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Betar v. Advance Correctional

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

July 5, 2017

GAYLON BETAR PLAINTIFF
v.
ADVANCE CORRECTIONAL et al., DEFENDANTS

          MEMORANDUM OPINION AND ORDER

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

         Plaintiff Gaylon Betar, a pretrial detainee presently incarcerated in the Hopkins County Jail (HCJ), filed a pro se complaint pursuant to 42 U.S.C. § 1983 (DN 1). Plaintiff subsequently filed a letter (DN 6) with the Court. Attached to the letter are a document and some medical records (DN 6, p. 2 & DN 6-1) which appear to be an amendment to the complaint. The Court construes the attachments as a motion to amend the complaint. Upon consideration, the motion to amend (DN 6, p. 2 & DN 6-1) is GRANTED. The Clerk of Court is DIRECTED to docket the letter at ¶ 6 also as a motion to amend.

         The complaint and amendment are before the Court for initial review 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, the Court will allow the Fourteenth Amendment conditions-of-confinement and medical-treatment claims to proceed against Defendant Jodie in her individual capacity. All other claims and Defendants will be dismissed.

         I. SUMMARY OF CLAIMS

         Plaintiff identifies the following six Defendants in the complaint and amendment: (1) Advance Correctional, which Plaintiff identifies as the medical department at the HCJ; (2) the HCJ; (3) Joe Blue, the Hopkins County Jailer; (4) Captain Lewis, a Captain at the HCJ; (5) Jodie, the head nurse at the HCJ; and (6) Sgt. Coy, the grievance officer presumably at the HCJ. With the exception of Defendant Coy, Plaintiff indicates that he is suing Defendants Advance Correctional, HCJ, Blue, Lewis, and Jodie in their individual and official capacities. Plaintiff named Defendant Coy in the amendment and does not state in what capacity he is suing Defendant Coy. Plaintiff seeks monetary damages, punitive damages, and injunctive relief in his complaint. More specifically, he requests the Court to put Plaintiff “in a cell with a bunk” and to make “medical give [him his] medicine” and put him “in [a] hospital.”

         In the complaint, Plaintiff alleges that he is “being treated bad because [he] is sick.” He states that he is in segregation and is unable to “order any eatable foods are over the counter medicine.” According to Plaintiff, he is suffering, and “no one will listen to [him] because medical over rides everything.” He claims that Defendant Lewis's girlfriend is the head nurse. Plaintiff states that Defendant Jodie “is the one behind all of this. She tells the doctor pretty much what to do.” Plaintiff also asserts that “[t]heir all in this together.”

         Plaintiff states that medical has taken away medicine “that the hospital doctors put [him] on.” Later he states that the “LPN at the Jail” has taken away his medicine. He further states that the jail is giving him his blood pressure medicine and Lasix, but “[t]hey [have] taken [his] heart medicine and [his] pysc medicine.” Plaintiff states that his liver and stomach are both bleeding. According to Plaintiff, he has asked to go to the hospital, but “the Jail and medical staff won't send [him].” Plaintiff also asserts that he has asked to see a doctor, but Defendant Jodie will not respond to his requests. Plaintiff states that this has caused him a great deal of pain and suffering. According to Plaintiff, the “medical staff is sitting here watching [him] die slowly.”

         Plaintiff states that the “medical department has place[ed] [him] on the floor at the Jail.” He states that he is “laying on a concrete slab. By no means theses cells are medical cells. This is a detox cell built for drunks.” According to Plaintiff, the cell has a “sewer system in the middle of the floor.” He states that all the Defendants “know what type of grems that this cell has.” He also states that Defendant Jodie “has taken all [his] privileges away.”

         Plaintiff states that he is unable to call his attorney or speak to an attorney. He also states that “[t]hey let me use the phone on Tuesday for a hour, ” but he “wasn't able to call anyone because lawyers aren't up at 6 A.M.” Plaintiff states that his telephone and canteen privileges have been taken away from him. Plaintiff states that he has repeatedly filed grievances, and “[t]he Jailer is responsible for maintaining the actions of his officers and to make sure inmates are done right.”

         In the amendment to the complaint, Plaintiff states that he has been “laying in the floor here since Febuery 23, 2017.” According to Plaintiff, he “lay for 3 months in this cell and the Jail medical staff won't help.” Plaintiff states that he is freezing and sick. He describes his medical conditions as follows: (1) his liver is failing; (2) he has cirrhosis of the liver; (3) he has Hepatitis C; (4) he has an enlarged spleen; (5) he has heart problems; (6) his blood count is abnormal; and (7) he has a hemorrhage in his liver, stomach, and spleen. Additionally, Plaintiff states that he suffers from paranoid schizophrenia, but the jail took his medicine for this condition.

         Finally, Plaintiff states that Defendant Coy has punished him “for talking back to the guards because I'm in pain.”

         II. STANDARD OF REVIEW

         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 608.

         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] 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 Nat. 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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