacy Claim
Plaintiff alleges a violation of the Health Information Portability and Accountability Act
(HIPAA). Title II of HIPAA, the Health Insurance Portability and Accountability Act of 1996,
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. CV 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);

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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 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.
6. Sgt. Carmin
Plaintiff alleges that he was written up for a charge of using disrespectful language to an
employee and “charged for the infraction initiated by” Defendant Sgt. Carmin. This is the sole
allegation against Defendant Sgt. Carmin, and the allegation fails to state a constitutional claim.
Accordingly, the claim against Defendant Sgt. Carmin will be dismissed.
IV. ORDER
For the foregoing reasons,
IT IS ORDERED that on initial review of the complaint, the following claims shall
proceed: the Eighth and Fourteenth Amendment individual-capacity claims against
Defendants Nurses Brown and Oldaker for damages. 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 those Defendants.
IT IS FURTHER ORDERED that all other claims are DISMISSED pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted and

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pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii) for seeking damages from Defendants immune from
such relief.
As all claims against Defendants Nurse Patterson, CCS, KDOC, LLCC, and Sgt. Carmin
are dismissed, the Clerk of Court is DIRECTED to terminate them from this action.
Date:

May 4, 2017

cc:

Plaintiff, pro se
Defendants
General Counsel, Justice & Public Safety Cabinet, Office of Legal Counsel
4414.005

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