United States District Court, D. Kansas
TREMAIN V. SCOTT, Plaintiff,
TOPEKA POLICE DEPARTMENT, Defendant.
MEMORANDUM AND ORDER
CROW U.S. Senior District Judge
matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff, a prisoner in federal custody,
proceeds pro se and seeks leave to proceed in forma
federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental
entity or an officer or employee of such an entity.
See 28 U.S.C. §1915A(a). Following this review,
the court must dismiss any portion of the complaint that is
frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary damages from a
defendant who is immune from that relief. See 28
U.S.C. § 1915A(b).
screening, a court liberally construes pleadings filed by a
party proceeding pro se and applies “less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
state a claim for relief under Section 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, 48-49
avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to
relief above the speculative level.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court
accepts the well-pleaded allegations in the complaint as true
and construes them in the light most favorable to the
plaintiff. Id. However, “when the allegations
in a complaint, however, true, could not raise a [plausible]
claim of entitlement to relief, ” the matter should be
dismissed. Id. at 558. A court need not accept
“[t]hreadbare recitals of the elements of a cause of
action supported by mere conclusory statements.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather,
“to state a claim in federal court, a complaint must
explain what each defendant did to [the pro se plaintiff];
when the defendant did it; how the defendant's action
harmed [the plaintiff]; and what specific legal right the
plaintiff believes the defendant violated.” Nasious
v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163
(10th Cir. 2007).
Tenth Circuit has observed that the U.S. Supreme Court's
decisions in Twombly and Erickson set out a
new standard of review for dismissals under 28 U.S.C. §
1915(e)(2)(B)(ii) dismissals. See Key v. Bemis, 500
F.3d 1214, 1218 (10th Cir. 2007)(citations omitted).
Following those decisions, courts “look to the specific
allegations in the complaint to determine whether they
plausibly support a legal claim for relief.”
Kay, 500 F.3d at 1218 (quotation marks and internal
citations omitted). A plaintiff “must nudge his claims
across the line from conceivable to plausible.”
Smith v. United States, 561 F.3d 1090, 1098 (10th
Cir. 2009). In this context, “plausible” refers
“to the scope of the allegations in a complaint: if
they are so general that they encompass a wide swath of
conduct much of it innocent, ” then the plaintiff has
not “nudged [the] claims across the line from
conceivable to plausible.” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (citing Twombly
sues the Topeka Police Department. He specifically alleges
that on or about October 20, 2017, a police detective who
came to talk to him about a shooting “was very
disrespectful” and never returned to talk to him or
tell him anything about the case.
sole defendant in this action is the Topeka Police
Department. A police department is not a legally suable
entity in an action brought under § 1983. See, e.g.,
Moore v. Diggins, 633 Fed.Appx. 672, 677
(10th Cir. 2015)(stating the Denver Sheriff's
Department “is not a suable entity under §
1983”) and Lindsey v. Thomson, 275 Fed.Appx.
744, 747 (10th Cir. 2007)(affirming dismissal of
§ 1983 claims against police departments and county
sheriff's department and stating these defendants were
“not legally suable entities”). The defendant is
subject to dismissal for that reason.
to the extent plaintiff may assert a claim for relief against
the unnamed detective, his claim is a bare allegation that
fails to state a claim for relief. Plaintiff's assertion
does not plausibly identify the violation of a federal right,
and he has not pleaded sufficient facts to allow the Court to
conclude that he states a claim for relief.
present complaint is subject to dismissal for the reasons
stated. The Court will allow plaintiff an opportunity to cure
the deficiencies noted by filing an amended complaint. The
amended complaint must be submitted upon court-approved
forms. In order to add claims or significant factual
allegations, or to change defendants, a plaintiff must submit
a complete amended complaint. See Fed. R. Civ. P.
15. An amended complaint is not an addendum or supplement to
the original complaint but completely supersedes it.
Therefore, any claims or allegations not presented in the
amended complaint are no longer before the Court. Plaintiff
may not simply refer to an earlier pleading; instead, the
complaint must contain all allegations and claims that