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Mallory v. Bolton

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

November 6, 2019



          Charles R. Simpson III, Senior Judge.

         Plaintiff initiated this 42 U.S.C. § 1983 pro se prisoner civil-rights action in Jefferson Circuit Court. This matter is before the Court for screening of the complaint (DN 1-1) and amended complaint (DN 8) pursuant to 28 U.S.C. § 1915A. For the following reasons, the Court will dismiss some claims but will allow others to proceed.


         Plaintiff is incarcerated as a pretrial detainee at the Louisville Metro Department of Correction (LMDC). In the complaint, Plaintiff named as Defendants ten LMDC officials (collectively, the “Metro Defendants”), as well as three individuals employed by the private entity that has contracted to provide medical services to inmates at LMDC (collectively, the “Medical Defendants”).[1] Defendants removed the action to this Court based on federal question jurisdiction. Shortly thereafter, the Metro Defendants moved to dismiss Plaintiff's complaint against them pursuant to Fed.R.Civ.P. 12(b)(6). On May 2, 2019, the Court entered a Memorandum Opinion and Order granting this motion but providing Plaintiff 30 days in which to file an amended complaint. Plaintiff filed his amended complaint on May 22, 2019. On May 26, 2019, the Medical Defendants filed a motion to screen the complaint and amended complaint pursuant to 28 U.S.C. § 1915A, which the Court granted by Order entered July 25, 2019. Thus, the Court will now screen the complaint and amended complaint as to the claims set forth against the Medical Defendants and screen the amended complaint as to the claims set forth against the Metro Defendants.


         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, 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 (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).


         As indicated above, the Medical Defendants named in the complaint are Regina Reese Davis, “Medical Provider”; Kevin Smith, “Doctor”; and Rachel White, “Psych Doctor.” Plaintiff does not indicate in what capacity he sues them. In the amended complaint, Plaintiff names only Dr. Kevin Smith and Rachel White as Defendants and indicates that he is suing them in both their official and individual capacities.

         1. Official-Capacity Claims

         Plaintiff's official-capacity claims against the Medical Defendants are actually against their employer, which is ostensibly the private entity that has contracted to provide medical services to inmates at LMDC. The Sixth Circuit has held that the same analysis that applies to § 1983 claims brought against municipalities applies to private corporations contracted to provide medical services to inmates. See, e.g., Parsons v. Caruso, 491 Fed.Appx. 597, 609 (6th Cir. 2012) (recognizing that a “Monell custom or policy claim” can be brought under § 1983 against a private corporation that provides medical care to inmates); see also Braswell v. Corr. Corp. of Am., 419 Fed.Appx. 622, 627 (6th Cir. 2011) (applying Monell's municipal liability standard to the private corporation that had been contracted to operate a jail) (citing Street v. Corr. Corp. of Am., 102 F.3d. 810, 814 (6th Cir. 1996)).

         To demonstrate municipal liability, a plaintiff “must (1) identify the municipal policy or custom, (2) connect the policy to the municipality, and (3) show that his particular injury was incurred due to execution of that policy.” Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003) (citing Garner v. Memphis Police Dep't, 8 F.3d 358, 364 (6th Cir. 1993)). The policy or custom “must be ‘the moving force of the constitutional violation' in order to establish the liability of a government body under § 1983.” Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994) (quoting Polk Cty. v. Dodson, 454 U.S. 312, 326 (1981) (citation omitted)).

         In the instant case, Plaintiff does not claim that any alleged violation of his constitutional rights was the result of a custom or policy implemented or endorsed by the private entity that ostensibly employs the Medical Defendants. As such, the Court will dismiss Plaintiff's official-capacity claims against these Defendants for failure to state a claim upon which relief may be granted.

         2. Individual-Capacity Claims a. Deliberate Indifference to a Serious Medical Need

         In the complaint, Plaintiff alleges that he “has bleed from his rectum for several weeks with no proper medical attention never sent to an outside agency to this date of this actual lawsuit!” Plaintiff does not make this allegation in the amended complaint.

         To establish a constitutional violation[2] premised on inadequate medical care, a prisoner must demonstrate that the defendant acted, or failed to act, with “deliberate indifference to serious medical needs.” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)); Terrance v. Northville Reg'l Psychiatric Hosp., 286 F.3d 834 (6th Cir. 2002). “‘Deliberate indifference' by prison officials to an inmate's serious medical needs constitutes ‘unnecessary and wanton infliction of pain' in violation of the Eighth Amendment's prohibition against cruel and unusual punishment.” Miller v. Calhoun Cty., 408 F.3d 803, 812 (6th Cir. 2005) (quoting Estelle v. Gamble, 429 U.S. at 104). A claim of deliberate indifference under the Eighth Amendment has both an objective and a subjective component. The objective component requires the existence of a sufficiently serious medical need. Turner v. City of Taylor, 412 F.3d 629, 646 (6th Cir. 2005). To satisfy the subjective component, the defendant must possess a “sufficiently culpable state of mind, ” rising above negligence or even gross negligence and being “tantamount to intent to punish.” Horn v. Madison Cty. Fiscal Court, 22 F.3d 653, 660 (6th Cir. 1994). Put another way, “[a] prison official acts with deliberate indifference if he knows of a substantial risk to an inmate's health, yet recklessly disregards the risk by failing to take reasonable measures to abate it.” Taylor v. Boot, 58 Fed.Appx. 125, 126 (6th Cir. 2003) (citing Farmer v. Brennan, 511 U.S. at 832). Mere negligence will not suffice. Farmer v. Brennan, 511 U.S. at 835-36.

         In its prior Memorandum Opinion and Order dismissing the claims set forth by Plaintiff against the Metro Defendants in the complaint, the Court observed that Plaintiff had failed to allege any facts connecting any particular Defendant to his claim regarding the denial of medical treatment or even that he had requested medical treatment for his rectal condition. It was for these reasons that the Court granted the Metro Defendants' motion to dismiss regarding this claim. Here, the Court finds that because the complaint and amended complaint likewise fail to connect any Medical Defendant to this claim, the claim must be dismissed for failure to state a claim upon which relief may be granted.

         b. The Health Insurance Portability and Accountability Act (HIPAA)

         In both the complaint and amended complaint, Plaintiff also alleges that Defendant White violated his rights under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. §§ 1320a et seq, by sharing medical information about him with other officials. The Sixth Circuit has stated that “although we have not held explicitly that there is no private right of action under HIPAA, express or implied, other circuits have so held.” Thomas v. Univ. of Tenn. Health Sci. Ctr., No. 17-5708, 2017 U.S. App. LEXIS 24714, at *4 (6th Cir. 2017) (citations omitted). In Thomas, the Sixth Circuit upheld a dismissal for failure to state a claim and determined that “[i]f [the plaintiff] believes that her HIPAA rights were violated, the proper avenue for redress is to file a complaint with the [Department of Health and Human Services].” Id. (citing 45 C.F.R. § 160.306). In light of this jurisprudence, the Court finds that Plaintiff fails to state a claim against Defendant White under HIPAA.

         c. Retaliation

         In the amended complaint, Plaintiff alleges that Defendant Dr. Smith retaliated against him for filing the instant action. He writes, “Dr. Smith stated since I wanna file lawsuits and put him in it he's not letting me get my hemorrhoid whipes any more are my dental floss and he (order) May 14, 2019, to remove all they had left from the med cart by the evening nurse.”

         A First Amendment retaliation claim has three elements:

(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two-that is, the adverse action was ...

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