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Canary v. Art Maglinger

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

September 25, 2018



          Joseph H. McKinley, Jr., Chief Judge United States District Court

         This is 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 complaint.


         Plaintiff 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 injunctive relief.


         When a 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).

         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 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).

         Although 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).

         III. ANALYSIS

         The Court construes Plaintiff's complaint as attempting to state an Eighth Amendment claim against Defendant Maglinger for deliberate indifference to a serious medical need.

         As 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, ...

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