Jones v. Pfeil et al

Filing 17

MEMORANDUM OPINION AND ORDER by Chief Judge Joseph H. McKinley, Jr. on 3/22/2018: The Clerk of Court is DIRECTED to terminate Defendants Pfeil, McFarland, Markwell, Denton, Brady, Gibson, and Southern Health Partners as Defendants from the docke t of this action. The Clerk of Court is further DIRECTED to send Plaintiff the form for filing a habeas action pursuant to 28 U.S.C. § 2254, in the event he chooses to file such an action. An excessive-force claim and a bodily-privacy claim wi ll proceed against Defendant Stone in his individual capacity. Within 30 days of entry of this Order, Plaintiff may amend his complaint; The Clerk of Court is DIRECTED to send to Plaintiff a 42 U.S.C. § 1983 complaint form with this case number and the word AMENDED affixed thereto for Plaintiffs use should he wish to amend the complaint. cc: Plaintiff (pro se) w/ complaint form, Defendants (JM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT OWENSBORO
LOVELL JAVHON JONES
v.

PLAINTIFF
CIVIL ACTION NO. 4:17-CV-P123-JHM

JASON PFEIL et al.

DEFENDANTS
MEMORANDUM OPINION AND ORDER

Plaintiff Lovell Javhon Jones, a prisoner presently incarcerated at the Fulton County
Detention Center (FCDC), filed this pro se complaint pursuant to 42 U.S.C. § 1983 while he was
incarcerated in the Henderson County Detention Center (HCDC). Subsequent to filing the
complaint, Plaintiff sent four letters to the Court (DNs 7, 9, 10 & 11), which the Court construes
as motions to amend the complaint. In one of the amendments filed January 11, 2018 (DN 9),
Plaintiff seeks to change the name of one of the Defendants named in Plaintiff’s original
complaint, Bill Markwell, to William I. Markwell. The motion to amend (DN 9) is GRANTED.
The Clerk of Court is DIRECTED to change Defendant Bill Markwell to William I. Markwell
in the docket of this action. The other three motions to amend (DNs 7, 10 & 11) mostly restate
allegations Plaintiff included in his original complaint. These motions to amend (DNs 7, 10 &
11) are GRANTED.
This matter is now before the Court for initial review of the complaint (DN 1) and two
amendments (DNs 10 & 11) pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth,
114 F.3d 601, 608 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199
(2007). For the reasons that follow, the Court will allow an excessive-force claim and a bodilyprivacy claim to proceed against Defendant Stone in his individual capacity. The Court will

also allow Plaintiff to amend his failure-to-treat claims brought against Defendant “RN Kendra”
in her individual capacity. All other claims and Defendants will be dismissed from this action.
I. SUMMARY OF CLAIMS
In his complaint, Plaintiff identifies nine Defendants. The nine Defendants are identified
by Plaintiff as follows: (1) Jason Pfeil, Assistant Public Advocate with the Department of Public
Advocacy; (2) Tina McFarland, Supervisor at the Department of Public Advocacy; (3) William I.
Markwell, the “Head Prosecutor” with the Commonwealth’s Attorney’s Office; (4) Kurt R.
Denton, “Assistant Prosecutor” with the Commonwealth’s Attorney’s Office; (5) Amy Brady,
the Jailer at HCDC; (6) Leslie Gibson, a Colonel at HCDC; (7) Deputy Stone, a Deputy at
HCDC; (8) “RN Kendra,” the “Head Nurse in Charge” at HCDC but employed by Southern
Health Partners; and (9) Southern Health Partners (SHP). All Defendants are sued in their
individual and official capacities. As relief, Plaintiff seeks compensatory and punitive damages.
He also requests “unconditional release/sentenced overturned.”
On or about May 8, 2017, Plaintiff entered a guilty plea to a Class D felony charge of
criminal in possession of a forged instrument in Henderson Circuit Court. Plaintiff states that he
thought the plea agreement called for 30 days incarceration and 3 years shock probation.
According to Plaintiff, Defendant Pfeil represented to him that he would receive “(30) day’s
more in jail and being released on June 7, 2017 to start [his] (3) year’s shock probation.”
Plaintiff states that his attorney in the criminal case, Defendant Pfeil, lied to him about the plea
agreement. Plaintiff states that the plea agreement was altered after he signed it. Plaintiff states
that the “shock agreement was altered by the prosecution, and [Defendant] Pfeil never told
[Plaintiff] anything about any type of special conditions to be released on shock probation.”
Plaintiff states that he never agreed to pay $2,850.00 restitution before he could be released on

