United States District Court, W.D. Kentucky, Louisville
BRANDON L. HIBBS PLAINTIFF
LOUISVILLE METRO DEP'T OF CORRECTIONS et al. DEFENDANTS
Plaintiff, pro se Defendants Jefferson County Attorney
MEMORANDUM OPINION AND ORDER
N. STIVERS, JUDGE UNITED STATES DISTRICT COURT
Brandon L. Hibbs filed the instant pro se complaint
under 42 U.S.C. § 1983. This matter is before the Court
on initial review of the complaint pursuant to 28 U.S.C.
§ 1915A. For the reasons stated below, the Court will
dismiss some of Plaintiff s claims and allow one of his
claims to proceed.
identifies himself as a pretrial detainee at the Louisville
Metro Department of Corrections (LMDC). He sues LMDC; Kevin
Smith, a doctor at LMDC; and LMDC Director Mark Bolton. He
sues Smith and Bolton in their individual and official
states that he was injured “when I fell and broke my
clavical bone due to neglect to clean water from a hallway
floor that occurred when a janitors sink was leaking and
wasnt mopped up nor was there any slip and fall signs posted
anywhere in sight.” He continues, “Due to this
accident I now have a collerbone pertruding out my chest due
to it not being addressed in a promtly manner.”
Plaintiff asserts that twice surgeries were scheduled but
that “[t]hey failed to notify me of any surgery they
had scheduled so I didn't have the proper time to meet
the criteria for surgery . . . .” Plaintiff further
states, “Knowing the doctors wrongs he stated to me not
to say anything or he would lose his job the doctor is Kevin
Smith.” He also reports that he went to University of
Louisville Hospital for his injuries and that he has records
of this. Plaintiff concludes, “LMDC fail to comply with
my medical issue's ‘left I Brandon L. Hibbs for
relief, Plaintiff seeks compensatory damages.
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 the court 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. 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).
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)). “But the district court need not accept a
‘bare assertion of legal conclusions.'”
Tackett, 561 F.3d at 488 (quoting Columbia
Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th
Cir. 1995)). “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).
this Court recognizes that pro se pleadings are to
be held to a less stringent standard than formal pleadings
drafted by lawyers, Haines v. Kerner, 404 U.S. 519,
520-21 (1972); Jourdan v. Jabe, 951 F.2d 108, 110
(6th Cir. 1991), “[o]ur duty to be ‘less
stringent' with pro se complaints does not require us to
conjure up unpled allegations.” McDonald v.
Hall, 610 F.2d 16, 19 (1st Cir. 1979) (citation
omitted). And this Court is not required to create a claim
for 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).
LMDC and official-capacity claims
sues LMDC and sues Smith and Bolton in their official
capacities. LMDC is not a “person” subject to
suit under § 1983 because municipal departments, such as
jails, are not suable under § 1983. Marbry v. Corr.
Med. Servs., No. 99-6706, 2000 U.S. App. LEXIS 28072, at
*2 (6th Cir. Nov. 6, 2000) (holding that a jail is not an
entity subject to suit under § 1983); see also
Rhodes v. McDannel, 945 F.2d 117, 120 (6th Cir. 1991)
(holding that a police department may not be sued under
§ 1983). In this situation, Louisville Metro Government
is the proper defendant. Smallwood v. Jefferson Cty.
Gov't, 743 F.Supp. 502. 503 (W.D. Ky. 1990).
Further, Louisville Metro Government is a
“person” for purposes of § ...