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Sherley v. Thompson

United States District Court, W.D. Kentucky, Owensboro Division

November 24, 2014


Frank R. Sherley, Plaintiff, Pro se, Sandy Hook, KY.

Page 657


Joseph H. McKinley, Jr., Chief United States District Judge.

This matter is currently before the Court on initial review of Plaintiff Frank R. Sherley's pro se complaint 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, 127 S.Ct. 910

Page 658

166 L.Ed.2d 798 (2007). For the reasons that follow, a portion of the claims will proceed, and the others will be dismissed.


Plaintiff, a convicted inmate currently incarcerated at the Little Sandy Correctional Complex, brings suit under 42 U.S.C. § 1983 against LaDonna Thompson, Commissioner of the Kentucky Department of Corrections, and the following officers/employees at the Green River Correctional Complex (GRCC), in their individual and official capacities: Warden Alan Brown; Unit Administrator I, Jim Yates; Unit Administrator II, Robert Jenkins; Nurse John Harkins, LPN; and the GRCC Medical Director. He also sues CorrectCare Solutions (CorrectCare), a healthcare provider at GRCC. As relief, Plaintiff seeks monetary and punitive damages.

In the complaint, Plaintiff raises three claims. First, he asserts an Eighth Amendment claim due to the conditions of his confinement. Specifically, Plaintiff reports that on July 1, 2013, the GRCC and its " Staff were made aware of a pest problem (Ants) I was having in my assigned cell, from 7-1-13 til 7-17-13 with nothing being done." He reports speaking with Defendant Yates, who said he would look into it, but because nothing became of this conversation, Plaintiff took the matter up with Defendant Jenkins. Plaintiff states that Defendant Jenkins, on July 1, 2013, told Plaintiff that " nothing could be done at the immediate time, that my request had been forwarded to fiscal Manager, David Higgs." Plaintiff advises that the problem was rectified on July 23, 2013.

Second, Plaintiff alleges that he was denied medical treatment in violation of the Eighth Amendment. He reports that on July 21, 2013, after weeks of treating himself due to ant bites, he went to sick call, and on July 24, 2013, he was seen by Defendant Nurse Harkins. Plaintiff claims, " treatment was cursory at best, I was examined at a glance, never even touched, but charged three dollars and giving a prescription to purchase Meds from canteen." He states that he told Defendant Nurse Harkins that he did not have funds in his account to cover buying the medications and that he needed to be treated " right then from itching from bites and scratching til skin was broke." According to Plaintiff, Defendant Nurse Harkins said that " due to me not being listed as indigent, he could not do anything at time and if I need further treatment, to come back when I was Indigent!" In addition to Nurse Harkins, Plaintiff states that he included the Medical Director as a Defendant " for his role as concurring with treatment" and included CorrectCare as a Defendant because " this company need to have better trained personell representing their Company."

Last, Plaintiff alleges an equal-protection claim. He states that since he had been complaining for weeks about the pest problem without relief, he asked Defendant Jenkins to move him to another cell but was refused by Defendants Jenkins and Yates, who told him " that there were not any cells open for black inmates." Plaintiff alleges, " I asked both to be moved to a non-black cell and was told by both Unit Aministrators that due to custom of Green River Correctional Complex, I was being denied because they didn't house black and non-blacks together unless each sign a contract."

Plaintiff alleges that Defendant Warden Brown " is responsible for the violation of my 8th Amendment for not correcting this misjustice in my treatment once he was made aware through grievance, knowing I was treated in this fashion" and is " in violation of my 14th Amendment for having

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and allowing polices and customs that go against the Liberty nor being denied to any person within his jurisdiction the equal protection of the law." Additionally, Plaintiff contends that Defendant Commissioner Thompson " is to be held in violation of my 8th Amendment, as to concurring with warden Alan Browns ruling on ...

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