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shock probation, and Defendant Pfeil “never told [him] that restitution had to be paid for [him] to
be released on shock probation.” According to Plaintiff, this “sentence of pay or stay is unlawful
and wrong.” Plaintiff further states that “[n]o one has ever heard of anyone having to pay
restitution to get out on probation or find a job from jail to be released on shock probation.”
Further, Plaintiff states that Defendant Pfeil “also failed to disclose the term’s and conditions of
shock probation, that, Plaintiff would have to serve (5) year’s on probation instead of (3) year’s
that [Plaintiff] agreed to.” Plaintiff states that Defendant Pfeil “failed to make a reasonable
investigation that is reasonably necessary for Plaintiff’s defense.” According to Plaintiff,
Defendant Pfeil failed to get a witness statement from a witness who could show that the check
had been cleared to be cashed, and he failed to “retrieve emails that shows that [Plaintiff] was
mailed the check from a third party asking for money.” Plaintiff states that the evidence would
have shown that he was not aware of the check being fraudulent and “was not trying to deceive
the bank, but protect us both from this happening.” Plaintiff states that he “did not know that the
check was fraudulent due to two banks clearing it.” Plaintiff states that he “should have never
been charged with a criminal in possession of a forged instrument 2nd degree (identity). On the
police report it’s a 3rd degree offence, which [Plaintiff’s] attorney told [him] that’s what it was
up until the day of [Plaintiff’s] sentencing on May 8, 2017.” Plaintiff states that the result of
Defendant Pfeil’s actions “was a greater punishment [than] Plaintiff . . . was told he was agreeing
too, and resulted in a violation of [Plaintiff’s] substantial rights.”
Plaintiff asserts that Defendant Pfeil provided him ineffective assistance of counsel in
violation of the Sixth Amendment, was negligent in his representation of Plaintiff, induced
Plaintiff to plead guilty, and deceived Plaintiff. Plaintiff states that Defendant Pfeil “stated that
the prosecution is racist and a d**k, that if [Plaintiff] did not sign the plea agreement that he

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would use cruel and unusual punishment against me at trial and would impose a excessive
sentence on me.” According to Plaintiff, Defendant Pfeil’s “errors were so serious as to deprive
me of a fair trial and fair plea agreement.” Plaintiff questions how his attorney, Defendant Pfeil,
could “allow the Commonwealth prosecutor to scratch out a sentence on a agreement and write
one in without [Plaintiff] knowing about the altered plea before [Plaintiff] signed it.” Plaintiff
alleges that Defendant Pfeil conspired against him “and allowed the original plea to be altered.”
According to Plaintiff, Defendant Pfeil “conspired with the prosecution by allowing the plea
offer to be altered and failed to tell his client.”
Plaintiff states that the prosecution failed to uphold “its bargain” which violated
Plaintiff’s due process rights. Plaintiff states that the prosecution altered the plea agreement. He
further states that Defendant Markwell refused to release Plaintiff on his June 7, 2017, release
date “locking [Plaintiff] into an altered shock agreement that [Plaintiff] never saw or was told
about by [his] court appointed lawyer [Defendant] Pfeil until after, [Plaintiff] signed [the] plea
agreement.”
According to Plaintiff, on August 7, 2017, the following occurred:
[Plaintiff] was in court due to writing many letters and hand written motions to
get this matter settled. [Plaintiff] also offered to pay $500 towards [his]
restitution that day if the prosecution would honor the shock agreement and
release [him]. [He] was told by [Defendant] Markwell that they would take the
$500.00 towards [Plaintiff’s] restitution, but [Plaintiff] need[ed] to find a job from
jail before he would release [Plaintiff]. Again harsh stipulation were enforced
that anyone knows can’t be done. How can anyone find a job while sitting in a
jail cell? Again, [Plaintiff] was refused release and [his] attorney Heather Hotson
was unable to get [Defendant] Markwell to release [Plaintiff] on shock probation.
Plaintiff states that he asked Defendant Markwell “to give [him] the same chance that he
was giving to everyone else who was receiving shock probation, and to be treated with the same
fairness that he was giving to a certain group of people who is not the same color as me, but yet

