United States District Court, W.D. Kentucky, Paducah Division
MEMORANDUM OPINION AND ORDER
THOMAS B. RUSSELL, Senior District Judge.
Plaintiff Dominique Brock-Butler, a prisoner proceeding pro se, in forma pauperis, filed an action under 42 U.S.C. § 1983 in which he asserts various federal and state-law claims (DN 1). This matter is before the Court for screening pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth, 114 F.3d 601, 608 (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 allow the following claims to proceed beyond initial review under § 1915A: (1) the Eighth Amendment excessive-force claim against all Defendants in their individual and official capacities; (2) the First Amendment free-exercise claim against Defendant Lamb in his individual capacity; (3) the state-law claim for assault and battery; (4) the state-law claim for gross neglect; (5) the state-law claim for negligent hiring and retention; (6) the state-law claim for intentional infliction of emotional distress; (7) the state-law claim for criminal abuse, Ky. Rev. Stat. Ann. § 508.100; (8) the state-law claim for first-degree assault, Ky. Rev. Stat. Ann. § 508.010; and (9) the state-law claim for second-degree assault, Ky. Rev. Stat. Ann. § 508.020. The state-law claims will proceed against all Defendants in their individual capacities, with the exception of the claim for negligent hiring and retention which will proceed against Defendant Parker in his individual capacity only. All of the other federal and state-law claims will be dismissed pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be granted.
I. STATEMENT OF THE CASE
Plaintiff brings this action against five Defendants: (1) Jailer Phillip Parker; (2) Chief Deputy Jimmy Lamb; (3) Sergeant Cherie Belt; (4) Deputy Michael Hammelton; and (5) Deputy Athena Abshire. Plaintiff identifies all Defendants as being employees of the Crittenden County Jail (CCJ). He sues each Defendant in his or her individual and official capacity. As relief, Plaintiff seeks monetary damages and payment of his hospital bill. He further "requests this honorable court to grant Plea of Nolo Contendere. As found under Federal Rule of Evidence 410."
According to the complaint, the events about which Plaintiff complains occurred on March 3, 2014, while he was incarcerated at the CCJ. Plaintiff is presently incarcerated at Kentucky State Penitentiary. As background, Plaintiff states that a few weeks prior to the March 3, 2014, events, his brother was shot and killed while playing basketball. According to Plaintiff, all of the Defendants were aware of the death of his brother and the distress Plaintiff was in over his brother's death. Plaintiff states that his brother's "death caused [him] to have suicidal thoughts, And Bipolar disorder, in witch [he] would spazz out on [his] Peers." Further, Plaintiff states that he has "Been Diagnosed with Depression By 7 Counties, and Perscribed to take Zoloft, And Ability."
On March 3, 2014, Plaintiff states that, without warning, and while he was standing in 3 to 6 inches of toilet water with his hands raised and facing the brick wall of an isolation cell, Defendant Hammelton sprayed him with OC spray. According to Plaintiff, Defendant Hammelton sprayed him with the OC spray because of a personal vendetta he had against Plaintiff. Plaintiff states that thereafter, "without even evaluating the situation, " Defendant Parker "shot [him] with a Taizer-gun" in the back. Plaintiff contends that Defendant Parker lacked probable cause to taze him. Plaintiff states that "[t]he High Voltage of Electric Shock caus[ed] him to fall backward And bust [his] head on concrete floor." According to Plaintiff, he fell in the toilet water that was on the floor and was rendered unconscious. Plaintiff states that he sustained a 3 to 4 inch gash to the back of his head. Thereafter, Plaintiff states that he was handcuffed, shackled, and then forced to his feet by Defendants Parker, Hammelton, and Abshire. He represents that once on his feet, he fainted and was caught by Defendants Hammelton and Parker.
According to Plaintiff, he was "practicly drug to the shower" while two Taser prongs were still stuck in his lower back. Plaintiff states that he was forced into a cold shower while fully clothed. He states that he was told if he did not get in the shower he would be tazed again, and he represents that at the time he got in the shower he was "still facing the risk of going into A seizure, or going into shock and dyeing, due to A Posible concussion." Plaintiff states that the cold water shocked his body when it came in contact with his skin. After Plaintiff got out of the shower, Defendant Parker gave Defendant Belt "the order to pull the prongs out of [his] back." According to Plaintiff, Defendant Belt "ripped [the prongs] out of [his] back, causing excruciating Pain." Plaintiff states that Defendant Belt had written him up on several occasions prior to these events. Further, Plaintiff states that Defendant Belt was not "certified in the medical field."
