United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
BOOM, UNITED STATES DISTRICT COURT.
a pro se civil rights action brought by a convicted
prisoner pursuant to 42 U.S.C. § 1983. The Court has
granted Plaintiff Elmer Sturgill leave to proceed in
forma pauperis. [R. 2] This matter is before the Court
for the screening of Plaintiff Elmer Sturgill's complaint
pursuant to 28 U.S.C. § 1915A. For the reasons set forth
below, the action will be dismissed in part and allowed to
proceed in part.
SUMMARY OF COMPLAINT
was previously incarcerated at Luther Luckett Correctional
Complex (LLCC). He brings this action against three
defendants in their official and individual capacities - LLCC
Sergeant Jeremy L. Smith, LLCC Sergeant T. McCullough, and
LLCC Correctional Officer C. Lancour.
complaint, plaintiff writes as follows:
On May 27, 2018, around 11:20 p.m. in dorm 7-C a incident
happen in core as SGT Smith was standing in core 7-C dealing
with issue I exited D-wing and ran toward SGT Smith tackling
him to the ground due to I believed he was hurting [another
inmate]. At that time SGT McCullough came and removed me off
SGT Smith then sprayed O.C. spray (Oleoresin Capsicum) in my
face then SGT Smith took me to the ground. As I resisted SGT
Smith deploy taser in the face at 23:20:45. Then at 23:21:37
I was placed in handcuffs behind back and leg shackles then
at 23:31:46 I was tased once more clearly they had full
control I was handcuffed etc. and 3 officer with Taser probes
still in skin and one in pants. As you can see from the
exhibits, I was tased multi-times after been handfcuffed. SGT
Smith and Officer Lancour slammed me face down on blacktop in
7-C bull pen which cut right side of face by corner of eye,
and gashed elbow open which caused deep wound and step on my
shoulder with boot to hold me on ground which caused cuts to
my right shoulder. As I was been brought to RHU AKA
segregation unit in the transportation apparatus SGT Smith
struck me in the back of the head with the butt of taser.
Then placed in a restraint chair for 2 hours then in a cell
with O.C. spray on my face, body etc., not allowed to shower.
relief, Plaintiff seeks money 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).
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 U.S. 42, 48
(1988). “Absent either element, a section 1983 claim
will not lie.” Christy v. Randlett, 932 F.2d
502, 504 (6th Cir. 1991).