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their charges was much worse.” Plaintiff asserts that he is “being treated differently than
everyone else receiving shock probation.” According to Plaintiff, on December 20, 2017, his
attorney Margret Ivie tried to “get [him] released.” Plaintiff states that at that time, his mother
agreed to pay $700.00 to get him released, but Defendant Markwell would not release him.
Plaintiff states that “Mrs. Ivie stated that [Defendant] Markwell gave her several reasons that
don’t make sense to why he will not agree to release [Plaintiff].” Plaintiff states that “if you take
a look into everyone else from Henderson, Evansville, and surrounding area’s you would see that
[Defendant] Markwell is not holding anyone else in jail over a restitution payment. He is
actually letting people out with worse charges than [Plaintiff].”
As to his plea agreement and failure to be released on June 7, 2017, Plaintiff asserts
claims under 42 U.S.C. § 1981; 42 U.S.C. § 1983; Sections 2, 3, 4, 7, 10, and 11 of the Kentucky
Constitution; and the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution.
Plaintiff states that on the date he was supposed to be released, Deputy Carter “abused his
authority during count instead of seeing the tears in [Plaintiff’s] eyes from being denied release
and chose to write [Plaintiff] up instead of to try to help [Plaintiff] getting [him] kicked out of the
Life Changing Program.” Plaintiff states he was again written up on July 22, 2017. According
to Plaintiff, some inmates threatened to do bodily harm to him and “stole a nice amount of stuff
from [Plaintiff] while the Deputies had [Plaintiff] sitting up in booking. With them threatening
[Plaintiff’s] safety the jail staff should have removed them from the gym not [Plaintiff].”
Plaintiff states that he talked to Defendant Stone about his stuff being stolen and “kept trying to
explain [his] side of things.” According to Plaintiff, while his hands were behind his back,
Defendant Stone struck him and put him into a “chock forcing [Plaintiff] down the hall while

5

[Plaintiff’s] pants was all the way down exposing [his] privates to female staff and others.”
Plaintiff states that all he “ever wanted was fair treatment like everyone else! Now the jail has
refused [Plaintiff] to work and earn good time. . . . They claim it is due to medical reasons.”
Plaintiff states that he was asked by Deputy Cradock, “[h]ow do [you] expect Southern Health
Partners to release [you] to work when [you] keep putting in sick calls.”
Plaintiff states that he is sleeping on the floor where he has “been for most of the time
here with bugs craweling on [him].” Plaintiff also states that “the health providers here Southern
Health Partners [are] denying [him] medical services, refusing to check [his] blood pressure,
refusing to check [his] blood sugar, and failing to obtain [his] medical records, so [he] could take
all the proper medication and dosages that [he] need[s].”
Plaintiff states that he has been threatened by Defendant Gibson “to be thrown in the seg
until [Plaintiff] leave[s] for expressing [his] concerns about mistreatment by her staff.” Plaintiff
further states that on September 6, 2017, he was “taken to traffic court about [his] fines.”
Plaintiff states that he told the judge in traffic court all about the wrong that was being done to
him regarding his May 8, 2017, plea agreement. According to Plaintiff, when he returned to
HCDC he was never given lunch that day.
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 v. Wrigglesworth, 114 F.3d at 608.

6

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] 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 v. M & G Polymers, USA, LLC, 561 F.3d at 488 (quoting Columbia Nat.
Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). The court’s duty “does not require [it]
to conjure up unpled allegations,” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979), or to create
a claim for a 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).

