Taylor v. Adams et al
Filing
64
MEMORANDUM & ORDER granting in part and denying in part 33 Motion to Amend/Correct; denying 43 Motion to assert claim for monetary damages ; granting in part and denying in part 47 Motion for Declaratory Judgment; Clerk of Court shall issue summons and USM shall serve a copy of the suppl cmp and summons on dft Bill Adams; see order for specifics. Signed by Senior Judge Thomas B. Russell on 7/25/2012. cc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CIVIL ACTION NO. 5:11CV-P164-R
MARK A. TAYLOR
PLAINTIFF
v.
BILL ADAMS et al.
DEFENDANTS
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Mark A. Taylor’s motion to amend the
complaint (DN 33), motion to assert a claim for monetary damages (DN 43), and motion for
declaratory judgment (DN 47).
Upon initial review of the complaint pursuant to 28 U.S.C. § 1915A, the Court allowed
Plaintiff’s Fourteenth Amendment deliberate indifference claims to proceed against McCracken
County for injunctive relief based on his allegations regarding unsanitary and dangerous
conditions at the McCracken County Jail (MCJ) (DN 23). However, the Court found that under
the Prison Litigation Reform Act,1 because Plaintiff did not allege a present, existing physical
injury, he could not recover compensatory damages for the emotional distress he claimed to have
suffered from the alleged conditions.
For the reasons set forth below, the Court will allow Plaintiff to amend his complaint to
add a claim for monetary damages against McCracken County for alleged unsanitary and
dangerous conditions at MCJ. The Court will deny Plaintiff’s motion for declaratory judgment.
However, the Court will construe part of the motion as a motion to supplement the complaint and
1
“No 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.” 42 U.S.C. § 1997e(e).
allow Plaintiff to add a Fourteenth Amendment deliberate indifference claim against Jailer Bill
Adams in his individual capacity for monetary damages based on Plaintiff’s alleged exposure to
paint fumes. The Court will deny Plaintiff’s motions seeking to add any other claims or
Defendants.
I.
Under Fed. R. Civ. P. 15(a), a party may amend a pleading once as a matter of course
within twenty-one days after serving the pleading or, if the pleading is one to which a responsive
pleading is required, twenty-one days after service of a responsive pleading or motion under
Rule 12(b), (e), or (f). Fed. R. Civ. P. 15(a)(1). Otherwise, “a party may amend its pleading
only with the opposing party’s written consent or the court’s leave.” The rule directs that the
“court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Moreover,
Fed. R. Civ. P. 15(d) provides, “On motion and reasonable notice, the court may, on just terms,
permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event
that happened after the date of the pleading to be supplemented.”
Because any claims must be reviewed under 28 U.S.C. § 1915A and McGore v.
Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), the Court must determine whether Plaintiff’s
proposed claims would survive initial review to decide his motions to amend the complaint.
Under § 1915A and McGore, 114 F.3d at 604, the trial court must review the complaint and
dismiss any claim that it determines 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 28 U.S.C. §§ 1915A(b)(1), (2); McGore, 114 F.3d at 604.
2
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)). “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)). “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).
Although this Court recognizes that pro se pleadings are to be held to a less stringent
standard than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520-21
(1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991), “[o]ur duty to be ‘less stringent’
with pro se complaints does not require us to conjure up unpled allegations.” McDonald v. Hall,
610 F.2d 16, 19 (1st Cir. 1979) (citation omitted). And this Court is not required to create a
claim for 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
3
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).
II.
A.
Motion for leave to amend the complaint (DN 33)
Plaintiff filed a motion for leave to amend the complaint, wherein he states that he seeks
to amend the complaint “by merely amplifying and stating additional grounds to support the
same cause of action in the original claim and to merely correct technical defects based on
defendants liability in tort . . . .” He discusses what appears to be legal authority concerning
premises liability, respondeat superior, res ipsa loquitur, intentional infliction of emotional
distress, environmental law, and injunctive relief. Plaintiff also states that he is entitled to
punitive damages.
