United States District Court, W.D. Kentucky, Paducah Division
MICHAEL A. FORCE, Plaintiff,
DUKE PETTIT et al., Defendants.
MEMORANDUM OPINION AND ORDER
THOMAS B. RUSSELL, Senior District Judge.
Plaintiff Michael A. Force, a prisoner proceeding pro se , filed a complaint pursuant to 42 U.S.C. § 1983 (DN 1). This matter is before the Court for initial review 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 Court will dismiss the official-capacity claims for monetary damages, allow Plaintiff 30 days to amend his complaint to add a medical treatment claim, and allow the other claims to proceed as discussed below.
I. STATEMENT OF THE CASE
Plaintiff brings this action against three Defendants: (1) Duke Pettit, the Deputy Warden at Kentucky State Penitentiary [KSP]; (2) Virgil K. Hughes, a Correctional Officer at KSP; and (3) Gary Peters, also a Correctional Officer at KSP. Plaintiff indicates that he is suing Defendants in both an individual and official capacity. As relief, Plaintiff seeks monetary and punitive damages as well as injunctive and declaratory relief. The injunctive relief he seeks is an order directing he be provided medical care for his injured neck and back and directing that Defendants "[k]eep away from plaintiff and not be allowed to work where defendants could cause more harm to plaintiff or retaliate against plaintiff for bringing suit against them." As declaratory relief, Plaintiff seeks a declaratory judgment stating that Defendants violated his Eighth Amendment rights.
According to the complaint, Plaintiff was removed from his cell by Defendants Hughes and Peters on October 25, 2013, so that maintenance could repair his cell light. Plaintiff was handcuffed and shackled and then asked to stand "against the wall on the walkway straight across from his cell." According to Plaintiff, while he was standing against the wall, he "tried to ask defendant Peters a question, but defendant Peters told plaintiff to shut up." Plaintiff states that Defendant Hughes then started calling Plaintiff an "inmate Rat" and telling Plaintiff "he got him' and thats why plaintiff got his ass kicked (Defendant Hughes was implying about when he opened plaintiffs cell door and another inmates cell door at the same time on c-walk.)." According to Plaintiff, Defendant Hughes continued to put Plaintiff down so Plaintiff finally told Defendant Hughes that his wife "looks like she has Down Syndrome." Plaintiff states that Defendant Hughes again made references to Plaintiff being a "Fat rat" and told Defendant Peters "to take plaintiff down."
According to Plaintiff, thereafter a physical altercation occurred between Plaintiff and Defendants Hughes and Peters. Plaintiff states that these two Defendants jumped on him and "took him to the ground." Defendant Peters, according to Plaintiff, put Plaintiff in a choke hold and started twisting his neck causing Plaintiff not to be able to breathe. Plaintiff states that Defendant Hughes "muged and shoved his hand in plaintiffs mouth and busted plaintiffs lip, " and then he "started bending plaintiffs rest trying to brake it." According to Plaintiff, "Defendant Peters continued to choke [him] and twisted his next until Sgt. McGehee came on the walk...."
Plaintiff states that Sgt. McGehee ordered Defendants Peters and Hughes off of Plaintiff and to get off the "walk and away from plaintiff."
According to Plaintiff, he "walked to the walk shower, " and once secured in the shower area, he was seen by the nurse for his injuries. Plaintiff states that he had "blood on his hand and mouth." Plaintiff states that as a result of this physical altercation, he sustained neck and back injuries and still suffers from pain in those areas.
Plaintiff states that weeks prior to the above-described incident, he had told Defendant Pettit "that he was having problems with defendant Hughes and that defendant Hughes has threatened him numerous times." He states that he further informed Defendant Pettit that "it was his belief that defendant Hughes is out to get me.'"
Plaintiff alleges that "[t]he physical abuse of the plaintiff by defendants Hughes and Peters violated the plaintiff's rights under the Eighth Amendment to the united states consitution." As for Defendant Pettit, Plaintiff alleges that his "failure to take action to curb the physical abuse of prisoner violated the plaintiffs rights under the Eighth Amendment to the united states consitution."
II. STANDARD OF REVIEW
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 it 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. 28 U.S.C. § 1915A; McGore v. Wrigglesworth , 114 F.3d at 604. 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 trial 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. 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)). "But the district court need not accept a bare assertion of legal conclusions.'" Tackett v. M & G Polymers, USA, LLC , 561 F.3d at 488 (quoting 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 ...