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Banks v. Marcum

United States District Court, W.D. Kentucky, Bowling Green

May 17, 2019

JOHN B. BANKS PLAINTIFF
v.
HACK MARCUM et al. DEFENDANTS

          MEMORANDUM OPINION

          Greg N. Stivers, Chief Judge United States District

         This is a pro se civil rights action brought by a convicted prisoner pursuant to 42 U.S.C. § 1983. The Court has granted Plaintiff John B. Banks leave to proceed in forma pauperis. This matter is before the Court for screening of Plaintiff's complaint pursuant to 28 U.S.C. § 1915A. For the reasons set forth below, this action will be dismissed.

         I. SUMMARY OF COMPLAINT

         Plaintiff is a convicted prisoner who was previously incarcerated at the Taylor County Detention Center (TCDC). He brings this action against TCDC Jailer Hack Marcum; TCDC Class-D Coordinator Mary Cox; TCDC Lieutenant Larry Barnes; and TCDC Captain Paul Wise. He sues these Defendants in their official capacities only.

On March 18, 2019 [TCDC], where I'm incarcerated, drug tested the work cell. Twenty five people were tested and nine failed. Those who failed returned to the cell those who passed went back to work. I went back to work and worked eight hours that day. When I came in that day I was told I failed the test by the booking clerk and should not have went out. But I was told I passed. And they let me go back to work. At that time I asked for a retest, I wanted blood taken to show I had no drugs in my system. They said they would call Mary Cox the Class D Coordinator. . . . She called me to her office to tell me her tests are 99.9% accurate and she sent it off to the Kentucky Department of Corrections for a write-up and that was that. I asked to be retested and she informed me that Jailer Hack Marcum said I was not to be retested. I said I would pay for the retest if money was the issue but they said it was not about the money the test did not lie and to deal with it. On March 19, Lieutenant Larry Barnes took me off my job and confined me to my cell. [TCDC] has violated may right to a fair and due process. They never presented me with a write-up, nor had a disciplinary hearing. I lost good time for March and April. Violating my right to a fair and due process when I have a liberty interest at stake is unconstitutional. I had no hearing, no write-up presented, and no ability to call witnesses to rebute these claims. I have been refused everything at every level.
As relief, Plaintiff seeks damages and injunctive relief in the form of removing the “write-up” from his record and “inact new policy and procedure in facility for drug testing.”

         II. LEGAL STANDARD

         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 complaint, or any portion of it, if the court determines that the complaint 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 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[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)). “But the district court need not accept a ‘bare assertion of legal conclusions.'” Tackett, 561 F.3d at 488 (quoting Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557).

         Although this Court recognizes that pro se pleadings are to be held to a less stringent standard than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991), “[o]ur duty to be ‘less stringent' with pro se complaints does not require us to conjure up unpled allegations.” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979) (citation omitted). And this Court is not required to create a claim for 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 (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).

         “[T]he Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). The Supreme Court has held that a prisoner does not have a protected liberty interest in prison or jail disciplinary proceedings unless the sanction “will inevitably affect the duration of his sentence” or the resulting restraint imposes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 486-87 (1995).

         A. Loss of ...


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