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Smith v. Marcum

United States District Court, W.D. Kentucky, Bowling Green

February 14, 2014

HACK MARCUM et al. Defendants


THOMAS L. LUDINGTON, District Judge.

Plaintiff, William Brian Smith, filed a pro se, in forma pauperis 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), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). For the reasons set forth below, the action will be dismissed in part and allowed to proceed in part.


Plaintiff, who was incarcerated as a pretrial detainee at the Taylor County Detention Center (TCDC) at the pertinent time, names as Defendants TCDC Jailer Hack Marcum and TCDC Nurse Cynthia. He sues Defendant Marcum in his individual and official capacity and sues Defendant Cynthia in her individual capacity. Plaintiff alleges that on July 17, 2013, he noticed swelling and minor pain below his left nostril. He states that Defendant Cynthia looked at it and diagnosed the condition as an ingrown hair. He states that the next day his face was swollen and painful and that on July 20, 2013, the swelling had increased, his nostril was swollen closed, and he had intense pain. He states that Defendant Cynthia again diagnosed an ingrown hair and did not prescribe any medicine. Plaintiff states that during a conversation with Defendant Cynthia two days later he suggested that he might have a staph infection and maybe should go to the hospital. According to Plaintiff, she stated, "We don't send people to the hospital for an ingrown hair, '" but she did prescribe antibiotics for the infection.

Plaintiff states that on the next day his wife came to take him to a previously scheduled appointment at a clinic for lumbar injections. He states that on this day his face was so swollen his wife hardly recognized him and that the doctor hesitated to do the lumbar injections due to the infection and swelling. The doctor did do the procedure but afterwards wanted Plaintiff to go to the hospital to evaluate his nostril. Plaintiff went to the Taylor Regional Hospital where, after being evaluated in the ER, he was admitted to the hospital. He states that the next day, July 24, 2014, an ENT doctor performed an incision and drainage of the nostril and washed out the infection in the operating room; "at that point, a penrose drain was placed in the left nostril and Plaintiff was continued on I.V. antibiotics and morphine for pain. Pathology report confirmed MRSA."

Plaintiff states that when he came out of surgery his oxygen level dropped dangerously low and he was placed on oxygen. He was released from the hospital on the next day, provided with peroxide and ointment, instructed to clean the surgical area at least twice daily, and prescribed clindamycin and ibuprofen. He states that after arriving back at TCDC he "was seen by Defendant Cynthia who took the peroxide and had brief discussion about the surgical area being cleaned twice daily." He states that he was released from TCDC to home incarceration on July 31, 2013. He states that his surgical area was only cleaned one time between July 25 and July 31, when he was sent home.

Plaintiff alleges that "Defendant Marcum was required to monitor medical personnel; implement proper procedures; ensure that TCDC inmate[s] receive prompt, efficient medical care, and ensure that medical personnel are qualified to render efficient medical care and treatment, which he has failed to do." Plaintiff also alleges that Defendant Marcum ignored complaints that inmates are not receiving necessary medical treatment. He alleges that, as a direct result of Defendants' deliberate indifference, his medical condition turned into a serious condition requiring anesthesia and surgery, which resulted in a life-threatening condition when his oxygen level dropped dangerously low. Plaintiff asks for compensatory, punitive, and injunctive relief.


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 construe pro se pleadings, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam), to avoid dismissal, a complaint must include "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Claim for injunctive relief

Plaintiff's request for injunctive relief is moot because he is no longer incarcerated at TCDC. See Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996).

Official-capacity claim against Defendant Marcum

If an action is brought against an official of a governmental entity in his official capacity, the suit should be construed as brought against the governmental entity. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). Therefore, in the case at bar, Plaintiff's claim against Defendant Marcum in his official capacity is actually brought against his employer, Taylor County. See Lambert v. Hartman, 517 F.3d 433, 439-40 (6th Cir. 2008).

When a § 1983 claim is made against a municipality, like Taylor County, a court must analyze two distinct issues: (1) whether the plaintiff's harm was caused by a constitutional violation; and (2) if so, whether the municipality is responsible for that violation. Collins v. City of Harker Heights, ...

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