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Freeman v. Kentucky Parole Board

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

September 26, 2017

CARLTON FREEMAN PLAINTIFF
v.
KENTUCKY PAROLE BOARD et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          Greg N. Stivers, Judge

         Plaintiff Carlton Freeman filed a pro se complaint pursuant to 42 U.S.C. § 1983 (DN 1) while incarcerated at Kentucky State Penitentiary (KSP). Subsequent to the filing of the complaint, Plaintiff was transferred to Little Sandy Correctional Complex where he presently resides. 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 allow the constitutional claims for deliberate indifference to Plaintiff's serious medical needs and for failure-to-protect against Defendants Stagner and McCollum in their individual capacities for damages to proceed. All other claims and Defendants will be dismissed.

         I. SUMMARY OF CLAIMS

         Plaintiff identifies the following seven Defendants in the complaint: (1) the Kentucky Parole Board; (2) Lee A. Van Hoose, Chairman of the Kentucky Parole Board; (3) Eric Stagner, a Parole Officer with the Kentucky Parole Board; (4) Correct Care Solutions (CCS), which provides medical care for prisoners at KSP; (5) Ms. Yevett McCollum, Director of Dismas Charities -St. Patrick Halfway House (Dismas Charities); (6) the Kentucky Department of Corrections, Division of Probation and Parole (KDOC); and (7) Ray Weiss, the “C.E.O.” of Dismas Charities. Plaintiff sues Defendants Stagner and McCollum in their individual capacities; the other five Defendants are sued only in their official capacities. As relief, Plaintiff seeks monetary damages and punitive damages. He also seeks to be “[p]laced back on parole, ” to be placed in a “[b]etter [h]alfway [h]ouse, ” and for “[a]ll assistance and programs by social services.” Further, Plaintiff states as follows: “If waived all money & punitive damages. Have all court fees & Clerk Fees waived. Pay only for my Lost of Job Wages of $800.00 and placed back on parole.” Plaintiff asserts that he will waive all monetary damages “[o]n the condition of: that I, Carlton Freeman be placed back on Parole.”

         According to Plaintiff, on or about June 25, 2016, he was released from KSP to a halfway house, Dismas Charities. Plaintiff asserts that KDOC policy states that upon release, an inmate is to be given a 30-day supply of his medications. At the time of his release, Plaintiff states that he asked about his medication, but “nothing was done.” He asserts that this was a “Constitutional Rights Violation: ‘Neglect'! & Policy Procedure Violation.”

         Plaintiff states that he asked a CCS employee many times about his medication around the time he was being released from KSP. This CCS employee and a KDOC employee told Plaintiff that his medication “was In his property.” Plaintiff states that when he was being released “to a bus stop, ” he looked in his property and “did not find his medication.” Plaintiff states that he asked the releasing officer about this and was told that his medication was in his property. Plaintiff states that the medication was not in his property. Plaintiff asserts “Constitutional Rights Violation: ‘Neglect!' & Policy Procedure Violation.”

         Plaintiff states that when he arrived at Dismas Charities, he told the director, Defendant McCollum, and her staff that he “will be needing his medication.” Plaintiff asserts that he asked many times for his medication. He states that he was told that the staff “are working on it.” It appears that Plaintiff believes that if Defendant McCollum had called KSP to verify that Plaintiff needed medication, Plaintiff would not “be going through what his going through now.” Plaintiff asserts, “Neglect!”

         Plaintiff further states that he was “neglected to receive Obama Care through the halfway-House inssurence program.” Plaintiff states that the halfway house is required by law to carry insurance on its residents. According to Plaintiff, he “tried ever way to receive his medication” from June 26, 2016, to July 28, 2016, but “could not receive his medication.” Plaintiff states that Defendant Stagner, his parole officer, told Plaintiff “to let the halfway-house handled it for [him], ” and was eventually told that he “could go to seven counties to get help.” Plaintiff states that when he “tried to let the halfway-house staff no that [he] needed to go to seven counties to see the psychiatrist about [his] medication. They wouldn't let [him] go to see the doctor at all.” Plaintiff states that he “was attack by a resident at the halfway-house two times.” He states that he told Defendant McCollum and Defendant Stagner that he “was having a lot of problems at that halfway-house. From being threat by the residents, staff, and the drug problem it had. [He] could not get away from the drugs & the residents threating [him].” Plaintiff states that no one would listen to him or help him. Plaintiff asserts, “Constitutional Rights Violations: ‘NEGLECT'!” Plaintiff states that Defendant Weiss “had been notified of all of the wrong doing that is and stills going on in one of his halfway houses. And the wrong doing of his director [Defendant] McCollum.” He claims “‘NEGLECT'!! ‘CARELESS'! ‘GREED'! Constitutional Rights Violation.”

