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Wilmot v. Neosho County Jail

United States District Court, D. Kansas

January 3, 2020

JEREMY MICHAEL WILMOT, Plaintiff,
v.
NEOSHO COUNTY JAIL, et al., Defendants.

          NOTICE AND ORDER TO SHOW CAUSE

          SAM A. CROW U.S. SENIOR DISTRICT JUDGE

         This 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.

         Nature of the Complaint

         Plaintiff 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.

         Screening

         A 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).

         In 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).

         To 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 (1988)(citations omitted).

         To 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).

         Discussion

         The 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 being sued”).

         Next, 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. §1983.”).

         Finally, 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).

         Under 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 ...


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