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III. ANALYSIS
A. Claims against Defendants Pfeil, McFarland, Markwell, and Denton
Plaintiff alleges numerous constitutional violations and improprieties associated with his
May 8, 2017, guilty plea entered in Henderson Circuit Court. Plaintiff alleges that his legal
counsel was ineffective, negligent, deceived Plaintiff, altered the plea agreement without
Plaintiff’s consent, denied him a fair trial, improperly induced him to sign the plea agreement,
and conspired with the prosecutor. Plaintiff further alleges that the prosecutor failed to uphold
his end of the bargain, violated Plaintiff’s due process rights, treated Plaintiff differently than
others receiving shock probation, altered the plea agreement after Plaintiff signed it, and wrongly
refused to release Plaintiff. Plaintiff seeks monetary damages for these alleged violations and
“unconditional release/sentenced overturned.”
Under the Heck doctrine:
[I]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination,
or called into question by a federal court’s issuance of a writ of habeas corpus,
28 U.S.C. § 2254.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Later, in Wilkinson v. Dotson, 544 U.S. 74,
81-82 (2005), the Supreme Court reemphasized that “a state prisoner’s § 1983 action is barred
(absent prior invalidation)-no matter the relief sought (damages or equitable relief), no matter the
target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings)-if
success in that action would necessarily demonstrate the invalidity of confinement or its
duration.”

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As to the claims against Defendants Pfeil, McFarland, Markwell, and Denton, the
prosecutors and defense counsel associated with Plaintiff’s plea agreement, success as to the
claims against them would necessarily demonstrate the invalidity of Plaintiff’s confinement or its
duration. Thus, the claims against them are barred by Heck.
Furthermore, to the extent Plaintiff seeks to have his guilty plea “overturned,” he must
seek such relief through a writ of habeas corpus. “[W]hen a state prisoner is challenging the very
fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is
entitled to immediate release or a speedier release from that imprisonment, his sole federal
remedy is a writ of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). A finding
that these Defendants violated Plaintiff’s constitutional rights in the manner he alleges would
result in Plaintiff’s immediate or speedier release; thus, Plaintiff’s sole remedy for these claims is
a writ of habeas corpus.
Accordingly, Defendants Pfeil, McFarland, Markwell, and Denton and the claims against
them will be dismissed from this action.
B. Defendant Brady
Plaintiff names Amy Brady as a Defendant in this action. However, Plaintiff makes no
allegations against her in his complaint or amendments. He does identify her as the Jailer at
HCDC; thus, he may be seeking to assert claims against her in her supervisory capacity over the
other HCDC employee Defendants.
“It is axiomatic that a complaint under 42 U.S.C. § 1983 must show a causal connection
between the named defendants and the alleged constitutional deprivation; the doctrine of
respondeat superior has no application thereunder.” Cox v. Barksdale, No. 86-5553,

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1986 WL 18435, at *1 (6th Cir. Nov. 13, 1986) (citing Bellamy v. Bradley, 729 F.2d 416, 421
(6th Cir. 1984); Dunn v. Tennessee, 697 F.2d 121, 128 (6th Cir. 1982)). Under 42 U.S.C.
§ 1983, “[g]overnment officials may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal, 556 U.S. at 676; see
also Bellamy v. Bradley,729 F.2d at 421 (“Section 1983 liability will not be imposed solely upon
the basis of respondeat superior.”). Rather, a plaintiff must “plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.” Id.
Thus, for supervisors to be held liable under § 1983, they must have had personal involvement in
the alleged unconstitutional conduct in order to be held liable for the conduct about which a
plaintiff complains. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). “Where a complaint
alleges no specific act or conduct on the part of the defendant and the complaint is silent as to the
defendant except for his name appearing in the caption, the complaint is properly dismissed,
even under the liberal construction to be given pro se complaints.” Potter v. Clark, 497 F.2d
1206, 1207 (7th Cir. 1974); see also LeMasters v. Fabian, No. 09-702 DSD/AJB, 2009 WL
1405176, at *2 (D. Minn. May 18, 2009) (“To state an actionable civil rights claim against a
government official or entity, a complaint must include specific factual allegations showing how
that particular party’s own personal acts or omissions directly caused a violation of the plaintiff’s
constitutional rights.”) (emphasis in original).
Since Plaintiff has not set forth any allegations as to Defendant Brady, she will be
dismissed from this action.
C. Claim against Defendant Gibson
Plaintiff states that Defendant Gibson threatened to put Plaintiff in segregation if Plaintiff
did not stop “expressing [his] concern about mistreatment by her staff.” Although reprehensible

