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Webb v. Burkhart

United States District Court, E.D. Kentucky, Owensboro Division

March 6, 2019

GREGORY RYAN WEBB PLAINTIFF
v.
B.J. BURKHART et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

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

         This matter is before the Court on initial review of Plaintiff Gregory Ryan Webb's pro se amended complaint (DN 40) pursuant to 28 U.S.C. § 1915A. For the reasons that follow, some of the claims will proceed, some of the claims will be dismissed, and others will be severed from this action.

         I.

         Plaintiff is a convicted prisoner who brings this action pursuant to 42 U.S.C. § 1983 asserting claims occurring at three different institutions-Muhlenberg County Detention Center (MCDC), Daviess County Detention Center (DCDC), and Harlan County Detention Center (HCDC). As Defendants, Plaintiff names Muhlenberg County and MCDC Jailer Mark Curry and Class D Coordinator Kay Todd; and Daviess County and DCDC Jailer Arthur Maglinger and Class D Coordinator Regan Bennett. The remaining Defendants are related to his detention at the HCDC: Harlan County; HCDC Jailer B.J. Burkhart, Captain Dan Howard, Chief Deputy Jailer/Class D Coordinator Derrick Moore, Deputy Jailer Whitman, Deputy Jailer Justin Howard, and Deputy Jailer Blake; and Southern Health Partners (SHP), medical contractor at HCDC, and SHP employees, Nurse Tammy “Halcomb(s)” and Nurse Jeff Osborne. All Defendants are sued in their individual and official capacities, with the exception of Defendants Todd, Bennett, Justin Howard, Blake, and Jeff Osborne, who are sued in their individual capacities only.

         As to the claims arising at MCDC, Plaintiff complains that with respect to another action he filed, 5:18-CV-P81-TBR, MCDC “kept taking out 50% instead of the 20%” from his jail trust account for monthly payment of the filing fee, when the Court's fee order required only 20% collection. He alleges, “I believe MCDC could have easily manually collected the 20% but they are not a legal friendly facility and I believe I was considered a problem after excering my right to the Courts.” Plaintiff reports that he mailed a “letter/complaint” to the Clerk of Court concerning the overcollection of the filing fee by MCDC and that on October 18, 2017, the Clerk mailed a “letter/memo that I received on 10/23/17 concerning the overcollection or to only collect 20% when MCDC also received a copy.” He claims that on October 31, 2017, “I was told to quickly pack my property for transfer.” He reports that he did not collect his work boots or work hat and brought it to the attention of two transport workers. Plaintiff claims,

Upon arrival at Daviess CDC [on October 31, 2017], the Deputy took my $165 worth of commissary that the Muhlenberg Jailer, Mark Curry, knew would happen and he could have prevented it from happening given the situation. With the lowest level of security, I was also placed in a violent disciplinary cell C-104 when Mark Curry could have prevented this too. Mark Curry is known for transferring problem Inmates to Daviess CDC. During the ride the other Inmate stated to me, “I'm being transferred for writing a grievance, and Mark Curry told me on Sunday I'd be going somewhere I didn't like.” I was later told that MCDC's accounting system wouldn't allow a 20% collection but I believe there's an over-ride or manual collection option. I was a good worker on their community work program, I was over half-way through my MRT program after being charged $25 for the book, and I was transferred further away from my home[.] I strongly believe I was transferred after my Complaint to the Clerk as a reprisal/retaliation.

         Plaintiff reports that “[u]pon my arrival [at DCDC] the Deputy Jailer's became aware of the transfer reason over the 20% collection.” Plaintiff reports repeatedly requesting upon his arrival at that jail for intake personnel not throw away his commissary, “approximately $165.00 worth.” He advises that he was told it would be donated and/or disposed and that he was not given the opportunity to mail it out, have it picked up, or stored in his jail property. Plaintiff states that on November 8, 2017, “trustee Inmates at DCDC were in hallway offering to trade/sell Kroger peanut butter, ” which he believes was part of the commissary that he brought with him. Plaintiff alleges violations of due process and of the Takings Clause of the Fifth Amendment by Defendant Daviess County Jailer Maglinger and a violation of equal protection because “DCDC [] allows Inmates they're familiar with to bring commissary in the Jail that was purchased at another jail.”

