United States District Court, W.D. Kentucky
MEMORANDUM OPINION AND ORDER
H. McKinley, Jr., United States District Court Chief Judge
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.
SUMMARY OF COMPLAINT
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
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.
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. §
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).
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)
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 ...