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Jackson v. McNeese

United States District Court, W.D. Kentucky, Louisville Division

October 18, 2018

KEVIN JACKSON, Plaintiff,
v.
SGT. MCNEESE et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          DAVID J. HALE, JUDGE UNITED STATES DISTRICT COURT

         This is a pro se prisoner civil rights action brought pursuant to 42 U.S.C. § 1983. The Court has granted Plaintiff Kevin Jackson 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 others to proceed.

         I. SUMMARY OF COMPLAINT

         Plaintiff is a pretrial detainee incarcerated at the Louisville Metro Department of Corrections (LMDC). He brings this action against five LMDC officials in both their official and individual capacities - “Sgt. McNeese, ” “Officer Hale, ” “Officer Ewald, ” “Officer Ramos, ” and “Officer Meredith.”

         In the complaint, Plaintiff writes as follows:

On set date of 5-28-18 around 4-5 pm on Floor 6 Dorm 9 I Inmate Jackson . . . was in dorm 9 cell 2, C.O. Ewald was running rec . . . He then came to me and said it was my time for my hour out and if I don't come now I won't get my Rec. I had to make my hour out I made 2 phone calls I started a 3rd call & got half way through my call & the phone hung up, 2 to 3 minutes later CO's Ewald & Ramos came in and told me my hour out was up. I know 4 phone calls is a hour and I never got that far in the process cause it was cut short. I then asked for a sgt and I was then cuffed and placed in wristhold and Sgt. McNeese told me I'm going back to my cell. I asked her, “so your not going to check about my hour?” She then responded by saying “sit down or I'm going to spray you with O.C.” I then said I was suicidal, they ignored me and told me I was going back to my cell, once placed back in my cell I repeatedly asked for mental health, she not only refused me mental health she refused to give me a dinner tray & a nurse. She then started to remove property from my room. As I was handcuffed behind my back I still tried to exit my room and was grabbed around the neck by CO Ramos choked out, along with CO Ewald punching me in the face until began to bleed from my face and I was continuously assaulted by CO Ewald this was all captured on the dorm cameras & body cameras.

         As relief, Plaintiff seeks compensatory damages and punitive damages and that “all body camera and video footage of the incident” be preserved.

         II. LEGAL STANDARD

         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

         “Section 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).

         A. ...


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