Denmark-Wagner (ID 93947) v. Correct Care Solutions, Inc. et al
ORDER ENTERED: Plaintiff's motion 6 for leave to amend the complaint is granted; the amended complaint is dismissed as stating no claim for relief; and plaintiff's second motion 7 for appointment of counsel is dismissed as moot. Signed by Senior District Judge Sam A. Crow on 6/24/2013. (Mailed to pro se party Charles Denmark-Wagner by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CASE NO. 12-3169-SAC
CORRECT CARE SOLUTIONS, et al.,
O R D E R
Correctional Facility (HCF) in Kansas, proceeds pro se and in forma
pauperis in this action seeking relief under 42 U.S.C. § 1983.
Plaintiff seeks monetary, injunctive, and declarative relief on
allegations that defendants are violating his constitutional rights
by acting with deliberate indifference to his complaints of hernia
The defendants named in the complaint are the Secretary
of the Kansas Department of Corrections (KDOC), the HCF Warden,
Correct Care Services (CCS), and nine CCS medical staff at HCF.
The court reviewed the complaint pursuant to 28 U.S.C. §
1915A(a), and on January 15, 2013, directed plaintiff to show cause
why the complaint should not be summarily dismissed as stating no claim
for relief under § 1983 against any named defendant.
In response, plaintiff submitted a motion for leave to amend the
complaint to address deficiencies identified by the court.
grants this motion.
See Fed.R.Civ.P. 15(a)(a)(allowing amendment of
the complaint “once as a matter of course”).
Having reviewed the
complaint as amended, the court continues to find no claim for relief
under § 1983 is stated against any defendant in the amended complaint.
Additional Defendants in the Amended Complaint
In his amended complaint, plaintiff now names the State of
Kansas, the Kansas Department of Corrections, and the Hutchinson
Correctional Facility as additional defendants.
plaintiff’s claim for damages against the State of Kansas, a state
agency, and state officials acting in their official capacities.
Kentucky v. Graham, 473 U.S. 159, 165-67 (1985).
See also Will v.
Michigan Dept. of State Police, 491 U.S. 58, 71 (1989)(neither a State
nor its officials acting in their official capacities are "persons"
under § 1983).
The State of Kansas has not waived immunity under 42
U.S.C. § 1983, nor has its immunity been abrogated for § 1983 lawsuits.
See Saunders ex rel. Rayl v. Kansas Dept. of Social and Rehabilitation
Services, 317 F.Supp.2d 1233, 1241 (D.Kan. 2004).
Also, the Hutchinson Correctional Facility is not a separate
legal entity subject to suit.
See Aston v. Cunningham, 216 F.3d 1086,
2000 WL 796086 at *4 n.3 (10th Cir.2000)(“a detention facility is not
No Claim for Relief under § 1983 in the Amended Complaint
Plaintiff continues to acknowledge that he has been provided pain
medication and a truss to address his hernia pain, continues to claim
this treatment is inadequate, and continues to ask the court for an
order requiring defendants to have plaintiff evaluated by a specialist
for better treatment options including surgery.
As explained in the
treatment being provided is insufficient to state a plausible
constitutional claim of deliberate indifference to plaintiff’s health
Additionally, plaintiff’s collective grouping of defendants as
generally involved in evaluating and denying plaintiff’s sick call
requests is insufficient to establish each defendant’s personal
involvement in the alleged constitutional violation, and plaintiff’s
continued reliance on the supervisory status of the HCF warden and
the KDOC Secretary is insufficient to support liability under § 1983.
While plaintiff now contends that CCS has failed to promulgate a policy
about how hernia pain is to be evaluated, this is insufficient to
treatment pursuant to a CCS policy or custom.
Accordingly, the court finds the amended complaint fails to set
forth a factual or legal basis to plausibly find defendant named in
deficiencies to avoid summary dismissal of the original complaint,
and those same deficiencies remain in the amended complaint plaintiff
filed in response.
Thus for the reasons stated herein and in the show
cause order dated January 15, 2013, the court concludes the amended
complaint should be dismissed as stating no claim for relief under
42 U.S.C. § 1983.
See 28 U.S.C § 1915A(b) and 28 U.S.C. §
IT IS THEREFORE ORDERED that plaintiff’s motion (Doc. 6) for
leave to amend the complaint is granted; that the amended complaint
is dismissed as stating no claim for relief; and that plaintiff’s
second motion for appointment of counsel (Doc. 7) is dismissed as moot.
IT IS SO ORDERED.
This 24th day of June 2013 at Topeka, Kansas.
s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
In the amended complaint, plaintiff also seeks relief on a claim of negligent
infliction of emotional distress. Finding no cognizable constitutional claim, the
court declines to exercise supplemental jurisdiction over this tort claim under
state law. See 28 U.S.C. § 1367(c)(3)(stating a district court may decline to
exercise supplemental jurisdiction over a state law claim if it "has dismissed all
claims over which it has original jurisdiction").
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