United States District Court, W.D. Kentucky, Owensboro Division
MEMORANDUM OPINION AND ORDER
H. MCKINLEY, JR., CHIEF JUDGE.
pro se Plaintiff Keith Edwin Kirkwood is proceeding
in forma pauperis under 28 U.S.C. § 1915, the
Court must undertake a preliminary review of the complaint.
See 28 U.S.C. § 1915(e); McGore v.
Wrigglesworth, 114 F.3d 601 (6th Cir. 1997),
overruled on other grounds by Jones v. Bock, 549
U.S. 199 (2007). On preliminary review, Plaintiff will be
given an opportunity to amend his complaint.
SUMMARY OF CLAIMS
filed this action in the United States Court of Federal
Claims. The Court of Federal Claims found that it lacked
jurisdiction and transferred this case to this Court because
Plaintiff resides in this district and the alleged actions
complained of occurred here.
complaint states that it is brought under 42 U.S.C. §
1983 “for mental [and] physical abuse of the local
police department (local law enforcement)[;] violations of
constitutional rights. Mistreatment.” According to the
complaint, Plaintiff was booked into the Hopkins County Jail
on April 16, 2012. Plaintiff states that that he was
arrested, subjected to excess force and harassment, and
incarcerated for three months “for having an umbrella
and a screwdriver.” Although the caption of the
complaint indicates that the United States of America is the
named Defendant, in the body of his complaint he states:
“I'm filing a Section 1983 lawsuit against the
local government and police force law [e]nforcement of
complaint states, “One morning, I walked out of the
house with an umbrella and screwdriver only to be tased later
by the Madisonville Police Department and taken to the
Hopkins County Jail. (Excessive force). Being tased was not
necessary in making my arrest.” Plaintiff further
alleges that once at the jail he was put directly into
isolation for two months because of his mental illness, which
he alleges is discrimination against the mentally ill. He
also alleges that it is a human-rights violation to be kept
in solitary confinement for a prolonged period of time.
further alleges that while in isolation he was not given his
necessary medication for schizophrenia or ulcerative colitis,
causing him to go into a psychotic state and routinely
“get peppered sprayed and tied to a chair.” He
states that he also had a “major outbreak” of
ulcerative colitis. He further alleges that the only
“breaks” he received from “24/7
lockup” were the times he was pepper sprayed and tied
to a chair. He states that he received one weekly shower;
that it took three months to see his public defender and
straighten things out with the judge; and that his mental
condition “has deteriorated.” Plaintiff
acknowledges that his claims may be barred by the statute of
limitations but states that he believes that his case may
fall under for two exceptions. The first exception Plaintiff
points to is where the statute of limitations is extended
based on a delay in the discovery of the injury or on the
reasonable reliance on a trusted person. He states:
“That person being NAMI - National Alliance of the
Mentally Ill.” The second exception he points to occurs
if the plaintiff was under a disability, which Plaintiff
states, “I most definitely have been.”
asks for monetary relief.
Plaintiff is proceeding in forma pauperis, this
Court must review the instant action. See 28 U.S.C.
§ 1915(e)(2); McGore v. Wrigglesworth, 114 F.3d
at 608. Upon review, this Court must dismiss a case at any
time if the Court determines that the 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. 28 U.S.C.
§ 1915(e)(2)(B). A claim is legally frivolous when it
lacks an arguable basis either in law or in fact. Neitzke
v. Williams, 490 U.S. 319, 325 (1989). The 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.
determining whether a plaintiff has stated a claim upon which
relief can be granted, the Court must construe the complaint
in a light most favorable to the plaintiff and accept all of
the factual allegations as true. Prater v. City of
Burnside, Ky., 289 F.3d 417, 424 (6th Cir. 2002). A
complaint, or portion thereof, should be dismissed for
failure to state a claim upon which relief may be granted
“only if it appears beyond a doubt that the plaintiff
can prove no set of facts in support of his claim that would
entitle him to relief.” Brown v. Bargery, 207
F.3d 863, 867 (6th Cir. 2000). While a reviewing court must
liberally construe pro se pleadings, Boag v.
MacDougall, 454 U.S. 364, 365 (1982) (per curiam), to
avoid dismissal, a complaint must include “enough facts
to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007).
only named Defendant is the United States of America. A
complaint must set forth specific facts to explain how a
defendant is personally responsible for the alleged injuries.
Smith v. Rowe, 761 F.2d 360, 369 (7th Cir. 1985).
Plaintiff's complaint fails to do so with regard to the
United States of America and, therefore, fails to state a
claim upon which relief may be granted. See Copeland v.
Machulis, 57 F.3d 476, 481 (6th Cir. 1995) (per curiam)
(stating that personal involvement by the defendant is an
essential element in a § 1983 cause of action asserting
a constitutional deprivation). In any event, the United
States may not be sued under § 1983. See Int'l
Islamic Cmty. of Masjid Baytulkhaliq, Inc. v. United
States, 981 F.Supp. 352, 365 (D.V.I. 1997) (“[T]he
United States neither acts under color of state law, nor can
it be considered a ‘person' for purposes of section
1983.”). The United States of America must be dismissed
as a Defendant.
in the body of the complaint Plaintiff expresses his desire
to bring this § 1983 action against “the local
government and police force law [e]nforcement of Hopkins
County, ” the Court finds that it would be futile to
add the Madisonville Police Department and the Hopkins County
Jail as defendants. Neither the Madisonville Police
Department nor the Hopkins County Jail is a
“person” subject to suit under § 1983
because municipal departments, such as police departments and
jails, are not suable under § 1983. See Rhodes v.
McDannel, 945 F.2d 117, 120 (6th Cir. 1991) (holding
that a police department may not be sued under § 1983);
see also Marbry v. Corr. Med. Serv., No. 99-6706,
2000 WL 1720959, at *2 (6th Cir. Nov. 6, 2000) (holding that
a jail is not an entity subject to suit under § 1983).
In this situation, the claims brought against them would be
construed as against the City of Madisonville and Hopkins
County. Smallwood v. Jefferson Cty. Gov't, 743
F.Supp. 502, 503 (W.D. Ky. 1990) (construing claims brought
against the Jefferson County Government, the Jefferson County
Fiscal Court, and the Jefferson County Judge Executive as
claims against Jefferson County itself).
§ 1983 claim is made against a municipality, a court
must analyze not only whether the plaintiff's harm was
caused by a constitutional violation but also whether the
municipality is responsible for that violation. Collins
v. City of Harker Heights, Tex., 503 U.S. 115,
120 (1992). A municipality cannot be held responsible for a
constitutional deprivation unless there is a direct causal
link between a municipal policy or custom and the alleged
constitutional deprivation. Monell v. New York City
Dep't of Soc. Servs., 436 U.S. 658, 691 (1978);
Deaton v. Montgomery Cty., Ohio, 989 F.2d 885, 889
(6th Cir. 1993). Simply stated, the plaintiff must
“identify the policy, connect the policy to the city
itself and show that the particular injury was incurred
because of the execution of that policy.” Garner v.
Memphis Police Dep't, 8 F.3d 358, 364 (6th Cir.
1993) (quoting Coogan v. City of Wixom, 820 F.2d
170, 176 (6th Cir. 1987), overruled on other
grounds, Frantz v. Vill. of Bradford, 245 F.3d
869 (6th Cir. 2001)). The policy or custom “must be
‘the moving force of the constitutional violation'
in order to establish the liability of a government body