Opinion
Case No. 04-3034-JWL.
July 26, 2004
MEMORANDUM AND ORDER
Joey E. Sparks brought this action asserting a constitutional claim under 42 U.S.C. § 1983 and related state law claims against defendants Reno County Sheriff's Department, Reno County Sheriff Randy Henderson, Reno County Sheriff's Officers Scott Powell, Angienette Wright, and Jeramie Hedges, and John and Jane Does. The matter is presently before the court on defendant Reno County Sheriff's Department, Reno County Sheriff Randy Henderson, and Reno County Sheriff's Captain Scott Powell's (the "moving defendants") motion to dismiss for failure to state a claim upon which relief can be granted. (Doc. 19).
The court grants the moving defendants' motion in its entirety. As to defendants Henderson and Powell, plaintiff's complaint contains no factual allegations that establish a nexus between his alleged constitutional deprivation and defendant Henderson or Powell's personal participation, exercise of control or direction, or failure to supervise the other defendants. As to defendant Reno County Sheriff's Department, the court finds that it is an entity that lacks the capacity to be sued.
The moving defendants filed their motion to dismiss on May 19, 2004. On June 18, 2004, after receiving no response to the defendants' motion, the court directed the plaintiff to respond no later than July 16, 2004. (Doc. 22). The court advised the plaintiff that if he did not respond by that date, the court could consider the defendants' motion to be uncontested and grant it without further notice pursuant to D. Kan. R. 7.4. As of the date of this order, the court has not received any response from the plaintiff. The court grants the defendants' motion because: (1) the prejudice to plaintiff is minimized by the fact that the motion seeks to dismiss certain parties, not plaintiff's complaint in its entirety; and (2) plaintiff's failure to respond to the motion evidences his high degree of culpability. See Murray v. Archambo, 132 F.3d 609, 611 (10th Cir. 1998) (prior to outright dismissal for failure to comply with local court rules, court must consider the degree of actual prejudice to the defendant; the amount of interference with the judicial process; and the culpability of the litigant). In the alternative, the court addresses the substance of defendants' motion because it raises issues that are otherwise meritorious.
BACKGROUND
At all times relevant to this complaint, Mr. Sparks was a post-conviction detainee of the Reno County Sheriff's Department. On January 14, 2003, Mr. Sparks observed Officer Jeramie Hedges "zap" an employee of the Reno County jail in the leg with a hand-held electronic immobilization device; i.e. a taser. The employee jumped in response to the electrical shock, and plaintiff laughed. The employee heard plaintiff laugh at the incident and told the Sheriff's officers to get him. In response, Officer Angienette Wright instructed Officer Hedges to grab Mr. Sparks, which he did. Officer Wright then zapped Mr. Sparks with the taser.Officer Hedges then instructed the plaintiff that if Captain Scott Powell inquired about the incident, plaintiff should tell him that the officers applied force because plaintiff was "messing with the cameras." When Mr. Sparks refused to lie about the incident, Officer Hedges threatened him with physical harm and the denial of privileges.
On January 15, 2003, Captain Powell learned of the incident and interviewed Mr. Sparks and other officers. During the interview with the plaintiff, Mr. Sparks lied to Captain Powell and told him that he "told the [officers] to shock [him]." He lied about the incident because of his fear of reprisal from the other officers.
STANDARD
The court will dismiss a cause of action for failure to state a claim only when "it appears beyond a doubt that the plaintiff can prove no set of facts in support of his [or her] claims which would entitle him [or her] to relief," Poole v. County of Otero, 271 F.3d 955, 957 (10th Cir. 2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)), or when an issue of law is dispositive. Neitzke v. Williams, 490 U.S. 319, 326 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, and all reasonable inferences from those facts are viewed in favor of the plaintiff. Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001). The issue in resolving a motion such as this is "not whether [the] plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Finally, because Mr. Sparks proceeds pro se, we construe his complaint liberally. Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).
DISCUSSION
The moving defendants raise two separate challenges to Mr. Sparks' complaint. First, defendants Powell and Henderson contend that Mr. Sparks has failed to allege facts that would make them liable, as supervisors of Defendants Wright and Hedges, for the alleged constitutional violation. Defendant Reno County Sheriff's Department argues that it does not have capacity to be sued under Kansas law. The court addresses each claim in turn.
I. Liability of Sheriff Randy Henderson and Captain Scott Powell as Supervisors
Mr. Sparks contends that defendants violated his constitutional right to be free from cruel and unusual punishment. The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. The Supreme Court has held that "`the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment.'" Whitley v. Albers, 475 U.S. 312, 319 (1986) (quoting Ingraham v. Wright, 430 U.S. 651, 670 (1977)). "Ordinarily, an excessive force claim involves two prongs: (1) an objective prong that asks if the alleged wrongdoing was objectively harmful enough to establish a constitutional violation, and (2) a subjective prong under which the plaintiff must show that the officials act[ed] with a sufficiently culpable state of mind." Giron v. Corr. Corp. of Am., 191 F.3d 1281, 1289 (10th Cir. 1999) (internal quotations omitted).
