Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Goings v. Sumner County District Attorney's Office

United States District Court, Tenth Circuit

December 9, 2013



Richard D Rogers United States District Judge

This case arises from criminal proceedings that were initiated against the plaintiff in state court. Plaintiff, proceeding pro se, brings this action against the Sumner County District Attorney's Office and Kerwin Spencer, the County Attorney for Sumner County, Kansas. This matter is presently before the court upon defendants' motion to dismiss.

Defendants contend that plaintiff's amended complaint fails to state a claim upon which relief can be granted. In their motion, defendants raise three arguments. First, they contend that the "Sumner County District Attorney's Office" is not an entity capable of being sued. Second, they contend that any claims against defendant Spencer are barred by prosecutorial immunity. Finally, they assert that the Younger abstention doctrine compels dismissal of this action.


"To survive a motion to dismiss, a complaint must contain sufficient factual matter, 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)). "[T]he mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). "The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10thCir. 2003). In determining whether a claim is facially plausible, the court must draw on its judicial experience and common sense. Iqbal, 556 U.S. at 678. All well-pleaded facts in the complaint are assumed to be true and are viewed in the light most favorable to the plaintiff. See Zinermon v. Burch, 494 U.S. 113, 118 (1990); Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984). Allegations that merely state legal conclusions, however, need not be accepted as true. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

A court liberally construes a pro se complaint and applies "less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nonetheless, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall, 935 F.2d at 1110. The court "will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173B74 (10th Cir. 1997).


The following facts are drawn from plaintiff's amended complaint. In January 2013, a criminal complaint was filed against plaintiff in Sumner County District Court. Plaintiff, proceeding pro se, subsequently sought discovery in the case. The state court judge initially granted plaintiff's motion, but later set the order aside when he became aware that the order had been entered without mutual consent of the parties and without a hearing. A hearing was then set in March 2013. Prior to the hearing, plaintiff caused a subpoena duces tecum to be served on a Wellington, Kansas police officer asking him to bring "any and all evidence relevant to Plaintiff's criminal case." The officer did not appear at the hearing. Plaintiff contends that defendant Spencer instructed the officer not to appear. Plaintiff's motion for discovery was not granted at the hearing.

Plaintiff filed the instant action four days after the hearing. He asserts two claims in his amended complaint under 42 U.S.C. ' 1983. In his first claim, he contends that defendant Spencer violated his 14th Amendment right to due process by (1) enacting and following discovery procedures which are not consistent with K.S.A. 23-3212; and (2) telling Wellington police officers that they did not have to comply with subpoenas issued by plaintiff. In the second claim, plaintiff alleges that the Sumner County District Attorney's Office failed to train, supervise and discipline its employees regarding (1) their discretionary administrative actions; (2) protections of the United States Constitution; (3) violations of discovery under Kansas law; and (4) violations of Kansas law regarding defendant Spencer's actions. Plaintiff seeks declaratory and injunctive relief along with compensatory and punitive damages.



The arguments asserted by the defendants are well-founded. There is no serious argument that the instant action should not be dismissed. The court will briefly discuss the arguments raised by the parties.

The defendants first contend that the "Sumner County District Attorney's Office" is not an entity capable of being sued. The court agrees. Generally, governmental sub-units are not separate suable entities that may be sued under ' 1983. See Martinez v. Winner, 771 F.2d 424, 444 (10th Cir. 1985)("The 'City of Denver Police Department' is not a separate suable entity"). Under Kansas law, absent a specific statute, subordinate governmental agencies do not have the capacity to sue or be sued. Mason v. Twenty-Sixth Judicial District, 670 F.Supp. 1528, 1555 (D.Kan. 1987); Hopkins v. State, 237 Kan. 601, 702 P.2d 311, 316 (1985). Actions against Kansas district attorney's offices and county attorney's offices have routinely ben dismissed because they are not entities capable of being sued. See Fugate v. Unified Government of Wyandotte County/Kansas City, 161 F.Supp.2d 1261, 1266-67 (D.Kan. 2001)("Wyandotte County District Attorney's Office" not an entity capable of being sued); Whayne v. State of Kansas, 980 F.Supp. 387, 392 (D.Kan. 1997)("Shawnee County Prosecuting Attorneys" was not a recognized entity capable of being sued).

Plaintiff has pointed to no Kansas statute that would allow an action against the Sumner County Attorney's Office. Rather, plaintiff has chosen to raise arguments based upon the Eleventh Amendment. The defendants, however, have not asserted Eleventh Amendment immunity as a basis for dismissal here. The defendants have argued simply that the Sumner County District Attorney's Office is not an entity capable of being sued. Because the Kansas legislature has not authorized suits against district or ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.