Walker v. Douglas County Sheriff's Office et al
ORDER ENTERED: The court directs that defendant Douglas County Sheriff's Office be dismissed from this case. The court further directs that plaintiff show cause by October 14, 2020 why plaintiff's claims in Count 2 and Count 3 should not b e dismissed. In the alternative, plaintiff may file an amended complaint. An amended complaint should contain all the claims plaintiff seeks to bring and name all of the defendants plaintiff wishes to sue. Signed by U.S. District Senior Judge Sam A. Crow on 09/14/20. Mailed to pro se party Vincent Lee Walker by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
VINCENT LEE WALKER,
Case No. 20-3123-SAC
DOUGLAS COUNTY SHERIFF’S OFFICE,
O R D E R
Plaintiff, pro se, has filed this action on forms for bringing
a lawsuit under 42 U.S.C. § 1983.
His claims arise from his
incarceration at the Douglas County Jail.
This case is before the
court for screening pursuant to 28 U.S.C. § 1915A.
I. Screening standards
Section 1915A requires the court to review cases filed by
prisoners seeking redress from a governmental entity or employee
to determine whether the complaint is frivolous, malicious or fails
to state a claim upon which relief may be granted.
liberally construes a pro se complaint and applies “less stringent
standards than formal pleadings drafted by lawyers.”
Pardus, 551 U.S. 89, 94 (2007).
But, a pro se litigant is not
relieved from following the same rules of procedure as any other
litigant. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992).
Conclusory allegations without supporting facts “are insufficient
to state a claim upon which relief can be based.”
Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991).
The court “will not supply
complaint or construct a legal theory on plaintiff’s behalf.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
When deciding whether plaintiff’s complaint “fails to state
a claim upon which relief may be granted,” the court must determine
accepted as true, to ‘state a claim for 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)).
accepts the plaintiff’s well-pled factual allegations as true and
views them in the light most favorable to the plaintiff.
States v. Smith, 561 F.3d 1090, 1098 (10th Cir. 2009).
may also consider the exhibits attached to the complaint.
The court, however, is not required to accept legal conclusions
alleged in the complaint as true. Iqbal, 556 U.S. at 678. “Thus,
mere ‘labels and conclusions' and ‘a formulaic recitation of the
elements of a cause of action’ will not suffice” to state a claim.
Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)
(quoting Twombly, 550 U.S. at 555).
“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678.
“The plausibility standard is not akin to
a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id.
possibility and plausibility of “entitlement to relief.”’”
(quoting Twombly, 550 U.S. at 557).
A viable § 1983 claim must establish that each defendant
caused a violation of plaintiff’s constitutional rights.
v. Mohiuddin, 947 F.3d 1244, 1249 (10th Cir. 2020)(quoting Pahls
v. Thomas, 718 F.3d 1210, 1228 (10th Cir. 2013)).
Plaintiffs must do more than show that their rights were
violated or that defendants, as a collective and
undifferentiated whole, were responsible for those
violations. They must identify specific actions taken
by particular defendants, or specific policies over
which particular defendants possessed supervisory
Id. at 1249-50 (quoting Pahls); see also, Robbins v. State of
Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008)(“a complaint must
make clear exactly who is alleged to have done what to whom”).
II. Plaintiff’s complaint – Doc. No. 1
Plaintiff alleges that he was attacked by two inmates in his
cell at the jail.1
He asserts that he warned two jail officers
Plaintiff does not allege when the attack occurred.
(Officer Ormsby and Officer Blue) and medical staff members that
one or both of his attackers were a threat to him.
claims he suffered several injuries, including what plaintiff
believes to be a minor stroke, because of the attack.
further claims that he was denied adequate medical treatment for
The complaint indicates that plaintiff was given
aspirin and Tylenol, but was not taken to the hospital or given xrays.
The complaint lists three counts.
to provide a secure safe environment.
Count 1 alleges a failure
Count 2 alleges a failure
to provide proper medical treatment for neck, shoulder and lower
back injuries from the attack.
Count 3 alleges a failure to
affected the left side of plaintiff’s body.
Plaintiff names three
the Douglas County Sheriff’s Office; Officer Ormsby;
and Officer Blue.
III. The Sheriff’s Office is not a proper defendant
Plaintiff is bringing this action under § 1983 which provides
for a cause of action against “persons” who, acting under the
authority of state law, violate the Constitution or federal law.
The Douglas County Sheriff’s Office is not an entity which may sue
or be sued under the laws of Kansas.
See K.S.A. 19-105 (all suits
by or against a county shall be brought by or against the board of
Therefore, this court and others have held
that it is not a “person” which may be sued under § 1983.
Brown v. Sedgwick County Sheriff’s Office, 513 Fed.Appx. 706, 70708 (10th Cir. 3/12/2013)(affirming dismissal of a § 1983 claim
against a Kansas county sheriff’s office because it is not an
entity which may be sued); Schwab v. Kansas, 2017 WL 2831508 *13
(D.Kan. 6/30/2017)(Riley County Police Department); Johnson v.
Sheriff’s Department); Galloway v. Hadl, 2007 WL 1115201 *1 (D.Kan.
Wyandotte County Sheriff’s Dept., 963 F.Supp. 1029, 1034 (D.Kan.
IV. Counts 2 and 3 fail to state a claim for relief against a named
As the court stated in section II of this order, a § 1983
complaint “must identify specific actions taken by particular
Counts 2 and 3 allege a failure to receive adequate
Therefore, Counts 2 and 3 fail to state a plausible claim for
See Mayfield v. Presbyterian Hospital Administration, 772
Fed.Appx. 680, 686 (10th Cir. 2019)(affirming dismissal of medical
mistreatment claims because the complaint does not identify the
For the above-stated reasons, the court shall direct that
defendant Douglas County Sheriff’s Office be dismissed from this
The court further directs that plaintiff show cause by
October 14, 2020 why plaintiff’s claims in Count 2 and Count 3
should not be dismissed.
an amended complaint.
In the alternative, plaintiff may file
An amended complaint should contain all the
claims plaintiff seeks to bring and name all of the defendants
plaintiff wishes to sue.
IT IS SO ORDERED.
Dated this 14th day of September, 2020, at Topeka, Kansas.
s/Sam A. Crow__________________________
U.S. District Senior Judge
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