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Sharber v. City of Louisville

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

May 19, 2017

THE CITY OF LOUISVILLE et al., Defendants.


          David J. Hale, Judge.

         Plaintiff Darryn Brett Sharber, a prisoner currently incarcerated at the Little Sandy Correctional Complex, filed a pro se complaint pursuant to 42 U.S.C. § 1983 (DN 1). Plaintiff's complaint is before the Court for initial review pursuant to 28 U.S.C. § 1915A. For the reasons that follow, a portion of the claims will be dismissed, and the remaining claims will proceed.


         The claims in the complaint concern Plaintiff's detention at the Louisville Metro Department of Corrections (LMDC). He brings this action against the following twenty-four Defendants: (1) City of Louisville; (2) LMDC; (3) Louisville/Jefferson Metro Government (Louisville Metro Government); (4) Mayor Greg Fischer; (5) LMDC Director Mark Bolton; (6) LMDC Asst. Director Iryt Troutman; (7) Dr. Robert Rozefort, LMDC/private contractor; (8) LMDC Administration Lt. Roy Christopher; (9) MobileX USA; (10) MobileX USA unknown x-ray technician; (11) Correct Care Services (CCS); (12) CCS LPN Cadie Greene; (13) CCS LPN Kristi Legan; (14) “LMDC's Entire Chain of Command Over the Grievance System”; (15) LMDC grievance counselor Ms. Taylor; (16) LMDC Professional Standards Unit (PSU); (17) LMDC PSU Sgt. Michael Callahan; (18) LMDC Sgt. Phillip Summers; (19) LMDC Ofc. D. Johnson; (20) LMDC Ofc. Leonard Melvin; (21) LMDC Ofc. Laws; (22) LMDC Ofc. Jeremiah Furman; (23) LMDC Ofc. Wimsatt; and (24) “Numerous Other Individual Supervisors and Officers Serving with the LMDC as well as Related Defendants to be Supplemented when Names are Ascertained” (“Doe” Defendants). Plaintiff sues Defendants in their individual and official capacities.

         In the complaint, Plaintiff reports that on April 28, 2016, at the LMDC, he was “brutally and unjustifiably punched, choked, and attacked, and sexually assaulted and harassed by [Defendant] Officer Jeremiah Furman.” He claims that Defendant Furman knew there was no video surveillance where he attacked him. Plaintiff reports that for three weeks prior to the assault, Defendant Furman called Plaintiff “offensive sexual and dehumanizing names such as ‘Goldilocks' and ‘Blondie' and winked at him often.”

         Additionally, Plaintiff reports that on May 10, 2016, he was placed in a holding cell to wait for a court escort officer to take him to court and that while in the holding cell he was attacked by Defendants Summers, Johnson, and Melvin, while Defendant Laws and “other un-named defendants looked on supportively or, at best impassively.” He claims that Defendant Johnson used pepper spray on him and hit him with his knee to the ribs and kidney area and with his fists to his head; that Defendant Summers hit Plaintiff on his side; that Defendant Melvin kicked him; and that Defendant Laws just stood there grinning. He alleges that the attack was in retaliation for Plaintiff's “alleged assault 3rd against and LMDC officer T. Pierce; However once the County Attorney reviewed the video tape evidence and testimony of another officer, it was determined that Plaintiff did not assault C/O Pierce and the charge was amended to harassment under an Alford [] plea.” Plaintiff also claims that Defendants “attempted to cover-up their culpability by concealing the facts, fabricating evidence, intimidating, and defaming the Plaintiff.”

         After the May 10th assault, reports Plaintiff, he was afraid to tell Defendant Nurse Legan the truth about what happened to his ribs because Defendants Summers and Johnson were standing next to him and Defendant Johnson was squeezing his arm. Plaintiff, therefore, states that he told her that he fell on the sink and that she “said ‘the sink?'” and ordered an x-ray.

         Plaintiff indicates that Defendant Johnson took him back to his dorm and that when Defendant Johnson left, Plaintiff called the Prison Rape Elimination Act (PREA) hotline seeking help and stating, “‘Please, send someone up here to help me, the officers hurt me and are going to kill me. They broke my ribs.'” Plaintiff reports calling again for help but alleges that no one ever came.

         Plaintiff also reports calling his lawyer who went to the jail to see him. Plaintiff claims that Defendant Summers “was caught eavesdropping outside the lawyers door” by Plaintiff's attorney and that Defendant Summers “eavesdropped on [the attorney's] phone call to his supervisor to report the incident and to get his investigator over to take photos of Plaintiffs injuries.” He alleges that this violated his “right to privacy between attorney/client.”