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and not condoned, verbal abuse, harassment, and threats are insufficient to state a constitutional
violation under § 1983. See Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987); see also Wingo v.
Tenn. Dep’t of Corr., 499 F. App’x 453, 455 (6th Cir. 2012) (“Verbal harassment or idle threats
by a state actor do not create a constitutional violation and are insufficient to support a section
1983 claim for relief.”); Johnson v. Unknown Dellatifa, 357 F.3d 539, 546 (6th Cir. 2004)
(noting that “harassment and verbal abuse . . . do not constitute the type of infliction of pain that
the Eighth Amendment prohibits”); Violett v. Reynolds, 76 F. App’x 24, 27 (6th Cir. 2003)
(“[V]erbal abuse and harassment do not constitute punishment that would support an Eighth
Amendment claim.”); Clark v. Turner, No. 96-3265, 1996 WL 721798, at *2 (6th Cir.
Dec. 13, 1996) (“Verbal harassment or idle threats are generally not sufficient to constitute an
invasion of an inmate’s constitutional rights.”).
Accordingly, Defendant Gibson and the claim against her will be dismissed.
D. Conditions-of-Confinement Claim
In Plaintiff’s complaint, he states that he is sleeping on the floor where he has “been for
most of the time here with bugs craweling on [him].” Pursuant to the Prison Litigation Reform
Act (PLRA), 42 U.S.C. § 1997e(e), “[n]o Federal civil action may be brought by a prisoner
confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered
while in custody without a prior showing of physical injury or the commission of a sexual act.”
The Sixth Circuit has repeatedly found Eighth Amendment claims for monetary relief precluded
by 42 U.S.C. § 1997e(e) absent a showing of physical injury. See Jennings v. Weberg, No. 2:06CV-235, 2007 WL 80875, at *3 (W.D. Mich. Jan. 8, 2007) (collecting cases); see also Powell v.
Washington, No. 17-1262, 2017 WL 6422354, at *5 (6th Cir. Dec. 18, 2017) (finding that the
plaintiff could not recover damages for alleged psychological injury he suffered due to being

11

confined in administrative segregation since he did not allege any physical injury from his
detention); Jennings v. Mitchell, 93 F. App’x 723, 725 (6th Cir. 2004) (finding that plaintiff’s
claim that he was uncomfortable after being sprayed with pepper spray was precluded by
42 U.S.C. § 1997e(e) since he failed to show more than a de minimis injury); Adams v.
Rockafellow, 66 F. App’x 584, 586 (6th Cir. 2003) (affirming the district court’s grant of
summary judgment in favor of defendant since plaintiff failed to allege any physical injury
arising out of the strip searches about which he complained); Robinson v. Corr. Corp. of Am.,
14 F. App’x 382, 383 (6th Cir. 2001) (affirming dismissal of claims for “emotional distress,
embarrassment, humiliation, and itching” since plaintiff “suffered at most only de minimis
physical injury”); Pryor v. Cox, No. 97-3912, 1999 WL 1253040, at *1 (6th Cir. Dec. 13, 1999)
(finding plaintiff’s claim of being subjected to bad food, unsanitary conditions, and excessive
heat without also claiming he had suffered any physical injury as a result of these conditions was
meritless).
Plaintiff has not alleged the commission of a sexual act. He has also not alleged any
physical injury in connection with sleeping on the floor. Accordingly, Plaintiff’s conditions-ofconfinement claim will be dismissed.
E. Claims against Defendant Stone
According to Plaintiff, some inmates threatened to do bodily harm to him and “stole a
nice amount of stuff from [him] while the Deputies had [Plaintiff] sitting up in booking. With
them threatening [Plaintiff’s] safety the jail staff should have removed them from the gym not
[Plaintiff].” Plaintiff states that he talked to Defendant Stone about his stuff being stolen and
“kept trying to explain [his] side of things.” According to Plaintiff, while his hands were behind
his back, Defendant Stone struck him and put him into a “chock forcing [Plaintiff] down the hall

