Tyus v. Kentucky Department of Veterans Affairs et al, No. 5:2007cv00162 - Document 6 (E.D. Ky. 2007)
Court Description: MEMORANDUM OPINION & ORDER (1) claims against dfts Kentucky Department of Veterans Affairs; U.S. Veterans Administration, Richite; and Roundtree are DISMISSED with PREJUDICE; (2) Clerk shall send to plf blank summons forms and blank USM forms 285; (3 ) plf shall, within 30 days, complete and submit forms to Lexington Clerk's Office, along with as many copies as there are summonses issued of the following: (a) the complaint 2; (b) the Order granting the plf pauper status; (c) this Order; an d (d) a completed USM Form 285 for each summons issued; (4) Lexington Clerk's Office shall issue as many copies of the complaint as there are summonses issued; (5) after said documents/forms are prepared, clerk shall hand-deliver said documents/ forms to the Lexington USM; (6) clerk obtain receipt for documents and enter into record; (7) USM shall serve summonses on dfts Volunteers of America and Program Administrator David Waters via certified mail; (8) USM shall make a return report re sum mons within 40 days; (9) plf shall keep clerk informed of current mailing address; failure to do so may result in dismissal of this case; (10) for each pleading plf wishes to file with the Court, plf shall serve them upon each dft, or attorney. Orig inal papers shall be sent to the Clerk w/ certificate of service. If a District Judge or Magistrate Judge receives aany document which has not been filed with the Clerk, or which has been filed but fails to include a certificate of service of copies, the document will be disregarded by the Court. Signed by Judge Joseph M. Hood. (JMW)cc: COR w/ blank Summons Forms & blank USM 285 Forms
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Tyus v. Kentucky Department of Veterans Affairs et al Case 5:07-cv-00162-JMH Doc. 6 Document 6 Filed 06/18/2007 Page 1 of 10 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON CIVIL ACTION NO. 07-CV-162-JMH LARRY TYUS, PLAINTIFF, V. MEMORANDUM OPINION AND ORDER KENTUCKY DEPT. OF VETERANS AFFAIRS, ET AL., DEFENDANTS, * * * * * Plaintiff Larry Tyus ( Tyus ) has submitted a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 [Record No. 2]. In his complaint, Tyus alleges that the defendants have demonstrated racial animus, committed acts of racial discrimination, permitted an environment where such behavior is tolerated. and Tyus seeks compensatory and injunctive relief. The Court screens civil rights complaints pursuant to 28 U.S.C. § 1915A. McGore v. Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997). As Tyus is appearing pro se, his complaint is held to less stringent standards than those drafted by attorneys. Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003); Hahn v. Star Bank, 190 F.3d 708, 715 (6th Cir. 1999). During screening, the allegations in his complaint are taken as true and liberally construed in his favor. Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001). But the Court must dismiss a case at any time if it determines the Dockets.Justia.com Case 5:07-cv-00162-JMH Document 6 Filed 06/18/2007 Page 2 of 10 action is frivolous, malicious, or fails to state a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2). BACKGROUND In his complaint, Tyus indicates that he is a participant in the Veterans Transitional Treatment Program Administration facility in Lexington, Kentucky. jointly funded by Defendants Kentucky at a Veterans The program is Department of Veterans Affairs and the United States Department of Veterans Affairs, and is administered by Defendant Volunteers of America. Tyus alleges generally that since his arrival at the facility on April 9, 2007, he has been subjected to several instances of race-based hostility by other participants in the program. He further alleges that the response from program administrators has been inadequate to address what he believes to be systemic racial animus by other program participants. Tyus describes two episodes in particular, the first on April 18, 2007. On this day, he and defendant Richite, another program participant, had been arguing when Richite swore at Tyus and called him a black a.. boy. Administrator, Facility staff intervened, and the Program Defendant David Waters, met with both men, eventually requiring Richite to apologize to Tyus for his comments on threat of termination from the program. This did not satisfy Tyus, but program administrators took no further action regarding these events. -2- Case 5:07-cv-00162-JMH Document 6 Filed 06/18/2007 Page 3 of 10 On another occasion defendant Roundtree slap[ped Tyus] in the back of the neck hard instead of just putting his hand on my shoulder as was customary during a group hug and the end of a counseling session. Roundtree subsequently repeated this behavior with another African-American participant. Tyus indicates that, through his complaint, he intends to show that the U.S. Department of Veteran Affairs, Kentucky Department of Veteran Affairs, as well as the Volunteers of