Stack et al v. Saunders County Corrections et al

Filing 43

MEMORANDUM AND ORDER - Stacks claims against Saunders County Corrections, Advanced Healthcare, Officer Garrish and Mallory Reeves are dismissed without prejudice for failure to state a claim upon which relief may be granted. Stacks claims against S tyskal and Muholland in their official capacities are dismissed without prejudice for failure to state a claim upon which relief may be granted. Stacks Eighth Amendment medical claims and state law claims against Styskal and Muholland in their indi vidual capacities may proceed; The Clerk of the court shall send TWO (2) summons forms and TWO (2) USM-285 forms (for service on Styskal and Muholland in their individual capacities only) to Stack together with a copy of this Memorandum and Order. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 12/12/2012:Check for completion of service of summons.) Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party with (2) USM-285 forms and (2) summons forms)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
REECE R. STACK,
Plaintiff,
v.
SAUNDERS COUNTY
CORRECTIONS, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

CASE NO. 4:11CV3197

MEMORANDUM
AND ORDER

This matter is before the court on its own motion. On February 13, 2012, the court
conducted an initial review of Stack’s Complaint, which asserted claims on behalf of three
other individuals. (Filing Nos. 1 and 34.) The court informed Stack that he could not
represent others as a non-attorney pro se party and dismissed Nathaniel L. White, Anthony
Flud, and James Dobbs from this matter. (Filing No. 34 at CM/ECF pp. 3-4.) However, the
court permitted Stack to file an amended complaint that raised claims only on his behalf.
(Id.) In doing so, the court informed Stack that any amended complaint should restate the
allegations of his Complaint and any new allegations. (Id.)
On March 8, 2012, Stack filed a one-page Motion to Amend Complaint. (Filing No.
35.) In it, Stack stated that he was filing a negligence complaint against Saunders County
Corrections and Advanced Correctional Health Care. (Id.) On initial review, the court
concluded that Stack was seeking relief pursuant to state law and that the court lacked
subject matter jurisdiction over his claims. (Filing No. 36.) However, the court granted
Stack an opportunity file a second amended complaint that sufficiently established this
court’s subject matter jurisdiction. (Id. at CM/ECF pp. 2-3.)

On June 5, 2012, Stack filed a Second Amended Complaint against Saunders
County Corrections, Advanced Healthcare, Saunders County Director Ben Styskal
(“Styskal”), Saunders County Deputy Director W.H. Muholland (“Muholland”), Officer
Gerrish and Mallory Reeves. (Filing No. 41.) Stack sues the individual Defendants in both
their official and individual capacities. (Id. at CM/ECF p. 1-2.)
In this Second Amended Complaint, Stack alleges that staff at the Saunders County
Jail gave him medication prescribed to another inmate, Jim Vance (“Vance”). (Id. at
CM/ECF pp. 2-3.) Stack informed officer “A. Mendoza” about this issue and also contacted
the Ombudsman. (Id. at CM/ECF p. 3.) However, Stack’s medication was not “fix[ed],”
and his mental health got “so bad” that he broke “apart the jail and was sent to the hole.”
(Id. at CM/ECF pp. 3-4.) While he was being cuffed Corproal Milliman (“Milliman”) pinched
Stack’s arm “so hard that it left bruises.” (Id. at CM/ECF p. 3.) Stack sent kites to Styskal
and Muholland informing them about the medication issue and Milliman’s “assault,” but
“nothing was ever done.”

(Id. at CM/ECF p. 4.)

Stack asks the court to declare

Defendants’ acts unconstitutional, award damages in the amount of $500,000, and order
additional relief the court deems just and proper. (Id. at CM/ECF p. 5.)
I.

APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine whether

summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must dismiss a
complaint or any portion thereof that states a frivolous or malicious claim, that fails to state
a claim upon which relief may be granted, or that seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

2

A pro se plaintiff must set forth enough factual allegations to “nudge[] their claims
across the line from conceivable to plausible,” or “their complaint must be dismissed” for
failing to state a claim upon which relief can be granted. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009), (“A
claim has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.”).
Regardless of whether a plaintiff is represented or is appearing pro se, the plaintiff’s
complaint must allege specific facts sufficient to state a claim. See Martin v. Sargent, 780
F.2d 1334, 1337 (8th Cir. 1985). However, a pro se plaintiff’s allegations must be
construed liberally. Burke v. North Dakota Dep’t of Corr. & Rehab., 294 F.3d 1043, 104344 (8th Cir. 2002), (citations omitted).
II.

DISCUSSION OF CLAIMS
A.

Sufficiency of Allegations

Stack’s Second Amended Complaint names Advanced Healthcare, Mallory Reeves
and Officer Gerrish. However, Stack has failed to allege that any of these Defendants
were personally involved in or directly responsible for the conduct leading to his claims.
(See Filing No. 41 at CM/ECF pp. 1-6.) Consequently, Plaintiff’s Second Amended
Complaint fails to state a claim upon which relief may be granted against Advanced
Healthcare, Mallory Reeves, and Officer Gerrish. See Ellis v. Norris, 179 F.3d 1078, 1079
(8th Cir. 1999), (concluding that a complaint was properly dismissed because plaintiff failed
to allege facts supporting any individual defendant’s personal involvement or responsibility
for violations); see also Ashcroft, 129 S. Ct. at 1950, (stating that a plaintiff must plead

3

factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged).
B.

