Rush v. Fisher
Filing
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MEMORANDUM AND ORDER that Plaintiff shall have until June 4, 2012, to amend his Complaint - Pro Se 1 and clearly state a claim upon which relief may be granted against Lancaster County, Nebraska; The Clerk of the court is directed to set a pro se case management deadline in this case:Pro Se Case Management Deadline set for 6/4/2012: check for amended complaint and dismiss if none filed. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(ADB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CLIFFORD LEE RUSH,
Plaintiff,
v.
BRENDA R. FISHER,
Defendant.
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4:12CV3064
MEMORANDUM
AND ORDER
Plaintiff filed his Complaint in this matter on April 3, 2012. (Filing No.
1.) Plaintiff was previously given leave to proceed in forma pauperis, and paid
the initial partial filing fee on April 25, 2012. (Filing No. 6; see also Docket
Sheet.) The court now conducts an initial review of the Complaint to determine
whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and
1915A.
I.
SUMMARY OF COMPLAINT
Plaintiff filed his Complaint against one Defendant, Brenda R. Fisher
(“Fisher”). (Filing No. 1 at CM/ECF p. 1.) Plaintiff identifies Fisher as an
employee of “Lancaster County Jail.” (Id. at CM/ECF p. 2.) Plaintiff is currently
incarcerated at Lancaster County Jail. (Id. at CM/ECF p. 1.)
Condensed and summarized, Plaintiff alleges that Fisher “in bad faith”
and “due to the policy and practice of the Lancaster County Programes [sic],”
notarized several of Plaintiff’s documents “knowing that her notary” expired on
March 5, 2012. (Id. at CM/ECF pp. 4, 8-9.) Plaintiff alleges that Fisher’s actions
violated his “federal constitutional rights,” and requests $2,000 in damages and
that the court “fix the problem.” (Id. at CM/ECF pp. 5-6.)
II.
APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The court is required to review prisoner and in forma pauperis complaints
seeking relief against a governmental entity or an officer or employee of a
governmental entity to determine whether summary dismissal is appropriate.
See 28 U.S.C. §§ 1915(e) and 1915A. 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); 28 U.S.C.
§ 1915A.
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, 1043-44 (8th Cir. 2002) (citations omitted).
III.
DISCUSSION OF CLAIMS
Plaintiff names Fisher as the sole Defendant in this matter. (Filing No.
1 at CM/ECF p. 1.) Regarding Fisher, the court notes that, where a plaintiff fails
to “expressly and unambiguously” state that a public official is sued in his or her
individual capacity, the court “assume[s] that the defendant is sued only in his
or her official capacity.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 535
(8th Cir. 1999). As set forth by the Eighth Circuit:
Because section 1983 liability exposes public servants to civil
liability and damages, we have held that only an express statement
that they are being sued in their individual capacity will suffice to
give proper notice to the defendants. Absent such an express
statement, the suit is construed as being against the defendants in
their official capacity.
Id. These rules have been consistently applied to municipal defendants. See,
e.g., Baker v. Chisom, 501 F.3d 920, 924 (8th Cir. 2007) (affirming dismissal of
claims based on assumption of official capacity where the plaintiff failed to
clearly state the capacity in which he intended to sue several county defendants);
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Johnson, 172 F.3d at 535 (assuming official capacity claims and affirming grant
of summary judgment in favor of county sheriffs). Further, “[a] suit against a
public employee in his or her official capacity is merely a suit against the public
employer.” Johnson, 172 F.3d at 535. Here, Plaintiff did not specify the capacity
in which the sole, individual Defendant, Fisher, is sued. (Filing No. 1.)
Therefore, as set forth above, the court assumes that Fisher is sued in her
official capacity only. Further, the claims against Fisher, in her official capacity,
are actually claims against her employer, Lancaster County, Nebraska.
A county may only be liable under section 1983 if its “policy” or “custom”
caused a violation of Plaintiff’s constitutional rights. Doe By and 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 and 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, Plaintiff does not allege that there is a continuing, widespread,
persistent pattern of unconstitutional misconduct by Lancaster County or its
employees, or that Lancaster County’s policymaking officials were deliberately
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indifferent to or tacitly authorized any unconstitutional conduct on the part of
Fisher.
(Filing No. 1.)
Moreover, Plaintiff does not allege that an
unconstitutional custom was the moving force behind his injuries, or any actual
injury caused by Fisher. (Id.) Accordingly, Plaintiff has failed to allege
sufficient facts under the Jane Doe standard to “nudge” his claims against
Lancaster County across the line from conceivable to plausible.
However, on its own motion, the court will permit Plaintiff 30 days in
which to amend his Complaint to sufficiently allege a claim against Lancaster
County in accordance with the Jane Doe standard. Any amended complaint
shall restate the allegations of Plaintiff’s prior Complaint (filing no. 1), and any
new allegations. Failure to consolidate all claims into one document will result
in the abandonment of claims. If Plaintiff fails to file a sufficient amended
complaint in accordance with this Memorandum and Order, this matter will be
dismissed without prejudice for failure to state a claim upon which relief may be
granted.
IT IS THEREFORE ORDERED that:
1.
Plaintiff shall have until June 4, 2012, to amend his Complaint and
clearly state a claim upon which relief may be granted against Lancaster
County, Nebraska, in accordance with this Memorandum and Order. If Plaintiff
fails to file a sufficient amended complaint, Plaintiff’s Complaint will be
dismissed without further notice for failure to state a claim upon which relief
may be granted.
2.
In the event that Plaintiff files an amended complaint, Plaintiff shall
restate the allegations of the current Complaint (filing no. 1), and any new
allegations. Failure to consolidate all claims into one document may result in
the abandonment of claims.
3.
The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: Check for amended complaint on
June 4, 2012, and dismiss if none filed.
4.
Plaintiff 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
without further notice.
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Dated this 3rd day of May, 2012.
BY THE COURT:
s/ John M. Gerrard
United States District Judge
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