United States District Court, W.D. Kentucky, Owensboro
MEMORANDUM OPINION AND ORDER
H. McKinley, Jr., Chief Judge 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 Stanley Brent Canary leave to proceed
in forma pauperis. This matter is before the Court
for screening pursuant to 28 U.S.C. § 1915A. For the
reasons set forth below, the Court will dismiss certain
claims but allow Plaintiff the opportunity to amend his
SUMMARY OF COMPLAINT
is incarcerated at the Daviess County Detention Center
(DCDC). He brings this action against DCDC Jailer Art
Maglinger. Plaintiff does not specify in what capacity he
sues Defendant Maglinger.
In the complaint, Plaintiff writes as follows:
On the date of 8-23-18 I was escorted to Owensboro Mercy
Health System by Deputy Robby Burns and Trainee Deputy
Brooks. On the Day of 8-26-18 at approximately 11:30 am I
arrived at OMHS and was seen by orthopedic surgeon Dr.
McBride. On this visit Deputy Burns and Brooks was both
present as Dr gave me respected orders for rehabilitation to
my right shoulder for an injury that I received while working
as a trustee on July 23. . . . The doctor respectively stated
for me Stanley Brent Canary to attend rehabilitation from the
date of 8-[illegible]-18 until October 4, 2018 for a minimum
of twice a week. [Defendant] Maglinger has failed to provide
me . . . with the proper transportation to rehabilitation
practices at [OMHS] as directed to do by orthopedic surgeon
Dr. McBride. Failing to provide me . . . the proper
transportation as directed by Dr. McBride is denying me the
medical attention that was given by Dr. McBride.
As relief, Plaintiff seeks compensatory damages and
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).
Court construes Plaintiff's complaint as attempting to
state an Eighth Amendment claim against Defendant Maglinger
for deliberate indifference to a serious medical need.
stated above, Plaintiff does not indicate in what capacity he
sues Defendant Maglinger. However, to the extent that
Plaintiff sues Defendant Maglinger in his official-capacity,
his claim must be dismissed. “[O]fficial-capacity
suits. . . ‘generally represent  another way of
pleading an action against an entity of which an officer is
an agent.'” Kentucky v. Graham, 473 U.S.
159, 166 (1985) (quoting Monell v. New York City
Dep't of Soc. Servs.,436 U.S. 658, 691 n.55
(1978)). Thus, any official-capacity claim against Defendant
Maglinger is actually against his employer, which is Daviess
County. See, e.g., Lambert v. Hartman, ...