United States District Court, W.D. Kentucky, Owensboro Division
MEMORANDUM OPINION AND ORDER
H. McKinley, Jr., Chief Judge.
Marcus Powell, a prisoner incarcerated in the Daviess County
Detention Center (DCDC), filed a pro se complaint
pursuant to 42 U.S.C. § 1983 (DN 1). The complaint is
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 dismiss the claim regarding Plaintiff
being housed with county inmates and allow the other claims
SUMMARY OF CLAIMS
names David Osborne, the Jailer at the DCDC as the sole
Defendant in this action. Plaintiff indicates that he is
suing Defendant in both his individual and official
capacities, and he seeks monetary damages. Plaintiff also
seeks to be transferred to “a state facility that has a
law library, ” for a law library to be
“installed” at DCDC, and for state and county
inmates to “be separated.”
alleges that Defendant is “denying [him] of [his]
constitutional rights by not having a adequate legal law
library here at the detention center, where I can file a
meaningful direct appeal from my conviction . . . .”
According to Plaintiff, he has been incarcerated at the DCDC
since March 31, 2016. He states that he has filed numerous
grievances about the lack of a law library and represents
that he has been told that he has “no right to legal
materials or a law library.” Plaintiff states that he
has “missed numerous court filing deadlines as a
result” of the lack of law library and has “not
been able to challenge [his] conviction.”
alleges that since he has been incarcerated at the DCDC, he
has been “subject to contininuous housing with county
inmates and have been treated as a county inmate
myself.” According to Plaintiff, “[i]t causes
[him] servere mental anguish to continually watch inmates
come and go with me being a class B felon no even able to be
classified or worked at a local facility.”
further alleges that since being incarcerated at the DCDC on
March 31, 2016, he has “been continually subjected to
sleep on the floor as a result of this detention center being
over crowded.” Plaintiff also states that it has
“been extremely hot, where water puddled from sweat
from the walls and there are black mold all over the walls
from the moisture.” Plaintiff states that his
“breathing is harder now and [he] had severve headaches
and the smell is unbearable.”
STANDARD OF REVIEW
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.
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)).
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).
alleges that Defendant has denied him access to a law library
and that this denial has caused Plaintiff to miss numerous
court deadlines and rendered him unable to “challenge
his conviction.” “[P]rison law libraries and
legal assistance programs are not ends in themselves, but
only the means for ensuring ‘a reasonably adequate
opportunity to present claimed violations of fundamental
constitutional rights to the courts.'” Lewis v.
Casey, 518 U.S. 343, 351 (1996) (quoting Bounds v.
Smith, 430 U.S. 817, 825 (1977)). Thus, the courts have
recognized repeatedly that there is no constitutionally
protected right of access to a law library. Id.
(noting that “Bounds did not create an
abstract, freestanding right to a law library or legal
assistance”). However, prisoners have a constitutional
right of access to the courts. Id.; Bounds v.
Smith, 430 ...