United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW, U.S. SENIOR DISTRICT JUDGE
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. Plaintiff is currently confined at the
Saline County Jail in Salina, Kansas (“SCJ”). The
Court granted Plaintiff leave to proceed in forma
pauperis. (Doc. 3). On August 30, 2019, the Court
entered a Memorandum and Order and Order to Show Cause (Doc.
4), granting Plaintiff until September 27, 2019, in which to
show good cause why his Complaint should not be dismissed due
to the deficiencies set forth in the MOSC. This matter is
before the Court on Plaintiff's Response (Doc. 5) to the
alleges in his Compliant that he covered the window in his
cell with paper while he was using the restroom. Plaintiff
alleges that Defendant Fay did not say anything or give
Plaintiff a warning before coming with five or six more COs
to Plaintiff's cell and pulling a pepper ball gun on
Plaintiff with it “ready to discharge.” (Doc. 1,
at 2.) Plaintiff felt threatened because he didn't know
what was going to happen, so Plaintiff told Fay that
Plaintiff was “going to knock him on his ass if he
shoots me for no reason with no warning.” (Doc. 1, at
6.) Plaintiff alleges that Fay “almost
discharged” the pepper gun, and Plaintiff was upset
that it was “brought to his door.” Id.
at 3, 6. Corporal McManigal told Plaintiff that Fay told him
that he asked Plaintiff to remove whatever was in
Plaintiff's window. Plaintiff alleges that Deputy Fay
gave a false statement, committed perjury and should be
names as defendants: Deputy Fay; Corporal McManigal; and the
SCJ. Plaintiff seeks damages in the amount of $400, 000,
transfer to a different jail, and Fay's termination.
MOSC, the Court found that Plaintiff's claims against the
SCJ are subject to dismissal because 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 § 1983.”). The Court dismisses the SCJ
as a defendant.
Court also found that Plaintiff failed to allege a
constitutional violation. He alleges that Defendant Fay
almost discharged a pepper gun on Plaintiff and then gave a
false statement to Defendant McManigal regarding the
incident. Plaintiff failed to allege how these actions
violated his constitutional rights. The Court found that
Plaintiff's request for compensatory damages is barred by
42 U.S.C. § 1997e(e), because Plaintiff has failed to
allege a physical injury. Section 1997e(e) provides in
pertinent part that “[n]o Federal civil action may be
brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical
injury.” 42 U.S.C. § 1997e(e).
to the extent Plaintiff seeks Fay's termination in his
request for relief, the Court is without authority to grant
such relief. See Nicholas v. Hunter, 228 Fed.Appx.
139, 141 (3rd Cir. 2007) (“The remaining relief
requested is not available as the District Court lacks
authority to order a federal investigation and prosecution of
the defendants or the termination of their
employment.”); Goulette v. Warren, No.
3:06CV235-1-MU, 2006 WL 1582386, at n.1 (W.D. N.C. June 1,
2006) (“The Court notes that even if Plaintiff's
claims prevailed in this case, this Court would not, based
upon this law suit, have the authority to order the
termination of the Defendant's employment or to grant
Plaintiff an immediate, early release from jail.”);
Dockery v. Ferry, No. 08-277, 2008 WL 1995061, at *2
(W.D. Pa. May 7, 2008) (finding that the court cannot issue
an order which would direct a local government to terminate a
police officer's employment) (citing In re
Jones, 28 Fed.Appx. 133, 134 (3rd Cir. 2002)
(“Jones is not entitled to relief . . . [S]he asks this
Court to prohibit the State of Delaware from filing charges
against her. The federal courts, however, have no general
power in mandamus action to compel action, or in this case
inaction, by state officials.”)); Martin v.
LeBlanc, No. 14-2743, 2014 WL 6674289, at n.1 (W.D. La.
Nov. 24, 2014) (finding that where plaintiff requested an
investigation, the termination of the defendants'
employment and the closure of the prison, “[s]uch
relief is not available in this action”); Merrida
v. California Dep't of Corr., No. 1:06-CV-00502 OWW
LJO P, 2006 WL 2926740, at n.1 (E.D. Cal. Oct. 11, 2006)
(finding that where plaintiff prays for the termination of
defendant's employment, “the court cannot award
this form of relief to plaintiff) (citing 18 U.S.C. §
Response, Plaintiff now alleges that when the COs came to his
cell door he got into a verbal altercation with them and he
punched the cell window, cracking it. Plaintiff alleges that
Deputy Fay then fired his tazer, hitting Plaintiff in the
left side of his waist. Plaintiff alleges that his cell door
was closed and he was tazed through the open tray slot.
Plaintiff alleges that Defendant Fay used excessive force in
violation of the Eighth Amendment's prohibition against
cruel and unusual punishment.
has failed to state a claim against Defendant McManigal and
the Court find that any claims against Defendant McManigal
should be dismissed. The Court finds that the proper
processing of Plaintiff's Eighth Amendment claims against
Defendant Fay cannot be achieved without additional
information from appropriate officials of the SCJ. See
Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978);
see also Hall v. Bellmon, 935 F.2d 1106 (10th Cir.
1991). Accordingly, the Court orders the appropriate
officials of the SCJ to prepare and file a Martinez
Report. Once the report has been received, the Court can
properly screen Plaintiff's claims under 28 U.S.C. §
IS THEREFORE ORDERED BY THE COURT that
Plaintiff's claims against Defendant Saline County Jail
and Defendant McManigal are dismissed.
IS FURTHER ORDERED that:
clerk of the court shall prepare waiver of service forms for
Defendant Fay, pursuant to Rule 4(d) of the Federal Rules of
Civil Procedure, to be served upon Defendant at no cost to
Plaintiff. The report required herein shall be filed no later
than sixty (60) days from the date of this order, unless the
time is extended by the Court. The answer or other responsive
pleading shall be filed thirty (30) days after the
Martinez report is filed.
Officials responsible for the operation of the SCJ are
directed to undertake a review of the subject matter of the