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Adkins v. Peede

United States District Court, W.D. Kentucky

May 30, 2017

CARL LEE ADKINS, JR., PLAINTIFF
v.
TERRY B. PEEDE, DEFENDANT

          MEMORANDUM OPINION AND ORDER

          Thomas B. Russell, Senior Judge

         This is a civil rights action brought by a convicted prisoner pursuant to 42 U.S.C. § 1983. The Court has granted Plaintiff Carl Lee Adkins, Jr., leave to proceed in forma pauperis. This matter is before the Court for screening 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, 594 U.S. 199 (2007). For the reasons set forth below, the action will be dismissed in part and allowed to continue in part.

         I. SUMMARY OF COMPLAINT

         Plaintiff brings this action against Kentucky State Penitentiary (KSP) Officer Terry B. Peede in both his official and individual capacities.

         Plaintiff first writes that he believes he suffered from food poisoning on October 19, 2016, which caused him to suffer “vertigo and regurgitation” and submit a sick-call request. He then states that on October 20, 2016, he noticed an unidentified pink substance in his hot breakfast cereal and “immediately emptied all of the contents of the tray in the commode.” Plaintiff states that Defendant Peede was approximately 15 yards from Plaintiff's cell when Plaintiff was served this breakfast. Plaintiff further states that these circumstances caused him to begin “an abstemious observation.” Plaintiff next contends that at 3:30 a.m., on October 22, 2016, Plaintiff asked to speak to Defendant Peede regarding “the tampering and molesting of his food.” Plaintiff states that Defendant Peede responded to his concerns with a “modicum of bigotry and a high volume of derogatory emanation, ” stating: “You piece of (word omitted) terrorize Americans, but can't handle what y'all dish out, then you mother (word omitted) shouldn't engage in war.” Plaintiff states that Defendant Peede then told another officer: “Don't bother me with complaints from this check-in (protective custody) mother (word omitted) . . . .” Plaintiff states that he was “assertive when proclaiming his belief as a minority Muslim in the United States” and embarrassed to be called “a check in (one who pleads to administration for protection)” in front of 39 other inmates.

         Plaintiff alleges that the confrontation between himself and Defendant Peede at 3:30 in the morning caused the majority of the segregated inmates housed near him “to begin to scream, kick and beat at the bars and doors of the cell causing clamor.” As a result, a seven to ten-member “use of force team . . . extracted Plaintiff from his cell with malicious and excessive force with intent to degrade and cause harm out of machination.” Plaintiff alleges that because Defendant Peede falsely stated that Plaintiff had spit on him, the team placed a “spit shield” on Plaintiff. Plaintiff further alleges that “by Defendant Peede's delegation, ” the team removed Plaintiff's state-issued clothing using a seatbelt cutter, gave him paper boxers to wear instead, and put him in a “restraint chair, secured by shackles, handcuffs, and chest straps.” Plaintiff states that while the team placed him in the chair, they yanked on his beard and used “obscene slurs.”

         Plaintiff then writes:

After Plaintiff was restrained and confined in the shower, LPN Joanna Stewart was notified and ordered to check the restraints applied to Plaintiff . . . . Medical failed to adequately check the application of such restraints relying solely on the clinical decision and palpate display of Defendant Peede who previously applied the restraints in question . . . . When Nurse Stewart informed the video surveillance conductor, “restraints are secured, ” the entire clandestine exhibition can and should be inferred as deliberate indifference!”

         Plaintiff states that he never received a disciplinary report for violation of a Kentucky Department of Corrections policy or procedure either before or after being placed in a restraint chair and seems to claim that this is further evidence that excessive force was used against him. He also alleges that, as a result of the force used against him while he was being placed in a restraint chair, he sustained “lacerations and abrasions” to his wrists and ankles and had shooting pains in his wrists which caused him to request medical attention. He further alleges that “at times gripping writing utensils becomes difficult for Plaintiff who proclaims to be dexterous.”

         As relief, Plaintiff seeks compensatory and punitive damages.

         II. LEGAL STANDARD

         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 at 604. 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)). “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, while liberal, this standard of review does require more than the bare assertion of legal conclusions. See 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. ...


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