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Metcalf v. Akers

United States District Court, E.D. Kentucky, Central Division, Lexington

December 10, 2018

FLOYD METCALF, JR., Plaintiff,
v.
DANIEL AKERS, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves, United States District Judge

         Plaintiff Floyd Metcalf, Jr., is presently confined at the Lee Adjustment Center (“LAC”) in Beattyville, Kentucky. Metcalf has filed a civil rights action against prison officials pursuant to 42 U.S.C. § 1983. [Record No. 1] The Court granted Metcalf's motion to proceed without prepayment of the filing fee by separate Order. [Record No. 7] The Court now conducts a preliminary review of Metcalf's complaint pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A.

         A district court must dismiss any claim that 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. McGore v. Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997). Additionally, the Court evaluates Metcalf's complaint under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage of the proceedings, the Court accepts the plaintiff's factual allegations as true, and his legal claims are liberally construed in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). Even so, the principles requiring generous construction of pro se pleadings are not without limits. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); Wilson v. Lexington Fayette Urban County Government, No. 07-cv-95-KSF, 2007 WL 1136743 (E.D. Ky. April 16, 2007). The Court is not required to create a claim for the Plaintiff, nor to “conjure up unpled allegations.” Moorman v. Herrington, No. 4:08-cv-P127-M, 2009 WL 2020669, at *1 (W.D. Ky. July 9, 2009) (citations omitted).

         Metcalf claims that the plumbing at the LAC is inadequate. For example, he alleges that there is fully-exposed plumbing in his housing unit. He further contends that, since inmates were moved into the unit in or around April 2018, there have been leaks, rust, exposed waste water, and mold in the living areas. [Record No. 1 at p. 4, 8] He alleges that he lived in an affected housing unit for over 90 days and, while housed there, waste water dripped onto his bed and his personal items were contaminated or ruined. [Id. at p. 9] He alleges that the inadequate plumbing has increased the risk of a hepatitis-A outbreak. [Id. at p. 6, 8]

         Metcalf further asserts that, after 60 days of exposure to these conditions, he began to notice that he was having massive phlegm problems and difficulties catching his breath, for which he sought medical treatment, but was initially denied. [Id. at p. 12] Although he eventually received treatment for lung inflammation and bronchiolar overflow of massive phlegm, his requests for a lung function test, tuberculosis test and a hepatitis-A test have been denied. [Id.]

         He asserts that the conditions created by the inadequate plumbing violate his rights under the Eighth Amendment. [Id. at p. 9] Although his assertions are not entirely clear, it appears that Metcalf seeks to claim two separate Eighth Amendment violations: one based on his allegations of poor prison conditions related to the plumbing at LAC, and the second based on a claim for inadequate medical care. Metcalf seeks over $2 million in monetary damages, as well as a declaration that he be granted immediate medical treatment to include hepatitis-A testing, full blood work for foreign anti-bodies, and a waiver of all fees for any medical or dental issues that he may incur as long as he is incarcerated. [Id. at p. 10-11][1]

         As currently drafted, Metcalf's Complaint must be dismissed for failure to state a claim for which relief may be granted. To bring a claim under § 1983, a plaintiff must “plead that each Government-official defendant, through the official's own official actions, violated the Constitution.” Iqbal, 556 U.S. at 676. Thus, to be held liable under § 1983, a defendant must have personal involvement in the alleged unconstitutional conduct. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999).

         Metcalf's Complaint seeks to bring claims against Daniel Akers, the Warden at the LAC, and Nikki Beckstrum, whom he identifies as the Kentucky Department of Corrections (“KDOC”) Representative in charge of overseeing “CCA, ” presumably referring to CoreCivic, a private corporation that operates the LAC.[2]However, the “conduct” that Metcalf alleges by Akers and Beckstrum is that they each failed to adequately respond to his grievances filed regarding the jail conditions and that they were “derelict” in their duties as supervisors of the prison.

