Glass v. Ramos et al

Filing 20

MEMORANDUM OPINION AND ORDER signed by Judge David J. Hale on 7/14/2021. Plaintiff's individual-capacity claims based on the alleged denial of medical treatment on Thanksgiving 2019; his individual-capacity claims against Defendant Tindall; an d his official-capacity claims against all Defendants are DISMISSED for failure to state a claim upon which relief may be granted. The Clerk is DIRECTED to terminate Defendant Tindall as a Defendant in the docket sheet as no claims remain against him. The Court will enter a separate Service and Scheduling Order governing the claims that have been permitted to proceed. cc: Plaintiff-pro se, Defendants, Oldham County Atty. (SMJ)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
OPIE WILLIAM GLASS II,

Plaintiff,

v.

Civil Action No. 3:19-cv-P714-DJH

NURSE BRENDA RAMOS et al.,

Defendants.
* * * * *

MEMORANDUM OPINION AND ORDER
Plaintiff Opie William Glass II filed this pro se action pursuant to 42 U.S.C. § 1983 while
he was a federal pretrial detainee at the Oldham County Detention Center (OCDC)1 alleging
deliberate indifference to serious medical needs (Docket No. 1). Upon initial review of the
complaint pursuant to 28 U.S.C. § 1915A, the Court dismissed the claims against Defendants
OCDC and the Southern Medical Group (SMG) and terminated them from the action (DN 9).
The Court also dismissed the official-capacity claims against Defendants Nurse Brenda Ramos
and OCDC Officers Jacob, Byron, and David and an unknown OCDC officer. However, before
terminating those Defendants and dismissing the entire action, the Court provided Plaintiff an
opportunity to amend his complaint to sue the officials he believes were deliberately indifferent
to his serious medical needs in their individual capacities.
In response, Plaintiff filed an amended complaint (DN 10), again naming as Defendants
Nurse Ramos, Officer Jacob, and Officer Byron and additionally naming OCDC Major Jeff
Tindall2 and Southern Health Partners (SHP). With respect to Defendants Ramos, Jacob, Byron,
and Tindall, Plaintiff checked only the official-capacity box instead of checking the individual-

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Plaintiff has since been transferred to the Terre Haute Federal Correctional Institution (DN 19).
Plaintiff spells this Defendant’s last name as both “Tindal” and “Tindall.” For ease of reference, the Court refers
to this Defendant as “Tindall” herein.
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capacity box. Given Plaintiff’s pro se status, the Court gave him one final opportunity to clearly
indicate that he is suing these four Defendants in their individual capacities (DN 15). The Court
also dismissed the claims against Defendant SHP and terminated it from the action. Further,
because in the amended complaint Plaintiff did not sue Defendants Officer David or an unknown
OCDC officer as he had in the complaint, the Court terminated them from the action, as well.
Plaintiff then filed a second amended complaint (DN 16) clearly indicating that he sues
Defendants Ramos,3 Jacob, Byron, and Tindall in both their individual and official capacities.
This matter is now before the Court on initial review of the first amended complaint (DN 10) and
second amended complaint (DN 16) pursuant to 28 U.S.C. § 1915A. For the reasons stated
below, the Court will allow some of Plaintiff’s claims to proceed and dismiss other claims.
I. SUMMARY OF FACTUAL ALLEGATIONS
Plaintiff alleges that on August 24, 2019, he asked a non-Defendant deputy to take him to
medical because he was having “sever chest pains, lost my vision, & could not breath.” He
states that the deputy told him that the nurse was two cells down and that Plaintiff should tell her.
He reports that fifteen minutes later Defendant Ramos came to his unit and that he informed her
that he could not get out of his chair and “explained my pains and hearing loss to her.” He
asserts that Defendant Ramos wrote his name down and said that she would be back to get him
but never came back. He alleges that he attempted to get a deputy’s attention by banging on the
cell door to no avail. He states, “Two hours had passed since Nurse Ramos said she would be
back. My vision had returned so I went to the kiosk to file a formal grievance.” He maintains
that, as he was filing it, Defendants Jacob and Byron entered the unit and that he told them he

