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Herman Vires v. University of Louisville Hospital et al.

January 15, 2013

HERMAN VIRES
PLAINTIFF
v.
UNIVERSITY OF LOUISVILLE HOSPITAL ET AL.
DEFENDANTS



MEMORANDUM OPINION

Plaintiff Herman Vires filed this pro se action under 42 U.S.C. § 1983 proceeding in forma pauperis.This matter is before the Court on the initial review of the complaint pursuant to 28 U.S.C. § 1915 and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). For the reasons that follow, the Court will dismiss the action.

I.

Plaintiff is an inmate currently incarcerated at the Kentucky State Reformatory (KSR). He sues the University of Louisville Hospital (ULH), "Stroke Team John and Jane Doe(s)," Doctor John Doe, and "Pharmaceutical Company John Doe." He alleges violations of the "Fifth, Eighth and Fourteenth Amendments of the United States Constitution as well section 11 and 17 of the Kentucky Constitution stemming from negligence and denial of proper medical care . . . ." Plaintiff states that he was an inmate at the Luther Luckett Correctional Complex (LLCC). On August 8, 2011, he was taken to ULH because he was believed to have had a stroke. He was examined by Defendant Dr. John Doe, and on August 10, 2011, the "Stroke Team" performed what he believes was a trans-esophagus ultrasound "to try to determine why he was having strokes." Plaintiff states that he asked Defendant Dr. John Doe if the procedure was safe and that Defendant Doe assured Plaintiff twice that it was "completely harmless."

According to the complaint, when Plaintiff awoke from the procedure, he could not see. Defendant Dr. John Doe informed Plaintiff that his vision would return and that it was probably a side effect of the medication. However, Plaintiff's vision did not return. Plaintiff states, "The procedure that Plaintiff under went resulted in the Plaintiff losing 90 percent of his vision in his left eye." Plaintiff reports that he was already blind in his right eye as a result of a childhood accident.

As the "Grounds why the Defendants are at fault," Plaintiff states as follows: Doctor John Doe failed to fully inform me of the risk with the procedure that was performed on me and the possibility of any side effects of the procedure or the anesthetic used to sedate me for the procedure. He was further negligent when he assured me that the loss of my vision would only be temporary and failed to do any follow-up on my condition in an attempt to correct the loss of my vision or to ascertain if it was possible to save what little vision I had left thus constituting a deliberate indifference to my health and well being. The medical staff involved in my release from the hospital failed to properly discharge me from their care as to giving any consultation and instructions on my discharge.

Plaintiff further states the following: Dr. John Doe failed to follow normal procedures and inform me of any risk that might be involve with the procedure he was wanting to perform on me and the risk that was associated with the anesthetic that was use on me. The medical care and treatment by Dr. John Doe, the Stroke Team, and the Medical Staff that assisted in the short recovery from the procedure performed on me and the staff involved in my discharge were inadequate and below the prevailing norms of medical practices and constituted a deliberate indifference to my health and well being.

Plaintiff reports that after he was discharged from ULH he was transferred back to LLCC and the following day was transferred to KSR's nursing unit. He states that Defendants "have done little if nothing to attempt to correct or assist the plaintiff with the loss of his vision." Plaintiff states that after the procedure he received an exam from an optometrist's office on August 18, 2011, and received an MRI on September 19, 2011. He states a "dedicated Orbital study" was recommended but "was never followed upon." Plaintiff states that he intends to amend his complaint to sue prison officials.

As relief, Plaintiff seeks compensatory and punitive damages and injunctive relief.

II.

Upon review under 28 U.S.C. § 1915(e), a district court must dismiss a case at any time if it determines that the action 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. §§ 1915(e)(2); McGore, 114 F.3d at 608.

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 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.

A. 42 U.S.C. ...


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