Burgess v. Kentucky State Police et al, No. 5:2012cv00181 - Document 6 (W.D. Ky. 2013)

Court Description: MEMORANDUM OPINION & ORDER by Senior Judge Thomas B. Russell on 4/22/2013; Clerk is directed to send plaintiff a 1983 form; see order for specificscc:counsel (KJA)

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT PADUCAH MICHAEL AARON BURGESS v. PLAINTIFF CIVIL ACTION NO. 5:12CV-P181-R KENTUCKY STATE POLICE et al. DEFENDANTS MEMORANDUM OPINION AND ORDER Seeking monetary and punitive damages, Plaintiff Michael Aaron Burgess filed a pro se complaint pursuant to 42 U.S.C. § 1983 against the Kentucky State Police (KSP) and KSP Trooper James McAuther in his official capacity. In the complaint, he alleges: On Dec. 3, 2011, My Civil Rights was violated by the use of excessive force, by being shot 5 times by James McAuther of the (KSP) Kentucky State Police. I was physically abused after the shooting by the same officer, same dept (emphasis in complaint). Because Plaintiff is a prisoner seeking relief against governmental entities, officers, and/or employees, this Court must review the instant action under 28 U.S.C. § 1915A. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). Under § 1915A, the trial court must review the complaint and dismiss the complaint, or any portion of the complaint, if the court determines that it 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. § 1915A(b)(1), (2). Two elements are required to state a claim under § 1983. Gomez v. Toledo, 446 U.S. 635, 640 (1980). [A] plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Absent either element, a section 1983 claim will not lie. Christy v. Randlett, 932 F.2d 502, 504 (6th Cir. 1991). Plaintiff sues KSP and KSP Trooper McAuther in his official capacity for damages. A state, its agencies, and state officials sued in their official capacities for damages are not persons subject to suit under § 1983. Will v. Mich. Dep t of State Police, 491 U.S. 58, 71 (1989); Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). Thus, Plaintiff fails to state a § 1983 claim upon which relief may be granted. In addition, official-capacity claims for damages against state officials, like Trooper McAuther, and all claims regardless of the type of relief sought against a state agency/entity, like the KSP, are barred by the Eleventh Amendment to the United States Constitution. Will, 491 U.S. at 71; Kentucky v. Graham, 473 U.S. 159, 169 (1985) ( This [Eleventh Amendment] bar remains in effect when State officials are sued for damages in their official capacity. ); Barnes v. Hamilton, No. 91-5360, 1991 WL 203113, at * 2 (6th Cir. Oct. 10, 1991) (affirming district court s judgment as to the Kentucky State Police because a state agency is entitled to assert eleventh amendment sovereign immunity against claims for monetary and injunctive relief ); Fitch v. Ky. State Police, No. 2010 WL 4670440, at *5 (E.D. Ky. Nov. 10, 2010) ( Under well-established case law, agencies such as the Kentucky State Police and the Kentucky Transportation Cabinet may not be sued for monetary damages under 42 U.S.C. § 1983. ); Grider v. City of Russell Springs, Ky., No. 1:05CV137 M, 2006 WL 522213, at *1 (W.D. Ky. Mar. 1, 2006) (finding damages claims against Kentucky State Police trooper barred by Eleventh Amendment). 2 For these reasons, IT IS ORDERED that the claims against KSP and Trooper McAuther in his official capacity are DISMISSED. Before dismissing the action, however, the Court GRANTS Plaintiff 30 days within which to amend the complaint to name Trooper McAuther in his individual capacity. Plaintiff is warned that his failure to comply within 30 days from entry of this Memorandum Opinion and Order will result in dismissal of this action. The Clerk of Court is DIRECTED to send Plaintiff a § 1983 form with this case number affixed to it for Plaintiff s use should he choose to amend the complaint. Date: April 22, 2013 cc: Plaintiff, pro se 4413.005 3

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