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Dewald v. McCallister

United States District Court, Sixth Circuit

June 27, 2013

DAVID E. DEWALD, II Plaintiff,
v.
CAPTAIN McCALLISTER et al., Defendants.

MEMORANDUM OPINION AND ORDER

JOSEPH H. McKINLEY, Jr., Chief District Judge.

Plaintiff, David E. Dewald, II, filed a pro se complaint pursuant to 42 U.S.C. § 1983. 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). For the reasons set forth below, the action will be dismissed.

I. SUMMARY OF CLAIMS

Plaintiff, who was incarcerated at the Henderson County Detention Center (HCDC) when he filed his complaint, names as Defendants HCDC Captain McCallister; federal inmate Kincade; the HCDC; the Federal Bureau of Prisons (BOP); and Southern Health Partners. In his original complaint, Plaintiff alleges in his first claim that he suffered wrongful administrative segregation and denial of access to the phone and his attorney. He states that when he was transferred to HCDC he was moved to the sex-offender protective custody pod but then "written out" of the pod with no reason given and moved to a pod where inmates dress in red jumpsuits. For about a month he and another inmate wrote "numerous grievances asking Captain McCallister and the colonel why POD 120 was a maximum security violent sex offender POD." Plaintiff wanted to know the Department of Corrections's policy that governed the way the pod was set up, why they wore different colors than the other two sex-offender pods, and why they were "locked down for most of the day based on the guards preference and the other two PODS weren't locked down at all" or restricted in their access to a phone or attorney.

Plaintiff's second claim is that he was assaulted by a federal inmate and his right to press charges was denied. Specifically, he alleges that on July 11, 2012, Captain McCallister combined several pods. Plaintiff ended up with 10 or 15 inmates in a 10-man pod. He states that a Spanish inmate said something he could not hear, to which he responded "watsup?'" At that point, federal inmate Kincade called him a "retard, '" to which Plaintiff said that they were all "retards'" for being in there. Kincade told Plaintiff that if he did not shut up he "was gonna kick my ass.'" Plaintiff said:

"I don't have to shut up, " so Kincade assaulted me 30-50 times. After Kincaid was done assaulting me he threatened to "kill me" that's when I got the attention of Deputy Overtone. I told her I was assaulted and I wanted to press assault charges on federal inmate Kincaid. I was taken to visitors holding #104 where Sergent Sharp took pictures and asked me what happened.

Plaintiff's third claim alleges that he received improper medical care. Specifically, he alleges:

I was taken to medical where the nurse checked my cuts. I said I wanted to go to the hospital[. N]urse said it wasn't that bad. She checked my injuries. I had cuts and bruises. I wasn't seen by medical after that for a check up on my injuries to make sure I was ok. I also had to have my red jumpsuit washed because I deficated myself when I was assaulted due to my fiber medical problem because of Henderson County Detention Center's food menu has little to no fiber in it and to much flour which gave me bowel problems. The nurse is from Southern Health Partners.

In his fourth claim, Plaintiff alleges that he was wrongfully isolated. It appears that the reason for this was that the captain had witnesses who said that Plaintiff threw a punch and was not assaulted. He states that while he was in isolation he was "punished in different ways" like having a cell with no desk and no bunk, being isolated in the same pod as the inmate who assaulted him, having a cell with no mirror and not being able to turn off the light, and only being allowed to call his family or attorney on Sundays.

The complaint does not indicate in what capacity he sues Defendants or whether he is a convicted prisoner or a pretrial detainee. The Court assumes that he is a pretrial detainee because he mentions his public defender. As relief, he requests monetary damages only.

Plaintiff moves to amend his complaint (DN 7). IT IS ORDERED THAT his motion is GRANTED.[1] He does not attach a proposed amended complaint to that motion but does attach several exhibits. The first is a grievance in which Plaintiff asks if there is a library, and the response is: "will take that suggestion into consideration for further review." Other grievances involve complaints about the temperature and needing razor blades and more toilet paper. Another grievance wants to know why they do not have latex gloves for cleaning, soap to wash hands, and portable toilet lids. Other grievances ask where some of his property was and what he should do for his vision. Another complaint is illegible, and one concerns the amount of food.

A few days after filing his motion to amend, Plaintiff filed a supplement to his complaint (DN 11) which seems to contain the claims he references in his motion to amend. The confinement issues he lists are as follows: poor or inadequate recreation; inadequate law library and no legal materials; "daily schedule made for lack of sleep;" only three rolls of toilet paper in a 10-man pod; "freezing" temperatures; "hand soap and latex cleaning gloves" (presumably the lack of them); "lights being turned on" in his pod; food portions and quality; overcrowding; no bunk; "commissary sheets instead of phone order;" and "property stolen no recourse."

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 action, 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 28 U.S.C. §§ 1915A(b)(1) and (2). 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 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. When determining whether a plaintiff has stated a claim upon which relief can be granted, the court must construe the complaint in a light most favorable to Plaintiff and accept all of the factual allegations as true. Prater v. City of Burnside, Ky., 289 F.3d 417, 424 (6th Cir. 2002). While a reviewing court must liberally ...


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