United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW SENIOR U.S. DISTRICT JUDGE
a state prisoner appearing pro se and in forma pauperis,
filed this civil rights complaint pursuant to 42 U.S.C.
§ 1983. Although Plaintiff is currently incarcerated at
the Hutchinson Correctional Facility in Hutchinson, Kansas,
the claims giving rise to his Complaint occurred while he was
housed at the Kearny County Jail (“KCJ”).
alleges that during a court appearance Lance Babcock grabbed
his face using excessive force and put his hands over
Plaintiff's mouth to keep him from exercising his First
Amendment rights. Plaintiff alleges that this injured a
fractured area below his right eye. Plaintiff was transported
from court back to the KCJ. Plaintiff claims he was denied
medical attention and that “Sheriff David Horner's
act in releasing [him] from his custody 19 days early in
order to avoid medical expenses constituted an unlawful act
of cruel and unusual punishment and humiliation.” (Doc.
1, at 3.) Plaintiff names the KCJ and Sheriff David Horner as
the sole defendants. Plaintiff seeks $50, 000 in damages.
November 26, 2019, the Court entered a Memorandum and Order
and Order to Show Cause (Doc. 5) (“MOSC”),
granting Plaintiff until December 17, 2019, in which to show
good cause why his Complaint should not be dismissed for the
reasons set forth in the MOSC. Plaintiff has failed to
respond by the deadline.
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). The Court found in the MOSC that
Plaintiff's claims against KCJ 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 §
Court also found that Plaintiff does not name Lance Babcock
as a defendant, and fails to state a claim of excessive force
under the Eighth Amendment's Cruel and Unusual
Punishments Clause. Prison officials violate inmates'
Eighth Amendment rights when they subject them to the
“unnecessary and wanton infliction of pain.”
Whitley v. Albers, 475 U.S. 312, 319 (1986).
“[W]henever prison officials stand accused of using
excessive physical force in violation of the Cruel and
Unusual Punishments Clause, the core judicial inquiry is . .
. whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and
sadistically to cause harm.” Hudson v.
McMillian, 503 U.S. 1, 6-7 (1992) (citation omitted).
“The Eighth Amendment's prohibition of ‘cruel
and unusual' punishments necessarily excludes from
constitutional recognition de minimis uses of
physical force, provided that the use of force is not of a
sort ‘repugnant to the conscience of
mankind.'” Id. at 9-10.
alleges that Lance Babcock grabbed his face during a court
appearance. Not every isolated battery or injury to an inmate
amounts to a federal constitutional violation. See
id. at 9 (stating that not “every malevolent touch
by a prison guard gives rise to a federal cause of
action.”) (citing Johnson v. Glick, 481 F.2d
1028, 1033 (2nd Cir. 1973) (“Not every push or shove,
even if it may later seem unnecessary in the peace of a
judge's chambers, violates a prisoner's
constitutional rights”)). The Court found in the MOSC
that to the extent Plaintiff is claiming excessive force, the
claim is subject to dismissal.
alleges that he was released from the KCJ nineteen days early
to avoid medical expenses. The Court found in the MOSC that
Plaintiff fails to state a claim of cruel and unusual
punishment. Plaintiff has failed to allege a serious illness
or injury. He claims he was denied medical attention after
his face was grabbed during a court appearance. He only names
the Sheriff as a defendant and bases his claim on the
Sheriff's decision to release him early “to avoid
medical expenses.” He has not alleged that the Sheriff
was both aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, or that
he actually drew that inference.
has not alleged that he was somehow prevented from seeking
medical attention after he was released from the KCJ. It is
not even clear that Plaintiff became responsible for his own
medical care after his release, as Plaintiff is currently
incarcerated at the Hutchinson Correctional Facility with the
Kansas Department of Corrections providing his medical care.
Plaintiff has not alleged that the Sheriff created a risk of
harm or limited Plaintiff's ability to seek self-help or
medical attention after he was released.
has failed to respond to the MOSC and has failed to show good
cause why this case should not be dismissed for failure to
state a claim.
IS THEREFORE ORDERED BY THE COURT that this case is
dismissed for failure to state a claim.