Cummings v. Nip et al

Filing 10

MEMORANDUM OPINION AND ORDER by Senior Judge Thomas B. Russell on 12/15/2016: Plaintiff's claim against HCDC and the official-capacity claim against Nip are DISMISSED; Within 30 days from the entry date of this Memorandum Opinion and O rder, Plaintiff may file an amended complaint; The Clerk of Court is DIRECTED to place the case number and word Amended on a § 1983 complaint form and send it, along with four summons forms, to Plaintiff for his use should he wish to amend the complaint. cc: Plaintiff (pro se) with forms, Defendants, HCA (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:16CV-256-TBR
VICTOR CUMMINGS

PLAINTIFF

v.
JEFF NIP et al.

DEFENDANTS
MEMORANDUM OPINION AND ORDER

Plaintiff Victor Cummings filed the instant pro se 42 U.S.C. § 1983 action proceeding in
forma pauperis. This matter is before the Court on initial review of the complaint pursuant to 28
U.S.C. § 1915(e) and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), overruled on
other grounds by Jones v. Bock, 549 U.S. 199 (2007). For the reasons stated below, the Court
will dismiss some claims and allow Plaintiff to amend his complaint.
I.
Plaintiff, who has been released from incarceration, sues the Hardin County Detention
Center (HCDC) and Jeff Nip, whom he identifies as a maintenance worker at HCDC. He sues
Nip in his individual and official capacity.
Plaintiff states that when he was processed into HCDC, he asked Corrections Officer
Gunner about $400.00 missing from his account and that Gunner “gave me a direct order to not
ask him again.” He states that Gunner then “asked me a series of questions basically for my
safety sake, and if I wanted to be placed in protective custody and C/O Gunner did not
acknowledge the fact that I said that I wanted to. He then ordered me to go back and get in line.”
Plaintiff then alleges the following occurred:
When Jeff Nipp1 came to transport us inmates he smelled of liquor. Jeff Nipp had
his eyes on me and was at a uncomftble close distance to me. As we walked to
1

Plaintiff spells this Defendant’s name “Nip” in the caption and “Nipp” in the body of his complaint.

back max housing in [HCDC]. Inmates were being placed in their cells. The
door was opened to Protective Custody housing so I stepped in the direction.
When I did Jeff Nipp grabbed me in a firm hold and then shoved me away.
Without a direct order and initationing an aggressive unlogical action. He then
pulled his taser out and aimed it at my chest. The heart area in the center of my
chest. Then he shot me without hesitation. Some how I pulled out the prongs.
Jeff Nipp called “Code Red” because before I knew it I was being shot by 5/6
taser guns. I passed out and awoke to being shocked excessively by C/O Gunner,
C/O Maxwell, C/O Nipp, C/O Martin, and C/O Templeman. They drug me back
to booking and placed me handcuffed on my back. While hitting me and tasing
me in my left leg which I still suffer from the night stick beating. Being
surrounded by 6 correction officers and placed in the restrain chair. As they
pushed me in the first strap the still were tasing and hitting me. Then they put me
in a suicide cell and when we were not visible, they kept tasing my chest and
putting the taser gun between my legs.
As relief, Plaintiff seeks compensatory and punitive damages and requests that Nip be
removed as a corrections officer.
II.
Because Plaintiff is proceeding in forma pauperis, this Court must review the instant
action. 28 U.S.C. § 1915(e); McGore, 114 F.3d at 608-09. Upon review, the Court must dismiss
a case at any time if it determines that an action 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 28 U.S.C. § 1915(e)(2)(B). This Court recognizes that pro se pleadings are
to be held to a less stringent standard than formal pleadings drafted by lawyers. Haines v.
Kerner, 404 U.S. 519 (1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991). However, the
duty “does not require us to conjure up unpled allegations.” McDonald v. Hall, 610 F.2d 16, 19
(1st Cir. 1979).
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,

2

570 (2007)). “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.” Id. (citing Twombly, 550 U.S. at 556). “[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)). “But the district
court need not accept a ‘bare assertion of legal conclusions.’” Tackett, 561 F.3d at 488 (quoting
Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). “A pleading that
offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will
not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557).
III.
Plaintiff brings this action under § 1983. “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 (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 (1988). “Absent either element, a section 1983 claim will not lie.” Christy
v. Randlett, 932 F.2d 502, 504 (6th Cir. 1991).
Municipal liability
Plaintiff sues HCDC. However, HCDC is not a “person” subject to suit under § 1983
because municipal departments, such as jails, are not suable under § 1983. See Marbry v. Corr.

