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Shirley v. Elder

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

April 10, 2018

SHAWN L. SHIRLEY PLAINTIFF
v.
TERRY ELDER DEFENDANT

          MEMORANDUM OPINION AND ORDER

          JOSEPH H. MCKINLEY, JR., CHIEF JUDGE

         Plaintiff Shawn L. Shirley, a prisoner presently incarcerated at Roederer Correctional Complex, filed a pro se complaint under 42 U.S.C. § 1983 regarding events that occurred while he was incarcerated at Webster County Detention Center (WCDC). This matter is before the Court for initial review of the complaint 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 claims against Defendant Elder and allow Plaintiff to amend his complaint.

         I. SUMMARY OF CLAIMS

         Plaintiff brings this action against Terry Elder, the WCDC Jailer, in both his individual and official capacities. As requested relief, Plaintiff seeks monetary damages.

         In his complaint, Plaintiff breaks his allegations into four separate sections. First, Plaintiff alleges a due process claim. As to this claim, he states as follows: “Anytime I file a greivance there is no greivance process. The only person that decides whether or not your greivance is greivable is the jailer himself, and the grievance is usually denied, and if it isn't then the problem is only temporarily fixed or not fixed at all.”

         Plaintiff's second claim involves “[l]ack of access to legal counsil or legal research materials.” He asserts that he should have access to legal research materials “to research or appeal court decisions.” According to Plaintiff, WCDC does not have a law library and, when he requests legal materials, he is told that “they will have to check on it.”

         Plaintiff's third claim is for “[i]nadequte food proportions.” As to this claim, Plaintiff states that WCDC “switched to Summit foods several month's ago.” Plaintiff states that after the switch was made, he filed several grievances complaining about “not meeting or exceeding the daily calorie intake or Kosher diet and the religious meals which specify no pork are being served on tray's that have pork served on them.” Plaintiff states that after filing grievances about the “food and proportions, ” the portions “have gotten smaller and smaller which is a direct retalliation from filing a complaint about religious Kosher diet.”

         In his fourth claim, Plaintiff alleges cruel and unusual punishment. As to this claim, he states that after he filed complaints about his religious diet, Officers told him to pack up his stuff and moved him to “cell 148 which cell 148 is the racist cell known as the ‘Nazi Dorm.'” Plaintiff states that “upon refusing because being Jewish and my religion Judism and on Kosher diet. Knowing there would be direct retalliation on me, because of filing greivances, I was placed in isolation.” According to Plaintiff, the following morning, Defendant Elder apologized to Plaintiff “And said He knew that it was wrong. Kitchen said it would be easier to feed me and other inmate who was on Kosher Diet.”

         Plaintiff states that on October 28, 2017, during evening medication pass, Officer Ortiz told Plaintiff not to worry about his dinner tray because he had “taken care of it, [he] pissed on it.” Plaintiff asserts that this was “a direct retalliation for filing greivance the day before.” According to Plaintiff, on November 2, 2017, Defendant Elder met with Plaintiff about this matter, and Defendant Elder agreed that Officer Ortiz was not to be in Plaintiff's dorm or have access to the food trays. Plaintiff states that Officer Ortiz still has access to the food trays, and Plaintiff “feel[s] like Officer Ortiz is inappropriately handling or messing with [his] food.”

         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. ANALYSIS

         “Section 1983 creates no substantive rights, but merely provides remedies for deprivations of rights established elsewhere.” Flint ex rel. Flint v. Ky. Dep't of Corr., 270 F.3d 340, 351 (6th Cir. 2001). Two elements are required to state a claim under § 1983. Gomez v. Toledo, 446 U.S. 635 (1980). “[A] plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 ...


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