United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE
matter is before the Court to address several motions pending
in this matter.
Schulman, counsel for defendants Christian Toelke and Stefany
Hughes, has filed a motion to withdraw as counsel of record
because his employment with the Justice & Public Safety
Cabinet concluded at the end of November 2018. He further
indicates that Brenn Combs, the General Counsel for the
Kentucky Department of Corrections, may be contacted if
necessary until successor counsel files a notice of
appearance in this case in the coming weeks. [R. 36] The
motion is well taken and appropriate, and the Court will
grant the motion as set forth below.
Toelke and Hughes have filed a motion to dismiss the
complaint of plaintiff Michael Eaves pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. [R. 35] In
his Second Amended Complaint, Eaves alleged that these
defendants discriminated against him by effectively delaying
his transfer into Northpoint Training Center
(“NTC”)'s “Honor Dorm” in
violation of his rights under the Eighth and Fourteenth
Amendments. [R. 10, Page ID # 227-33]
grounds for dismissal, defendants first contend that
Eaves's failure to specifically indicate in his complaint
that they are being sued in their individual capacities
necessitates the conclusion that he intended to sue them in
their official capacities. [R. 35-1, Page ID #435-37] Because
such official capacity claims would be barred by the Eleventh
Amendment, the argument goes, the claims must be dismissed.
Id. at Page ID #437-39. The Court disagrees.
Eaves sued the defendants in their official capacities, such
claims would plainly be barred. An “official
capacity” claim against a state official is not a claim
against the officer arising out of his or her conduct as an
employee of the state, but is actually a claim directly
against the state agency which employs them. Hopper v.
Phil Plummer, 887 F.3d 744, 760 n.4 (6th Cir. 2018);
Baar v. Jefferson Co. Bd. of Educ., 476 Fed.Appx.
621, 634 (6th Cir. 2012) (“Personal-capacity suits seek
to impose personal liability upon a government official for
actions he takes under color of law. Official-capacity suits,
in contrast, ‘generally represent only another way of
pleading an action against an entity of which an officer is
an agent.'”) (quoting Monell v. New York City
Dept. of Social Services, 436 U.S. 658, 690 n.55
(1978)). An official capacity claim against the defendants
would therefore constitute civil rights claims against the
Kentucky Department of Corrections (“KDOC”).
the KDOC is not subject to suit under § 1983 in federal
court. KDOC is an agency of the Commonwealth of Kentucky. See
Ky. Rev. Stat. § 12.250; Gibbons v. Kentucky Dept.
of Corrections, No. 3:07CV-P697-S, 2008 WL 4127847, at
*2-3 (W.D. Ky. Sept. 4, 2008). Therefore, KDOC is not a
“person” subject to liability under Section 1983.
Puckett v. Lexington-Fayette Urban Co. Gov't.,
833 F.3d 590, 598 (6th Cir. 2016) (citing Will v. Mich.
Dep't of State Police, 491 U.S. 58, 71 (1989)). In
addition, the Eleventh Amendment deprives federal district
courts of subject matter jurisdiction over a claim for money
damages against a state and its agencies. Ernst v.
Rising, 427 F.3d 351, 358 (6th Cir. 2005) (citing
Edelman v. Jordan, 415 U.S. 651, 662-63 (1974)). The
question remaining is whether Eaves sued the defendants in
their individual or official capacities.
Wells v. Brown, 891 F.2d 591 (6th Cir. 1989), the
Sixth Circuit established the rule that “plaintiffs
seeking damages under § 1983 [must] set forth clearly in
their pleading that they are suing the state defendants in
their individual capacity for damages, not simply in their
capacity as state officials.” The Wells court
relied in part upon Rule 9(a)'s requirement that a
plaintiff plead capacity where necessary to establish
jurisdiction, particularly in light of the sovereign immunity
afforded by the Eleventh Amendment to state employees sued in
their official capacity. Id. at 592-94. But in the
years following, the Sixth Circuit tempered the rule of
Wells in circumstances where the complaint does not
state the capacity under which the defendants are sued. In
such cases, the court looks to events transpiring after the
filing of the complaint to determine whether the defendants
had been adequately placed on notice of the plaintiff's
intention to subject them to personal liability. E.g.,
Pelfrey v. Chambers, 43 F.3d 1034, 1038 (6th Cir.),
cert. denied, 515 U.S. 1116 (1995); Abdur-Rahman
v. Mich. Dep't of Corr., 65 F.3d 489, 491 (6th Cir.
