* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 1 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES B. WHITE,

Plaintiff-Appellant, No. 00-4109
v. (D. Utah) STATE OF UTAH and/or SALT LAKE COUNTY JAIL,

Defendants-Appellants. (D.C. No. 00-CV-0137)

ORDER AND JUDGMENT *

Before HENRY , BRISCOE , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is, therefore, ordered submitted without oral argument.-2-

James B. White, proceeding pro se, filed suit again st the Salt Lake County Jail and the State of Utah, claiming that his feder al and state rights were violated while he was incarcerated. The district court dism issed the case on the grounds of failure to name a party capable of being sued an d insufficiency of service of process. Mr. White now appeals and, for the reason s set forth below, we affirm.

I. BACKGROUND & PROCEDURE In his complaint, Mr. White alleged that, while an inmate at the Salt Lake County Jail, he was illegally detained, denied lega l access, attacked by other inmates, and subjected to squalid living conditions for several hours. Mr. White’s case was commenced in state court but was later rem oved to federal court pursuant to a request by the Salt Lake County Jail. Thereafter, the Salt Lake County Jail filed a motion to dismiss on the basis that it was not a party capable of being sued. See Fed. R. Civ. P. 9(a). The district court granted the motion and then, on its own motion, dismissed the complaint ag ainst the State of Utah for insufficiency of service of process. See Fed. R. Civ. P. 12(b)(5).1 We cite this unpublished opinion for persuasive authority only pursuant to

Tenth Circuit Rule 36.3(b)(1). -3- II. DISCUSSION We address first the dismissal of the Salt Lake Cou nty Jail pursuant to Federal Rule of Civil Procedure 9(a). The law of t he state in which the district court sits governs the capacity of a governmental entity to sue or to be sued. See Fed. R. Civ. P. 17(b). In Utah, a statute expressl y provides that a county may sue or be sued, see U.C.A. § 17-50-302(2)(a), but there is no statutory or case authority supporting a direct action against a county’s subdivisions, including its jails. We therefore hold that the district court p roperly dismissed Mr. White’s suit against the Salt Lake County Jail. See Aston v. Cunningham , No. 99-4156, 2000 WL 796086, at *4 n.3 (10th Cir. June 21, 2000) (unpublished opinion) 1 (“Mr. Aston named the Salt Lake County jail as a de fendant. Dismissal against this entity was also required because a detention f acility is not a person or legally created entity capable of being sued.”); Mayes v. Elrod , 470 F. Supp. 1188, 1191 (N.D. Ill. 1979) (“An Illinois statute expressly pr ovides that a county may be sued. . . . However, we have found no statutory or case authority supporting a direct action against subdivisions of these entitie s, including the [County] Board [of Commissioners] or the [County] Department [of Corrections].”); cf. Wright & Miller, Federal Practice & Procedure § 1562 (“Although a municipal corporation2 We do not address whether the summonses containedthe proper content,

were in the proper form, or had been properly issue d. -4- and the individual members of its city council may have capacity to sue and be sued, the council itself may not be a legal entity for purposes of Rule 17(b).”). As for the dismissal of the State of Utah, we also hold that the district court acted properly. Nowhere in the record is there evi dence that the State was served. We note that Mr. White did send a summons to the Sa lt Lake County Clerk on January 24, 2000, and another to the District of Ut ah Clerk on March 27, 2000, but these papers indicate that the only persons served were (1) Judge Tyron E. Medley, (2) Salt Lake County District Attorney Davi d E. Yocum, (3) Salt Lake County Deputy District Attorney John Soltis, and (4 ) Salt Lake County Jail. No summons was ever served on the State in accordance with Utah Rule of Civil Procedure 4 or Federal Rule of Civil Procedure 4. 2See Utah R. Civ. P 4(e)(10) (“Personal service shall be made as follows: . . . Upon the state of Utah, in such cases as by law are authorized to be brought agains t the state, by delivering a copy to the attorney general and any other person o r agency required by statute to be served . . . .”); Fed. R. Civ. P. 4(j)(2) (“Serv ice upon a state, municipal corporation, or other governmental organization sub ject to suit shall be effected by delivering a copy of the summons and of the comp laint to its chief executive officer or by serving the summons and complaint in the manner prescribed by the-5-

law of that state for the service of summons or oth er like process upon any such defendant.”). As a final note, we address two motions filed by Mr . White, the first being a motion to proceed in forma pauperis and the secon d a “Petition in Support . . . and Addendum of Notice of Claim,” which we construe as a motion for general relief. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972) (per curiam) (noting that the pleadings of pro se litigants are liberall y construed). We grant Mr. White’s motion to proceed in forma pauperis but deny his motion for general relief. With respect to the latter motion, we note that, if Mr. White has sustained a new injury because of events that occurred subseq uent to the filing of his complaint, he may file a new complaint; but that ne w complaint should be presented before a trial court, not an appellate on e. Accordingly, we AFFIRM the judgment of the districtcourt, GRANT the motion to proceed in forma pauperis, and DENY the m otion for general relief. Entered for the Court,

Robert H. Henry Circuit Judge