United States District Court, W.D. Kentucky, Owensboro Division
SHAWN L. SHIRLEY PLAINTIFF
TERRY ELDER DEFENDANT
MEMORANDUM OPINION AND ORDER
H. MCKINLEY, JR., CHIEF JUDGE
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.
SUMMARY OF CLAIMS
brings this action against Terry Elder, the WCDC Jailer, in
both his individual and official capacities. As requested
relief, Plaintiff seeks monetary damages.
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.”
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.”
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.”
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.”
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]
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).
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 ...