Plaintiff also alleges that the defendants' conduct violated his right to equal protection, but there are no allegations that would support such a claim. Instead, it is clear from the allegations contained in his complaint that Mr. Sparks is seeking remedies for an alleged violation of his rights under the Eighth Amendment.
Though state actors who participate in a violation in a supervisory role may incur liability for a constitutional violation, there is no concept of strict supervisor liability or respondeat superior under section 1983. Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996). "In other words, it is not enough for a plaintiff merely to show a defendant was in charge of other state actors who actually committed the violation." Id. "Instead, just as with any individual defendant, the plaintiff must establish `a deliberate, intentional act by the supervisor to violate constitutional rights.'" Id. at 994-95 (quoting Woodward v. City of Worland, 977 F.2d 1392, 1399 (10th Cir. 1992). "A plaintiff may satisfy this standard by showing the defendant-supervisor personally directed the violation or had actual knowledge of the violation and acquiesced in its continuance." Id. at 995. In short, "to establish supervisory liability, a plaintiff must show that `an affirmative link exists between the [constitutional] deprivation and either the supervisor's personal participation, his exercise of control or direction, or his failure to supervise.'" Worrell v. Henry, 219 F.3d 1197, 1214 (10th Cir. 2000) (quoting Meade v. Grubbs, 841 F.2d 1512, 1527 (10th Cir. 1988)).
Here, even after construing Mr. Sparks' complaint liberally, plaintiff has failed to allege any facts that affirmatively link defendants Sheriff Henderson and Captain Powell to his constitutional deprivation. First, plaintiff does not allege that either Sheriff Henderson or Captain Powell personally participated in the taser incident. Instead, plaintiff alleges only that defendants Wright and Hedges participated in the wrongful conduct. Second, Mr. Sparks does not allege that his constitutional injury was caused by the supervisors exercise of control or direction. There are no allegations that either Sheriff Henderson or Captain Powell ordered, commanded or otherwise compelled Officer Wright to use his taser against the plaintiff. Similarly, there are no allegations that these two defendants knowingly acquiesced in the conduct of Officers Wright and Hedges. Finally, Mr. Sparks' complaint contains no allegations that his injury was caused by Sheriff Henderson or Captain Powell's failure to supervise defendants Wright and Hedges. The court cannot infer a failure to supervise based solely upon plaintiff's allegation of a constitutional injury. Fields v. Romer, 232 F.3d 901, 2000 WL 1616394, at *2 (10th Cir. Oct. 30, 2000) (finding allegation that supervisory officials were ultimately responsible for wrongful conduct of subordinates inadequate to establish liability under § 1983); see also Allen v. Muskogee, 119 F.3d 837, 841-42 (10th Cir. 1997) (noting that to find defendant liable for failure to adequately train officers in the use of force, plaintiff must establish that failure to train demonstrates a deliberate indifference toward plaintiff and that there is a direct causal link between the inadequate training and constitutional violation). Otherwise, supervisor liability would be the rule, not the exception in § 1983 actions.
In short, Mr. Sparks' complaint fails to implicate these two defendants in any wrongful conduct. As to Sheriff Henderson, the complaint contains no factual allegations pertaining to his acts or omissions. As to Captain Powell, the complaint merely alleges that he investigated the taser incident, and Mr. Sparks does not suggest that he suffered any constitutional injury based on Mr. Powell's handling of this investigation. In the end, the complaint contains one conclusory allegation that "the actions and/or omissions to act . . . has given rise to this claim. . . ." This allegation is insufficient, as a matter of law, to state a § 1983 claim against Sheriff Henderson or Captain Powell in their role as supervisors. Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir. 1989) (finding district court properly dismissed pro se plaintiff's § 1983 complaint where plaintiff failed to allege specific facts in support of claim).
The court grants Sheriff Henderson and Captain Powell's motion to dismiss because plaintiff failed to allege that his constitutional injury is linked to the personal participation, exercise of control or direction, or failure to supervise by either of them. See Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (affirming district court's dismissal of plaintiff's claims under 12(b)(6) because he did not allege any personal involvement of the parties before the court); Baker v. Simmons, 65 Fed. Appx. 231, 234, 2003 WL 21008830, at *2 (10th Cir. May 6, 2003) (affirming grant of summary judgment against supervisory defendants where plaintiff's complaints against these individuals, even liberally construed, were devoid of any allegation affirmatively linking them to a subordinate's alleged deliberate indifference).
The moving defendants request that the court consolidate Mr. Sparks' claims into one single cause of action under § 1983 based on an alleged violation of the Eighth Amendment. Plaintiff, however, has clearly alleged that the defendants' conduct violated state common law, independent of his federal cause of action. Moreover, plaintiff has alleged that the court has supplemental jurisdiction over these claims. The moving defendants do not suggest that mr. Sparks' complaint fails to state a claim for relief under state law. As such, the court declines the invitation to construe plaintiff's complaint only under § 1983.
