United States District Court, W.D. Kentucky, Louisville Division
JOSEPH C. AUBERRY, Plaintiff,
OFFICER JOHN HAGAN et al., Defendants.
J. HALE, JUDGE, UNITED STATES DISTRICT COURT
Joseph C. Auberry 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. § 1915A. For the reasons
stated below, the Court will dismiss the action.
identifies himself as a convicted inmate at the Hardin County
Detention Center (HCDC). He sues HCDC; Lt. Reynolds; Captain
Highnote; Class D Coordinator Thresea Bailey; and Deputy
Marks. He sues Reynolds, Highnote, Bailey, and Marks in their
official capacities only.
statement of the claim, Plaintiff states, “I have
claimed in the past 7 days at least 17 time I fear for my
life in Hardin Co. I've requested to be shipped multiple
times. Still no movement.” He maintains that
“[t]hey left me in lockdown for 3 day without a chower
or hour out, or lawyer call.” He also states,
“They didn't do a medical intake for 7 seven day an
wouldn't allowin a phone call for 6 days.  They've
ignored my request an forgot to feed me Monday the 2nd day of
my arrest. (Lunch).”
further states that when he came into HCDC he told the nurse
that he was “detoxing off of meth that I've been up
for 3 weeks and I needed medical attention.” He asserts
that “they stuck me in the hole an left me there
ignoring my crys for help for 4 days.” He also states,
“When askin Dept. Marks for a writing utensil an a
request form he stated, ‘We don't give out pencils
or pens to everyone anymore.' Which is an absolute lie.
He didn't want to give me one cause he knew I was gonna
file a greivness upon him.” Also with regard to Deputy
Marks, Plaintiff maintains, “When asking Dept. Marks
for a lawyer call he stated, ‘everyone gets one but
Auberry.' I asked ‘why?' he said nothing an
left the room.” Plaintiff also represents that when his
request form was answered, “Cpt. Highnote wrote
‘your fine an safe in this jail.'” He
maintains, “After I stated I don't trust the guards
an I have had a heart attack 3 week prior to my arrest an
I'm stressed out at this jail, I guess he knows my safety
better then I. Even though 5 of my forms were thrown
relief, Plaintiff seeks punitive damages; injunctive relief
in the form of “shipping me to another jail”; and
requests that he “would like to add conflict of intrest
on multiple guards.”
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 the court 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. See §
1915A(b)(1), (2); McGore v. Wrigglesworth, 114 F.3d
601, 604 (6th Cir. 1997), overruled on other grounds by
Jones v. Bock, 549 U.S. 199 (2007).
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).
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,
520-21 (1972); Jourdan v. Jabe, 951 F.2d 108, 110
(6th Cir. 1991), “[o]ur duty to be ‘less
stringent' with pro se complaints does not require us to
conjure up unpled allegations.” McDonald v.
Hall, 610 F.2d 16, 19 (1st Cir. 1979) (citation
omitted). And this Court is not required to create a claim
for Plaintiff. Clark v. Nat'l Travelers Life
Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975). To
command otherwise would require the 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).
sues HCDC and Reynolds, Highnote, Bailey, and Marks in their
official capacities only. HCDC is not a “person”
subject to suit under § 1983 because municipal
departments, such as jails, are not suable under § 1983.
Marbry v. Corr. Med. Servs., No. 99-6706, 2000 U.S.
App. LEXIS 28072, at *2 (6th Cir. Nov. 6, 2000) (holding that
a jail is not an entity subject to suit under § 1983);
see also Rhodes v. McDannel, 945 F.2d 117, 120 (6th
Cir. 1991) (holding that a police department may not be sued
under § 1983). In this situation, Hardin County is the
proper defendant. Smallwood v. Jefferson Cty.
Gov't, 743 F.Supp. 502. 503 (W.D. Ky. 1990).
Further, Hardin County is a “person” for purposes
of § 1983. See Monell v. New York City Dep't of
Soc. Servs., 436 U.S. 658, 690 n.55 (1978). The Court
therefore will construe the claim against HCDC as a claim
brought against Hardin County.
“[o]fficial-capacity suits . . . ‘generally
represent  another way of pleading an action against an
entity of which an officer is an agent.'”
Kentucky v. Graham, 473 U.S. 159, 165 (1985)
(quoting Monell, 436 U.S. at 690 n.55). Suing
employees in their official capacities is the equivalent of
suing their employer. Lambert v. Hartman, 517 F.3d
433, 439-40 (6th Cir. 2008); Matthews v. Jones, 35
F.3d 1046, 1049 (6th Cir. 1994); Smallwood v. Jefferson
Cty. Gov't, 743 F.Supp. at 503. Therefore, the Court