America has fail in its duties to ensure that veterans of any race, nationalities are not subjective to the type of racism and harassments that has come to be common occurs at this facility. [sic] In his prayer for relief, Tyus requests that Richite and Roundtree be removed from the program, that administrators be compelled to better regulate their program, and he asks for $100,000 in damages from each of the U.S. Department of Veteran Affairs, Kentucky Department of Veteran Affairs, and the Volunteers of America. DISCUSSION Federal law requires the Court to dismiss any claim if the Court determines that the claim is frivolous or lacks a basis in law or fact. 28 U.S.C. § 1915(e)(2). The Court must therefore review each of the claims asserted in the complaint. 1. Defendant Kentucky Department of Veterans Affairs. Tyus first names the Kentucky Department of Veterans Affairs, -3- Case 5:07-cv-00162-JMH Document 6 Filed 06/18/2007 Page 4 of 10 the agency which funds the program, as defendant. Plaintiff s claims against Defendant Kentucky However, Department of Veterans Affairs, both for money damages and injunctive relief, must be dismissed, as a state agency is not a person subject to liability under Section 1983. Will v. Michigan Dep t of State Police, 491 U.S. 58, 71 (1989); Gean v. Hattaway, 330 F.3d 758, 766 (6th Cir. 2003); Small v. Chao, 398 F.3d 894, 898 (7th Cir. 2005). 2. Defendant U.S. Department of Veterans Affairs. The U.S. Department of Veterans Affairs must also be dismissed as a defendant as it is entitled to sovereign immunity against claims asserted under Section 1983. A lawsuit against an agency of the United States is in essence a suit against the United States itself. Kentucky v. Graham, 473 U.S. 159, 166-67 (1985). Federal courts lack subject matter jurisdiction to consider a claim against the United States in the absence of a clear waiver of sovereign immunity. United States v. Mitchell, 463 U.S. 206, 212-14 (1983); The Ecclesiastical Order of the Ism of Am, Inc. v. Chasin, 845 F.2d 113, 115-16 (6th Cir. 1988). The United States has not waived its sovereign immunity to claims for constitutional torts. Clark v. Library of Congress, 750 F.2d 89, 103-04 (D.C. Cir. 1984). The U.S. Department of Veteran Affairs is therefore immune from suit for claims for alleged violations of Tyus s civil rights and will be dismissed from the suit. Berger v. Pierce, 933 F.2d 393, 397 (6th Cir. 1991); Nuclear -4- Case 5:07-cv-00162-JMH Document 6 Filed 06/18/2007 Page 5 of 10 Transport & Storage, Inc. v. United States, 890 F.2d 1348, 1352 (6th Cir. 1989); Shaner v. United States, 976 F.2d 990, 994 (6th Cir. 1992); Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003). 3. Tyus defendant Defendant Program Administrator David Waters. has in named this Program action; Administrator however, he David does Waters not seek as a either compensatory or injunctive relief against Waters in his complaint. Rather, he seeks both forms of relief against both the Kentucky Department of Veterans Affairs and Volunteers of American, one of whom appears to be Waters s employer. Because Tyus seeks relief not against Waters but against the agency for which he works, his inclusion as a defendant signals the plaintiff s intent to assert an official capacity rather than individual capacity claim. Moore v. City of Harriman, 272 F.3d 769, 773, 775 (6th Cir. 2001) (en banc) ( When a §1983 plaintiff fails to affirmatively plead capacity in the complaint, we then look to the course of proceedings to determine whether Wells s first concern about notice has been satisfied. . . . §1983 plaintiffs must clearly notify any defendants of their intent to seek individual liability, and we clarify that reviewing the course of proceedings is the most appropriate way to determine whether such notice has been given and received . . . . ). To the extent Waters is employed by the Kentucky Department of Veterans Affairs, an official capacity claim against him for money -5- Case 5:07-cv-00162-JMH Document 6 damages must be dismissed. Filed 06/18/2007 Page 6 of 10 A plaintiff may not assert an official capacity claim for money damages under Section 1983. Will v. Michigan Dep t of State Police, 491 U.S. 58, 64 (1989); Edwards v. Wallace Community College, 49 F.3d 1517, 1524 (11th Cir. 1995). However, Will does not bar an official capacity claim seeking prospective injunctive relief under ex parte Young. Id. Accordingly, Tyus s claim for injunctive relief against Waters in his official capacity may proceed. 