McCormick v. Floyd et al

Filing 8

MEMORANDUM OPINION AND ORDER by Chief Judge Joseph H. McKinley, Jr. On initial review of the complaint, IT IS ORDERED that the claims against Defendants Cpt. Floyd, Nurse Lea, and Col. Gibson in their official capacity 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 amend the complaint (see Order for specifics). The Clerk of Court is DIRECTED to send a 42 U.S.C. § 1983 complaint form and summons forms to Plaintiff for his use should he wish to amend the complaint. Should Plaintiff file no amended complaint within 30 days, the Court will enter a final Order dismissing the entire action. cc: Plaintiff, pro se; Defendants; Henderson Co. Atty. (JLS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
DAMON MCCORMICK

PLAINTIFF

v.

CIVIL ACTION NO. 4:14CV-P82-JHM

CPT. MEL FLOYD et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is currently before the Court on initial review of Plaintiff Damon
McCormick’s pro se complaint pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth,
114 F.3d 601 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007).
For the reasons that follow, the Court will dismiss the official-capacity claims and provide
Plaintiff with an opportunity to amend the complaint.
I. SUMMARY OF CLAIMS
Plaintiff is a convicted inmate currently incarcerated at the Fulton County Jail. He brings
suit under 42 U.S.C. § 1983 complaining of incidents occurring during his incarceration at the
Henderson County Jail (HCJ). He sues the following officials in their official capacity: HCJ
Captain Mel Floyd, Nurse Lea at the HCJ and Southern Health Partners, and HCJ Colonel Mrs.
Gibson.1
Factually, Plaintiff reports that he has been using a wheelchair for almost a year. He
states that three doctors ordered the wheelchair for his use until he is able to get two total knee
replacements. He claims that upon his arrival at the HCJ, Defendant Nurse Lea told him that he
could not use the wheelchair and that Defendant Floyd agreed with her. Plaintiff contends that
“for 2 months Nurse Lea had HCDC staff Thinking I was faking.”
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In the body of the complaint, Plaintiff mentions “Co. Johnson” and “Lt Rollie,” but he does not name them
as Defendants.

Specifically, Plaintiff claims as follows:
I was in #401 on the floor Sun July 6 and hurt myself trying to get up. On the 7th
I asked Nurse Lea and Cpt Floyd if I could use a wheelchair to go to the handicap
shower. They said no to both. That night I fell hurting myself real bad coming
back from shower. Tue 8th Cpt Floyd ordered to put me in a cell with a bunk and
Lea called my sister to bring me my wheelchair. I had to fall and get hurt before
they let me have it . . . . on 7-15 Co. Johnson put me in 525 on the floor. He said
he didnt care and I am staying on the floor. Lt Rollie told me the same thing.
They went outside cell and was taunting me cause I was upset . . . . I told them to
take me to the hole cause there is a bunk. They laughed and told me I was staying
on the floor like it or not. Later that day I tried to get up for pill call and my knee
buckled and hurt myself real bad. The Colonel told Lt Rollie to take me to the
hole. Rollie told me to grab my belonging that what I didnt take was staying
there. He is on camera trying to make me carry bags in my wheelchair. Putting
property on my head and laughing cause Nurse Lea told them I was faking.
Plaintiff claims that the next morning, Defendant Floyd took him to “the Colonels office”
[presumably Defendant Colonel Mrs. Gibson’s office]; that Defendant Nurse Lea took two xrays of Plaintiff’s knees; and that Defendant Nurse Lea told the Colonel that the x-rays were
negative and that Plaintiff “was faking.” Plaintiff maintains that he told the Colonel to look at
his medical files wherein his doctor said he needed total replacements of both knees; the Colonel,
however, “said Nurse Lea’s word is all she needed.”
Then, claims Plaintiff, Defendant Floyd was “pushing me back to the hole and I was real
mad and arguing. In 500 hall the Capt got in front of me. Grabbed my collar on both sides with
his fists doubled up and short punched me in my jaw.” Plaintiff states that Defendant Floyd
“told me if I said another word he would jerk me out of my chair and He and his C.O.’s who
were there and kick my ass cause I was faking injury the whole time.” Plaintiff reports that later
than same day while trying to get his mail, his knee gave out on him again. According to
Plaintiff, “Nurse Lea and Cpt Floyd came to my cell. Floyd and one of his CO’s picked me up
held me by my arms restraining me while Nurse Lea pulls out my pants by the waist and looks
down the back and then the front against my objections.” Plaintiff states, “Upon leaving Cpt