         Later, reports Plaintiff, Defendant Summers took him to get x-rays performed by Defendant MobileX USA's x-ray technician. Plaintiff reports that when he entered the x-ray room alone, he tried to tell the Defendant x-ray technician what happened but that the Defendant “had no response and continued with the x-ray when Plaintiff told him ‘the officers did it to me.'” Then, claims Plaintiff, as he exited the x-ray room, Defendant Summers looked at the images and asked the Defendant x-ray technician “‘Are they broke?'” to which the x-ray technician replied, “‘look here and here. Now look to this side and possibly here too.'” Plaintiff claims that the Defendant x-ray technician violated his right to privacy under the Constitution and the Health Insurance Portability and Accountability Act (HIPAA) by discussing the x-rays with Defendant Summers.

         Plaintiff alleges that he received one Tylenol and 600 mgs of ibuprofen within the 72 hours following the assault and was not examined by Defendant Dr. Rozefort or any other LMDC medical practitioner. He reports that his x-rays confirmed at least two right rib fractures and “possible multiple left rib fractures” but that they were “indeterminate.” He claims that the results should have alerted Defendant Dr. Rozefort to order more x-rays for “a determinate finding, ” because more fractures, maintains Plaintiff, would have meant more pain. He contends that he “was only prescribed 600 mgs. of Ibuprophen two times per day.” He claims that Defendants Dr. Rozefort, CCS, and LMDC “knew the results of Plaintiffs x-rays and disregarded an obvious substantial risk of serious harm that Plaintiff has additional broken ribs.”

         Next, Plaintiff alleges that on May 17, 2016, at approximately 9:30 pm, Defendant Wimsatt escorted Defendant Nurse Greene while she distributed pill call. He claims that Defendant Wimsatt “grabbed Plaintiffs medicine from the med cart and taunted Plaintiff with his Psych med's and diabetic snack. Also, shouting slurs and obscenities toward him calling him a ‘pussy' Check-in, defaming the Plaintiff and threatening to contaminate his food, and threaten to, ‘Bring back other officers to come in that cell and beat you down.'” He states that Defendant Nurse Greene was laughing and allowing Defendant Wimsatt access to her medical cart. Plaintiff contends that Defendant Wimsatt's actions were “an intentional infliction of pain and for the sole purpose of causing him extreme emotional distress-outrage” and that Defendants CCS, Nurse Greene, and Wimsatt violation his right to privacy/HIPAA and right to medical care.

         Plaintiff reports filing grievances but never receiving a response from Defendant Lt. Christopher or any other staff member, and he reports contacting the PREA hotline but no one came. He claims that Defendant Director Bolton and his staff failed to come to his aid. He states that after four to five weeks he wrote the PSU and asked them why they did not help him or respond to his grievances or PREA calls. Plaintiff alleges that Defendant Sgt. Callahan replied that they never received any grievances from him and that his PREA calls were not PREA related. Plaintiff asserts that he had the right to be protected “by the LMDC chain of command, the Louisville Metro Gov. including it's supervisors and Mark Bolton.”

         Additionally, Plaintiff claims that the April 28th and May 10th assaults were “also a direct product of certain deficient policies, practices, and customs implemented, maintained, and tolerated by the Louisville Metro Depts. Corrections and ‘Metro-Gov' with respect to LMDC tactics, hiring, training, supervising (including but not limited to LMDC'S surveillance polices) and the disciplining of officers.” Plaintiff alleges that there was no video surveillance in any holding cells, which was “a decision by Mark Bolton, LMDC Director, NOT to supervise it's employees.” He contends that the LMDC maintained “an unsafe and dangerous atmosphere ripe with excessive force amongst LMDC officers, and represent the deliberate indifference of the Louisville Metro Government and their Corrections Department, to the physical safety and Constitutional rights of its inhabitants.” He asserts that Defendants Director Bolton, Deputy Director Troutman, Mayor Fischer, “and other un-named officials, supervisory personnel and policy makers of the Metro Government and the LMDC” either had “actual knowledge of, ” “acquiesced in and condoned, ” and/or “were deliberately indifferent to” the deficient policies, practices, and customs at the LMDC.

         Plaintiff alleges violations of the First, Fourth, Fifth, Eighth and Fourteenth Amendments to the U.S. Constitution, violations of HIPAA, and violations of state-law, including assault, battery, negligence, conspiracy, and intentional infliction of mental distress.

         As relief, Plaintiff seeks compensatory damages, punitive damages, and “emotional and psychic trauma damages, ” and the issuance of injunctive relief ordering the administration to follow up on all PREA calls with inmates; to reorganize the grievance system with a new chain of command; and to place cameras in “ALL Hold-Cells.”


         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 v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007).

         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 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 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[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)). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557).

         Although courts are to hold pro se pleadings “to less stringent standards than formal pleadings drafted by lawyers, ” Haines v. Kerner, 404 U.S. 519 (1972), this duty to be less stringent “does not require us 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 courts “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. ...

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