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Burke v. Erwin

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

May 14, 2019

THOMAS EDWARD BURKE, JR. PLAINTIFF
v.
JAMES ERWIN, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          Thomas B. Russell, Senior Judge.

         Plaintiff Thomas Edward Burke, Jr., filed a pro se, in forma pauperis complaint pursuant to 42 U.S.C. § 1983. 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 reasons set forth below, this action will be dismissed in part and allowed to continue in part, and Plaintiff will be given an opportunity to amend his complaint.

         I. SUMMARY OF CLAIMS

         Plaintiff is an inmate at the Kentucky State Penitentiary (KSP). He names as Defendants in their individual and official capacities Kentucky Department of Corrections Commissioner James Erwin; Correct Care Solutions (CCS), the medical care provider at KSP; and Nurse Nancy Raines. He alleges that he has had a continuous positive air pressure (CPAP) machine to use since 1996 including the years he has been at KSP, i.e., 2006 to the present. He alleges that Defendant Raines has refused to order “seriously needed parts” to keep his CPAP machine working. He states that Defendant Raines knows that he suffers from the serious medical conditions sleep apnea and asthma. He alleges that Defendant Raines' deliberate indifference to his sleep apnea causes him to feel very tired with muscle and joint pain. He also alleges that Defendant Raines is interfering with the treatment ordered by his doctor by not ordering the supplies needed to run the CPAP machine.

         A couple of weeks after he initiated this civil action, Plaintiff refiled his complaint on this Court's approved form. On that complaint form (DN 1-4), Plaintiff adds an allegation that he was released from his prison job because he filed this complaint in court.

         As relief, Plaintiff requests monetary and punitive damages and injunctive relief in the form of ordering Defendants to provide him with the needed parts for his CPAP machine.

         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 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).

         Claim against Commissioner Erwin

         The complaint does not mention Defendant Erwin except to explain that he is “responsible for the overall operations of the Department and each institution under his jurisdiction, including [KSP].”

         The doctrine of respondeat superior, or the right to control employees, does not apply in § 1983 actions to impute liability onto supervisors. Monell v. N.Y.C. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978); Taylor v. Mich. Dep't of Corr., 69 F.3d 76, 80-81 (6th Cir. 1995). Additionally, “simple awareness of employees' misconduct does not lead to supervisor liability.” Leary v. Daeschner, 349 F.3d 888, 903 (6th Cir. 2003). “[P]roof of personal involvement is required for a supervisor to incur personal liability.” Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008). “[A] plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (stating that supervisory liability “must be based on active unconstitutional behavior and cannot be based upon ‘a mere failure to act'”) (quoting Salehpour v. Univ. of Tenn., 159 F.3d 199, 206 (6th Cir. 1998)).

         Thus, for a supervisor such as Defendant Erwin to be held liable under § 1983, Plaintiff must allege that Defendant Erwin was personally involved in the alleged unconstitutional conduct. Plaintiff does not do so, and, therefore, fails to state a claim against this Defendant.

         Retaliation claim

          Plaintiff alleges that he lost his prison job because he filed this case. He does not state who was responsible for removing him from his job or any other details. The Court will allow Plaintiff to amend his complaint to name the ...


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