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Cummings v. Nip

United States District Court, W.D. Kentucky, Louisville

December 15, 2016

VICTOR CUMMINGS PLAINTIFF
v.
JEFF NIP et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          Thomas B. Russell, Senior Judge

         Plaintiff Victor Cummings filed the instant pro se 42 U.S.C. § 1983 action proceeding in forma pauperis. This matter is before the Court on initial review of the complaint pursuant to 28 U.S.C. § 1915(e) and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). For the reasons stated below, the Court will dismiss some claims and allow Plaintiff to amend his complaint.

         I.

         Plaintiff, who has been released from incarceration, sues the Hardin County Detention Center (HCDC) and Jeff Nip, whom he identifies as a maintenance worker at HCDC. He sues Nip in his individual and official capacity.

         Plaintiff states that when he was processed into HCDC, he asked Corrections Officer Gunner about $400.00 missing from his account and that Gunner “gave me a direct order to not ask him again.” He states that Gunner then “asked me a series of questions basically for my safety sake, and if I wanted to be placed in protective custody and C/O Gunner did not acknowledge the fact that I said that I wanted to. He then ordered me to go back and get in line.” Plaintiff then alleges the following occurred:

When Jeff Nipp[1] came to transport us inmates he smelled of liquor. Jeff Nipp had his eyes on me and was at a uncomftble close distance to me. As we walked to back max housing in [HCDC]. Inmates were being placed in their cells. The door was opened to Protective Custody housing so I stepped in the direction. When I did Jeff Nipp grabbed me in a firm hold and then shoved me away. Without a direct order and initationing an aggressive unlogical action. He then pulled his taser out and aimed it at my chest. The heart area in the center of my chest. Then he shot me without hesitation. Some how I pulled out the prongs. Jeff Nipp called “Code Red” because before I knew it I was being shot by 5/6 taser guns. I passed out and awoke to being shocked excessively by C/O Gunner, C/O Maxwell, C/O Nipp, C/O Martin, and C/O Templeman. They drug me back to booking and placed me handcuffed on my back. While hitting me and tasing me in my left leg which I still suffer from the night stick beating. Being surrounded by 6 correction officers and placed in the restrain chair. As they pushed me in the first strap the still were tasing and hitting me. Then they put me in a suicide cell and when we were not visible, they kept tasing my chest and putting the taser gun between my legs.

         As relief, Plaintiff seeks compensatory and punitive damages and requests that Nip be removed as a corrections officer.

         II.

         Because Plaintiff is proceeding in forma pauperis, this Court must review the instant action. 28 U.S.C. § 1915(e); McGore, 114 F.3d at 608-09. Upon review, the Court must dismiss a case at any time if it determines that an action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). This Court recognizes that pro se pleadings are to be held to a less stringent standard than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519 (1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991). However, the duty “does not require us to conjure up unpled allegations.” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979).

         In order to survive dismissal for failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[A] district court must (1) view the complaint in the light most favorable to the plaintiff and (2) take all well-pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)). “But the district court need not accept a ‘bare assertion of legal conclusions.'” Tackett, 561 F.3d at 488 (quoting Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557).

         III.

         Plaintiff brings this action under § 1983. “Section 1983 creates no substantive rights, but merely provides remedies for deprivations of rights established elsewhere.” Flint ex rel. Flint v. Ky. Dep't of Corr., 270 F.3d 340, 351 (6th Cir. 2001). Two elements are required to state a claim under § 1983. Gomez v. Toledo, 446 U.S. 635 (1980). “[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 (1988). “Absent either element, a section 1983 claim will not lie.” Christy v. Randlett, 932 F.2d 502, 504 (6th Cir. 1991).

         Municipal liability

         Plaintiff sues HCDC. However, HCDC is not a “person” subject to suit under § 1983 because municipal departments, such as jails, are not suable under § 1983. See Marbry v. Corr. Med. Servs., No. 99-6706, 2000 U.S. App. LEXIS 28072, at *2 (6th Cir. Nov. 6, 2000). The claim against HCDC is actually brought against ...


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