Sixth Circuit, sitting en banc, subsequently
clarified that Wells did not establish a per
se rule that plaintiffs must affirmatively plead
individual capacity claims in the complaint. The Supreme
Court itself had stated that when “the complaint [does]
not clearly specify whether officials are sued personally, in
their official capacity, or both  ‘[t]he course of
proceedings' in such cases typically will indicate the
nature of the liability sought to be imposed.”
Kentucky v. Graham, 473 U.S. 159, 165 n.14 (1985).
Consistent with that approach, the Sixth Circuit held that
district courts should consider the “course of
proceedings, ” including statements in the complaint
and subsequent motions regarding the nature of the claims
asserted, requests for monetary damages against the
individual defendants, allegations that an individual
defendant possessed supervisory authority over others, and
assertions by the defendants of qualified immunity, to
determine whether the complaint put the defendants on notice
that an individual capacity claim was asserted against them.
Moore v. City of Harriman, 272 F.3d 769, 772-74 (6th
Cir. 2001) (en banc); see also Shepherd v.
Wellman, 313 F.3d 963, 969 (6th Cir. 2002); Rodgers
v. Banks, 344 F.3d 587, 594 (6th Cir. 2003); Garcia
v. Dykstra, 260 Fed.Appx. 887, 894-95 (6th Cir. 2008).
complaint adequately put the defendants on notice that they
were being sued in their individual capacity for their
actions taken under color of state law, a prerequisite to
establish the necessary state action to pursue a claim under
Section 1983, rather than in their official capacities.
First, Eaves complains of actions taken by Toelke and Hughes,
but does not suggest that those actions were taken pursuant
to any KDOC policy or custom. [R. 10, Page ID #233] Second,
Eaves seeks monetary damages against each of the individual
defendants. Id. at Page ID #234. Third, Eaves does
seek injunctive relief against the Kentucky Department of
Corrections, but not for alleged constitutional violations,
only “to stop all its violations of the Americans
Disabilities Act, the Rehabilitation Act in all Kentucky
Prisons.” Id. The requested injunctive relief
against KDOC therefore does not suggest an intent to assert
an official capacity claim under Section 1983. On balance,
the complaint adequately indicates a desire to assert claims
against these defendants in their individual capacity.
sure, Eaves's complaint could be clearer on this point.
However, Eaves states that he is mentally and physically
disabled, bipolar, blind in one eye, has significant hearing
loss [R. 10 at 2; R. 18], suffers from a number of additional
medical restrictions or disabilities, and has been reliant
upon a jailhouse lawyer to assist him in his earlier filings
[R. 24]. Eaves is also proceeding without the benefit of
counsel. The cases relied upon by the defendants, like
Shepherd v. Wellman, 313 F.3d 963 (6th Cir. 2002),
involved plaintiffs who were represented by an attorney, and
who therefore likely made a conscious and informed decision
regarding the capacity in which the defendants were being
sued. Here, giving the pro se plaintiff the liberal
construction of his claims to which he is entitled,
Haines v. Kerner, 404 U.S. 519, 520-21 (1972),
Eaves's complaint provided adequate notice to Toelke and
Hughes that they were being sued in their individual
defendants also contend that Eaves failed to exhaust his
administrative remedies as required by federal law because he
did not identify them by name in his inmate grievance. [R.
35-1 at Page ID #438-41] Federal law requires a prisoner to
fully utilize the prison's inmate grievance system before
filing suit to assert a civil claim regarding the conditions
of his confinement. 42 U.S.C. § 1997e(a). The
defendants, relying upon Burton v. Jones, 321 F.3d
569, 575 (6th Cir. 2003) and other Sixth Circuit cases
decided before 2007, assert that the federal exhaustion
requirement itself requires the inmate to name in his
grievance the officers he ultimately sues. [R. 35-1 at Page
ID #440] But this is no longer true: Burton was
directly overruled by the Supreme Court in Jones v.
Bock, 549 U.S. 199, 217 (2007).
if the express terms of the prison's grievance procedure
require the inmate to name in his grievance the officers
involved, the inmate must comply with that requirement.
Jones, 549 U.S. at 218; Woodford v. Ngo,
548 U.S. 81, 90 (2006). Here, KDOC's grievance system
requires the inmate to “include all aspects of the
issue and identify all individuals in the
‘Brief Statement of the Problem' section of the
written grievance so that all problems concerning the issue
or individuals may be dealt with...” Corrections
Policies and Procedures 14.6(II)(J)(5)
added). This requirement is sufficiently clear that Eaves was
required to name the officers involved, something he did not
do in Grievance 16-601, the grievance he filed on October 5,
2016 to complain of the delay ...