Claims Against Saunders County Corrections and Claims Against Styskal
and Muholland in Their Official Capacities

Stack also names “Saunders County Corrections” as a Defendant in this matter.
(Filing No. 41 at CM/ECF p. 1.) The court liberally construes claims against Saunders
County Corrections as claims against Saunders County, Nebraska. Moreover, Stack’s
claims against Styskal and Muholland, in their official capacities, are actually claims against
their employer, Saunders County, Nebraska. See Parrish v. Luckie, 963 F.2d 201, 203 n.1
(8th Cir. 1992), (“Suits against persons in their official capacity are just another method of
filing suit against the entity. . . . A plaintiff seeking damages in an official-capacity suit is
seeking a judgment against the entity. . . . Therefore, the appellants in this case will
collectively be referred to as the City.”) (quotations omitted). Accord Eagle v. Morgan, 88
F.3d 620, 629 n.5 (8th Cir. 1996), (“‘[A]n official-capacity suit is, in all respects other than
name, to be treated as a suit against the entity.’”) (quoting Kentucky v. Graham, 473 U.S.
159, 165 (1985)). Accordingly, the court will also treat Stack’s claims against Styskal and
Muholland in their official capacities as claims against Saunders County, Nebraska.
As a municipal defendant, Saunders County may only be liable under section 1983
if its official “policy” or “custom” caused a violation of the plaintiff’s constitutional rights.
Doe By & Through Doe v. Washington Cnty., 150 F.3d 920, 922 (8th Cir. 1998), (citing
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). An “official policy” involves a
deliberate choice to follow a course of action made from among various alternatives by an
official who has the final authority to establish governmental policy. Jane Doe A By &
4

Through Jane Doe B v. Special Sch. Dist. of St. Louis Cnty., 901 F.2d 642, 645 (8th
Cir.1990), (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)). To establish
the existence of a governmental custom, a plaintiff must prove:
1)

The existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entity’s employees;

2)

Deliberate indifference to or tacit authorization of such conduct by the
governmental entity’s policymaking officials after notice to the officials of that
misconduct; and

3)

That plaintiff was injured by acts pursuant to the governmental entity’s
custom, i.e., that the custom was the moving force behind the constitutional
violation.

Jane Doe, 901 F.2d at 646.
Here, Stack does not allege that there is a continuing, widespread, persistent
pattern of unconstitutional misconduct by Saunders County employees. In addition, Stack
does not allege that an unconstitutional custom was the moving force behind his injures.
Thus, Stack has failed to allege sufficient facts to “nudge” his claims against Saunders
County across the line from conceivable to plausible under the Jane Doe standard.
C.

Denial of Medical Treatment

The court liberally construes Stack’s Second Amended Complaint to allege an
Eighth Amendment medical claim against Styskal and Muholland in their individual
capacities. A prisoner-plaintiff seeking relief for claims relating to his medical care must
allege that a defendant-prison official was deliberately indifferent to the plaintiff’s serious
medical needs. Estelle v. Gamble, 429 U.S. 97, 105 (1976); Coleman v. Rahija, 114 F.3d
778, 784 (8th Cir. 1997)). Further, a plaintiff must allege that he had objectively serious
medical needs, and that officials actually knew of but deliberately disregarded those needs.
5

Hartsfield v. Colburn, 491 F.3d 394, 396-97 (8th Cir. 2007); Johnson v. Hamilton, 452 F.3d
967, 972-73 (8th Cir. 2006). “[S]ociety does not expect that prisoners will have unqualified
access to health care.” Hudson v. McMillian, 503 U.S. 1, 9 (1992). Therefore, “deliberate
indifference to medical needs amounts to an Eighth Amendment violation only if those
needs are ‘serious.’” Id. (citing Estelle, 429 U.S. at 103-04).
For the purposes of this Memorandum and Order the court assumes, without
deciding, that Stack’s need for medication is a serious medical need. Stack alleges staff
at the Saunders County Jail gave him medication prescribed to another inmate and failed
to provide him with his prescribed medication. (Filing No. 41 at CM/ECF pp. 2-3.) As a
result, Stack’s mental health got “so bad” that he broke “apart the jail and was sent to the
hole.” (Id.) Stack sent kites to Styskal and Muholland informing them about the medication
issue, but “nothing was ever done.” (Id. at CM/ECF p. 4.) Liberally construed, these
allegations are sufficient to “nudge” his Eighth Amendment medical claims against Styskal
and Muholland in their individual capacities across the line from “conceivable to plausible.”
However, the court cautions Stack that this is only a preliminary determination based on
the allegations of the Second Amended Complaint and is not a determination of the merits
of Stack’s claims or potential defenses thereto.
D.