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Plaintiff indicates in the first amended complaint that Defendant Ramos is employed by OCDC and indicates in the
second amended complaint that she is employed by SHP.
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needed medical assistance and that Defendant Ramos was supposed to come get him. Plaintiff
reports that Defendants Jacob and Byron informed him that Defendant Ramos had left for the
day and that they would ask Medical to see him. He states, “I told Nurse Ramos the severe
symptoms I was having, she ignored them and left to go home without even informing night shift
about the situation.” He states that he was left “in serious physical pain for two days.” He
further asserts as follows:
By the time I got to medical the next day my symptoms subsided but I was still in
pain. But medical staff dismissed the incident, and only took my blood pressure
and give me a couple of aspirin for the headache. I never got seen for a follow up
and only seen medical the one time. I still have chest pains on occasions and my
arm goes numb frequently.
Plaintiff also states, “I file multiple grievances and grievance appeal, only to have the
issues addressed in them manipulated and downplayed by the jail staff and Major Tindall.” He
details how he was denied copies of his grievances “so I could persue further actions of the
violations Im enduring.” He report that he was given a copy of his grievance appeal by a nonDefendant officer. Plaintiff states that when Defendant Tindall gave him copies of his grievance
documents, he noticed that the copies had been “editted and altered in an attempt to cover up for
the deputys and Nurse Ramos actions.” Plaintiff alleges that Defendant Tindall “deleted the
main body of the grievance appeal so it didn’t read like I informed them of my symptoms of
having chest pains, lost my vision, or couldn’t breath.” Plaintiff continues, “He tried to make it
read like I asked what procedure was when an inmate is having chest pains and not that I was left
on the unit after asking for medical help.”
Plaintiff alleges that Defendant Tindall violated the Eighth and Fourteenth Amendments.
He states that “even after I filed the grievance and he was made aware of the situation I was left
without care.” He also maintains that Defendant Tindall gave him a copy of a grievance appeal
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which “erased my request history so I can’t get any more evidence, no one else’s history has
been erased[.]” Plaintiff reports that he knows that the copy was altered because he was given an
accurate copy of it the previous day by a non-Defendant deputy. He also states that his “legal
mail from the Civil Libertys Unions has been open without me being present.”
Plaintiff also describes a separate incident on Thanksgiving of 2019 when he was having
chest pains and requested medical assistance but was told that there was no medical staff on duty
because it was a holiday. Plaintiff further states that he has been “forced to endure these
conditions and live in fear of retaliation from Major Tindall and his staff for seeking legal
assistance for these matters . . .” and alleges “mental abuse.” He also states that “still on
occasion my arm goes numb I have chest pains frequently and endure pain daily.”
As relief, Plaintiff seeks compensatory and punitive damages, as well as “disiplinary
action on Jeff Tindall.”
II. STANDARD
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] district court must (1) view the complaint in the light most favorable to the
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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)). 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).
III. ANALYSIS
A. Individual-capacity claims
1. Defendants Ramos, Jacob, and Byron
Upon review, the Court will allow Plaintiff’s Fourteenth Amendment claims for
deliberate indifference to serious medical needs to proceed against Defendants Ramos, Jacob,
and Byron in their individual capacities based on his allegations that he was denied medical
treatment on August 24, 2019, and in the day(s) thereafter.
Plaintiff also alleges that he was denied medical treatment on Thanksgiving of 2019.
However, he does not state who denied him medical treatment or indicate that any of the named
Defendants were involved in denying him treatment. While the Court is aware of its duty to
construe pro se complaints liberally, Plaintiff is not absolved of his duty to comply with the
Federal Rules of Civil Procedure by providing Defendants with “fair notice of the basis for his
claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002). To state a claim for relief,
Plaintiff must show how each Defendant is accountable because the Defendant was personally
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involved in the acts about which she complains. See Rizzo v. Goode, 423 U.S. 362, 375-76
(1976). Because Plaintiff fails to allege who denied him medical treatment in this separate
