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Pernestti v. Boyd

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

January 23, 2019



          Thomas B. Russell, Senior Judge

         Plaintiff Sean Pernestti filed a pro se, in forma pauperis 42 U.S.C. § 1983 complaint. This matter is before the Court for screening pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). For the following reasons, the action will be dismissed.


         Plaintiff is a convicted prisoner currently incarcerated at the Roederer Correctional Complex. His complaint contains allegations of events occurring during approximately one month while he was housed at the Christian County Jail (CCJ). He names as Defendants in their individual and official capacities the following CCJ employees: Jailer Brad Boyd, Colonel Steve Howard, Captain Burd, and Deputy Davenport.

         Plaintiff alleges that on July 4, 2018, he pushed the call button to request medical help but was not responded to for an hour, at which time his blood sugar was checked and was 313. The doctor was called but did not respond, and an hour later Plaintiff asked to see Defendant Burd. Defendant Burd apparently was not there, but a non-Defendant Deputy rechecked Plaintiff, who “was 523, ” gave him “required insulin, ” and contacted the doctor.

         Plaintiff next alleges that on July 20, 2018, he pressed the call button in his cell numerous times. He states that 30 minutes later Defendant Davenport came to his cell to take another inmate to sick call. Plaintiff states that he informed Defendant Davenport that he needed medical attention but that Defendant Davenport told him that he was not on the sick-call “list and closed the door.” Plaintiff states that he then gave Defendant Howard a grievance but that it “never was responded to.” Plaintiff next alleges that CCJ does not provide sufficient food; that trustees are not supervised by staff when preparing food trays; that CCJ does not use a properly trained dietician; and that CCJ does not serve a proper diabetic diet. He also alleges that CCJ allows the medical contractor to charge for doctor visits when actually the inmates see a nurse practitioner. He also alleges that on the evening of August 1, 2018, “deputies knowingly deprived me of my prescribed medication.” He states that he was told that this occurred because he “was in the law library.”

         Finally, Plaintiff alleges:

I have started seeing blood spots in my left eye. I may have damage to my kidneys from my sugar levels being so high. I have requested medical care for these issues. I have not received any treatment as of 8-2-2018. My vision was 20/20. Now I feel in need of glasses. I have requested to see mental health for almost a month to help deal with the anxiety from fear of malicious treatment. They still haven't seen me.

         As relief, Plaintiff asks for punitive damages, refund of “all doctor fees charged to all inmates seen by nurse practitioner, ” and various injunctive relief.

         II. ANALYSIS

         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 action, if the Court determines that it 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 28 U.S.C. § 1915A(b)(1) and (2). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). The Court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Id. at 327. When determining whether a plaintiff has stated a claim upon which relief can be granted, the Court must construe the complaint in a light most favorable to Plaintiff and accept all of the factual allegations as true. Prater v. City of Burnside, Ky., 289 F.3d 417, 424 (6th Cir. 2002). While a reviewing court must liberally construe pro se pleadings, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam), to avoid dismissal, a complaint must include “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         A. Individual-capacity claims

         1. Defendant Burd

         Plaintiff alleges that on July 4, after the doctor was contacted about Plaintiff's blood sugar level but did not respond for an hour, Plaintiff asked to see Defendant Burd, who “apparently was not there.” This is not a constitutional violation. Defendant Burd is ...

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