Excessive Force

In addition to his Eighth Amendment medical claim, the court liberally construes
Stack’s Second Amended Complaint to allege an Eighth Amendment excessive force
claim. “It is well established that a malicious and sadistic use of force by a prison official
against a prisoner, done with the intent to injure and causing actual injury, is enough to

6

establish a violation of the Eighth Amendment’s cruel and unusual punishment clause.”
Williams v. Jackson, 600 F.3d 1007, 1012 (8th Cir. 2010), (internal quotations omitted).
However, “‘not . . . every malevolent touch by a prison guard gives rise to a federal cause
of action,’ a de minimis application of force will not give result in a constitutional violation.”
Id. (quoting Hudson v. McMillan, 503 U.S. 1, 9 (1992)); see also Wilkins v. Gaddy, 130
S.Ct. 1177-78 (2010), (“An inmate who complains of a push or shove that causes no
discernable injury almost certainly fails to state a valid excessive force claim.” (internal
quotation marks omitted)). Where the force applied is excessive, however, a constitutional
claim may survive summary dismissal even if the resulting injury is de minimis. Wilkins,
130 S.Ct. at 1180.
Here, Stack alleges that, while he was being handcuffed, Milliman pinched his arm
“so hard that it left bruises.” (Filing No. 41 at CM/ECF p. 1.) Stack sent kites informing
Styskal and Muholland and Milliman’s “assault,” but “nothing was ever done.” (Id. at
CM/ECF p. 4.) These allegations do not allow the court to reasonably infer that Milliman
maliciously and sadistically pinched Stack’s arm with intent to injure him. See, e.g.,
Stepnes v. Ritschel, 663 F.3d 952, 961 (8th Cir. 2011), (stating that “[f]or the application
of handcuffs to amount to excessive force, there must be something beyond minor
injuries”). Indeed, Stack did not even name Milliman as a Defendant in this matter. Stack
has failed to state an Eighth Amendment excessive force claim upon which relief may be
granted.

7

E.

State Law Claims

Stack may also have claims for violations of state law against Styskal and
Muholland, such as negligence.

Because the court is permitting Stack’s Eighth

Amendment medical claims against Styskal and Muholland in their individual capacities to
proceed, it will also permit Stack’s state law claims against Styskal and Muholland to
proceed.
IT IS THEREFORE ORDERED that:
1.

Stack’s claims against Saunders County Corrections, Advanced Healthcare,
Officer Garrish and Mallory Reeves are dismissed without prejudice for
failure to state a claim upon which relief may be granted;

2.

Stack’s claims against Styskal and Muholland in their official capacities are
dismissed without prejudice for failure to state a claim upon which relief may
be granted;

3.

Stack’s Eighth Amendment medical claims and state law claims against
Styskal and Muholland in their individual capacities may proceed;

4.

To obtain service of process on Defendants, Stack must complete and return
the summons forms which the Clerk of the court will provide. The Clerk of
the court shall send TWO (2) summons forms and TWO (2) USM-285 forms
(for service on Styskal and Muholland in their individual capacities only) to
Stack together with a copy of this Memorandum and Order. Stack shall, as
soon as possible, complete the forms and send the completed forms back
to the Clerk of the court. In the absence of the forms, service of process
cannot occur;

5.

Upon receipt of the completed forms, the Clerk of the court will sign the
summons form, to be forwarded with a copy of the Amended Complaint to
the U.S. Marshal for service of process. The Marshal shall serve the
summons and Amended Complaint without payment of costs or fees.
Service may be by certified mail pursuant to Fed. R. Civ. P. 4 and Nebraska
law in the discretion of the Marshal. The Clerk of the court will copy the
Amended Complaint, and Stack does not need to do so;

6.

Fed. R. Civ. Pro. 4 requires service of a complaint on a defendant within 120
days of filing the complaint. However, because in this order Stack is
informed for the first time of these requirements, Stack is granted, on the
8

court’s own motion, an extension of time until 120 days from the date of this
order to complete service of process;
7.

Stack is hereby notified that failure to obtain service of process on a
defendant within 120 days of the date of this order may result in dismissal of
this matter without further notice as to such defendant. A defendant has
twenty (20) days after receipt of the summons to answer or otherwise
respond to a complaint;

8.

The Clerk of the Court is directed to set a pro se case management deadline
in this case with the following text: “December 12, 2012: Check for
completion of service of summons;” and

9.

The parties are bound by the Federal Rules of Civil Procedure and by the
Local Rules of this court. Stack shall keep the court informed of his current
address at all times while this case is pending. Failure to do so may result
in dismissal.

DATED this 14th day of August, 2012.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S.
District Court for the District of Nebraska does not endorse, recommend, approve, or
guarantee any third parties or the services or products they provide on their Web sites.
Likewise, the court has no agreements with any of these third parties or their Web sites.
The court accepts no responsibility for the availability or functionality of any hyperlink.
Thus, the fact that a hyperlink ceases to work or directs the user to some other site does
not affect the opinion of the court.
9