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Tamayo-Mora v. Wilkerson

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

December 28, 2016

CHARLES WILKERSON et al., Defendants.


          David J. Hale, Judge.

         Plaintiff 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.


         Plaintiff names the following three Defendants in this action: (1) Charles Wilkerson, the assistant director of Kentucky Correctional Industries (KCI);[1] (2) Toney Bailey, manager at KCI; and (3) LaDonna Thompson, who Plaintiff identifies as the Commissioner of the Kentucky Department of Corrections.[2] Plaintiff sues Defendants Wilkerson and Bailey in both their individual and official capacities. He sues Defendant Thompson in her official capacity.

         According 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.

         After 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 05-01-014 (II)(A)(13),

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.

         The 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 required.


         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 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).


         A. Statute ...

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