Though the court dismisses the sole federal claim against these defendants, it retains supplemental jurisdiction over the state law claims asserted against them because they are so related to the surviving federal claim in this case that they form part of the same case or controversy under Article III of the United States Constitution. 28 U.S.C. § 1367(a) (noting that the court shall have supplemental jurisdiction over all claims that are so related to claims in the action within the federal court's original jurisdiction that they form part of the same case or controversy under Article III). While a district court may decline to exercise jurisdiction over a state law claim where it has dismissed all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3), as noted above, the court has not dismissed all federal claims in this action. As such, the court retains supplemental jurisdiction over the plaintiff's state law claims against defendants Henderson and Powell. See, e.g., In re Sterling Foster Co., Inc., Securities Litigation, 222 F. Supp.2d 216, 283 (E.D.N.Y. 2002) (exercising supplemental jurisdiction over state law claims against a particular defendant, though the Court dismissed all of the federal causes of action against that defendant where the plaintiffs' remaining federal claims against other defendants were not subject to dismissal).
II. Reno County Sheriff's Department's Capacity to be Sued
Defendant Reno County Sheriff's Department contends that it is an entity that does not have the capacity to sue or be sued. The Sheriff's Department's capacity to be sued is governed by Federal Rule of Civil Procedure 17(b), which provides, in pertinent part, that the "capacity to sue or be sued shall be determined by the law of the state in which the district court is held. . . ." Fed.R.Civ.P. 17(b). As such, Kansas law governs the defendant's capacity to be sued in these proceedings.
Kansas law recognizes that subordinate government entities, in the absence of statutory authorization, ordinarily do not have the capacity to sue or be sued. Lindenman v. Umscheid, 255 Kan. 610, 628, 875 P.2d 964, 977 (1994) (citing Hopkins v. State, 237 Kan. 601, 606, 702 P.2d 311 (1985). "The statutory authority need not be express, but can be implied." Id. at 628-29.
Here, the legislature has not expressly or impliedly provided a county sheriff's department with the capacity to sue or be sued. The Kansas legislature has provided that "a sheriff shall be elected in each county, for four (4) years." K.S.A. §§ 19-801a. Once duly elected, a sheriff shall "appoint some proper person undersheriff of said county. . . ." K.S.A. § 19-803. In addition to the undersheriff, "the sheriff also may appoint, promote, demote and dismiss additional deputies and assistants necessary to carry out the duties of the office, for whose official acts the sheriff is responsible." K.S.A. § 19-805(a). More relevant to the claims asserted in this action, "[t]he sheriff shall have the charge and custody of the jail of his county, and all the prisoners in the same, and shall keep such jail himself, or by his deputy or jailer, for whose acts he and his sureties shall be liable." K.S.A. § 19-811. Moreover, the legislature has provided that the sheriff "shall keep the jail, and shall be responsible for the manner in which the same is kept." K.S.A. § 19-1903.
While these provisions demonstrate that the legislature has granted a county sheriff the capacity to sue and be sued, the scheme is silent as to the capacity of a sheriff's department to sue or be sued. Quite simply, there is no express or implied authority that supports the proposition that such a department is an entity with the capacity to be sued. As such, the court grants the Reno County Sheriff's Department's motion to dismiss. Fugate v. Unified Gov't of Wyandotte County/Kansas City, KS., 161 F. Supp.2d 1261, 1266 (D. Kan. 2001) (sustaining motion to dismiss with prejudice because Sheriff's Department is not capable of being sued); Wright v. Wyandotte County Sheriff's Dep't, 963 F. Supp. 1029, 1034 (D. Kan. 1997) (county sheriff's department not capable of being sued); Farris v. Bd. of County Comm'rs, 924 F. Supp. 1041, 1045 (D. Kan. 1996) (same); Culbertson v. Wilson County Sheriff's Office, No. 91-3074-S, 1991 WL 49694, at *1 (D. Kan. March 8, 1991) (finding that plaintiff's complaint failed to state a claim on which relief can be granted under § 1983 because the Sheriff's Department lacked the capacity to be sued); Murnahan v. Daily, No. 89-3285-S 1990 WL 203139, at *1 (D. Kan. Nov. 28, 1990) (granting Barton County Sheriff's Department's motion to dismiss because Kansas law has not recognized the sheriff's department as an entity capable of bringing suit or of being sued); Bourassa v. Soc. Rehab. Serv. of Kan., No. 89-1025-C, 1989 WL 60066, at *1 (D. Kan. May 30, 1989) (dismissing Sedgwick County Sheriff's Department on same ground).
CONCLUSION
In the end, the court grants the defendants' motion to dismiss both for plaintiff's failure to respond and on the merits. Mr. Sparks failed to allege any facts that affirmatively link his constitutional injury to Sheriff Henderson or Captain Powell's personal participation, exercise of control or direction, or failure to supervise other defendants. As such, plaintiff has failed to state a claim for supervisory liability under § 1983. Additionally, the Reno County Sheriff's Department is not an entity that has the capacity to sue or be sued. As such, Mr. Sparks has failed to state a claim against this defendant. IT IS THE THEREFORE ORDERED BY THE COURT that defendant's motion to dismiss (Doc. 19) is granted.