         Plaintiff further alleges that at DCDC:

I was placed in C-104 with pre-trial Inmates charged with violent crimes including murder, Inmates who were being released from isolation for disciplinary reasons, or other Inmates who had recent disciplinary issues: On the early morning of 11/13/17 I was forced to fight or get jumped by Inmates. . . . For the late night of 11/12/17 and morning of 11/13/17, there was no help from Jail staff. Either fight or get dragged off your bed/mattress and jumped.
. . . .
. . . After I was sure no Deputy would come and that I couldn't talk my way out of the situation, I physically stood up for myself. . . . My altercation ended after I faced one Inmate and another Inmate grabbed by feet from behind. I was slammed to the concrete and my head bounced off a metal table seat.
The incident caused me a gash on my head, a chipped tooth, and broke my hand that's now deformed. . . . From that day on until I received antibiotics at Marion CDC, I felt dazed with an infection in my tooth and/or head.

         Plaintiff reports that while he was in the shower to wash the blood off, “the ‘gang' burglarized and stole approximately $175.00 of my property . . . .” Plaintiff claims that he was denied appropriate medical treatment and denied his right to be protected.

         Plaintiff alleges that he requested Defendant DCDC Jailer Maglinger “to submit me for the EGTC (good time), . . . but I've received no response. I also lost 4-5 days good time for not being allowed on DCDC's work side.”

         Plaintiff reports that he was transferred to HCDC on December 1, 2017. He states, “I believe my transfer . . . was the result of evil motive and intent [by Defendants DCDC Jailer Maglinger and Class D Coordinator Bennett] to prevent me from receiving 90 days program completion credit and to prevent medical accountability.” He claims that in mid-November 2017, he sent an electronic request to Defendant Bennett requesting not to be transferred due to only having five weeks left to complete the “MRT [program] and receive 90 days against my sentence.” He states that on November 28th or 29th, Lt. Moore told him that he will be transferring “‘very soon,' . . . ‘D.O.C. did a surprise visit due to a grievance you mailed to D.O.C.'” Plaintiff indicates, “I believe I wasn't allowed to stay and finish MRT due to reprisal from my grievances to D.O.C. and/or grievances to the U.S. Clerks Office, plus D.O.C. showing up at DCDC.”

         According to the amended complaint, on December 2, 2017, his second day after his transfer to HCDC, Plaintiff started the “HCDC Inmate work program.” He alleges that he and other inmates were required to use weed eaters without the manufacturer safety guards, which were “purposely removed by HCDC, ” and that “every day I weedeated, it caused little whelps and/or sores on my face and/or neck.” He reports that he complained to his immediate supervisor. Apparently, he was placed in isolation sometime thereafter, because he alleges that after writing grievances to “D.O.C., ” a “D.O.C. representative” visited him in isolation on January 26, 2018. Plaintiff states, “I believe I was kept in cell P-3 for longer due to my verbal grievance to the D.O.C. rep who did nothing.”

         Additionally, Plaintiff alleges that HCDC “is a ‘disciplinary facility' and not ‘legal friendly.'” He alleges that they do not provide a law library; that his requests for legal copies, law library, notary service, and for retrieval of legal documents from his jail property for a state court case were ignored; that “HCDC treated me differently due to my being labeled a jailhouse lawyer”; and that “I earned the right to be submitted for the EGTC that I requested [Defendant] Burkhart, to submit me for but I've received no response.”

         Plaintiff also alleges that he was placed in medical isolation for 22 days in January and February 2018 on “medical watch” because he allegedly said he was “unstable, ” but he believes that HCDC officials used this as an excuse to lock him down for grievances he had written. He contends that in isolation he had “no phone call, and a total of 50 minutes exercise outside the cell. There was no hot water in showers.” Plaintiff further complains that HCDC refused to transfer him “out of both spite and so they could profit from me as a State Inmate” and that HCDC officials “singled [him] out as an Inmate to do the ‘dirty work' for them.” He complains that Defendant Deputy Justin Howard stole some of his property while in D block. Plaintiff alleges that he was not treated for “an infection in my head that's possibly from my chipped/broken tooth” and was denied antibiotics and to be seen by a dentist. He states that he was told that he can have his family make arrangements with the local dentist and that the jail would take him once the appointment was made.

         Plaintiff reports being transferred to Pike County Detention Center on April 20, 2018, where he was given an antibiotic prescription and that before that prescription ran out he was transferred to Marion County Detention Center, where he is currently housed. He claims that at Marion County Detention Center, he saw a ...


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