United States District Court, E.D. Kentucky
ANDRE S. PENDERMON, Plaintiff,
BRITTANY MOORE, et al ., Defendants.
MEMORANDUM OPINION AND ORDER
M. Hood, Senior U.S. District Judge.
S. Pendermon is an inmate currently confined at the
Montgomery County Regional Jail in Mount Sterling, Kentucky.
Proceeding without an attorney, Pendermon has filed a civil
rights action against prison officials pursuant to 42 U.S.C.
§ 1983. [R. 1] By separate order, the Court has granted
Pendermon’s motion to proceed without prepayment of the
filing fee. [R. 9] Thus, the Court must conduct a preliminary
review of Pendermon’s complaint pursuant to 28 U.S.C.
§§ 1915(e)(2), 1915A. A district court must dismiss
any claim that 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.
McGore v. Wrigglesworth, 114 F.3d 601, 607-08 (6th
Cir. 1997), abrogated on other grounds, Jones v.
Bock, 549 U.S. 199 (2007).
Court evaluates Pendermon’s complaint under a more
lenient standard because he is not represented by an
attorney. Erickson v. Pardus, 551 U.S. 89, 94
(2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir.
2003). At this stage, the Court accepts the plaintiff’s
factual allegations as true, and his legal claims are
liberally construed in his favor. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007). However, the
principles requiring generous construction of pro se
pleadings are not without limits. Wells v. Brown,
891 F.2d 591, 594 (6th Cir. 1989); Wilson v. Lexington
Fayette Urban County Government, No. 07-cv-95-KSF, 2007
WL 1136743 (E.D. Ky. April 16, 2007). Although the Court has
an obligation to liberally construe a complaint filed by a
person proceeding without counsel, that obligation does not
extend so far as to require or permit it to create arguments
or claims that the plaintiff has not made. Coleman v.
Shoney’s, Inc., 79 F. App’x 155, 157 (6th
Cir. 2003) (“Pro se parties must still brief the issues
advanced with some effort at developed
argumentation.”). Thus, vague allegations that one or
more of the defendants acted wrongfully or violated the
plaintiff’s constitutional rights are not sufficient.
Laster v. Pramstaller, No. 08-CV-10898, 2008 WL
1901250, at *2 (E.D. Mich. April 25, 2008).
complaint, Pendermon alleges that Defendant Brittany Moore, a
Nurse employed by Southern Health Partners to provide medical
services to inmates at the Montgomery County Regional Jail,
has refused to obtain Pendermon’s medical record from
Pendermon’s previous place of incarceration, the
Madison County Detention Center. Pendermon claims that, at
medical intake, he let the nurse know that he had stomach
ulcers and could not eat spicy foods. However, he claims
that, due to the nurse not putting that he is not to eat
spicy food in the system, he has had to eat spicy food,
causing severe stomach pains. He does not identify any
constitutional rights that he claims have been violated. He
seeks $200, 000.00 in damages for “pain and
suffering” against Defendants Moore, Officer Power (a
Deputy at the Montgomery County Regional Jail), and the
Montgomery County Regional Jail.
Court has thoroughly reviewed the complaint and concludes
that it must be dismissed for failure to state a claim. A
complaint must set forth claims in a clear and concise
manner, and 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); Hill v. Lappin, 630 F.3d 468, 470 (6th
Cir. 2010). See also Fed. R. Civ. P. 8. In addition,
“a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitle[ment] to
relief’ requires more than labels and conclusions, and
a formulaic recitation of a cause of action’s elements
will not do.” Twombly, 550 U.S. at 555.
seeks to bring his claims in this action pursuant to 42
U.S.C. § 1983. To establish a § 1983 claim, a
plaintiff must show that he was deprived of a constitutional
right and that the deprivation occurred at
the hands of defendant who was a “state actor, ”
or acted under color of state law. See Gomez v.
Toledo, 446 U.S. 635, 640 (1980); Searcy v. City of
Dayton, 38 F.3d 282, 286 (6th Cir. 1994). However,
Pendermon fails to identify any constitutional right
that he claims has been violated by any defendant. The Court
is not required to create a claim for the plaintiff, nor to
“conjure up unpled allegations.” Moorman v.
Herrington, No. 4:08-CV-P127-M, 2009 WL 2020669, at *1
(W.D. Ky. July 9, 2009)(citations omitted). Thus, while the
Court has an obligation to liberally construe a complaint
filed by a person proceeding without counsel, it has no
authority to create arguments or claims that the plaintiff
has not made. Coleman, 79 F. App’x at 157.
with respect to Pendermon’s claim against Officer
Power, the only allegation against Officer Power is that
Officer Power told Pendermon that “they have these
problems with the nurse often.” However, this sole
allegation – particularly absent any sort of
explanation as to the nature of Pendermon’s claim
against Officer Power – is far from sufficient to state
a plausible claim for relief against Officer Power.
Iqbal, 556 U.S. at 678.
addition, to the extent that Pendermon seeks to hold Officer
Power responsible for Nurse Moore’s conduct, not only
does he fail to make any allegation suggesting that Officer
Power had any sort of supervisory authority over Nurse Moore,
even if he had, under 42 U.S.C. § 1983,
“[g]overnment officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory
of respondeat superior.” Iqbal, 556 U.S. at
676; see also Bellamy v. Bradley, 729 F.2d 416, 421
(6th Cir. 1984). A plaintiff must “plead that each
Government-official defendant, through the official's own
official actions, violated the Constitution.”
