United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW U.S. SENIOR DISTRICT JUDGE
a state prisoner appearing pro se and in forma pauperis,
filed this civil rights complaint pursuant to 42 U.S.C.
§ 1983. At the time of filing, Plaintiff was an inmate
at the Ottawa County Detention Center in Minneapolis, Kansas
(“OCDC”). This matter is before the Court on
Plaintiff's Motion to Amend Complaint (Doc. 8) and Motion
to Appoint Counsel (Doc. 9).
Nature of the Case
alleges that during his confinement at the OCDC, Officer John
punched him in the chest for no reason on February 3, 2019,
and there was black mold around the vent system. Plaintiff
alleges violations of his rights to: safe housing,
protection, not to be intimidated by staff or inmates, safety
and health, and humane living space. Plaintiff's
Complaint names the OCDC, Sheriff Coleman, and Officer John
as defendants, and seeks injunctive relief.
Motion to Amend (Doc. 8)
1, 2019, Plaintiff filed a Motion for Leave to File an
Amended Complaint (Doc. 8). Plaintiff does not seek to add
any defendants, but adds an allegation that Officer John
violated his Eighth Amendment right to be free from cruel and
unusual punishment. Plaintiff states that this claim
“is in addition to the original complaint.”
Plaintiff also alleges that Sheriff Coleman and the OCDC
failed to take action or respond to his grievances about the
incident. Plaintiff also adds a request for declaratory
relief, compensatory damages, and punitive damages. Plaintiff
fails to attach a proposed amended complaint as required by
D. Kan. Rule 15.1(a)(2).
Court notes that a detention facility is not a proper
defendant. Plaintiff's Complaint names the OCDC as a
defendant. “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) (emphasis
added). Prison and jail facilities are not proper defendants
because none is a “person” subject to suit for
money damages under § 1983. See Will v. Michigan
Dept. of State Police, 491 U.S. 58, 66, 71 (1989);
Clark v. Anderson, No. 09-3141-SAC, 2009 WL 2355501,
at *1 (D. Kan. July 29, 2009); see also Aston v.
Cunningham, No. 99-4156, 2000 WL 796086 at *4 n.3 (10th
Cir. Jun. 21, 2000) (“a detention facility is not a
person or legally created entity capable of being
sued”); Busekros v. Iscon, No. 95-3277-GTV,
1995 WL 462241, at *1 (D. Kan. July 18, 1995) (“[T]he
Reno County Jail must be dismissed, as a jail is not a
‘person' within the meaning of §
claims against Sheriff Coleman require proof that he
personally committed a constitutional violation. Keith v.
Koerner, 843 F.3d 833, 837-38 (10th Cir. 2016) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)
(“Because vicarious liability is inapplicable to . . .
§ 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official's own
individual actions, has violated the Constitution.”)).
It is not enough that a defendant acted in a supervisory role
when another defendant violated a plaintiff's
constitutional rights. Keith, 843 F.3d at 838.
“must show an affirmative link between [Sheriff
Coleman] and the constitutional violation, which requires
proof of three interrelated elements: (1) personal
involvement; (2) causation; and (3) state of mind.”
Id. (internal quotation marks omitted) (citing
Schneider v. City of Grand Junction Police
Dep't., 717 F.3d 760, 767 (10th Cir. 2013) (quoting
Dodds, 614 F.3d at 1195)).
claims against Sheriff Coleman relate to his dissatisfaction
with the Sheriff's response to his grievances. The Tenth
Circuit has held several times that there is no
constitutional right to an administrative grievance system.
Gray v. GEO Group, Inc., No. 17-6135, 2018 WL
1181098, at *6 (10th Cir. March 6, 2018) (citations omitted);
Von Hallcy v. Clements, 519 Fed.Appx. 521, 523-24
(10th Cir. 2013); Boyd v. Werholtz, 443 Fed.Appx.
331, 332 (10th Cir. 2011); see also Watson v. Evans,
No. 13-cv-3035-EFM, 2014 WL 7246800, at *7 (D. Kan. Dec. 17,
2014) (failure to answer grievances does not violate
constitutional rights or prove injury necessary to claim
denial of access to courts); Strope v. Pettis, No.
03-3383-JAR, 2004 WL 2713084, at *7 (D. Kan. Nov. 23, 2004)
(alleged failure to investigate grievances does not amount to
a constitutional violation); Baltoski v. Pretorius,
291 F.Supp.2d 807, 811 (N.D. Ind. 2003) (finding that
“[t]he right to petition the government for redress of
grievances . . . does not guarantee a favorable response, or
indeed any response, from state officials”).
Court will grant Plaintiff's motion to amend at Doc. 8 to
the extent that the Court will allow Plaintiff to file an
amended complaint. To add claims, significant factual
allegations, or change defendants, a plaintiff must submit a
complete amended complaint. See Fed. R. Civ. P. 15.
An amended complaint is not simply an addendum to the
original complaint, and instead completely supersedes it.
Therefore, any claims or allegations not included in the
amended complaint are no longer before the court. It follows
that a plaintiff may not simply refer to an earlier pleading,
and the amended complaint must contain all allegations and
claims that a plaintiff intends to pursue in the action,
including those to be retained from the original complaint.
Plaintiff must write the number of this case (19-3032-SAC) at
the top of the first page of his amended complaint and he
must name every defendant in the caption of the amended
complaint. See Fed. R. Civ. P. 10(a). Plaintiff
should also refer to each defendant again in the body of the
amended complaint, where he must allege facts describing the
unconstitutional acts taken by each defendant including
dates, locations, and circumstances. Plaintiff must allege
sufficient additional facts to show a federal constitutional
is given time to file a complete and proper amended complaint
in which he (1) raises only properly joined claims and
defendants; (2) alleges sufficient facts to state a claim for
a federal constitutional violation and show a cause of action
in federal court; and (3) alleges sufficient facts to show
personal participation by each named defendant.
Motion for Appointment ...