12

while [Plaintiff’s] pants was all the way down exposing [his] privates to female staff and others.”
The Court construes the complaint and amendments as alleging an excessive-force claim and a
bodily-privacy claim against Defendant Stone.
1. Official-Capacity Claims
“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. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690 n.55 (1978)).
Plaintiff’s official-capacity claims against Defendant Stone are actually against his employer,
Henderson County. Id. at 166; see also Lambert v. Hartman, 517 F.3d 433, 439-40 (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). Regarding the second issue, 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 v. Dep’t of Soc.
Servs. of N.Y., 436 U.S. at 694; Deaton v. Montgomery Cty., Ohio, 989 F.2d 885, 889 (6th Cir.
1993). The Court will first address the second issue, i.e., whether Henderson County is
responsible for the alleged constitutional violations.
“[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 v. Dep’t of Soc. Servs. of N.Y., 436 U.S. at 691; see also Searcy v. City of Dayton,

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38 F.3d 282, 286 (6th Cir. 1994) (“A municipality may be held liable under § 1983 if the
municipality itself caused the constitutional deprivation.”). “The ‘official policy’ requirement
was intended 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.” Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986). “[A] plaintiff must
‘identify the policy, connect the policy to the [municipality] itself and show that the particular
injury was incurred because of the execution of that policy.’” Garner v. Memphis Police Dep’t,
8 F.3d 358, 364 (6th Cir. 1993) (quoting Coogan v. City of Wixom, 820 F.2d 170, 176 (6th Cir.
1987), overruled on other grounds by Frantz v. Vill. of Bradford, 245 F.3d 869 (6th Cir. 2001)).
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 at 286 (quoting Polk Cty. v. Dodson, 454 U.S. 312, 326 (1981) (citation omitted)).
In the instant case, Plaintiff has not alleged that a municipal policy or custom of
Henderson County caused his alleged harm. As nothing in the complaint demonstrates that any
purported wrongdoing occurred as a result of a policy or custom implemented or endorsed by
Henderson County, the complaint fails to establish a basis of liability against Henderson County,
and it fails to state a cognizable § 1983 claim.
Accordingly, the claims brought against Defendant Stone in his official capacity will be
dismissed.
2. Individual-Capacity Claims
Upon consideration, the Court will allow an excessive-force claim and a bodily-privacy
claim to proceed against Defendant Stone in his individual capacity.

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F. Failure-to-Treat Claims against Defendants “RN Kendra” and SHP
Plaintiff represents that he has a blood pressure problem and type 2 diabetes. Plaintiff
states that “the health providers here Southern Health Partners [are] denying [him] medical
services, refusing to check [Plaintiff’s] blood pressure, refusing to check [Plaintiff’s] blood
sugar, and failing to obtain [his] medical records, so [Plaintiff] could take all the proper
medication and dosages that [he] need[s].”
1. Claims against SHP and the Official-Capacity Claims against “RN Kendra”
Plaintiff sues SHP. He also sues Defendant “RN Kendra” in her official capacity, which
is the equivalent of suing SHP itself. Kentucky v. Graham, 473 U.S. 159, 165 (1985). “The
Sixth Circuit has held that the analysis that applies to a § 1983 claim against a municipality
applies to a § 1983 claim against a private corporation such as Southern Health Partners.”
Detwiler v. S. Health Partners, No. 3:16-cv-P343-DJH, 2016 WL 4083465, at *2 (W.D. Ky.
Aug. 1, 2016) (citing Street v. Corr. Corp. of Am., 102 F.3d 810, 818 (6th Cir. 1996)). SHP
cannot be held liable on a respondeat superior basis for the actions of its employees. Starcher v.
Corr. Med. Sys., Inc., 7 F. App’x 459, 465 (6th Cir. 2001); Ruley v. S. Health Partners, No. 4:10CV-P34-M, 2011 WL 2214998, at *4 (W.D. Ky. June 6, 2011). A private corporation such as
SHP is liable under § 1983 only when an official policy or custom of the corporation causes the
alleged deprivation of the constitutional right. See Street v. Corr. Corp. of Am., 102 F.3d at 817.
As previously stated, “a plaintiff must ‘identify the policy, connect the policy to the
[municipality] itself and show that the particular injury was incurred because of the execution of
that policy.’” Garner v. Memphis Police Dep’t, 8 F.3d at 364 (quoting Coogan v. City of Wixom,
820 F.2d at 176). 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

