Boggs v. Elder

Filing 6

MEMORANDUM OPINION AND ORDER by Chief Judge Joseph H. McKinley, Jr. On initial review of the complaint pursuant to 28 U.S.C. § 1915A, the Court will allow Plaintiff to file an amended complaint (see Order for specifics). The Clerk is directed t o send Plaintiff a § 1983 packet should he wish to file an amended complaint. Should Plaintiff fail to file an amended complaint within 30 days from the entry date of this Order, the Court will enter an Order dismissing the entire action for failure to state a claim upon which relief may be granted. cc: Plaintiff, pro se; Defendant; Webster County Attorney (JLS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT OWENSBORO
KIRBY BOGGS

PLAINTIFF

v.

CIVIL ACTION NO. 4:15CV-P24-JHM

TERRY ELDER, JAILER

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter is before the Court on initial review of Plaintiff Kirby Boggs’ pro se
complaint pursuant to 28 U.S.C. § 1915A. For the reasons that follow, the Court will allow
Plaintiff to file an amended complaint.
I. SUMMARY OF FACTS AND CLAIMS
Plaintiff, a convicted inmate currently incarcerated at the Roederer Correctional
Complex, filed his complaint pursuant to 42 U.S.C. § 1983 alleging violation of his Eighth
Amendment rights during his detention in the Webster County Jail. He brings this action against
Webster County Jailer Terry Elder in his official capacity seeking monetary damages in the
amount of $75,000 and payment of his medical bills.
According to the complaint, Plaintiff was attacked at the Webster County Jail on June 16,
2014, by another inmate. As a result of the attack, his “eye socket and cheek bone” were
“shattered.” The jail doctor on call told the jail staff to take Plaintiff to the emergency room, but
Jailer Elder “over rode the doctors orders” and placed Plaintiff in the holding tank on the
concrete floor with a thin mattress. Plaintiff maintains that his nose bled for hours, that his face
“swelled severely,” and that “I lost most of the vision in my left eye all I could see was white I
was in a lot of pain I begged the staff to take me to the E.R. all night But they keep saying the

jailer said no.” Plaintiff contends that when the doctor came in the next day, he could not believe
Plaintiff’s condition and asked what the ER doctor said. After the nurse told him the jailer
refused to take Plaintiff to the ER, the doctor became mad and ordered the staff to take Plaintiff
to the ER immediately.
Plaintiff reports that “a Cat-scan” revealed the left side of his face was “shattered” and
“looked like someone had punched a windshield it was busted so bad.” He further alleges that
the “deputy that [t]ook me was trying to control what the doctor could do for me medication wise
which was none of his bussiness I was put in Isolation for 3 weeks in a little 6ft by 10ft cell I was
in severe pain the hole time and all they would do for me is give me some Ibuprophen.”
Plaintiff reports that he still does not have all of the feeling back in his face and that he
still has “bad headaches all the time.”
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 § 1915A. Under
§ 1915A, the Court must review the complaint and dismiss the complaint, or any portion of the
complaint, if it 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).
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

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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 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 Defendant Elder in his official-capacity only. Official-capacity claims
“‘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, 165-66 (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
Defendant Elder, therefore, are actually against Webster County. 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,

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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.
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)). 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)).
In the instant case, Plaintiff has not alleged that his injuries were the result of Webster
County policy or custom. Nothing in the complaint demonstrates that the action or inaction of
anyone at Webster County Jail occurred as a result of a policy or custom implemented or
endorsed by the county. The complaint, therefore, fails to establish a basis of liability against
Webster County and fails to state a cognizable § 1983 claim against its employee, Defendant
Elder in his official capacity.
Before dismissing the action, however, the Court will provide Plaintiff with an
opportunity to amend the complaint to sue Defendant Elder in his individual capacity. See
LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013) (“[U]nder Rule 15(a) a district court can

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allow a plaintiff to amend his complaint even when the complaint is subject to dismissal under
the PLRA [Prison Litigation Reform Act].”). The Court additionally will allow Plaintiff to
amend the complaint to provide additional details surrounding his claim that he was placed in
isolation for three weeks and given only ibuprofen while in extreme pain, including naming any
additional Defendants who may have been involved in the claim.
Consequently, for the reasons above and being otherwise sufficiently advised,
IT IS ORDERED that within 30 days from the entry date of this Memorandum
Opinion and Order, Plaintiff may file an amended complaint suing Defendant Elder in his
individual capacity and providing additional details surrounding his claim that he was placed in
isolation for three weeks and given only ibuprofen while in extreme pain. The Clerk of Court is
DIRECTED to place the instant case number and “Amended” on a § 1983 complaint form and
send it, along with four blank summons forms, to Plaintiff for his use should he wish to amend
the complaint. The amended complaint will be reviewed pursuant to 28 U.S.C. § 1915A(b).
Should Plaintiff fail to file an amended complaint within the time allotted, the Court
will enter an Order dismissing the entire action for failure to state a claim upon which
relief may be granted.
Date:

June 9, 2015

cc:

Plaintiff, pro se
Defendants
Webster County Attorney
4414.005

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