Rowan v. Culver et al [VVV]
Filing
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MEMORANDUM AND ORDER, the Clerk is DIRECTED to file this action without the prepayment of costs or fees or security therefor as of the date the complaint was received. The Clerk is DIRECTED to send the plaintiff a service packet for defendants Dale Culver, Officer Futos, and Lt. Stevens. The plaintiff is ORDERED to complete the service packets and return them to the Clerks Office within twenty (20) days of the date of receipt of this Memorandum and Order. The Knox County Sheri ffs Department is not a suable entity within the meaning of 42 U.S.C. § 1983 and it is DISMISSED from this action. Likewise, the State of Tennessee is not a suable entity under § 1983, is immune from suit, and is DISMISSED from this action. Because the plaintiff is in the custody of the Tennessee Department of Correction, he is herewith ASSESSED the civil filing fee of $350.00. Signed by Chief District Judge Thomas A Varlan on 5/21/14. (Copy mailed to Plaintiff, Sheriff of Knox County, TN and Knox County Law Director. Copy provided to Court's financial deputy. Service packet mailed to Plaintiff)(JBR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
LATRONIS DEMARCUS ROWAN #1209664,
Plaintiff,
v.
No.:
3:14-cv-194-TAV-HBG
DALE CULVER, OFFICER FUTOS,
LT. STEVENS, JOHN DOES #1-2,
KNOX COUNTY SHERIFF’S DEPARTMENT,
and STATE OF TENNESSEE,
Defendants.
MEMORANDUM AND ORDER
The Court is in receipt of a pro se prisoner’s civil rights complaint under 42
U.S.C. § 1983 and an application to proceed in forma pauperis. It appears from the
application that the plaintiff lacks sufficient financial resources to pay the $350.00 filing
fee. Accordingly, pursuant to 28 U.S.C. § 1915, the Clerk is DIRECTED to file this
action without the prepayment of costs or fees or security therefor as of the date the
complaint was received.
The Clerk is DIRECTED to send the plaintiff a service packet (a blank summons
and USM 285 form) for defendants Dale Culver, Officer Futos, and Lt. Stevens. Process
shall not issue against the “John Doe” defendants until plaintiff provides the Clerk’s
Office with the correct names and addresses of these individuals. For the following
reasons, process shall not issue as to the remaining defendants and they are dismissed.
Plaintiff is an inmate in the Knox County Detention Facility. He alleges he was
assaulted by the named individual defendants. In addition to individual defendants,
plaintiff has also named as defendants the Knox County Sheriff’s Department and the
State of Tennessee.
The Knox County Sheriff’s Department is not a suable entity within the meaning
of 42 U.S.C. § 1983 and it is DISMISSED from this action. See Matthews v. Jones, 35
F.3d 1046, 1049 (6th Cir. 1994) (a police department is not an entity which can be sued
under § 1983); see also De La Garza v. Kandiyohi County Jail, 18 F. App’x 436, 437
(8th Cir. 2001) (neither a county jail nor a sheriff’s department is a suable entity); Dean
v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) (“[s]heriff’s departments and police
departments are not usually considered legal entities subject to suit”); Bradford v.
Gardner, 578 F. Supp. 382, 383 (E.D. Tenn. 1984) (“the Sheriff’s department itself is not
a suable entity under Section 1983”).
Likewise, the State of Tennessee is not a suable entity under § 1983, is immune
from suit, and is DISMISSED from this action. See, e.g., Lawson v. Shelby County,
Tennessee, 211 F.3d 331, 335 (6th Cir. 2000) (“The Lawsons’ claims against the State of
Tennessee are barred by the Eleventh Amendment, because the Amendment prohibits
suits against a ‘state’ in federal court whether for injunctive, declaratory or monetary
relief.”).
The plaintiff is ORDERED to complete the service packets for defendants Dale
Culver, Officer Futos, and Lt. Stevens and return them to the Clerk’s Office within
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twenty (20) days of the date of receipt of this Memorandum and Order. At that time the
summonses will be signed and sealed by the Clerk and forwarded to the U.S. Marshal for
service. Fed. R. Civ. P. 4. The plaintiff is forewarned that failure to return the completed
service packets within the time required could jeopardize his prosecution of this action.
Defendants Dale Culver, Officer Futos, and Lt. Stevens shall answer or otherwise
respond to the complaint within twenty-one (21) days from the date of service.
Defendants’ failure to timely respond to the complaint may result in entry of judgment by
default against defendants.
Plaintiff is ORDERED to inform the Court in writing, and the defendants or their
counsel of record, immediately of any address changes. Failure to provide a correct
address to this Court within ten (10) days following any change of address may result in
the dismissal of this action.
Because the plaintiff is in the custody of the Tennessee Department of Correction,
he is herewith ASSESSED the civil filing fee of $350.00. Pursuant to 28 U.S.C. §
1915(b)(1)(A) and (B), the custodian of the plaintiff’s inmate trust account at the
institution where he now resides is directed to submit to the Clerk, U.S. District Court,
800 Market Street, Suite 130, Knoxville, Tennessee 37902, as an initial partial payment,
whichever is greater of:
(a)
twenty percent (20%) of the average monthly deposits to the plaintiff’s
inmate trust account; or
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(b)
twenty percent (20%) of the average monthly balance in the plaintiff’s
inmate trust account for the six-month period preceding the filing of the complaint.
Thereafter, the custodian shall submit twenty percent (20%) of the plaintiff’s
preceding monthly income (or income credited to the plaintiff’s trust account for the
preceding month), but only when such monthly income exceeds ten dollars ($10.00),
until the full filing fee of three hundred fifty dollars ($350.00) as authorized under 28
U.S.C. § 1914(a) has been paid to the Clerk. 28 U.S.C. § 1915(b)(2).
The Clerk is DIRECTED to send a copy of this Memorandum and Order to the
Sheriff of Knox County, Tennessee, and the Knox County Law Director to ensure that the
custodian of the plaintiff’s inmate trust account complies with that portion of the Prison
Litigation Reform Act relating to payment of the filing fee.
The Clerk is further
DIRECTED to forward a copy of this Memorandum and Order to the Court’s financial
deputy.
ENTER:
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE
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