Keim v. Mazza et al

Filing 17

MEMORANDUM OPINION AND ORDER by Senior Judge Joseph H. McKinley, Jr. on 3/30/2021: For reasons set forth in the Memorandum Opinion and Order, IT IS ORDERED that the official-capacity claims for monetary damages against Defendants are DISMISSED pursu ant to 28 USC 1915A(b)(1), (2) for failure to state a claim upon which relief may be granted and for seeking monetary relief from Defendants immune from such relief. cc:Plaintiff, pro se; Defendants; General Counsel, Justice & Public Safety Cabinet, Office of Legal Counsel (EAS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
GARY KEIM

PLAINTIFF

v.

CIVIL ACTION NO. 4:20-CV-P190-JHM

KEVIN R. MAZA et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Plaintiff, Gary Keim, filed a pro se, in forma pauperis 42 U.S.C. § 1983 complaint. This
matter is before the Court for screening 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 set forth below, the action will be dismissed in part and
will be allowed to continue in part.
I. STATEMENT OF CLAIMS
Plaintiff was incarcerated at the Green River Correctional Complex (GRCC) when he
filed his complaint. He names as Defendants the following GRCC employees: Warden Kevin
R. Maza; Deputy Warden Bobby Jo Butts; and nurse practitioner Lessye Crafton. Each is sued
in their official and individual capacities.
Plaintiff states that GRCC staff retaliated against him for filing grievances and alerting
the media over GRCC’s poor response to the pandemic by moving him to Dorm 6, which is the
farthest away from “chow and canteen and my work,” even though he has COPD, asthma, a torn
“menisci” in his right knee, “ACL,” arthritis in his knee, emphysema, hypertension, morbid
obesity, and edema. He states that on June 26, 2020, he sent a letter to Defendants stating that he
could not go to the chow hall without a wheelchair and a pusher. He states that he then went
four days without eating because Defendants did not give him a wheelchair until June 30, 2020.

Plaintiff alleges that Defendants have told him that they have looked at his medical records and
that all three Defendants knew of his health issues, yet they put him in a “top rack” and a “top
walk.”
Plaintiff alleges that Defendant Crafton refuses to give him a nebulizer or medicine for
his COPD even though she knows that his COPD is disabling. He also alleges that Defendant
Crafton gave his cellmate medicine or a nebulizer even though his COPD is not as bad as
Plaintiff’s. He also alleges that other inmates have been given “ACL” surgery, but Plaintiff has
not. He alleges that these denials are both cruel and unusual punishment as well as
discrimination. He further alleges that Defendant Crafton refuses everything he asks for,
including a knee brace and to see the doctor.
As relief, Plaintiff asks for monetary and punitive damages.
II. ANALYSIS
When a prisoner initiates a civil action seeking redress from a governmental entity,
officer, or employee, the trial court must review the complaint and dismiss the complaint, or any
portion of it, if the court 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 at
604. 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

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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, 561 F.3d at 488 (quoting
Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)).
“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)).
The claims brought against Defendants in their official capacities, therefore, are deemed claims
against the Commonwealth of Kentucky. See Kentucky v. Graham, 473 U.S. at 166. State
officials sued in their official capacities for money damages are not “persons” subject to suit
under § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Additionally, the
Eleventh Amendment acts as a bar to claims for monetary damages against Defendants in their
official capacities. Kentucky v. Graham, 473 U.S. at 169. The official-capacity claims will be
dismissed for failure to state a claim upon which relief can be granted and for seeking monetary
relief from Defendants who are immune from such relief.
The Court will allow the individual-capacity claims against Defendants for alleged
retaliation, deliberate indifference to serious medical needs, and violations of his right to equal
protection to continue.
III. CONCLUSION AND ORDER
For the foregoing reasons,
IT IS ORDERED that the official-capacity claims for monetary damages against
Defendants are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1), (2) for failure to state a claim

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upon which relief may be granted and for seeking monetary relief from Defendants immune from
such relief.
The Court will enter a separate Order Regarding Service and Scheduling Order to govern
the development of the continuing claims.
Date:

March 30, 2021

cc:

Plaintiff, pro se
Defendants
General Counsel, Justice & Public Safety Cabinet, Office of Legal Counsel
4414.009

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