Morris v. Smith et al

Filing 20

MEMORANDUM OPINION AND ORDER by Chief Judge Joseph H. McKinley, Jr. on 2/27/18: Plaintiff's official-capacity claims against all Defendants 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 within 30 days (3/27/2018) from the entry date of this Memorandum Opinion and Order, Plaintiff may file an amended complaint naming Defendants in their individual capacities. The Court will conduct an initial r eview of the amended complaint pursuant to § 1915A. The Clerk of Court is DIRECTED to place the case number and word Amended on a § 1983 complaint form and send it to Plaintiff for his use should he wish to amend the complaint. Plaintiff is WARNED that should he fail to file an amended complaint within 30 days, the Court will enter an Order dismissing the action for the reasons stated herein. cc: Plaintiff(pro se), Defts, Jefferson County Atty (DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:17CV-P502-JHM

CLIFFORD MORRIS

PLAINTIFF

v.
MARK BOLTON et al.

DEFENDANTS
MEMORANDUM OPINION AND ORDER

Plaintiff Clifford Morris filed the instant pro se 42 U.S.C. § 1983 action proceeding in
forma pauperis. This matter is before the Court on initial review of the action pursuant to
28 U.S.C. § 1915A.
Plaintiff filed his original complaint on his own paper. In response to a notice of
deficiency, Plaintiff filed an amended complaint (DN 9) on the Court’s approved 42 U.S.C.
§ 1983 form. Plaintiff also filed a second amended complaint (DN 11), which appears to largely
duplicate the first amended complaint except that it contains a relief section of the Courtapproved § 1983 form that was not included in the first amended complaint. The Court
construes the first and second amended complaints as motions to amend the complaint. Upon
consideration, IT IS ORDERED that the motions (DNs 9 and 11) are GRANTED. See Fed. R.
Civ. P. 15(a).
The Court considers the first and second amended complaints as superseding the original
complaint. The Court will conduct initial review of the first and second amended complaints and
will consider Plaintiff’s demand for relief as that stated in the second amended complaint. For
the reasons set forth below, the Court will dismiss Plaintiff’s claims and give him an opportunity
to amend his complaint.

I.
Plaintiff, a pretrial detainee at the Louisville Metro Department of Corrections (LMDC),
sues twenty-four officers or employees of LMDC. The Defendants and the LMDC job title of
each as identified by Plaintiff are as follows: (1) Mark Bolton, LMDC Director; (2) Steve
Derham, LMDC Assistant Director; (3) John Doe/Medical Provider LMDC, “Director Medical”;
(4) Dr. Miss Smith; (5) Dr. Miss Walker; (6) Miss Racheal, “Mental Health”; (7) Miss Ashley,
“M/H”; (8) Sanders and (9) Miss Candy Polter, both nurses; (10) Mr. Mays (Sgt.), “Int/Affairs”;
(11) Mr. Midleton, “D/R”; (12) Mr. Baker, “C/C”; (13) Mr. Combs, (14) Mr. Green, (15)
Mr. Sacra, each a Sgt.; (16) Mr. Ashley, (17) Mr. Chaney, (18) Mr. Finex, (19) Miss Poter, (20)
Mr. Melvin, (21) Mr. Cummins; (22) Mr. Berham, (23) Stevens, and (24) Mr. Anthony1 each
listed as a “CO.” He sues each Defendant in his or her official capacity only.
Plaintiff lists twelve numbered claims and alleges that his rights under the Eighth
Amendment were violated in connection with each of the numbered claims. As his first claim,
Plaintiff states that on March 7, 2016, he was “assaulted and forced moved into H5 Dorm 5 in
cuffs by Sgt. Comb.” He states, “I had very bad night mare and prevouse dorm put me out unit.
I request medical dorm or single cell do to off meds for PTSD.”
Second, Plaintiff claims that on November 23, 2016, when he was having lunch, “CO
Stevens strangles me pick me up an makes 90 degree turn slams me and starts chocking me,
causing injurys to bones teeth.” He asserts that he was stripped to only a two piece jump suit
until December 13, 2016. He further states, “Dr. Smith refuse X rays but charged. I filed keep
away request grievance and verbaly (no response back.) 3/2/17 back booking from x ray at U of
L into CO Stevens hands grabbing wheelchair. I latter placed in restraint chair till midnight
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Although Plaintiff does not list Anthony as a Defendant in his list of Defendants, Plaintiff attaches a
summons form for him to his first amended complaint. The Court will therefore consider Anthony as a
named Defendant to this action.

