IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CHAD KISTER,

Plaintiff,

vs. Civil Action 2:12-CV-572

Judge Marbley

Magistrate Judge King

PAT KELLY, ATHENS COUNTY

SHERIFF, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court on plaintiff’s motion to amend

the Complaint (“Plaintiff’s Motion to Amend”), Doc. No. 21, in which

plaintiff seeks to add the Southeast Ohio Regional Jail as a

defendant. For the reasons that follow, Plaintiff’s Motion to Amend

is DENIED.

Plaintiff’s Motion to Amend is governed by Rule 15(a) of the

Federal Rules of Civil Procedure, which provides that a “court should

freely give leave [to amend] when justice so requires.” Fed. R. Civ.

P. 15(a)(2). “The thrust of Rule 15 is to reinforce the principle

that cases should be tried on their merits rather than the

technicalities of pleadings.” Tefft v. Seward, 689 F.2d 637, 639 (6th

Cir. 1982) (citing Conley v. Gibson, 355 U.S. 41, 48 (1957)). The

grant or denial of a request to amend a complaint is left to the broad

discretion of the trial court. Gen. Elec. Co. v. Sargent & Lundy, 916

F.2d 1119, 1130 (6th Cir. 1990). In exercising its discretion, the

trial court may consider such factors as “undue delay, bad faith or

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dilatory motive on the part of a movant, repeated failure to cure

deficiencies by amendments previously allowed, undue prejudice to the

opposing party by virtue of allowance of the amendment [and] futility

of the amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). 

“A proposed amendment is futile if the amendment could not

withstand a Rule 12(b)(6) motion to dismiss.” Rose v. Hartford

Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000) (citing

Thiokol Corp. v. Dep’t of Treasury, Revenue Div., 987 F.2d 376, 382-83

(6th Cir. 1993)). A motion to dismiss under Rule 12(b)(6) attacks the

legal sufficiency of the complaint. See Roth Steel Prods. v. Sharon

Steel Co., 705 F.2d 134, 155 (6th Cir. 1983). In determining whether

dismissal on this basis is appropriate, a complaint must be construed

in the light most favorable to the plaintiff, and all well-pleaded

facts must be accepted as true. See Bower v. Fed. Express Corp., 96

F.3d 200, 203 (6th Cir. 1996); Misch v. Cmty. Mut. Ins. Co., 896 F.

Supp. 734, 738 (S.D. Ohio 1994). The United States Supreme Court has

explained that “once a claim has been stated adequately, it may be

supported by showing any set of facts consistent with the allegations

in the complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 546

(2007). However, a plaintiff’s claim for relief “requires more than

labels and conclusions, and a formulaic recitation of the elements of

a cause of action will not do.” Id. at 555. “Factual allegations

must be enough to raise a right to relief above the speculative

level . . . .” Id. Accordingly, a complaint must be dismissed – and

amending a complaint is futile – if the complaint does not plead

“enough facts to state a claim to relief that is plausible on its

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face.” Id. at 570.

Plaintiff’s Motion to Amend seeks to add the Southeast Ohio

Regional Jail as a defendant, but the proposed Amended Complaint, Doc.

No. 21-1, appears to be an exact copy of his original Complaint, Doc.

No. 1-2. The allegations in the proposed Amended Complaint do not

mention the Southeast Ohio Regional Jail. To the extent that any

allegation may involve the Southeast Ohio Regional Jail, plaintiff’s

claims appear to be premised on a violation of 28 U.S.C. § 1983. 

Municipal departments, such as jails, however, are not “persons”

subject to suit under § 1983. See e.g., Marbry v. Corr. Med. Servs.,

238 F.3d 422, 2000 WL 1720959, at *2 (6th Cir. Nov. 6, 2000) (“[T]he

Shelby County Jail is not an entity subject to suit under § 1983)

(citing Rhodes v. McDannel, 945 F.2d 117, 120 (6th Cir. 1991)). 

Consequently, plaintiff has failed to present a colorable claim

against the Southeast Ohio Regional Jail and plaintiff’s proposed

amendment is futile. 

Plaintiff’s Motion to Amend, Doc. No. 21, is therefore DENIED. 

November 16, 2012 s/Norah McCann King 

 Norah McCann King

 United States Magistrate Judge

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