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McCormick v. Floyd

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

January 5, 2015

DAMON McCORMICK, Plaintiff,
v.
CPT. MEL FLOYD et al., Defendants.

MEMORANDUM OPINION AND ORDER

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

This matter is currently before the Court on initial review of Plaintiff Damon McCormick'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 (2007). For the reasons that follow, the Court will dismiss the official-capacity claims and provide Plaintiff with an opportunity to amend the complaint.

I. SUMMARY OF CLAIMS

Plaintiff is a convicted inmate currently incarcerated at the Fulton County Jail. He brings suit under 42 U.S.C. § 1983 complaining of incidents occurring during his incarceration at the Henderson County Jail (HCJ). He sues the following officials in their official capacity: HCJ Captain Mel Floyd, Nurse Lea at the HCJ and Southern Health Partners, and HCJ Colonel Mrs. Gibson.[1]

Factually, Plaintiff reports that he has been using a wheelchair for almost a year. He states that three doctors ordered the wheelchair for his use until he is able to get two total knee replacements. He claims that upon his arrival at the HCJ, Defendant Nurse Lea told him that he could not use the wheelchair and that Defendant Floyd agreed with her. Plaintiff contends that "for 2 months Nurse Lea had HCDC staff Thinking I was faking."

Specifically, Plaintiff claims as follows:

I was in #401 on the floor Sun July 6 and hurt myself trying to get up. On the 7th I asked Nurse Lea and Cpt Floyd if I could use a wheelchair to go to the handicap shower. They said no to both. That night I fell hurting myself real bad coming back from shower. Tue 8th Cpt Floyd ordered to put me in a cell with a bunk and Lea called my sister to bring me my wheelchair. I had to fall and get hurt before they let me have it.... on 7-15 Co. Johnson put me in 525 on the floor. He said he didnt care and I am staying on the floor. Lt Rollie told me the same thing. They went outside cell and was taunting me cause I was upset.... I told them to take me to the hole cause there is a bunk. They laughed and told me I was staying on the floor like it or not. Later that day I tried to get up for pill call and my knee buckled and hurt myself real bad. The Colonel told Lt Rollie to take me to the hole. Rollie told me to grab my belonging that what I didnt take was staying there. He is on camera trying to make me carry bags in my wheelchair. Putting property on my head and laughing cause Nurse Lea told them I was faking.

Plaintiff claims that the next morning, Defendant Floyd took him to "the Colonels office" [presumably Defendant Colonel Mrs. Gibson's office]; that Defendant Nurse Lea took two x-rays of Plaintiff's knees; and that Defendant Nurse Lea told the Colonel that the x-rays were negative and that Plaintiff "was faking." Plaintiff maintains that he told the Colonel to look at his medical files wherein his doctor said he needed total replacements of both knees; the Colonel, however, "said Nurse Lea's word is all she needed."

Then, claims Plaintiff, Defendant Floyd was "pushing me back to the hole and I was real mad and arguing. In 500 hall the Capt got in front of me. Grabbed my collar on both sides with his fists doubled up and short punched me in my jaw." Plaintiff states that Defendant Floyd "told me if I said another word he would jerk me out of my chair and He and his C.O.'s who were there and kick my ass cause I was faking injury the whole time." Plaintiff reports that later than same day while trying to get his mail, his knee gave out on him again. According to Plaintiff, "Nurse Lea and Cpt Floyd came to my cell. Floyd and one of his CO's picked me up held me by my arms restraining me while Nurse Lea pulls out my pants by the waist and looks down the back and then the front against my objections." Plaintiff states, "Upon leaving Cpt Floyd told me if I fell again I better not holler for help cause he would come and spray me and then taze me."

Following these incidents, Plaintiff had his sister call his five physicians, who sent records to the jail. "After the records arrived and were viewed Lea and Floyd realized what they had done and I was shipped immediately to Fulton Co."

As relief, Plaintiff seeks monetary and punitive damages.

II. STANDARD OF REVIEW

Because Plaintiff is a prisoner seeking relief against governmental entities, officers, and/or employees, this Court must review the instant action under 28 U.S.C. § 1915A. Under § 1915A, the trial court must review the complaint and dismiss the complaint, or any portion of the complaint, 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 § 1915A(b)(1), (2); McGore, 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 ...


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