United States District Court, W.D. Kentucky, Louisville Division
J. Hale, Judge United States District Court
Troy Tarter, a prisoner incarcerated at the Kentucky State
Reformatory (KSR), filed a pro se complaint under 42
U.S.C. § 1983. The Court has granted Plaintiff leave to
proceed in forma pauperis. The
complaint is before the Court for screening pursuant
to 28 U.S.C. § 1915A and McGore v.
Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997),
overruled on other grounds by Jones v. Bock, 549
U.S. 199 (2007). For the reasons that follow, this action
will be dismissed.
SUMMARY OF CLAIMS
complaint, Plaintiff names the following four Defendants in
this action: (1) KSR; (2) Aaron Smith, the Warden at KSR; (3)
Casey Dowden, a Correctional Officer at KSR; and (3) Randy
Orway,  also a Correctional Officer at KSR.
Plaintiff sues the individual Defendants in both their
individual and official capacities.
to the complaint and documents attached thereto, Plaintiff
states that on December 3, 2014, his television was stolen by
another inmate. Plaintiff states that the following day,
December 4, 2014, Defendants Dowden and Orway entered
Plaintiff's cell to conduct a search for his missing
television. On this same date, Defendants Dowden and Orway
searched the dorm looking for Plaintiff's television.
Plaintiff represents that they located the television in the
cell of another inmate. According to Plaintiff, Defendants
Dowden and Orway failed to lock up the inmate for stealing
Plaintiff's television. Plaintiff states that on December
4, 2014, the inmate who had taken Plaintiff's television
assaulted Plaintiff and “Beat the living He** out of
Plaintiff.” Plaintiff represents that he was taken to
the University of Louisville Healthcare Emergency Room for
treatment. According to Plaintiff, as a result of the
assault, he sustained “a Head injury or a contusion, .
. . bruis[ing] all over his body, lower Back injury, right
hip and left leg injury.”
asserts failure to protect and deliberate indifference claims
against Defendants. He seeks monetary relief, protection from
assault, and a declaration that the “acts and
omissions” described in the complaint violated
STANDARD OF REVIEW
prisoner initiates a civil action seeking redress from a
governmental entity, officer, or employee, the trial court
must review the complaint and dismiss the complaint, or any
portion of it, if it determines that the complaint 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. 28 U.S.C. §
1915A; McGore v. Wrigglesworth, 114 F.3d at 604. A
claim is legally frivolous when it lacks an arguable basis
either in law or in fact. Neitzke v. Williams, 90
U.S. 319, 325 (1989). The trial court may, therefore, dismiss
a claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Id. at 327. 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)).
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 v. M & G Polymers,
USA, LLC, 561 F.3d at 488 (quoting Columbia Natural
Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir.
1995)). The court's duty “does not require [it] to
conjure up unpled allegations, ” McDonald v.
Hall, 610 F.2d 16, 19 (1st Cir. 1979), or to create a
claim for a plaintiff. Clark v. Nat l Travelers Life Ins.
Co., 518 F.2d 1167, 1169 (6th Cir. 1975). To command
otherwise would require the district court “to explore
exhaustively all potential claims of a pro se
plaintiff, [and] would also transform the district court from
its legitimate advisory role to the improper role of an
advocate seeking out the strongest arguments and most
successful strategies for a party.” Beaudett v.
City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Kentucky State Reformatory
42, Section 1983 creates no substantive rights, but merely
provides remedies for deprivations of rights established
elsewhere. As such, it has two basic requirements: (1) the
deprivation of federal statutory or constitutional rights by
(2) a person acting under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988); Flint v.
Ky. Dep t of Corr., 270 F.3d 340, 351 (6th Cir. 2001).
KSR is part of the Kentucky Department of Corrections (DOC).
The DOC is a department within the Justice and Public Safety
Cabinet of the Commonwealth of Kentucky. See Exec.
Order No. 2004-730 (July 9, 2004); Ky. Rev. Stat. §
12.250. A state and its agencies, however, are not
“persons” subject to suit under § 1983.
Will v. Mich. Dep't of State Police, 491 U.S.
58, 71 (1989); see also Crockett v. Turney Ctr. Indus.
Prison, No. 96-6067, 1997 WL 436563, at *1 (6th Cir.
Aug. 1, 1997) (“The prison is a state agency . . . . A
state agency is not considered a ‘person' subject
to suit under 42 U.S.C. § 1983.”). Because KSR is
not a “person” under the Act, the Court will
dismiss the claims against KSR for failure to state a claim
upon which relief may be granted.
the Eleventh Amendment acts as a bar to all claims for relief
against KSR. A state and its agencies, such as the DOC, may
not be sued in federal court, regardless of the relief
sought, unless the state has waived its sovereign immunity
under the Eleventh Amendment or Congress has overridden it.
Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &
Eddy, Inc., 506 U.S. 139, 146 (1993); Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 124
(1984); Alabama v. Pugh, 438 U.S. 78l, 782 (l978).
In enacting § l983, Congress did not intend to override
the traditional sovereign immunity of the states.
Whittington v. Milby, 928 F.2d l88, 193-94 (6th Cir.
1991) (citing Quern v. Jordan, 440 U.S. 332, 341
the Court will dismiss KSR and all claims against KSR for