United States District Court, W.D. Kentucky, Louisville Division
J. Hale, Judge.
Jorge Tamayo-Mora, a prisoner incarcerated at Kentucky State
Reformatory, filed a pro se complaint under 42
U.S.C. § 1983. The Court has granted Plaintiff leave to
proceed in forma pauperis. The complaint 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 that follow,
this action will be dismissed.
SUMMARY OF CLAIMS
names the following three Defendants in this action: (1)
Charles Wilkerson, the assistant director of Kentucky
Correctional Industries (KCI); (2) Toney Bailey, manager at KCI;
and (3) LaDonna Thompson, who Plaintiff identifies as the
Commissioner of the Kentucky Department of
Corrections. Plaintiff sues Defendants Wilkerson and
Bailey in both their individual and official capacities. He
sues Defendant Thompson in her official capacity.
to the complaint and documents attached thereto, Plaintiff
began working for KCI at Green River Correctional Complex
sometime in October 2005. Plaintiff states that he was
injured on January 7, 2013, while working at his job with KCI
at Green River Correctional Complex's Furniture Plant.
According to Plaintiff, a table saw malfunctioned, and the
“saw cut through [his] left hand from [his] ring finger
to [his] wrist nearly (4 inches) through [his] hand.”
He states that the saw caused “significant
injury” to his hand. Plaintiff states that he was not
aware the saw “was malfunctioning and improperly
maintained, ” and he states that the saw was removed
after the incident. He further states that he was not trained
in Spanish on the use of the saw.
being injured, Plaintiff was transported to the hospital
where he underwent surgery on his injured hand. Plaintiff
states that he was unable to work at his job at KCI for over
eight months. According to Corrections Industries Policy CI
Inmates shall be paid for time lost due to unavoidable
injuries suffered while performing their assigned duties in
Correctional Industries. Injuries shall be verified by a
physician. Payments to injured inmates shall not exceed
thirty (30) days unless approved in writing by the Division
Director. The maximum allowable compensation shall not exceed
six (6) months.
See DN 1-11, p. 14. Plaintiff was paid for 30 days
of the time he was unable to work. He filed a grievance
seeking to be paid for the six months. The grievance was
denied at each stage of the grievance process. Following the
Commissioner's decision on December 12, 2013, Plaintiff
filed a civil action in Franklin Circuit Court captioned
“Petition for Declaration of Rights Pursuant to KRS
Chapter 418.040.” Therein he alleged that the
respondents had denied “his due wages.” In that
action respondent's motion to dismiss was granted because
the policy only requires payment for 30 days lost time and
Plaintiff had received payment for 30 days lost time. Any
additional payment is discretionary. Plaintiff appealed that
decision to the Kentucky Court of Appeals. On July 8, 2016,
the Kentucky Court of Appeals affirmed the order of the
Franklin Circuit Court.
present action was filed with this Court on August 12, 2016.
In his complaint before this Court, Plaintiff alleges that
KCI officials “exposed [him] to serious harm and their
lack of proper training and safety resulted in the physcial
injury and [his] ability to make a living in the future, and
deliberate indifference to [his] safety.” As relief,
Plaintiff seeks monetary damages, attorney's fees and
costs, and that more training and safety measures be
STANDARD OF REVIEW
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)).
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 district 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).