Summary
holding that the Shawnee County DOC does not have the capacity to be sued
Summary of this case from Estate of Sisk v. ManzanaresOpinion
Case No. 02-4021-JAR
June 10, 2002
MEMORANDUM ORDER GRANTING MOTION TO DISMISS COUNTY OF SHAWNEE AND SHAWNEE COUNTY DEPARTMENT OF CORRECTIONS
Defendants County of Shawnee and Shawnee County Department of Corrections filed a motion to dismiss (Doc. #5) arguing that they are not entities capable of being sued. Plaintiff Barngrover did not timely respond to the motion to dismiss as outlined in D. Kan. Rule 7.1(c) and 6.1(e)2. The Court considers this motion under the guidelines of D. Kan. Rule 7.4 and for the following reasons grants the County of Shawnee and Shawnee County Department of Corrections's motion to dismiss.
DEFAULT
D. Kan. Rule 7.4 states, "If a respondent fails to file a response within the time required by Rule 7.1(c), the motion will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice." D. Kan. Rule 7.1(c) states "within the time provided in D. Kan. Rule 6.1, a party opposing a motion shall file . . . a written response to the motion containing a short, concise statement of its opposition to the motion." D. Kan. Rule 6.1(e)(2) allows a party "20 days to respond to a motion to dismiss." In this instance, Plaintiff did not file the necessary response within 20 days and has never filed a response. The motion is uncontested; and for the following reasons the Court grants the Motion to Dismiss defendants County of Shawnee and Shawnee County Department of Corrections.
D. Kan. R. 7.4 quoted in Schmidt v. Shawnee Mission School Dist., No. Civ.A. 98-23777-GTV, 1999 U.S. Dist. WL 681483, at *1 (D.Kan. Aug. 19, 1999).
D. Kan. R. 7.1(c).
D. Kan. R. 6.1(e)(2).
STANDARDS FOR MOTION TO DISMISS FOR FAILURE TO STATE CLAIM — 12(b)(6)
The Court will dismiss a cause of action for failure to state a claim under Rule 12(b)(6) only when it appears beyond a doubt that the plaintiff can prove no set of facts to support her theory of recovery that would entitle her to relief. The Court will accept as true all well pleaded facts, as distinguished from conclusory allegations, and all reasonable inferences from the pleadings will be liberally construed in favor of the plaintiff. The issue in resolving a Rule 12(b)(6) motion to dismiss is not whether the plaintiff will prevail but whether the plaintiff is entitled to offer evidence to support her claims.
Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998); Fugate v. Unified Gov't of Wyandotte County, 161 F. Supp.2d 1261, 1263-1264 (D.Kan. 2001).
Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984).
Fugate, 161 F. Supp.2d at 1263-1264.
ANALYSIS
County of Shawnee
County of Shawnee argues that it is not an entity with the capacity to be sued and that the Court does not have personal jurisdiction. K.S.A. 19-105 states: "in all suits or proceedings by or against a county, the name in which the county shall sue or be sued shall be `The board of county commissioners of the county of ___.'" Plaintiff's naming of both County of Shawnee and Shawnee County Board of Commissioners is inconsistent with the guidelines set forth in K.S.A. 19-105. Under K.S.A 19-105, Plaintiff cannot name the County of Shawnee as a defendant but rather must use the county's statutory designation as "The board of county commissioners of the county of Shawnee."
Kan.Stat.Ann. § 19-105.
Id.
See Id.
There are Kansas cases where the county was improperly named and the suit was allowed to continue. However, in those cases either the defense of improper designation was not raised by the defendant in a pre-answer motion or the defendant filed an answer admitting the county was the defendant. Neither of those circumstances apply to the instant case because County of Shawnee has raised a defense of improper designation in their pre-answer motion to dismiss. The County of Shawnee is dismissed from the action and the Shawnee County Board of Commissioners remains a defendant even though the technically correctly name is "The Board of County Commissioners of the County of Shawnee."
See Dollison v. Osborne County, 241 Kan. 374, 387, 737 P.2d 43 (1987); Union Pac. R.R. Co. v. Board of Comm'rs of Saline County, 69 Kan. 278, 76 P. 865, 866-67 (1904).
Id.
Shawnee County Department of Corrections
Shawnee County Department of Corrections argues that it is not an entity with the capacity to be sued because it is a sub unit of county government. The general rule, as determined by a line of Kansas cases, is that subordinate government agencies do not have the capacity to sue or be sued without authorization by a specific statute.
See Hopkins v. State of Kansas, 237 Kan. 601, 702 P.2d 311, 316 (1985); Mason v. 26 Judicial District of Kansas, 670 F. Supp. 1528, 1535 (D.Kan. 1987).
In Wright v. Wyandotte County Sheriff's Dept. the plaintiff filed suit against the Wyandotte County Sheriff's Department. The Court held the Sheriff's department was a subordinate government agency without the power to be sued and that the plaintiff should have named the Board of County Commissioners of the County of Wyandotte as a defendant. In Fugate v. Unified Gov't of Wyandotte County the Court held that Court Services, the Wyandotte County Sheriff's Department, and the D.A.'s office were not amenable to suit because there was no specific statutory authority authorizing these agencies to be sued.
963 F. Supp. 1029, 1035, (D.Kan. 1997).
Id. See K.S.A. § 19-105.
161 F. Supp.2d 1261, 1266-68 (D.Kan. 2001).
Id.
Similarly, the Shawnee County Department of Corrections is a sub unit of government and cannot be sued absent specific statutory authority. Because Plaintiff has not pointed to any statutory authority authorizing suit against Shawnee County Department of Corrections, the Court dismisses Shawnee County Department of Corrections from the suit.
IT IS THEREFORE ORDERED BY THE COURT that Defendants County of Shawnee and Shawnee County Department of Corrections's Motion to Dismiss is GRANTED.