3

Med. Servs., No. 99-6706, 2000 U.S. App. LEXIS 28072, at *2 (6th Cir. Nov. 6, 2000). The
claim against HCDC is actually brought against Hardin County. See Smallwood v. Jefferson Cty.
Gov’t, 743 F. Supp. 502, 503 (W.D. Ky. 1990).
Moreover, official-capacity claims “‘generally represent [] another way of pleading an
action against an entity of which an officer is an agent.’” Kentucky v. Graham, 473 U.S. 159,
165-66 (1985) (quoting Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 691 n.55
(1978)). Therefore, Plaintiff’s official-capacity claim against Nip is also actually brought against
Hardin County. See Lambert v. Hartman, 517 F.3d 433, 440 (6th Cir. 2008).
When a § 1983 claim is made against a municipality, this Court must analyze two distinct
issues: (1) whether Plaintiff’s harm was caused by a constitutional violation; and (2) if so,
whether the municipality is responsible for that violation. Collins v. City of Harker Heights,
Tex., 503 U.S. 115, 120 (1992). The Court will first examine the second issue.
A municipality cannot be held responsible for a constitutional deprivation unless there is
a direct causal link between a municipal policy or custom and the alleged constitutional
deprivation. Monell, 436 U.S. at 691; Deaton v. Montgomery Cty., Ohio, 989 F.2d 885, 889 (6th
Cir. 1993). 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)).

4

Plaintiff alleges that he was subjected to excessive force by HCDC officers. However, he
does not allege that the action of any personnel occurred as a result of a policy or custom
implemented or endorsed by Hardin County. Plaintiff’s complaint appears to allege an isolated
occurrence affecting only him. As such, the complaint fails to establish a basis of liability
against the municipality and therefore fails to state a cognizable § 1983 claim against Hardin
County. See Fox v. Van Oosterum, 176 F.3d 342, 348 (6th Cir. 1999) (“No evidence indicates
that this was anything more than a one-time, isolated event for which the county is not
responsible.”). Therefore, Plaintiff’s claim against HCDC and his official-capacity claim against
Nip must be dismissed for failure to state a claim upon which relief may be granted.
Individual-capacity claim against officer
Upon review, the Court finds that Plaintiff’s individual-capacity claim against Nip is
sufficient to survive initial screening. Plaintiff also alleges that four other HCDC corrections
officers participated in the alleged use of excessive force, but he did not name them as
Defendants in the complaint. The Court is concerned that Plaintiff may believe that he sued all
of these officers in naming HCDC as a Defendant. Therefore, before allowing this case to
proceed, the Court will allow Plaintiff an opportunity to amend his complaint to sue the other
officers in their individual capacities. See LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir.
2013) (a district court may allow a prisoner to amend a complaint to avoid sua sponte dismissal
under the Prison Litigation Reform Act). If Plaintiff wishes to sue the other officers, he must file
an amended complaint and clearly state his intent to name the other officers as Defendants.

5

IV.
For the reasons set forth herein, and the Court being otherwise sufficiently advised,
IT IS ORDERED that Plaintiff’s claim against HCDC and the official-capacity claim
against Nip are DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a
claim upon which relief may be granted.
IT IS FURTHER ORDERED that within 30 days from the entry date of this
Memorandum Opinion and Order, Plaintiff may file an amended complaint to name all
corrections officers whom he alleges participated in the alleged excessive force incident.
The Clerk of Court is DIRECTED to place the case number and word “Amended” on a
§ 1983 complaint form and send it, along with four summons forms, to Plaintiff for his use
should he wish to amend the complaint.
Should Plaintiff fail to file an amended complaint within 30 days, the Court will enter an
order allowing the case to proceed against Nip only.
Date:

December 15, 2016

cc:

Plaintiff, pro se
Defendants
Hardin County Attorney
4413.010

6