incident, the allegations will be dismissed for failure to state a claim upon which relief may be
granted.
2. Defendant Tindall
Plaintiff alleges a claim against Defendant Tindall under the Eighth Amendment, which
the Court construes as brought based on his allegation that “even after I filed the grievance and
he was made aware of the situation I was left without care.” A plaintiff’s claim is against the
subjects of his grievances, not those who merely decided whether to grant or deny the
grievances. See Skinner v. Govorchin, 463 F.3d 518, 525 (6th Cir. 2006) (holding that “[the
plaintiff’s] complaint regarding [the defendant’s] denial of [his] grievance appeal, it is clear, fails
to state a claim”). Moreover, the failure to act on Plaintiff’s grievances does not subject
Defendant Tindall to liability. See Grinter v. Knight, 532 F.3d 567, 576 (6th Cir. 2008) (“The
‘denial of administrative grievances or the failure to act’ by prison officials does not subject
supervisors to liability under § 1983.”) (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.
1999)); Horton v. Martin, 137 F. App’x 773, 775 (6th Cir. 2005) (“[Plaintiff] merely alleged that
[the defendant] failed to remedy the situation after he had been informed of the problem via
[plaintiff’s] grievance. [This] allegation does not state a claim because the doctrine of
respondeat superior does not apply in § 1983 lawsuits to impute liability onto supervisory
personnel.”). Accordingly, Plaintiff’s Eighth Amendment claim against Defendant Tindall must
be dismissed for failure to state claim.
Plaintiff also alleges a violation of due process on grounds that Defendant Tindall gave
him a copy of his grievance appeal which was altered and that this “erased my request history so
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I can’t get any more evidence.” To state a Fourteenth Amendment due-process claim, an inmate
must allege a deprivation of a liberty interest protected by the Due Process Clause. See, e.g.,
Sandin v. Conner, 515 U.S. 472, 485 (1995). While the Court would not endorse a prison
official materially altering a grievance in a self-serving manner, the Court cannot discern how
the alleged alteration of the copy limits Plaintiff’s ability to assert his claims based on the
grievance’s underlying allegations of deliberate indifference to his serious medical needs,
especially since he states that he was been given an accurate copy. Nor does Plaintiff allege how
he was deprived of a liberty interested in being provided an altered copy of his grievance appeal.
Therefore, Plaintiff’s due process claim must be dismissed for failure to state a claim.
Plaintiff also states that his “legal mail from the Civil Libertys Unions has been open
without me being present.” However, this one-sentence statement is too conclusory and lacking
in factual specificity to support a claim. See Iqbal, 556 U.S. at 678. Moreover, a single instance
of interference with a prisoner’s mail does not give rise to a constitutional claim. See, e.g.,
Morgan v. Montanye, 516 F.2d 1367, 1370-71 (2d Cir. 1975); Brown v. Kasich,
No. 4:16CV2284, 2017 U.S. Dist. LEXIS 27906, at *9-10 (N.D. Ohio Feb. 28, 2017) (“[A]
random or isolated incident of inadvertent mail interference does not state a claim that rises to
the level of constitutional magnitude, and is therefore not actionable under § 1983.”). Therefore,
Plaintiff’s claim based on the opening of his mail will be dismissed for failure to state a claim.
Plaintiff also alleges that he “lives in fear of retaliation” by Defendant Tindall and his
staff. However, actual injury, rather than a speculative fear of injury, is required to assert a
retaliation claim. See Croney v. Fletcher, No. 07-CV-42-KKC, 2008 U.S. Dist. LEXIS 90, at *2
(E.D. Ky. Jan. 2, 2008) (citing Valley Forge Christian Coll. v. Ams. United for Separation of
Church and State, 454 U.S. 464, 471 (1982)). Plaintiff does not allege that he was retaliated
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against; he merely alleges that he fears it. Accordingly, Plaintiff's retaliation claim must be
dismissed for failure to state a claim upon which relief may be granted.

B. Official-capacity claims
Plaintiff also again sues Defendants in their official capacities. For the same reasons the
Court dismissed Plaintiff’s official-capacity claims previously (DN 9), the Court finds that the
official-capacity claims against all Defendants must be dismissed.
IV. CONCLUSION AND ORDER
IT IS ORDERED that Plaintiff’s individual-capacity claims based on the alleged denial
of medical treatment on Thanksgiving 2019; his individual-capacity claims against Defendant
Tindall; and his 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.
The Clerk is DIRECTED to terminate Defendant Tindall as a Defendant in the docket
sheet as no claims remain against him.
The Court will enter a separate Service and Scheduling Order governing the claims that
have been permitted to proceed.
Date:

July 14, 2021

cc:

Plaintiff, pro se
Defendants
Oldham County Attorney
4415.010

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