Plaintiff further reiterates facts alleged in his original complaint concerning: “[l]ack of
oxygen, overabundance of carbon dioxide due to prolong and persistant overcrowding and a
dangerously inadequate outdated malfunctioning, disfunctioning ventilation fresh air exchanger
along with the black mold . . . .” He also avers that “other air pollutors such as the application of
industrial paint are all contributors to plaintiff’s deteriorating health, which is rapidly failing
progressively and proveable with medical examinations, blood test, toxin screens and stress test
to be compared with pre-illness test results . . . .”
In addition, Plaintiff attaches two documents to his motion to amend the complaint, both
of which he labels as “Attachment A.” In the first “Attachment A,” he states as follows:
Plantiff claims are against; McCracken County, the McCracken
County Jail, Van Newberry C.E.O of McCracken County, Bill
Adams Jailer, Tré English Jail Classification Administrator, Chip
Ashford Corrections Officer Sergeant, The Department of
4
Corrections Kentucky, D.O.C. Inspectors Sarah Hughes, Tracy
Reed, McCracken County; Fire Marshal Greg Cherry, Chief
Inspector David Flowers, Building Inspector John Colsen, Chief
Inspector General Mary R. Begly, the State of Kentucky et al are
charged in individual capacity as well as official capacity with
overcrowding of the McCracken County Jail with violations listed
but not limited to: violation of state, federal and constitutional
laws and statute and the rights of Plaintiff . . .
He also makes allegations on behalf of “involuntary Plaintiffs Jamie L. Taylor and Jasmine N.
Taylor,” whom he states are his wife and daughter and are also incarcerated at MCJ. Plaintiff
also states that “Defendants are hereby charged with defrauding the United States of America
federal government, as well as all criminal acts . . . .” Plaintiff states that he has a claim for
“punitive confinement–impermissable punishment violating due process claus depriving the
liberty of plaintiffs Mark A. Taylor by Bill Adams, Chip Ashford . . . .”
Plaintiff goes on to reiterate his allegations concerning the alleged dangerous and
unsanitary conditions of his confinement at MCJ, including overcrowding, the ventilation
system, and failure to isolate prisoners with staph infections. He further states that paint fumes
caused him injury, including brain damage. Plaintiff alleges “outrageous behavior” by
Newberry, Adams, the Department of Correction, Hughes, and Reed. He also states that “[a]ll
personal mail is opened out of the presence of inmates and the mail of many inmates is read in an
effort to screen mail. Legal mail is sometimes open when received.”
In Plaintiff’s second “Attachment A,” he states, “Plaintiff cites injury against named
tortfeasor Defendants. The specific injury of respiratory function and brain injury from exposure
to harmful unclean air environment of black mold, lack of oxygen, overabundance of carbon
dioxide . . . .” Plaintiff also alleges, “malicious evil intent by painting over black mold feces
5
blood, flem, spit, mucos with hazardous poisonous industrial enamel paint, painting plaintiff cell
with this hazardous chemical laden paint . . . .”
Defendant filed a response to the motion, in which it states that its counsel does not
believe that Plaintiff is attempting to add any new claims to his case, among other arguments,
and Plaintiff filed a reply.
To state a claim for relief, Plaintiff must show how each Defendant is accountable
because the Defendant was personally involved in the acts about which he complains. See Rizzo
v. Goode, 423 U.S. 362, 375-76 (1976). The Court is not required to accept bare legal
conclusions or “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 555, 557). Therefore, the complaint must contain either
direct or inferential allegations respecting all the material elements to sustain a recovery under
some viable legal theory. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th
Cir. 1988).