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placed P/C suit.” He alleges, “My C/R 8th Amendment violated being assaulted with injury
taken glasses.”
As his third claim, Plaintiff states, “My C/R 8th Amendment rights were violated: request
P/C to Miss Jarrett left in OPT 2 and hours pass get stomped 3/2/17.”
Fourth, Plaintiff asserts the following:
Chaney, Finex, Ashley inter my cell as I lay face down told me cuff up. 6-3-17
place hand on back, I then got Finex knee into back Chaney beat right ribs and
tells Ashley raise my head up. Chaney sprays eyes an soak mattress then the three
CO’s rub face back forth burning my skin by friction bare mattress. I then cuff
dragged out holding cell and another per cuffs are used to cuff me to bench and
they beat my head very badly an Sgt. Sacra enters knocking me out. I come to
puddle blood were it running from noise. Sgt. Green takes pictures and place me
OPT 1 without seeing medical knots size apples, fractures broken bones. I report
Nurse Sanders over over it hurts need meds. Dr. Walker & Smith are aware file
paper grvs told Racheal daily. Each day OPT 1 nobody come close cause knots,
Rachel clears me against my request stay in OPT 1 on 6-7-17 I spit on her forced
moved. Poter, Finex, Smith 6-7-17 skip my cell feeding dinner and leaves unit.
Sgt. Green hours latter moves me unsatized J 4,7,8. Leaves me only 2 peace suit
mattress. Nasty cell.
For his fifth claim, Plaintiff states that on June 8, 2017, “CO Mr. Berhum skips me on
hour out, I stayed in nasty cell 24/7. (7-15-17 CRV Berham brings Dr. Williams to cell after
refuse see him.)” In his sixth claim, Plaintiff states that on May 29, 2017, “Chaney don’t let me
out for shower takes my hour out.” Plaintiff’s seventh claim is that “Poter Finex take hour out
cell time.”
As his eighth claim, Plaintiff states that on January 23, 2017, “3rd shift wrote me D/R
investigates it and Midleton at 7 am give 50 days hole time. (He came Midleton in less 8 hours
of D/R.).” He continues, “3-10-17 C/R/V. Gives hole time after state never live G/P. 5-30-17
C/R/V Midleton don’t uphold Internal Affairs recorded interview stated never live G/P again in
my life (11-23 assault.)”

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In Plaintiff’s ninth claim, he asserts that on July 16, 2017, “Cummins, Athony, Melvin do
cell search. Then Cummins order me step back in cell. I then get once cuff off one locked he
cummins pulls hard injurys thumb skin cuff jammed on thumb. Hour later serves brunch and
tries push tray out hand.” He further states, “Melvin watches as pulls me down to floor (don’t
stop) 7-22, 23-17 Cummins kicks cell door very hard. 9-25-17 Cummins feed my lunch under
door then opens hand cup fruit, 10/1/17 Cummins leaves cell open so cell 1 on hour out come
still out cell why in bunk.”
As his tenth claim, Plaintiff states that on March 2, 2017, “Miss Candy Polter don’t check
my vitals while in restraint chair or after giving P/C suit place in cell to lay inside matt stay
warm. (Never checked.)”
Plaintiff’s eleventh claim alleges that “on 11-22-16 till 10-9-17 to be housed out harms
way in protective custody, by verbaly asking and by grivances and request forms that never get
response back since 11-22-16.” He continues, “All staff mention knows been housed without
toilet brush chemicals lenien exchange month after months in single cell without property 3
times nothing but mattress 2 peace suit for weeks. Mr. Bolton Mr. Derham; Sgt. Mays, Miss
Ashley Miss Racheal Mr. Baker all consolor CO’s I’ve repeated above mention weekly.”
As his twelfth and final numbered claim, Plaintiff states, “CRV 8th Amendment by John
Doe/Medical provider 8-4-16: 10/9/17 poor service.”
The complaint then contains two handwritten pages which allege that “Mr. M.B. has
knowledge of all violation and has been no help in housing me in protective custody.” He
maintains that he requested protective custody from Judge Gibson on July 7, 2017, and that she
granted his request. While portions of the two pages are difficult to read, the Court will do its
best to decipher Plaintiff’s allegations as follows:

