United States District Court, W.D. Kentucky, Louisville
MEMORANDUM OPINION AND ORDER
B. Russell, Senior Judge
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
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.
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 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.
relief, Plaintiff seeks compensatory and punitive damages and
requests that Nip be removed as a corrections officer.
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).
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).
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).
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 ...