Plaintiff fails to state sufficient facts in his motion to amend and attachments to add
claims against any new Defendant. To the extent that Plaintiff cites legal authority in his motion
to amend the complaint without alleging any factual allegations against specific individuals, he
fails to state a claim upon which relief may be granted. While Plaintiff’s first “Attachment A”
states that his “claims are against” listed individuals and entities, Plaintiff wholly fails to make
any factual allegations against most of them. Plaintiff states that Adams and Ashford “violat[ed]
due process claus[e]” and alleges “outrageous behavior” by several individuals. However,
Plaintiff does not describe sufficient facts to support these claims. Moreover, with regard to
Plaintiff’s claim about inmate mail, Plaintiff does not describe any instance when his own legal
6
mail was opened outside of his presence. Therefore, Plaintiff fails to state a claim upon which
relief may be granted with respect to these claims.
Moreover, to the extent Plaintiff wishes to add criminal charges against any individual or
entity, such a claim would fail. “It is well settled that the question of whether and when
prosecution is to be instituted is within the discretion of the Attorney General.” Powell v.
Katzenbach, 359 F.2d 234, 235 (D.C. Cir. 1965). Therefore, Plaintiff cannot “charge” any
individual with any criminal charge through this civil action, nor can the Court direct that
charges be filed. See Peek v. Mitchell, 419 F.2d 575, 577-78 (6th Cir. 1970); Fleetwood v.
Thompson, 358 F. Supp. 310, 311 (N.D. Ill. 1972).
Plaintiff also seeks to state allegations on behalf of “involuntary plaintiffs Jamie L.
Taylor and Jasmine N. Taylor.” Plaintiff does not have standing to assert any claim on behalf of
another person. See, e.g., Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (“pro se”
means to appear for one’s self; thus, one person may not appear on another person’s behalf in the
other’s cause). Thus, Plaintiff fails to state a claim on behalf of any other individual.
However, to the extent that Plaintiff alleges that he incurred physical injuries due to the
conditions at MCJ and exposure to paint fumes when his cell was painted, the Court will grant
Plaintiff’s motion to amend and supplement the complaint to add these claims. Accordingly,
IT IS ORDERED that Plaintiff’s motion to amend and supplement the complaint
(DN 33) is GRANTED in part and DENIED in part. The motion is GRANTED to the extent
that Plaintiff seeks to amend and supplement the complaint to add a claim for monetary
7
damages2 against Defendant McCracken County for dangerous and unsanitary conditions at
MCJ, including exposure to paint fumes. The motion is DENIED to the extent that Plaintiff
wishes to add any other claims or parties.
B.
Motion to assert claim for monetary damages (DN 43)
Plaintiff also filed a one-paragraph motion “to assert claim for monetary damages for the
serious physical injuries, illness and mental distress suffered him by the defendants.” He states
that Defendants are “McCracken County, as a government unit, Jailer Bill Adams, McCracken
County C.E.O. Van Newberry and all Joint Tortfeasors in their individual capacity.” Defendant
filed a response, and Plaintiff filed a reply.
The Court has already allowed Plaintiff to amend his complaint to add claims against
McCracken County for monetary damages. Further, Plaintiff’s motion fails to state any factual
allegations against Adams, Newberry, or any other individual in his motion. Accordingly,
IT IS ORDERED that the motion to assert a claim for monetary damages (DN 43) is
DENIED.
C.
Motion for declaratory judgment (DN 47)
Plaintiff also filed a “motion for leave to grant declaratory judgement.” It is unclear
exactly what Plaintiff is seeking. He describes his alleged physical injuries: “decreased lung
capacity, dizziness, labored breathing, lack of stamina, weakness, headaches, lethargy.” He
states that he “was again injured on November 24, 2011 before this Courts screening order,
injured by acts of Bill Adams who exposed the plaintiff to an area with a saturated atmosphere of
2
Plaintiff will not be permitted to amend his complaint to add a claim for punitive
damages against McCracken County because punitive damages are not available against a
municipality. See Newport v. Fact Concerts, 453 U.S. 247, 268 (1981).