After the prongs were removed, Plaintiff states that Defendant Abshire "practicly snatched [him] to the side." It is at that time that Defendant Belt noticed the gash in the back of Plaintiff's head and notified Defendant Parker who concluded that Plaintiff needed "EMS treatment." According to Plaintiff, he "was forced to walk down [the] hallway, Leaving A blood trail behind [him] as we proceed[ed] toward the front of the Jail." Plaintiff states that he fainted again while walking down the hallway and was caught by Defendants Parker, Belt, and Abshire, who were dragging him to the front. According to Plaintiff, this "violates Inst. medical Emegency Procedure." He states that he was practically dragged the rest of the way to the "Property room." After arriving in the "Property room, " Plaintiff states that "[t]hey then stripped [him] out of [his] wet clothes, And offered [him] dry oranges [presumably a jumpsuit]."
Plaintiff states that due to a major snowstorm on the date these events transpired, the CCJ was forced to use "uncertified officers to apprehend him, " and this contributed to excessive force being used against him. Plaintiff states that Defendants Hammelton and Abshire were these "uncertified officers."
According to Plaintiff, he was "bleeding uncontrollably, until Paramedics Arived." Plaintiff states that he was "so out of it" when the paramedics arrived that he "could not Answer any of the questions asked by EMS." According to Plaintiff, "[t]he Paramedics considered [him] nonresponsive... [which] was caused by Short term memory loss."
Apparently Plaintiff was transported to a hospital. He states that while at the hospital, he had an MRI and a chest x-ray; he assumes these were added to his hospital bill. According to Plaintiff, he was taken to an operating room where the doctor informed him that he would need to have his head shaved in order to "get to the wound." Plaintiff represents that he is a "documented Rastaferi." As such, he is "required not to let A razor touch [his] bare skin. As it is An Abomination." Plaintiff states that he "[p]rotested several times, but was threatened by Defendant Lamb that [he would] be taized Again, so [he] had to sit there in handcuffs And shackles And Allow this Doctor to Shave [his] head." The doctor placed seven staples "to the back of [Plaintiff's] head." Plaintiff states that he "can't even begin to explain how humiliating it was to let this Dr. shave [his] head." Plaintiff states that it was a religious humiliation to have his head shaved. This "operation, " Plaintiff represents, was an hour long, painful, and brought tears to his eyes.
According to Plaintiff, when he returned to the jail he was "given no Lunch And [was] thrown right back into the Same isolation cell [where] the incident took place." He states that he was "forced to Starve untill Dinner time that night [and] was mistreated by officers for the remainder of the day." Plaintiff states that he was not given any antibiotics or pain medication to treat his injury, so he was "forced to suffer untill Doc came And Picked [him] up from the Class-D facility." Plaintiff contends that "this falls back on the nurses of the facility, who were also unqualified, who allowed [him] to suffer, after [his] visit to the Emergency Room."
Plaintiff states that the staples remained in his head for 14 days. At the time the staples were removed, Plaintiff represents that he was incarcerated in the Green River Correctional Complex (GRCC). The process of removing the staples, according to Plaintiff, was "[e]xtremely Painful" and "brought tears to [his] Eyes." According to Plaintiff, it took 2-3 weeks for Plaintiff's hair to start growing again.
Plaintiff states that while he was at GRCC, this incident was investigated, and he was not "[c]harged with Any of the Allegations that caused the Deputies to Taize [him] in the 1st place." According to Plaintiff, he was "sprayed w/OC, Taized, And rudely mishandled for no reason." Plaintiff contends that "[t]his is unfair and the Deputies responsible must be held Accountable."
Plaintiff contends that his First, Second, Fourth, Eighth, and Fourteenth Amendment rights have been violated. He also sets forth fifteen separate "counts." He sets out the counts as follows: (1) excessive force; (2) assault and battery; (3) "Monell Violations"; (4) gross neglect; (5) negligent hiring and retention; (6) intentional infliction of emotional distress; (7) misconduct; (8) humiliation; (9) pain and suffering; (10) religious humiliation; (11) malicious prosecution; (12) state-law claim for criminal abuse, Ky. Rev. Stat. Ann. § 508.100; (13) state-law claim for domestic assault, Ky. Rev. Stat. Ann. § 508.032; (14) state-law claim for second-degree assault, Ky. Rev. Stat. Ann. § 508.020; and (15) state-law claim for first-degree assault, Ky. Rev. Stat. Ann. § 508.010.
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, 90 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 the district court from its legitimate advisory role to the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
III. LEGAL ANALYSIS
A. Federal Claims