United States District Court, W.D. Kentucky, Paducah
MEMORANDUM OPINION AND ORDER
N. STIVERS, UNITED STATES DISTRICT JUDGE.
Wilson Reese Clark filed the instant pro se 42
U.S.C. § 1983 action proceeding in forma
pauperis. This matter is before the Court on
Defendants' motion to dismiss the action pursuant to
Fed.R.Civ.P. 12(b)(6) (DN 31). For the reasons stated below,
the motion will be denied.
ALLEGATIONS OF COMPLAINT
a former inmate of the Kentucky State Penitentiary (KSP),
sues the following Defendants: Karen Ramey, identified as an
ARPN at KSP; Bruce Bauer, Amber Switzer, and Tosha Winn,
identified as nurses at KSP; and Jill Shelton and Heather
Holland, identified as employees of Correct Care Solutions.
complaint, Plaintiff alleges that he was injured on October
30, 2016, and requested treatment for his back and pointer
finger on his right hand. He states that he was escorted by
two corrections officers who witnessed his injury to medical.
He asserts that he was seen by a non-Defendant nurse who
called Defendant Ramey and told Ramey “that my finger
looked broken and I was walking hunched over.” He
states that the non-Defendant nurse also “asked Bruce
Bauer could she give me something for the pain until Karen
Ramey got their. He said ‘No, he'll be all right.
He probably faking away.'” Plaintiff states,
“Mrs. Karen Ramey never showed up, I was left to deal
with the pain.” Plaintiff asserts that when he went to
the nurse's station the next day he was told to come back
by Defendant Ramey and “by Nurse Bruce Bauer who openly
expresses his dislike for people of color.” The
following day, Plaintiff reports that he was told by
Defendants Shelton, Bauer, and Ramey that they were not going
to treat his injuries.
further states, “I seen a inmate who was white, have
the same injuries as me and he'll get top of the line
treatment. As for people of color we have to settle for what
we can get.” Plaintiff asserts, “Sinse Bruce
Bauer has been a nurse he does not tolerate nurse's
treating black inmates. So due to Bruce Bauer telling staff
not to treat black inmates is the reason why nurses refuse to
treat me.” Plaintiff alleges that he has “filed
many grievances on the situation and the staff tell me if I
file another grievance I will be placed in the segregation
unit under investigation. Since then I've been placed on
grievance restriction.” Plaintiff states, “My
hand/finger is still broken and my lower back still
cause's me pain. Medical will not treat me without Bruce
also reports an incident which occurred on January 31, 2017.
He states that he was placed in segregation “for filing
grievances on staff in Medical.” According to the
complaint, Defendant Holland and another non-Defendant
officer found him lying on the floor of his cell
“non-responsive.” He states, “Nurse Holland
said, ‘he's not normal anyway' this was heard
by my neighbor . . . Michael Cooper who later told me what
was said. She also said ‘He's probably just faking
like most black inmates do to get the nurse over here.
I'll come back and check him if Bruce Bauer tells me
to.'” Plaintiff asserts that 30 to 40 minutes later
another corrections officer found him lying on the floor in
the same position and called medical to report a medical
emergency. Plaintiff states that it took ten to fifteen
minutes for medical to come to his cell and another five
minutes to take his blood pressure. He states that his blood
pressure reading was 220/120 and that the nurse, identified
in a grievance attached to the complaint as Defendant
Holland, “didn't know what to do. She ended up
calling [D]octor [F]orte for further instructions.”
also describes another incident which occurred on February
20, 2017. He states that he was “placed back in
segregation due to staff retaliation for exercising
(‘to petition the government for a redress of
grievances') My 1st Amendment right[.]”
He alleges that his blood pressure was high, he was feeling
light-headed, and his left arm and left jaw were numb. After
a corrections officer called medical and Plaintiff waited 30
to 35 minutes for medical personnel to come to his cell, he
was put in shackles to go to medical but could not walk and
“again got lightheaded and fell-out.” He was
taken back to his cell where he was made to stand and wait
for the nurse and “almost fell on his face while my
hands were restrained behind my back.” He states,
“Nurse Switzer & Tosha Wynn showed up 15 minutes
later. They comments about they shouldn't made to help
anyone they didn't want to, especially not
‘niggers.' A few inmates heard these comments and
started to cuss Nurse Switzer & Wynn. They openly speak
summarizes his claims as follows:
All staff mentioned herein violated herein violated my
1st 4th 5th and
8th All staff mentioned in this complaint shown
deliberate indifference to a serious medical need, all staff
refused answer sick call slips and medical grievances. All
medical staff left me to suffer cruel & unusual pain as
punishment for filing grievance, and last all staff mentioned
shown racial discrimination because I am a Asiatic black man
seeking medical treatment.
initial review of the complaint pursuant to 28 U.S.C. §
1915A and McGore v. Wrigglesworth, 114 F.3d 601, 604
(6th Cir. 1997), overruled on other grounds by Jones v.
Bock, 549 U.S. 199 (2007), the Court dismissed some
claims and allowed the following § 1983 claims to
proceed against all Defendants in their individual
capacities: an Eighth Amendment claim for deliberate
indifference to serious medical needs; a Fourteenth Amendment
Equal Protection claim in connection with Plaintiff's
allegations of discrimination; and a First Amendment
apply the same standard under § 1915A as they do when
addressing a motion under Fed.R.Civ.P. 12(b)(6). Moniz v.
Cox, 512 F. App'x 495, 497 (6th Cir. 2013);
Wilder v. Collins, No. 2:12-cv-0064, 2012 U.S. Dist.
LEXIS 64231, at *12-13 (S.D. Ohio May 8, 2012) (“When a
complaint is screened under § 1915A, it is subjected to
the same scrutiny as if a motion to dismiss for failure to
state a claim had been filed under Fed.R.Civ.P.
12(b)(6).”). As another district court stated,
“[A] motion to dismiss under Rule 12(b)(6) is almost
never an appropriate response when the court has already
screened a prisoner complaint pursuant to 28 U.S.C. §
1915A(b) and directed the defendant to respond.”
Moreno v. Beddome, No. CV 11-2333-PHX-DGC, 2012 U.S.
Dist. LEXIS 107901, at *4 (D. Ariz. Aug. 2, 2012).
both § 1915A and Fed.R.Civ.P. 12(b)(6), to survive a
motion to dismiss, “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 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.” Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 556). The
complaint need not contain “detailed factual
allegations, ” yet must provide “more than an
accusation.” Id. (citing Twombly, 550
U.S. at 555). In addition, “[a] pro se ...