Bump v. Herrington et al

Filing 6

MEMORANDUM OPINION AND ORDER by Chief Judge Joseph H. McKinley, Jr. On initial review of the complaint under 28 U.S.C. § 1915A, IT IS ORDERED that Plaintiff's Eighth Amendment claim that he is being denied a safe diet will proceed against Defendant Buckman in his individual and official capacities. IT IS ORDERED that the individual-capacity claims against Defendants Gibson, Ankrom, and Hall are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon whic h relief may be granted. IT IS FURTHER ORDERED that the official-capacity claims against Defendants Herrington, Gibson, Ankrom, and Hall are DISMISSED without prejudice to the continuing official-capacity claim against Defendant Buckman. cc: Plaintiff, pro se; Defendants; Henderson County Attorney (JLS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT OWENSBORO
DOUGLAS WENDELL BUMP
v.

PLAINTIFF
CIVIL ACTION NO. 4:15CV-P32-JHM

RON HERRINGTON et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Plaintiff Douglas Wendell Bump, a convicted prisoner currently incarcerated in the
Henderson County Detention Center (HCDC), filed a pro se complaint pursuant to 42 U.S.C.
§ 1983 against the following HCDC officers: Jailer Ron Herrington, Colonel Leslie Gibson,
Captain Nancy Ankrom, Sgt. Cody Buckman, and Deputy Mary Hall. He sues all Defendants in
their individual and official capacities with the exception of Jailer Herrington, whom he sues in
only his official capacity. Plaintiff alleges that he was booked into the HCDC on November 13,
2014, and that Defendants were notified of his allergies. He reports, however, that he was served
meals with “onions and/or garlic” on multiple occasions and that he required medical attention
on four occasions. He claims that the “Jail and defendants refuse to serve me a safe diet” and
specifically mentions that Defendant Buckman refused him a meal on at least one occasion. As
relief, Plaintiff seeks monetary damages and for HCDC to “reorganize kitchen procedures.”
Because Plaintiff is a prisoner seeking relief against governmental entities, officers,
and/or employees, this Court must perform an initial review of the complaint 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 v. Wrigglesworth, 114 F.3d 601, 604
(6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007).

Although Plaintiff fails to identify the violation of any specific constitutionally protected
or statutorily created right, the Court construes the action as asserting a claim that Defendants
have failed to provide him with a safe diet under the Eighth Amendment to the U.S. Constitution.
Because Plaintiff specifically mentions Defendant Buckman in relation to his claim, the Court
will allow this claim to continue against Defendant Buckman in his individual and official
capacities.
Plaintiff, however, has failed to state a claim against Defendants Gibson, Ankrom, and
Hall in their individual capacities. Some factual basis for claims against a defendant must be set
forth in the pleadings. Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir. 1986). A
plaintiff must allege specific facts that explain how each defendant is personally responsible for
the alleged injuries. Smith v. Rowe, 761 F.2d 360, 369 (7th Cir. 1985). Plaintiff’s complaint
fails to do so with regard to Defendants Gibson, Ankrom, and Hall. As such, any claim against
them must be dismissed for a failure to state a claim. See Copeland v. Machulis, 57 F.3d 476,
481 (6th Cir. 1995) (per curiam) (stating that personal involvement by the defendant is an
essential element in a § 1983 cause of action asserting a constitutional deprivation).
As to the official-capacity claims against Defendants Herrington, Gibson, Ankrom, and
Hall, the Court will dismiss those claims without prejudice as redundant to the continuing
official-capacity claim against Defendant Buckman.
Accordingly, for the foregoing reasons,
IT IS ORDERED that Plaintiff’s Eighth Amendment claim that he is being denied a
safe diet will proceed against Defendant Buckman in his individual and official capacities.
In permitting this claim to continue, the Court passes no judgment on its merit and ultimate
outcome. The Court will enter a separate Scheduling Order governing the development of this
claim.
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IT IS ORDERED that the individual-capacity claims against Defendants Gibson,
Ankrom, and Hall 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 the official-capacity claims against Defendants
Herrington, Gibson, Ankrom, and Hall are DISMISSED without prejudice to the continuing
official-capacity claim against Defendant Buckman.
Date:

March 23, 2015

cc:

Plaintiff, pro se
Defendants
Henderson County Attorney
4414.005

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