United States District Court, W.D. Kentucky, Owensboro
MEMORANDUM OPINION AND ORDER
H. MCKINLEY JR., SENIOR JUDGE.
a pro se civil rights action brought by a prisoner
pursuant to 42 U.S.C. § 1983. The Court has granted
Plaintiff Ira Boles Dyer III leave to proceed in forma
pauperis. 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
SUMMARY OF COMPLAINT
is incarcerated as a convicted prisoner at the Daviess County
Detention Center (DCDC). He brings this action against the
following Defendants in both their official and individual
capacities: Southern Health Partners (SHP) physician Tamberly
McCoy; SHP mental healthcare provider Christy Dossett; DCDC
Jailer Arthur Maglinger; and DCDC Major Jack Jones.
alleges that shortly before his incarceration, he had surgery
on his left knee to repair his meniscus and anterior cruciate
ligament (ACL). He alleges that, as a result of this surgery,
he was placed in the DCDC medical pod under the care of SHP.
Plaintiff alleges that upon his initial visit with Defendant
McCoy, he advised her of his recent surgery and asked what
his treatment plan would be. He alleges that Defendant McCoy
responded, you “shouldn't have come to jail.”
He also alleges that Defendant McCoy told him “that
there was nothing they could do, [and that I] would be stuck
in my leg brace.” Plaintiff writes: “Because of
this and constantly having to walk on my knee that stay in
excruciating pain and swollen twice its size I fear I will be
permanently disabled.” Plaintiff states that despite
numerous pleas for help, “the facility refuses to do
anything to assist me.”
also alleges that Defendant Dossett has recommended that he
be prescribed medications for his diagnosis of post-traumatic
stress disorder (PTSD), but that these “have repeatedly
been denied despite numerous grievances and cries for
states that he is suing Defendants Maglinger and Jones for
“superior liability.” As relief, Plaintiff seeks
compensatory and punitive damages and injunctive relief in
the form of a transfer to Kentucky State Reformatory.
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, 544
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
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).
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 § 1983 claim will not
lie.” Christy v. Randlett, 932 F.2d
502, 504 (6th Cir. 1991).
suits . . . ‘generally represent  another way of
pleading an action against an entity of which an officer is
an agent.'” Kentucky v. Graham, 473 U.S.
159, 166 (1985) (quoting Monell v. New York City
Dep't of Soc. Servs., 436 U.S. 658, 691 n.55
(1978)). Thus, Plaintiff's official-capacity claims
against Defendants Maglinger and Jones are actually against
Daviess County. See, e.g., Lambert v.
Hartman, 517 F.3d 433, 440 (6th Cir. 2008) (stating ...