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Floyd told me if I fell again I better not holler for help cause he would come and spray me and
then taze me.”
Following these incidents, Plaintiff had his sister call his five physicians, who sent
records to the jail. “After the records arrived and were viewed Lea and Floyd realized what they
had done and I was shipped immediately to Fulton Co.”
As relief, Plaintiff seeks monetary and punitive damages.
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, 114 F.3d at 604.
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,
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
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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).
III. ANALYSIS
Plaintiff sues Defendants in their official capacity 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, 166 (1985) (quoting Monell v. New York City
Dep’t of Soc. Servs., 436 U.S. 658, 691 n.55 (1978)). Plaintiff’s official-capacity claims against
Defendants, therefore, are actually against Henderson County. 2 See Lambert v. Hartman, 517
F.3d 433, 440 (6th Cir. 2008) (stating that civil rights suit against county clerk of courts in his
official capacity was equivalent of suing clerk’s employer, the county).
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 address the issues in reverse order.
“[A] municipality cannot be held liable solely because it employs a tortfeasor -- or, in
other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.”
Monell, 436 U.S. at 691; Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994); Berry v.

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It is unclear whether Defendant Nurse Lea is an employee of Henderson County or Southern
Health Partners. Nevertheless, the same municipal-liability analysis applies to § 1983 claims against a
private corporation like SHP. 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.”); Starcher v. Corr. Med. Sys., Inc., 7 F. App’x 459, 465 (6th Cir.
2001) (“CMS’s [Correctional Medical Systems, Inc.,] liability must also be premised on some policy that
caused a deprivation of [plaintiff’s] Eighth Amendment rights.”).
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City of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994). “[T]he touchstone of ‘official policy’ is
designed ‘to distinguish acts of the municipality from acts of employees of the municipality, and
thereby make clear that municipal liability is limited to action for which the municipality is
actually responsible.’” City of St. Louis v. Praprotnik, 485 U.S. 112, 138 (1988) (quoting
Pembaur v. Cincinnati, 475 U.S. 469, 479-80 (1986)) (emphasis in original). 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)).
None of the allegations in the complaint demonstrates that any alleged wrongdoing or
injury occurred as a result of a policy or custom implemented or endorsed by Henderson County.
Accordingly, the complaint fails to establish a basis of liability against the municipality and fails
to state a cognizable § 1983 claim. Therefore, the official-capacity claims against all Defendants
will be dismissed. 3
Before dismissing the action, however, the Court will provide Plaintiff with an
opportunity to amend the complaint to sue Defendants in their individual capacity and to name
any additional Defendants he may wish to sue related to the incidents occurring at the HCJ
alleged in his complaint. See LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013) (“[U]nder
Rule 15(a) a district court can allow a plaintiff to amend his complaint even when the complaint
is subject to dismissal under the PLRA [Prison Litigation Reform Act].”).

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Plaintiff having failed to allege a policy or custom by either Henderson County or SHP that
caused his alleged harm, the official-capacity claims against Defendant Nurse Lea, as an employee of
either the county or SHP, must be dismissed.
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IV. ORDER
For the foregoing reasons,
IT IS ORDERED that the claims against Defendants Cpt. Floyd, Nurse Lea, and Col.
Gibson in their official capacity 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 amend the complaint to name Defendants in
their individual capacity and to name as Defendants any other officers/employees allegedly
involved in the HCJ incidents about which he complains in his original complaint.
The Clerk of Court is DIRECTED to place the instant case number and word
“Amended” on a § 1983 complaint form and send it, along with eight blank summons forms, to
Plaintiff for his use should he wish to amend the complaint.
Should Plaintiff file no amended complaint within 30 days, the Court will enter a
final Order dismissing the entire action.
Date:

January 5, 2015

cc:

Plaintiff, pro se
Defendants
Henderson County Attorney
4414.005

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