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Reed v. Correct Care Solution

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

February 1, 2018

KENNETH O'KEITH REED PLAINTIFF
v.
CORRECT CARE SOLUTION et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          Thomas B. Russell, Senior Judge United States District Court.

         Plaintiff Kenneth O'Keith Reed, a convicted prisoner incarcerated in the Kentucky State Reformatory (KSR), filed a pro se complaint pursuant to 42 U.S.C. § 1983. This matter is before the Court on initial review pursuant to 28 U.S.C. § 1915A. For the reasons that follow, the Court will allow some claims to proceed, will give Plaintiff an opportunity to file an amended complaint with respect to the medical treatment claims, and will dismiss all other claims.

         I. STATEMENT OF CLAIMS

         Plaintiff brings suit against “Correct Care Solution Medical Dept.” (hereinafter, CCS); KSR; and KSR Grievance Coordinator Casey Dowden in her individual and official capacities.

         Plaintiff alleges that in 1997 he was sent to Jewish Hospital by Dr. Kemen of CCS to receive a spinal tap, which “was medically ordered as a result of severe pain that plaintiff was experiencing as a result of a Bulding disc.” Plaintiff states that during the surgery, he suffered injuries to his spinal cord which left him in a paraplegic state. He reports that in 2005, as a result of the paralysis and its side effects, a catheter insertion was performed in the medical office at KSR “where there is no sterial or clean invirament to operate on Plaintiff.” He claims that “[t]he medical office in nurse's care is not the proper place to open any wound where there is air born pathigins around” and that the “catheter was left in too long.” As a result, claims Plaintiff, a second catheter procedure had to be performed on March 24, 2014, at Uof L Medical Center and that the second catheter is now permanently placed in his stomach.

         Plaintiff alleges that “[a]s a result of the failed spinal procedure and care of my catheter from 2005 - 2017, I will need ongoing medical care, medical supplies and medications for the rest of my life” and that “[t]hese incidents and the on-going issues from 1997 till now 2017, have created extreme pain and suffering to my body, mind, and everyday life.” He asserts that his “condition significantly affects h[i]s daily activities” and that he has “chronic serious pain.” Plaintiff alleges that he keeps having infections “due to nurse not being trained properly on cathater changed and leave it in to long. Do not have the right cathater and supplies.” He claims that the “prison doctor fails to respond appropriately or does not respond at all to plaintiff serous medical needs” and also claims that “non-medical officials interfere with the treatment that his doctor has ordered.”

         Plaintiff reports filing grievances “on April 12 - 17, may 3 - 17, Jul 3 - 17”; that “KSR Grievance office will not investigate this ongoing problem”; and that some of his grievances have been returned as non-grievable. Plaintiff additionally claims that he “is being threating with physical violence for exercise of his right to seek redress from the prison through use of the prison grievance system, Casey Dowden, the grievance coordinator is retaliating against Plaintiff, unlawfully.”

         As relief, Plaintiff seeks compensatory and punitive damages and declaratory and injunctive relief.

         II. STANDARD OF REVIEW

         Because Plaintiff is a prisoner seeking relief against governmental entities, officers, and/or employees, this Court must review the complaint under 28 U.S.C. § 1915A. The statute requires the Court to 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 601, 604 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007).

         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 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[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 pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557).

         III. ANALYSIS

         A. Defendant KSR

         KSR is part of the Kentucky Department of Corrections (DOC). The DOC is a department within the Justice and Public Safety Cabinet of the Commonwealth of Kentucky. See Exec. Order No. 2004-730 (July 9, 2004); Ky. Rev. Stat. § 12.250. 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 Crockett v. Turney Ctr. Indus. Prison, No. 96-6067, 1997 WL 436563, at *1 (6th Cir. Aug. 1, 1997) (“The prison is a state agency. . . . A state agency is not considered a ‘person' subject to suit under 42 U.S.C. § ...


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