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Humphrey v. Khaad

United States District Court, W.D. Kentucky, Louisville

February 13, 2014

JOSEPH PATRICK HUMPHREY, Plaintiff
v.
DR. KHAAD et al., Defendants.

MEMORANDUM OPINION

JOHN G. HEYBURN, II, District Judge.

Plaintiff, Joseph Patrick Humphrey, filed the instant pro se 42 U.S.C. § 1983 action proceeding in forma pauperis . This matter is before the Court on initial review pursuant to 28 U.S.C. § 1915A. Upon review, the Court will dismiss the action.

I.

Plaintiff was a convicted inmate at the Roederer Correctional Complex at the time of filing this lawsuit. His complaint concerns his previous incarceration at the Louisville Metro Department of Corrections (LMDC). He sues the following individuals: Drs. Khaad and Arbach, [1] whom he identifies as doctors at LMDC; Ron, whom he identifies as an LMDC nurse; Puckett, whom he identifies as an LMDC grievance counselor; Lee Zellars, whom he identifies as an LMDC "Administrator-Medical"; and Keith English, whom he identifies as an LMDC case worker. He sues each Defendant in his or her official capacity only.

Plaintiff reports that on April 23, 2013, he "visited the doctors on the 3rd floor at LMDC." He states that "the first situation I noticed upon arrival was that a Phabotamis was taking blood from another inmate." He states that Defendant Dr. Khaad asked him to leave for a minute and then an assistant told him to come back in the room. When he reentered the room, the phlebotomist was still taking blood from the other inmate. Plaintiff further states as follows:

Dr. Kaad began to proceed with my medical inquiries. There was certain things that I wished to disclose with Dr. Kadd and told him that I did not feel comfortable in front of another inmate. These actions were a violation of the United States Constitution, Amedments 14, 8 Due Process. Under my HIPA right I am supposed to been seen in private with the doctor and/or the nurse. Dr. Kadd also made it aware that he knew this was a HIPA violation. Dr. Kaad asked me to wait a moment while he spoke with the Phabotamis in private, so that he could inform her again that she needed a different room. Prior to Dr. Kaad making these admissions of this being a HIPA violation he told the other inmates that it was okay for inmates to be in the same room together. After he spoke with the Phabotmis he stated that we have the right to privacy and confidentiality. The doctor then put me in for a follow up review on 4/30/2013.

After this, Plaintiff states that he was waiting on the results of his EKG and chest x-rays and he "continued to file HSR's because the condition of my health was becoming worse, and was still not receiving proper treatment. I feel I was denied proper medical treatment and filed a grievance...." He avers the once "L.M.D.C. received the grievance I filed they did everything that they could to transfer me, in order for there to be justification in not answering my grievances. I believe that my transfer was more in retaliation than necessity." He contends that LMDC was not supposed to transfer him pursuant to a "non-transport order granted via my counsel... in court."

Plaintiff further states that, while at morning pill call on several occasions, Defendant Ron made unprofessional comments to him, such as "are you writing me love letters?'" and "the idea is to get rid of you.'" He contends that on May 16, 2013, Defendant Zellars and three non-Defendants "attempted to ask me questions about my medical issues, basically asking if I had mental issues." Plaintiff responded that he did not have mental issues. Plaintiff states that he saw Defendant Dr. Arboc who asked Plaintiff if he was having problems sleeping and that Plaintiff responded that he did have problems due to chronic pain. Defendant Arboc diagnosed Plaintiff with fibromyalgia and prescribed a generic of Ellivil, which Plaintiff states, "is a anti depressant which they say is used for other purposes as well. I believe this was done in order to make me sleep and not pursue this action I am taking now." Plaintiff contends that giving him the wrong medication was a violation of his constitutional rights. He states that he has suffered anxiety, fear, and emotional distress due to being prescribed the wrong medication.

Plaintiff also avers that Defendant English was supposed to make a copy of Plaintiff's § 1983 complaint packet concerning another facility but did not return it to Plaintiff. He states that he also asked Defendant English to contact an attorney for him but he "never heard anything back."

As relief, Plaintiff seeks compensatory and punitive damages.

II.

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, 604 (6th Cir. 1997), overruled on other grounds by Jones v. Bock , 549 U.S. 199 (2007).

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)).

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 ...


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