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Nored v. Hempfling

United States District Court, W.D. Kentucky

June 8, 2017

NAZIH LAZELLE NORED PLAINTIFF
v.
SGT. CHRIS HEMPFLING DEFENDANT

          MEMORANDUM OPINION AND ORDER

          Joseph H. McKinley, Jr., United States District Court Chief Judge

         This is a civil rights action brought by a former inmate pursuant to 42 U.S.C. § 1983. The Court has granted Plaintiff Nazih Lazelle Nored leave to proceed in forma pauperis. This matter is before the Court for screening pursuant to 28 U.S.C. § 1915(e) 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 proceed in part.

         I. SUMMARY OF COMPLAINT

         Plaintiff sues Daviess County Detention Center (DCDC) Sergeant Chris Hempfling in both his official and individual capacities. In his complaint, Plaintiff states as follows:

On 2-25-17 an altercation took place in cell B133 between plaintiff (Nored) and [another inmate]. As the fight escalated, inmate Nored was struck on the left side of the face by [the other inmate]. Plaintiff was knocked unconscious by [the other inmate] and was going down. At that time, Sgt. Hempfling intiated the tazer application, striking Plaintiff (Nored) on the right side of his head with 50, 000 volt tazer.
This act is deemed as a malicious/and use of excessive force by trained official; as Plaintiff was already knocked unconscious and in a defenseless position.
As relief, Plaintiff seeks compensatory and punitive damages.

         II. LEGAL STANDARD

         Because Plaintiff is proceeding in forma pauperis, but is no longer incarcerated, the Court must review this action under 28 U.S.C. § 1915(e). This statute requires a district court to dismiss a case at any time if it determines that the action 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. § 1915(e)(2)(B).

         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. ANALYSIS

         Section 1983 creates no substantive rights but merely provides remedies for deprivations of rights established elsewhere. Flint ex rel. Flint v. Ky. Dep't of Corr., 270 F.3d 340, 351 (6th Cir. 2001). Two elements are required to state a claim under § 1983. Gomez v. Toledo, 446 U.S. 635, 640 (1980). “A plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). “Absent either element, a § 1983 claim will not lie.Christy v. Randlett, 932 F.2d 502, 504 (6th Cir. 1991)

         A. Official-Capacity Claims

         “Official-capacity suits . . . ‘generally represent [] another way of pleading an action against an entity of which an officer is an agent.'” Kentucky v.Graham, 473 U.S. 159, 166 (1985) (quoting Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 691 n.55 (1978)). Thus, the claim brought against Defendant Hempfling in his official capacity is deemed a claim against Daviess County. See, e.g., Lambert v. Hartman, 517 F.3d 433, 440 (6th Cir. 2008) (stating ...


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