4. Tyus Defendant Volunteers of America. identified the Volunteers of America ( VOA ) as a defendant in this action in his complaint; however, it appears that VOA has not been formally entered as a party defendant in this proceeding. The Clerk of the Court will be directed to add VOA as a party defendant in this matter. The Court lacks sufficient information at this juncture to determine whether VOA is amenable to suit for alleged civil rights violations. While it appears VOA is a private not-for-profit Section 501(c)(3) corporation, Tyus alleges that it received state and/or federal funding and was carrying out a program at the behest of governmental authorities. In order to assist the Court in determining whether VOA s action or inaction amounted to state action and whether it was acting under color of state law, further factual development is warranted. See, e.g., Pol Sella v. SER F.Supp.2d Jobs for Progress Nat., Inc., -6- 11 170, 174-75 Case 5:07-cv-00162-JMH Document 6 Filed 06/18/2007 Page 7 of 10 (D.Puerto Rico 1998) (not-for-profit job service corporation s receipt of state corporation s funding termination insufficient of employee to establish without due that process constituted state action to permit Section 1983 claim). 5. Defendants Richite and Roundtree. Finally, while program participants Richite and Roundtree are named as defendants in the complaint, the plaintiff seeks neither compensatory nor injunctive relief against them and, accordingly, these defendants will be dismissed from the action. Dismissal of any claims against Richite and Roundtree is further appropriate because the plaintiff does not allege, nor would the allegations of the complaint support the allegation, that these defendants took any action under color of state law as required for liability to attach under Section 1983. An individual acts under color of state law only when he or she is a state employee, otherwise acts on the state s behalf, or under power conferred upon them by government, and in furtherance of tasks assigned to them. F.Supp. 468, 475 Eddy v. Virgin Islands Water & Power Auth., 955 (D.Virgin Islands 1997). As mere program participants, Richite and Roundtree were not clothed with any such actual or apparent authority, and their purely private conduct is therefore not constitutional covered by principles. Section 1983 American even Mfrs. if Mut. abhorrent to Ins. v. Co. Sullivan, 526 U.S. 40, 49-50 (1999) (the under color of state law -7- Case 5:07-cv-00162-JMH Document 6 Filed 06/18/2007 Page 8 of 10 element of Section 1983 liability excludes from its reach merely private conduct, no matter how discriminatory or wrongful). CONCLUSION Accordingly, IT IS ORDERED as follows: (1) Veterans The claims against Defendants Kentucky Department of Affairs; U.S. Veterans Administration, Richite; and Roundtree are DISMISSED with PREJUDICE. (2) The Clerk of the Court shall send to the plaintiff blank summons forms and blank USM Forms 285. (3) The plaintiff shall, within thirty (30) days, complete and submit to the Lexington Clerk's Office the necessary summons forms pursuant to Fed.R.Civ.P. 4, along with as many copies as there are summonses issued of the following: (a) the complaint [Record No. 2]; (b) the Order granting the plaintiff pauper status; (c) this Order; and (d) a completed USM Form 285 for each summons issued. (4) The Lexington Clerk's Office shall issue as many copies of the complaint as there are summonses issued. (5) After the Lexington Clerk's office has prepared the summonses, USM Forms 285, complaint copies, copies of this Order, and/or any other documents necessary to effectuate service, a Deputy Clerk in the Lexington Clerk's office shall hand-deliver said documents to the United States Marshal's office in Lexington, -8- Case 5:07-cv-00162-JMH Document 6 Filed 06/18/2007 Page 9 of 10 Kentucky. (6) The Lexington Deputy Clerk making the delivery referenced in paragraph (5) to the United States Marshal's office shall obtain from the Marshal a receipt for the hand-delivered documents, which receipt shall be entered into the instant record by the Clerk. (7) The United States Marshal shall serve the copies of the summons, complaint, and this Order on Defendants Volunteers of America and Program Administrator David Waters. Service shall be made by certified mail, return receipt requested. (8) The United States Marshal shall make a return report to the Court of whether the summons is executed or is still unexecuted within forty (40) days of the date of entry of this Order. (9) The plaintiff shall keep the Clerk of the Court informed of his current mailing address. Failure to notify the Clerk of any address change may result in a dismissal of this case. (10) For every further pleading or other document he wishes to submit for consideration by the Court, the plaintiff shall serve upon each defendant, or, if appearance has been entered by counsel, upon each attorney, a copy of the pleading or other document. The plaintiff shall send the original papers to be filed with the Clerk of the Court together with a certificate stating the date a true and correct copy of the document was mailed to each defendant or counsel. If a District Judge or Magistrate Judge receives any document which has not been filed with the Clerk or which has been -9- Case 5:07-cv-00162-JMH Document 6 Filed 06/18/2007 Page 10 of 10 filed but fails to include the certificate of service of copies, the document will be disregarded by the Court. This the 18th day of June, 2007. -10-
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