United States District Court, D. Kansas
NOTICE AND ORDER TO SHOW CAUSE
CROW U.S. SENIOR DISTRICT JUDGE
matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff, a pretrial detainee, proceeds pro se;
his fee status is pending.
of the Complaint
sues the Neosho County Jail and seven individuals employed
there. He alleges that (1) he has been denied medical
treatment, and (2) jail staff have been verbally abusive. He
seeks injunctive relief and damages.
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).
Court has reviewed the complaint and has identified the
following deficiencies. First, the Neosho County Jail is not
a proper defendant in this action. Section 1983 provides a
remedy for claims of federal rights by a “person”
acting under color of state law. As a governmental sub-unit,
the jail cannot sue or be sued, and it is subject to
dismissal from this action. See Hinton v. Dennis,
362 Fed.Appx. 904, 907 (10th Cir.
2010)(unpublished)(“generally, governmental sub-units
are not separable suable entities that may be sued under
§ 1983”) and Aston v. Cunningham, 2000 WL
796086, *4 n.3 (10th Cir. June 21, 2000)(unpublished)(stating
that jail would be dismissed “because a detention
facility is not a person or legally created entity capable of
plaintiff's claims of verbal taunts by jail staff members
that disparaged his character and told him he would only see
his children grow up in pictures fail to state a claim for
relief. See Alvarez v. Gonzalez, 155 Fed.Appx. 393,
396 (10th Cir. 2005)(“Mere verbal threats or
harassment do not rise to the level of a constitutional
violation unless they create ‘terror of instant and
unexpected death.'”)(quoting Northington v.
Jackson, 973 F.2d 1518, 1524 (10thCir.
1992)); McBride v. Deer, 240 F.3d 1287, 1291 n. 3
(10th Cir. 2001)(“acts or omissions
resulting in an inmate being subjected to nothing more than
threats and verbal taunts do not violate the Eighth
Amendment”; Collins v. Cundy, 603 F.2d 825,
827 (10th Cir. 1979)(“Verbal harassment or
abuse of the sort alleged in this case [sheriff laughed at
prisoner and threated to hang him] is not sufficient to state
a constitutional deprivation under 42 U.S.C.
plaintiff alleges a denial of adequate medical care. Because
plaintiff is a pretrial detainee, his right to adequate
medical care is guaranteed by the Due Process Clause of the
Fourteenth Amendment. Oxendine v. Kaplan, 241 F.3d
127, 1275 n. 6 (10th Cir. 2001).
the Due Process Clause, “pretrial detainees are
… entitled to the degree of protection against denial
of medical attention which applies to convicted
inmates” under the Eighth ...