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Latham v. Oshefski

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

November 20, 2019

TIMMIE JAMES LATHAM PLAINTIFF
v.
CAPT. TROY OSHEFSKI et al. DEFENDANTS

          Plaintiff, pro se Defendants Simpson County Attorney

          MEMORANDUM OPINION AND ORDER

          GREG N. STIVERS, CHIEF JUDGE.

         This is a pro se civil-rights action brought by a pretrial detainee pursuant to 42 U.S.C. § 1983. This matter is before the Court for screening of Plaintiff's complaint and amended complaint pursuant to 28 U.S.C. § 1915A.[1] For the reasons set forth below, the Court will dismiss some claims but allow others to proceed.

         I.

         Plaintiff Timmie James Latham is incarcerated at the Simpson County Jail (SCJ). Plaintiff names as Defendants in this action the SCJ; SCJ Captain Troy Oshefski; SCJ Major Tim Phillips; and “Nurse Linda, ” whom Plaintiff seems to indicate is a Southern Health Partners (SHP) “2nd shift nurse.” Plaintiff sues Defendants Oshefski, Phillips, and “Nurse Linda” in both their official and individual capacities.

         Plaintiff alleges that he suffers from congestive heart failure. He states that Defendant Phillips witnessed an incident where Plaintiff's “medication was either wrong or the dosage was wrong” but that he waited “a couple of days to discuss this with the proper person instead of doing so immediately.” Plaintiff states that Defendant Phillips also witnessed “first hand my meds weren't given to me properly and done nothing about it.”

         Plaintiff alleges that “Nurse Linda . . . would let me run out of medication without properly ordering. She would pull medications from other people's prescriptions to fill mine which turned out to be the wrong medication.” Plaintiff alleges that “medication has been dispensed to him 2x more that what I take.”

         Plaintiff claims that Defendant Oshefski “did not look into these matter or ask me about the situation at all. His only remarks as stated in the Grievances was ‘Yes, you ran out but we got them filled and you haven't missed a dose.'” Plaintiff states that he “had missed several doses” and that Defendant Oshefski “was just going around the situation (neglecting).”

         Plaintiff also complains that he is charged for his medications from his inmate trust account even though, when he is not in custody, “[his] meds are free.”

         Plaintiff also claims that he is given food “that's not adequate to my cardiovascular diet which I'm supposed to be on and I'm not.” Plaintiff further alleges that he has missed appointments with doctors and for physical therapy.

         Plaintiff states that his rights are being violated because is a pretrial detainee being housed in a maximum-security cell with state inmates.

         Finally, Plaintiff alleges that his cell has “black mold throughout”; that he is lying in the floor “where it's filthy and known to have lead paint”; and that he is housed with inmates who have “staff infections [] with no kind of medical treatment which is detremental to my illness and could be fatal.”

         As relief, Plaintiff seeks compensatory and punitive damages and injunctive relief in the form of release from incarceration and expungement of his record.

         II.

         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 ...


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