8
hazardous, poisonous, fumes and gases.” He further states, “Plaintiff was exposed to several
hazardous materials from the slow drying, slow curing paint that his cell was painted with.” He
states that the painting of his cell caused injury to his brain and pulmonary system and that
“[t]hese injuries are a . . . result from the direct acts of Bill Adams and all joint tortfeasors.”
Plaintiff states that he “is seeking declaratory relief by declaration of rights, as to the
rights of Plaintiff and defendants by statements of controversy as to, medical experts, medical
examinations, joinder of tortfeasors as to the undisputed facts.” He further states as follows:
conflict of interest as to the possibility of receiving a proper
unbiased medical examination and diagnosis due to the fact that
the defendants offer only minimum medical screening. One must
take into account the pending civil action of the plaintiff against
McCracken County who owns the jail and controls the medical
department.
Plaintiff further alleges “[t]he inability to obtain and utilize my family physician because I am no
longer an active patient due to the lengt of my incarceration . . . .” He also describes “rights”
which apparently he alleges are being hindered: “Plaintiff rights as to obtaining a medical
expert, as well as other experts, due to his incarceration and pauper status” and “[m]y right as far
as obtaining a second opinion due to the fact that, Dr. Greg Kingston does not specialize in any
area . . . .” He states, “Dr. Kingston admits that there are abnormalities with my blood work
results, but refuses my request to act more aggressively for the sake of my health, based on blood
test abnormalities, indicating lung damage, liver damage and malnutrition.” Plaintiff further
states the following:
With the Plantiff having a bulging collarbone, toenails splitting
against the grain, softening teeth that are gashed easily are all
easily dismissed by Dr. Kingston. I complained about an
excrutiating pain in my left arm rotator cup, shoulder blade, and
collarbone. Dr. Kingston put his hand immediately on the spot on
9
my arm and replied “we all get knotted up muscles”; This muscles
in my arm is hardened and has been for months. The combination
of all the above symptoms would alarm and prompt any physician
to investigate further. Yet, Dr. Kingston insist on following the
general schedule of all medication taking patients, who have no
indications of organ damage.
To his motion, Plaintiff attaches what appears to be a laboratory report of blood work performed
on Plaintiff. Defendant filed a response to the motion, and Plaintiff replied.
To the extent that Plaintiff seeks a declaratory judgment, Plaintiff does not state any
grounds to support entry of a declaratory judgment, and the Court does not discern any.
“[D]eclaratory relief is inappropriate to adjudicate past conduct, such as when the damages have
already accrued.” 12 James Wm. Moore et al., Moore’s Federal Practice § 57.04 (3d ed.). If
Plaintiff is attempting to obtain a medical expert or other discovery through this motion, this is
not the appropriate vehicle. The procedure for obtaining discovery is set forth in the Federal
Rules of Civil Procedure. The Court likewise does not have the authority to order that Plaintiff
get a “second opinion.”
However, because Plaintiff’s motion for declaratory judgment alleges new claims, the
Court also CONSTRUES it as a motion to supplement the complaint. The Court will allow
Plaintiff to supplement his complaint to add a claim against Adams in his individual capacity3 for
deliberate indifference based on his alleged exposure to paint fumes.
To the extent that Plaintiff is trying to bring a claim against Dr. Kingston for refusing to
treat him more aggressively, Plaintiff will not be permitted to add such a claim. “A prison
3
As discussed in the Court’s initial screening memorandum opinion and order (DN 23),
an official-capacity claim against Adams is subject to dismissal as redundant since Plaintiff has
sued Adams’s employer, McCracken County, directly. See Von Herbert v. City of St. Clair
Shores, 61 F. App’x 133, 140 (6th Cir. 2003).
10
official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the
Eighth Amendment.”4 Farmer v. Brennan, 511 U.S. 825, 828 (1994). In order for a claim to rise
to the level of an Eighth Amendment/Fourteenth Amendment violation, “a prison official must
know of and disregard an excessive risk to inmate health or safety; the official must both be
aware of the facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” Id. at 837-38.