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I fear for my life and safety, why list:2 (1) 11-23-16 sitting having dinner
strangled and slamed chocked causing very seriouse injurys by CO Stevens. (2)
Improper search causing 50 days hole time all less 8 hour period investigated and
sentenced 7:00 am 1-23-17. (4) I’ve layed in OPT 1 OPT 2 suicide cells weeks
begging Dr. Sgt CO’s nurses M/H for help in housed protective custody. (5) 3-217 stomped hours after turn in request consolor Jarret for P/C, transported U of L
x ray then meds giving. I refussed meds prescribed. (6) 3-2-17 return from x rays
to hand of Stevens try negotaitate I let all staff know request him kept away from
me at all times. (7) 3-4 Sgt. Sikes stripps me of my jump suite that was given 3-2.
(8) Chaney slams door. (9) Transfered KPCP also Midleton slam door as well.
(10) Told KCPC go back to room get assaulted by CO strapped chair 10 til 2 pm
second time in life. (CO torched) 428. (11) 4-19 KCPC back LMDC 5-3-17 into
Stevens eyes control for another negotiating chance that didn’t happen. (12)
Moved R/B cell 3 to J2 D9 force mud on 5-9 to none work cell J3 8,4. (13) Levi
drug me out of bed laying down stomped me and placed holding cell J2 for
transfer J3,8H. Property was taken by work aids. (14) Several days moved cell 3
work cell and had ok other my flap N Dr got [illegible] by other inmts to kep
close. [Illegible] than 5-25 lss 30 [illegible] chg bck by TL Ashley was informed
and TL lok turn out Ashley state unclog door (15) Sgt Miller takes all prty 5-25,
go J2 hold cll 2 shft takn Wiley talks go bak and Ayres Sgt get prty to me. Never
hppn. (16) Chaney takes hour out 529 and Poter takes 530 and reprt Chaney Ms.
Shay little bi*** I reg field keep away told pat [illegible] and pearce, Patric tld me
Sgt hndle it, Chy kp away till 63. (17) Tell had plan com dinner Ast me by
putting knee hold me down Chny brks rbs then Ashley pulls head up Chny sprays
eyes and soaks matt then all three rub face back forth matt cuff thn drg bench cuff
beating unconscious by last hit Sacra camo to blood running to puddle in floor,
taken by Green J2 OPT 1 nvr seen by nurse. (18) each day ask see Dr. never
happen Sgt Green left me. (19) 6-7 spit on Rachel for clrng before be seen by Dr.
Smith Higdon force move no shoes nothing for several weeks. (19) J3 8,9 dinner
server shut flap no tray feed 12 walks out Poter Smith Finix cruel to humane soul
sit several hours Sgt Green moves to J4 78 nothing 2 peace jump suite nothing
Sgt. McNess scalds Green get pair shower shoes for him, place in unsanitized
filthy cell nothing rec taken next day by Burham. (20) 7-15 Burham bring Dr.
Williams to cell after refuse go talk with him. (21) 7-16 cell search Cummins tell
go back in cell and takes cuff off left hand pulls right hand breaking skin injury
thumb pinky medical refused ask CO’s Anthony Melvin Cummins hang my self.
Cummins server brunch tray push out after reseved tray coms kicking to
[illegible] over 22 23 9-25 feeds under door sndwch then cup fruit open door 9-29
starts up am asking meds, 10-1 Stage leaves door open serve brunch layed back
down cell 1 steel tpaste out cell his out on hour almost took TP bck [illegible] puts
up refuse run numbers on tube. SAD. (22) 2 sft Sgt says not relvant B code tube
SAD Day.

