United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. Reeves, United States District Judge
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. §§
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).
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]
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.
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.
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.
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.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
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).
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
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]
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.
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.”).
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 ...