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Jensen v. Underwood

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

May 8, 2019



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

         This is a pro se civil rights action brought pursuant to 42 U.S.C. § 1983. 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 some claims, allow others to proceed, and allow Plaintiff the opportunity to amend his complaint.


         Plaintiff Timothy Henry Jensen, Jr., is a convicted prisoner incarcerated at the LaRue County Detention Center (LCDC). The named Defendants in this action are LaRue County and LCDC Jailers Jamie Underwood and Johnny Cottrill, [1] LCDC Deputy Scott Hayes, Kentucky State Trooper Eric Whitlock, and Public Defender Heather Temple, in both their official and individual capacities.

         Plaintiff initially brought this action with another inmate at LCDC, Jeremy Wayne Williams. However, the complaint was severed because their claims were not properly joined under Fed.R.Civ.P. 20(a).[2] Thus, although the complaint contains claims asserted by both Plaintiff and Williams, the only claims in this action are those that are personal to Plaintiff.

         Plaintiff first alleges that he ran out of toilet paper on July 17, 2018, because he only received one roll a week. When he requested another roll, Defendant LCDC Deputy Hayes and non-defendant “Deputy Brad” allegedly told him that they were only required to give him one roll a week. Plaintiff then requested a grievance form. The deputies then told Plaintiff that his family “has to order caracells with T.P. in them to receive it or that he had to go to medical to receive more T.P.” These deputies then put Plaintiff in the “hole” for approximately nine hours without a bed roll or mat.

         Plaintiff next seems to allege that only one toilet in his cell has worked for the past eight months and that the shower leaks water on the floor.

         Plaintiff also alleges that he made multiple requests to Defendant LCDC Jailer Cottrill, and then to Defendant LCDC Jailer Underwood, for access to the law library at LCDC so that he could use “the KRS manual for understanding of my case.” He states that when he wrote grievances pertaining to this issue, he was told that LCDC did not have a “KRS Manual.” Plaintiff, however, alleges that he saw “KRS manuals on Booking desk.” Plaintiff next alleges that he asked for a 42 U.S.C. § 1983 prisoner complaint form but was told by LCDC deputies that they did not know what he was talking about and that he would have to get one from his attorney. However, Plaintiff alleges that another deputy then printed a § 1983 complaint form for inmate Jeremy Williams and told them they could file their complaint together (which they did).

         Finally, Plaintiff alleges that LCDC deputies would not return his prisoner application to proceed without prepayment of fees to him or provide him with a copy of his “Inmate 6-month Account Statement” for this action.


         Because Plaintiff is a prisoner seeking relief against governmental entities, officers, and/or employees, this Court must review the instant action under 28 U.S.C. § 1915A. Under § 1915A, the trial court must review the complaint and dismiss the complaint, or any portion of the complaint, 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 § 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] 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)). “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, while liberal, this standard of review does require more than the bare assertion of legal conclusions. See Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995). The Court's duty “does not require [it] to conjure up unpled allegations, ” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979), or to create a claim for a 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, 640 (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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