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In his list, Plaintiff omits a number 3 and includes two number 19s.

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As relief, Plaintiff seeks compensatory and punitive damages. He also states that
he seeks relief in the form of “Preserve footage of all camera’s; displanary reports,
grievances.”
II.
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 complaint, or any
portion of it, if the court determines that the complaint 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, 604
(6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007).
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)). “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

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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, 520-21
(1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991), “[o]ur duty to be ‘less stringent’
with pro se complaints does not require us to conjure up unpled allegations.” McDonald v. Hall,
610 F.2d 16, 19 (1st Cir. 1979) (citation omitted). And this Court is not required to create a
claim for 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).
III.
Plaintiff sues Defendants in their official capacities only. “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, 165 (1985) (quoting Monell v. New York City
Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). Suing employees in their official capacities
is the equivalent of suing their employer. Lambert v. Hartman, 517 F.3d 433, 439-40 (6th Cir.
2008); Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994); Smallwood v. Jefferson Cty.
Gov’t, 743 F. Supp. 502, 503 (W.D. Ky. 1990). Therefore, the Court construes Plaintiff’s
official-capacity claims against Defendants as brought against their employer, presumably the
Louisville Metro Government.

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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,
whether the municipality is responsible for that violation. Collins v. City of Harker Heights,
Tex., 503 U.S. 115, 120 (1992). The Court will first address the second issue, i.e., whether the
municipality is responsible for the alleged constitutional violation.
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). 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)). 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 v. City of Dayton, 38 F.3d 282, 286 (6th
Cir. 1994) (quoting Polk Cty. v. Dodson, 454 U.S. 312, 326 (1981) (citation omitted)).
In the instant case, Plaintiff alleges that his Eighth Amendment rights were violated by
instances of excessive force used against him, denial of medical care, placement in unsanitary
prison conditions, and denial of meals, recreation time, and protective custody. However,
Plaintiff does not allege that the action or inaction of Defendants occurred as a result of a policy
or custom implemented or endorsed by the Louisville Metro Government. The complaint alleges
isolated events affecting only Plaintiff. See Fox v. Van Oosterum, 176 F.3d 342, 348 (6th Cir.
1999) (“No evidence indicates that this was anything more than a one-time, isolated event for

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which the county is not responsible.”). Accordingly, Plaintiff’s official-capacity claims will be
dismissed for failure to state a claim upon which relief may be granted.
“[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 [Prison Litigation Reform Act].”
LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013). The Court will allow Plaintiff an
opportunity to amend his complaint to name Defendants in their individual capacities.
IV.
For the reasons set forth herein, and the Court being otherwise sufficiently advised,
IT IS ORDERED that Plaintiff’s official-capacity claims against all Defendants 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 within 30 days from the entry date of this
Memorandum Opinion and Order, Plaintiff may file an amended complaint naming
Defendants in their individual capacities. The Court will conduct an initial review of the
amended complaint pursuant to § 1915A.
The Clerk of Court is DIRECTED to place the case number and word “Amended” on a
§ 1983 complaint form and send it to Plaintiff for his use should he wish to amend the complaint.
Plaintiff is WARNED that should he fail to file an amended complaint within
30 days, the Court will enter an Order dismissing the action for the reasons stated herein.
Date:

February 27, 2018

cc:

Plaintiff, pro se
Defendants
Jefferson County Attorney
4414.010

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