Iqbal, 556 U.S. at 676. Thus, for a supervisor to be
held liable under § 1983, he or she must have personal
involvement in the alleged unconstitutional conduct in order
to be held liable for the conduct about which the plaintiff
complains. Shehee v. Luttrell, 199 F.3d 295, 300
(6th Cir. 1999). The mere fact that a defendant acted in a
supervisory capacity is not enough: respondeat
superior (vicarious liability) is not an available
theory of liability in a § 1983 action. Polk County
v. Dodson, 454 U.S. 312, 325-26 (1981). Having failed to
allege that Officer Power was “personally involved in
the alleged deprivation of federal rights, ”
Pendermon’s claim against Officer Power must be
dismissed for failure to state a claim. Nwaebo v.
Hawk-Sawyer, 83 F. App’x 85, 86 (6th Cir. 2003)
(citing Rizzo v. Goode, 423 U.S. 362, 373-77
addition, although Pendermon names the Montgomery County
Regional Jail as a defendant in this case, a County Regional
Jail or detention center is not a suable entity apart from
the county that operates it. See Marbry v. Corr. Med.
Servs., 238 F.3d 422, 2000 WL 1720959, at *2 (6th Cir.
2000) (the Shelby County Regional Jail is not subject to suit
under § 1983); Cage v. Kent County Corr.
Facility, No. 96-1167, 1997 WL 225647, at *1 (6th Cir.
1997) (“The district court also properly found that the
jail facility named as a defendant was not an entity subject
to suit under § 1983”).
construing Pendermon’s claims as being made against
Montgomery County, Pendermon does not allege that any actions
were taken pursuant to an established policy of Montgomery
County. Because a county government is only responsible under
§ 1983 when its employees cause injury by carrying out
the county’s formal policies or practices, Monell
v. Dept. of Social Services, 436 U.S. 658, 694 (1978), a
plaintiff must specify the county policy or custom which she
alleges caused his injury. Paige v. Coyner, 614 F.3d
273, 284 (6th Cir. 2010). Pendermon points to no such policy
in his complaint, and these claims are therefore subject to
dismissal for failure to state a claim. Id.;
Bright v. Gallia County, Ohio, 753 F.3d 639, 660
(6th Cir. 2014) (“To establish municipal liability
pursuant to § 1983, a plaintiff must allege an
unconstitutional action that ‘implements or executes a
policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s
officers’ or a ‘constitutional deprivation 
visited pursuant to governmental custom even though such a
custom has not received formal approval through the
body’s official decisionmaking
channels.’”); Brown v. Cuyahoga County,
Ohio, 517 F. App’x 431, 436 (6th Cir. 2013).
remaining claim is against Nurse Moore for failure to provide
adequate health care by failing to properly document that
Pendermon should not eat spicy food, which he alleges
resulted is his consumption of spicy food, causing stomach
pain. Again, Pendermon has failed to identify any
constitutional rights allegedly violated by Nurse
Moore’s conduct. Thus, he has failed to allege an
essential element required to state a § 1983 claim
against Nurse Moore.
Pendermon’s reference to his health care could be very
broadly construed to implicate his rights under the Eighth
Amendment, his claim against Nurse Moore would still fail.
“In order to state a cognizable claim [under the Eighth
Amendment] a prisoner must allege acts or omissions
sufficiently harmful to evidence deliberate indifference to
the plaintiff’s serious medical needs.”
Estelle v. Gamble, 429 U.S. 97, 106 (1976). Such a
claim involves a two-part inquiry with both an objective and
a subjective component: (1) the plaintiff must allege a
sufficiently serious medical need, and (2) the plaintiff must
allege facts that “show that the official being sued
subjectively perceived facts from which to infer substantial
risk to the prisoner, that he did in fact draw the inference,
and that he then disregarded that risk.” Johnson v.
Karnes, 398 F.3d 868, 874 (6th Cir. 2005) (quoting
Comstock v. McCrary, 273 F.3d 693, 607 (6th Cir.
Pendermon’s allegations do not support a claim that
Nurse Moore was “deliberately indifferent” to
Pendermon’s serious medical needs. Even if the
Pendermon’s stomach condition was sufficiently serious
to implicate constitutional concerns, to establish
“deliberate indifference” to Pendermon’s
condition, Pendermon must allege facts sufficient to show
that Nurse Moore acted with a knowing and culpable disregard
for his well-being, demonstrated by circumstances such as
“intentionally denying or delaying access to medical
care or intentionally interfering with the treatment once
prescribed.” Estelle, 429 U.S. at 104;
Wilson v. Seiter, 501 U.S. 294, 297 (1991);
Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011)
(“Deliberate indifference is more than negligence and
approaches intentional wrongdoing.”).
will not suffice are allegations that plaintiff’s
doctors were merely negligent in their diagnosis of the
prisoner’s medical condition, or simply failed to
provide adequate medical care. Rhinehart v. Scutt,
894 F.3d 721, 736 (6th Cir. 2018). See also
Comstock, 273 F.3d at 703. Indeed, “the
requirement that the official have subjectively perceived a
risk of harm and then disregarded it is meant to prevent the
constitutionalization of medical malpractice claims; thus, a
plaintiff alleging deliberate indifference must show more
than negligence or the misdiagnosis of an ailment.”
Johnson, 398 F.3d at 875 (quoting Comstock,
273 F.3d at 703). Here, Pendermon makes no allegation that
Nurse Moore subjectively perceived a risk of harm to
Pendermon, then disregarded it. Rather, Pendermon’s
allegations at most suggest that Nurse Moore may have been
negligent in failing to indicate that Pendermon was not to
eat spicy food. However, allegations of medical negligence
are simply insufficient to state a claim for violation of