Velasquez v. Lewis

Filing 7

MEMORANDUM OPINION AND ORDER by Senior Judge Joseph H. McKinley, Jr. on 10/15/20: IT IS HEREBY ORDERED that Plaintiffs official-capacity claim against Defendant Lewis is 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 Order, Plaintiff may file an amended complaint. The Court will conduct an initial review of the amended complaint pursuant to 28 U.S.C. § 19 15A. Should Plaintiff fail to file an amended complaint with the above information within the allotted amount of time, this action will be dismissed pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be grante d. The Clerk of Court is DIRECTED to send Plaintiff a § 1983 complaint form with the words Amended Complaint and the instant case number. The Clerk of Court shall also send Plaintiff three blank summons forms with the instant case number. cc: Plaintiff(pro se), Deft, HCA (DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
PHILIP VELASQUEZ

PLAINTIFF

v.

CIVIL ACTION NO. 4:20-CV-P90-JHM

MIKE LEWIS

DEFENDANT

MEMORANDUM OPINION AND ORDER
This is a pro se civil-rights action brought by a pretrial detainee pursuant to 42 U.S.C.
§ 1983. The Court has granted Plaintiff Philip Velasquez leave to proceed in forma pauperis.
This matter is before the Court for screening pursuant to 28 U.S.C. § 1915A. For the reasons set
forth below, the Court will dismiss Plaintiff’s claim but provide him the opportunity to file an
amended complaint.
I.
Plaintiff is incarcerated at the Hopkins County Jail (HCJ). He brings suit against HCJ
Jailer Mike Lewis in his official capacity only. Plaintiff alleges that he has a rice allergy and that
he has reported it to unspecified jail and medical officials, but they continue to serve him rice.
Plaintiff seeks damages and injunctive relief.
The Court construes the complaint as asserting a claim for deliberate indifference to
Plaintiff’s dietary needs under the Fourteenth Amendment.1

“The Eighth Amendment provides [a convicted] inmate the right to be free from cruel and unusual punishment[,]”
while “[t]he Due Process Clause of the Fourteenth Amendment provides the same protections to pretrial detainees.”
Richmond v. Huq, 885 F.3d 928, 937 (6th Cir. 2018) (citing Richko v. Wayne Cty., 819 F.3d 907, 915 (6th Cir.
2016)).
1

II.
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 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 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] pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89
(2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, while liberal, this
standard of review does require more than the bare assertion of legal conclusions. See Columbia
Natural 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

2

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).
III.
Section 1983 creates no substantive rights but merely provides remedies for deprivations
of rights established elsewhere. Flint ex rel. Flint v. Ky. Dep’t of Corr., 270 F.3d 340, 351 (6th
Cir. 2001). Two elements are required to state a claim under § 1983. Gomez v. Toledo, 446 U.S.
635, 640 (1980). “A plaintiff must allege the violation of a right secured by the Constitution and
laws of the United States, and must show that the alleged deprivation was committed by a person
acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). “Absent either element,
a section 1983 claim will not lie.” Christy v. Randlett, 932 F.2d 502, 504 (6th Cir. 1991).
“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)).
Thus, Plaintiff’s official-capacity claim against Defendant Lewis is actually against Hopkins
County. When a § 1983 claim is made against a municipality the 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). 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, 436 U.S. at 691. Here, Plaintiff does not allege that
any alleged constitutional violation was the result of a custom or policy implemented or endorsed

3

by Hopkins County. Thus, his official-capacity claim against Defendant Lewis must be
dismissed for failure to state a claim upon which relief may be granted.
However, before dismissing this action, the Court will allow Plaintiff the opportunity to
amend the complaint to name the individuals whom he alleges caused him harm, state specific
allegations against them, and sue them in their individual capacities. See, e.g., LaFountain v.
Harry, 716 F.3d 944, 951 (6th Cir. 2013) (“[U]nder Rule 15(a) of the Federal Rules of Civil
Procedure, 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].”).
IV.
For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s official-capacity
claim against Defendant Lewis is 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 Order,
Plaintiff may file an amended complaint in which he: 1) alleges how the failure to provide him a
rice-free diet has caused him serious harm or subjected him to a substantial risk of serious harm;
2) names as Defendants the persons who allegedly denied him a rice-free diet knowing it would
cause him harm or a substantial risk of harm; 3) sues these Defendants in their individual
capacities; and 4) completes a summons form for any newly-named Defendant.2
The Court will conduct an initial review of the amended complaint pursuant to 28 U.S.C.
§ 1915A. Should Plaintiff fail to file an amended complaint with the above information

2

Regarding the completion of the summon form, Plaintiff must: (1) prepare a summons each Defendant; (2) write or
type the Defendant’s name and address on the summons in the space provided; (3) write or type Plaintiff’s name in
the space provided; (4) do not fill in any other part of the summons form and do not mail the summons to any of the
Defendants.
4

within the allotted amount of time, this action will be 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 send Plaintiff a § 1983 complaint form with the
words “Amended Complaint” and the instant case number. The Clerk of Court shall also send
Plaintiff three blank summons forms with the instant case number.
Date:

October 15, 2020

cc:

Plaintiff, pro se
Defendant
Hopkins County Attorney
4414.011

5