         To the extent that Metcalf's claims are based on Akers and/or Beckstrum's allegedly inadequate responses to his grievances, prison officials are not liable under § 1983 for denying or failing to act on grievances. Grinter v. Knight, 532 F.3d 567, 576 (6th Cir. 2008). Moreover, to the extent that Metcalf alleges that Akers and/or Beckstrum negligently carried out their respective supervisory duties, the Supreme Court has long held that government officials are not liable when a negligent act causes a violation of the plaintiff's civil rights; intentional conduct is required. Daniels v. Williams, 474 U.S. 327, 330-34 (1986). In addition, the mere fact of supervisory capacity is not enough: respondeat superior is not an available theory of liability. Polk County v. Dodson, 454 U.S. 312, 325-26 (1981). Indeed, “[i]n a § 1983 suit or a Bivens action - where masters do not answer for the torts of their servants - the term ‘supervisory liability' is a misnomer.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009).

         Moreover, Metcalf's Complaint is clear that he seeks to bring his claims against Akers and Beckstrum in their official capacities only. [Record No. 1 at p. 2] Indeed, Metcalf explains that “by answering the formal portion of LAC inmate grievance (#18-132), [Akers] under the color of the law with his opportunity to use his authority to deny said aforementioned grievance.” [Id. at p. 5] Metcalf further explains that, “[b]y making this decision on the civil rights violations that occurred under his [illegible], he has placed himself as the official to be summoned under the color of the law in the civil rights violation suit. He in his duties has complete control and full responsibilities over all (state employed) employees, and all legal advisements therein, here at this institution…which…puts him under the color of state and local law, in his official state employed capacity.” [Id.]

         With respect to Beckstrum, Metcalf explains that she is a representative of the Kentucky Department of Corrections, “in a bi-partisan official capacity as an overseer of the daily operations of Core Civic and [LAC].” [Id. at p. 5] Metcalf continues by stating that, “[b]y being an employee of the State of Kentucky, i.e., Department of Corrections, she is under the color of the law at the state and local level. Under the color of the law, she has decided to disregard all of the relevant facts presented in this civil suit. By disregarding grievance #18-132, she has put this whole facility under a serious hepatitis-A watch! (which we know now to be prevalent in Ky. schools).” [Id. at p. 5-6]

         Notwithstanding its label, an “official capacity” claim against a state officer is not a claim against the officer arising out of his or her conduct as an employee of the state, but is actually a claim directly against the state agency which employs them. Lambert v. Hartman, 517 F.3d 433, 439-40 (6th Cir. 2008); Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003) (“While personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law, individuals sued in their official capacities stand in the shoes of the entity they represent.”) (internal quotation marks omitted). It is not entirely clear whether Metcalf purports to bring these claims against Akers and Beckstrum as employees of the KDOC or CoreCivic. However, these claims fails regardless of whether they are construed against the KDOC or CoreCivic.

         First, the KDOC is not subject to suit under § 1983 in federal court. A state agency is not a “person” subject to liability under Section 1983. Further, the Eleventh Amendment deprives federal district courts of subject matter jurisdiction over a claim for money damages against a state and its agencies. Gibbons v. Kentucky Dept. of Corrections, No. 3:07-cv-P697-S, 2008 WL 412847, at *1 (W.D. Ky. Sept. 4, 2008) (citing Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 687-88 (1993) (“Absent waiver, neither a State nor agencies acting under its control may be subject to suit in federal court.”) (internal quotation marks and citation omitted)); Scott v. Kentucky Department of Corrections, No. 08-cv-104-HRW, 2008 WL 4083002, at *2 (E.D. Ky. Aug. 29, 2008) (“the Eleventh Amendment has also been interpreted to extend immunity to State employees sued for damages in their official capacities.”).

         And to the extent that Akers and/or Beckstrum are employees of CoreCivic, Metcalf's official capacity claims would be construed as claims against CoreCivic and would be barred as currently pled. A private corporation that performs a public function, such as contracting with the state to run its prisons, may be found to act under color of law for purposes of § 1983. Skelton v. Pri-Cor, Inc., 963 F.2d 100, 102 (6th Cir. 1991). Nevertheless, “respondeat superior alone cannot create liability under § 1983.” Id. at 748-49. Rather, for a suit to lie against a private corporation, it must act “pursuant to a policy or custom.” Id. at 749. “[J]ust as a municipal corporation is not vicariously liable upon a theory of respondeat superior for the constitutional torts of its employees, a ...


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