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Cope v. Cherokee County Sheriff's Department

United States District Court, D. Kansas

November 3, 2017

BOBBY GENE COPE, Plaintiff,
v.
CHEROKEE COUNTY SHERIFF'S DEPARTMENT, et al., Defendants.

          NOTICE AND ORDER TO SHOW CAUSE

          SAM A. CROW, U.S. SENIOR DISTRICT JUDGE.

         Plaintiff Bobby Gene Cope, a county inmate appearing pro se, brings this 42 U.S.C. § 1983 civil rights complaint. For the reasons discussed below, Plaintiff is ordered to show cause why his complaint should not be dismissed.

         I. Nature of the Matter before the Court

         Plaintiff's complaint (Doc. #1) is based on the following allegations. Plaintiff is currently incarcerated in the Cherokee County Jail in Columbus, Kansas. He states he has submitted several requests for the bottom bunk but has been repeatedly denied. He alleges he has “scars from surgeries that could disable [him] from jumping up on a top bunk.” Doc. #1, p. 3. Plaintiff claims Captain Tippie and the jail staff were on notice of his disabilities. While it is not clear from the complaint, apparently Plaintiff eventually suffered a fall and a “substantial injury.” Doc. #1, p. 3-4. He states Sergeant Miller told him to quit faking and get up, Nurse Wagner refused to treat him, and Sergeant Macafee told him he could not be a trustee due to his injuries.

         Plaintiff names the Cherokee County Sheriff's Department, the Cherokee County Jail, and Cherokee County itself as defendants. He requests relief in the form of monetary damages and payment of his hospital bills.

         II. Statutory Screening of Prisoner Complaints

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of such entity to determine whether summary dismissal is appropriate. 28 U.S.C. § 1915A(a). Additionally, with any litigant, such as Plaintiff, who is proceeding in forma pauperis, the Court has a duty to screen the complaint to determine its sufficiency. See 28 U.S.C. § 1915(e)(2). Upon completion of this screening, the Court must dismiss any claim that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B).

         To survive this review, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In applying the Twombly standard, the Court must assume the truth of all well-pleaded factual allegations in the complaint and construe them in the light most favorable to the plaintiff. See Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011).

         While a pro se plaintiff's complaint must be liberally construed, Erickson v. Pardus, 551 U.S. 89, 94 (2007), pro se status does not relieve the plaintiff of “the burden of alleging sufficient facts on which a recognized legal claim could be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Court need not accept “mere conclusions characterizing pleaded facts.” Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990). “[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal quotation marks omitted).

         “To state a claim under § 1983, 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, 48 (1988); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). In addressing a claim brought under § 1983, the analysis begins by identifying the specific constitutional right allegedly infringed. Graham v. Connor, 490 U.S. 386, 393-94 (1989). The validity of the claim then must be judged by reference to the specific constitutional standard which governs that right. Id.

         III. Discussion

         Plaintiff's complaint is subject to dismissal for a number of reasons.

         A. Improper Defendants

         Mr. Cope names three defendants, none of which are proper. None of the defendants named is a “person” subject to suit for money damages under § 1983. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 66, 71 (1989) (neither state nor state agency is a “person” which can be sued under § ...


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