Not every claim of inadequate medical treatment states an Eighth Amendment/Fourteenth
Amendment violation. Estelle v. Gamble, 429 U.S. 97, 105 (1976). A difference of opinion
between the inmate and the prison medical official(s) concerning diagnosis or treatment does not
constitute a constitutional violation. Id. at 107. Nor does negligent medical care constitute a
constitutional violation without deliberate indifference resulting in substantial harm. Id. at 106;
Johnson v. Leonelli, No. 99-6220, 2000 U.S. App. LEXIS 25254, 2000 WL 1434767, at *1 (6th
Cir. Sept. 19, 2000). Further, courts make a distinction between cases in which there is a
complete denial of medical care and those where the claim is one of inadequate medical
treatment. Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). “Where a prisoner has
received some medical attention and the dispute is over the adequacy of the treatment, federal
courts are generally reluctant to second guess medical judgments and to constitutionalize claims
which sound in state tort law.” Id.
4
The Eighth Amendment “was designed to protect those convicted of crimes” and does
not protect pretrial detainees. Ingraham v. Wright, 430 U.S. 651, 664 (1977). Plaintiff states
that he is a pretrial detainee. For the purposes of initial review, however, this is largely a
distinction without a difference because the Due Process Clause of the Fourteenth Amendment
provides pretrial detainees with rights analogous to those under the Eighth Amendment. See
Watkins v. City of Battle Creek, 273 F.3d 682, 685 (6th Cir. 2001).
11
Plaintiff’s allegations make clear that he has not been denied medical treatment but that
he has a difference of opinion with Dr. Kingston concerning his treatment. While he broadly
states that he has incurred liver and lung damage, he does not indicate that he has ever been
diagnosed by a doctor with such conditions. Dr. Kingston had Plaintiff undergo a battery of
blood tests, evidenced by the laboratory report Plaintiff attached to his motion. Plaintiff’s own
statements show that he is on a “general schedule of all medication taking patients.” Because
Plaintiff is receiving medical treatment and this Court does not wish to second guess this
doctor’s medical judgments, Plaintiff will not be allowed to supplement his complaint with a
claim against Dr. Kingston.
For the foregoing reasons, IT IS ORDERED that Plaintiff’s motion for a declaratory
judgment (DN 47) is GRANTED in part and DENIED in part. The motion is DENIED to the
extent Plaintiff seeks declaratory relief. However, Plaintiff’s motion to supplement the
complaint to add a claim against Jailer Adams in his individual capacity for monetary damages
for deliberate indifference based on Plaintiff’s alleged exposure to paint fumes is GRANTED.
To the extent Plaintiff seeks to add any other claims or parties, the motion is DENIED.
IT IS FURTHER ORDERED as follows:
(1)
The Clerk of Court shall prepare and issue summons, and the United States
Marshal shall serve a copy of the supplemental complaint (DN 47) and summons on
Defendant Bill Adams in accordance with Rule 4 of the Federal Rules of Civil Procedure.
A copy of the supplemental complaint and this Order shall also be served on the
McCracken County Attorney.
12
(2)
Should Plaintiff receive notice that the summons is returned to the Court
unexecuted, Plaintiff is WARNED that he must take steps to remedy the defect in service by
providing additional information to the Court. Failure to do so within 120 days of entry of this
Order may result in dismissal of this Defendant. See Fed. R. Civ. P. 4(m).
(3)
Defendant Adams’s answer to the supplemental complaint (DN 47) shall be filed
no later than 21 days after service of summons.
(4)
Defendant McCracken County’s answer to the amended and supplemental
complaint (DN 33) shall be filed no later than 21 days from the entry date of this Memorandum
and Order.
Date:
July 25, 2012
cc:
Plaintiff, pro se
Counsel of record
Defendant Bill Adams
McCracken County Attorney
4413.010
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?