         Apparently Plaintiff ran away from the halfway house at some point. Plaintiff states that the Kentucky Parole Board would not listen to his “reason for running away from that halfway-house” at his preliminary hearing on October 6, 2016. Plaintiff states that he was charged with absconding. Plaintiff states that Defendant Stagner said he was not aware that Plaintiff was supposed to be on medication, but that he “stated that the plaintiff came to him saying he was having problems. Problems of him not getting his medication & other issues.” Plaintiff states that it was in his prisoner file that he is supposed to be on medication, but that Defendant Stagner would not look at the file to find this out.

         Plaintiff states that on November 5, 2017, the Kentucky Parole Board would not listen to the preliminary hearing tape before making a decision. Plaintiff asserts that this is a “Constitutional Rights violation & Due process violation & Policy Procedure Error.”

         II. STANDARD OF REVIEW

         When a prisoner initiates a civil action seeking redress from a governmental entity, officer, or employee, the trial court must review the complaint and dismiss the complaint, or any portion of it, if it determines that the complaint 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. § 1915A; McGore v. Wrigglesworth, 114 F.3d at 604. A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 90 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 district 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

         A. Defendants KDOC and the Kentucky Parole Board

         Title 42, United States Code, Section 1983 creates no substantive rights, but merely provides remedies for deprivations of rights established elsewhere. As such, it has two basic requirements: (1) the deprivation of federal statutory or constitutional rights by (2) a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Flint v. Ky. Dep't of Corr., 270 F.3d 340, 351 (6th Cir. 2001). The KDOC is a department within the Justice and Public Safety Cabinet of the Commonwealth of Kentucky. See Ky. Rev. Stat. Ann. §§ 12.250 and 15A.020. The Parole Board is an entity within the Justice and Public Safety Cabinet. See Ky. Rev. Stat. Ann. § 15A.030. A state and its agencies are not “persons” subject to suit under § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989); see also Warick v. Ky. Justice & Pub. Safety Cabinet, No. 08-146-ART, 2008 WL 4443056, at *4 (E.D. Ky. Sept. 26, 2008) (stating that a judgment against the KDOC, the Kentucky Justice & Public Safety Cabinet, the Kentucky Department of Probation & Parole, and the Kentucky Parole Board would be satisfied from the State treasury; thus, they “are not considered persons capable of being sued under Section 1983”). Because the KDOC and the Kentucky Parole Board are not “persons” under the Act, the claims against them fail.

         Additionally, the Eleventh Amendment[1] acts as a bar to all claims for relief against the KDOC and the Kentucky Parole Board. A state and its agencies, such as the KDOC and the Kentucky Parole Board, may not be sued in federal court, regardless of the relief sought, unless the state has waived its sovereign immunity under the Eleventh Amendment or Congress has overridden it. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993); Alabama v. Pugh, 438 U.S. 78l, 782 (l978); see also Fleming v. Martin, 24 F. App'x 258, 259 (6th Cir. 2001) (“The Parole Board is entitled to Eleventh Amendment immunity.”); Kersey v. Tenn. Bd. of Paroles, No. 95-5870, 1996 WL 185779, at *1 (6th Cir. Apr. 17, 1996) (concluding that the Tennessee Board of Paroles enjoys Eleventh Amendment immunity from a § 1983 suit for money damages and declaratory and injunctive relief); Long v. Ky. State Parole Bd., No. CIV.A.1:05CV-P21-M, 2005 WL 1949544, at *4 (W.D. Ky. Aug. 12, 2005) (finding that the Kentucky Parole Board is not a person subject to suit under § 1983 and that the Eleventh Amendment bars claims against). In enacting § l983, Congress did not intend to override the traditional sovereign immunity of the states. Whittington v. Milby, 928 F.2d l88, 193-94 (6th Cir. 1991) (citing Quern v. Jordan, 440 U.S. 332, 341 (l979)). “ Accordingly, the claims against KDOC and the Kentucky Parole Board will be dismissed for failure to state a claim upon which relief may be granted and for seeking monetary relief from a Defendant who is immune from such relief. These Defendants will also be dismissed since the claims against them will be dismissed.

         B. ...


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