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of Dayton, 38 F.3d at 286 (quoting Polk Cty. v. Dodson, 454 U.S. at 326 (citation omitted)).
“The ‘official policy’ requirement was intended 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.” Pembaur v. Cincinnati,
475 U.S. at 479.
Plaintiff makes no allegation that the alleged constitutional deprivation resulted from a
policy or custom of SHP. Consequently, Plaintiff fails to state a claim against SHP, and SHP
and the official-capacity claims against Defendant “RN Kendra” will be dismissed.
2. Individual-Capacity Claims against Defendant “RN Kendra”
Plaintiff states that “the health providers here Southern Health Partners [are] denying
[him] medical services, refusing to check [Plaintiff’s] blood pressure, refusing to check
[Plaintiff’s] blood sugar, and failing to obtain [his] medical records, so [Plaintiff] could take all
the proper medication and dosages that [he] need[s].” Plaintiff’s allegations as to his lack of
medical treatment are broad and conclusory. It is unclear what specific role, if any, Defendant
“RN Kendra” played in the alleged refusals to treat Plaintiff and when the refusals took place.
“[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.” LaFountain v. Harry,
716 F.3d 944, 951 (6th Cir. 2013). Rather than dismissing the failure-to-treat claims and
Defendant “RN Kendra” at this time, the Court will give Plaintiff an opportunity to file an
amendment regarding these matters.

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IV. ORDER
For the foregoing reasons, IT IS ORDERED as follows:
(1) Defendants Pfeil, McFarland, Markwell, and Denton and the claims against them are
DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief
may be granted;
(2) Defendant Brady is DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1) for failure to
state a claim against her upon which relief may be granted;
(3) Defendant Gibson and the claim against her are DISMISSED pursuant to 28 U.S.C.
§ 1915A(b)(1) for failure to state a claim upon which relief may be granted;
(4) Plaintiff’s conditions-of-confinement claim is DISMISSED pursuant to 28 U.S.C.
§ 1915A(b)(1) for failure to state a claim upon which relief may be granted;
(5) The official-capacity claims against Defendant Stone are DISMISSED pursuant to
28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be granted; and
(6) The failure-to-treat claim against SHP and “RN Kendra” in her 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.
The Clerk of Court is DIRECTED to terminate Defendants Pfeil, McFarland,
Markwell, Denton, Brady, Gibson, and Southern Health Partners as Defendants from the docket
of this action. The Clerk of Court is further DIRECTED to send Plaintiff the form for filing a
habeas action pursuant to 28 U.S.C. § 2254, in the event he chooses to file such an action.
IT IS ORDERED that an excessive-force claim and a bodily-privacy claim will proceed
against Defendant Stone in his individual capacity.

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IT IS FURTHER ORDERED that within 30 days of entry of this Order, Plaintiff may
amend his complaint to set forth more specific facts regarding his failure-to-treat claims
specifically describing the action or inaction taken by Defendant “RN Kendra” or any other
person he claims denied him medical treatment. Any new Defendants must be sued in their
individual capacities. The Clerk of Court is DIRECTED to send to Plaintiff a 42 U.S.C.
§ 1983 complaint form with this case number and the word “AMENDED” affixed thereto for
Plaintiff’s use should he wish to amend the complaint. Once received, the Court will perform
screening of the amended complaint.
Should Plaintiff file no amended complaint within 30 days, the Court will enter an
order dismissing “RN Kendra” and the failure-to-treat claims for the reasons stated herein.
Date:

March 22, 2018

cc:

Plaintiff, pro se
Defendants
4414.003

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