Gallagher v. Millier

Filing 25

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: This matter is dismissed without prejudice for failure to state a claim upon which relief may be granted. The clerk's office is directed to place the "28USC1915(g)_STR" flag on this matter. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROGER GALLAGHER,
Plaintiff,
v.
NEIL MILLER,
Defendant.

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4:12CV3251

MEMORANDUM
AND ORDER

This matter is before the court on its own motion. On August 16, 2013, the
court conducted an initial review of Plaintiff’s Complaint. (Filing No. 23.) It
determined that Plaintiff had failed to state an Eighth Amendment claim upon which
relief may be granted against Defendant in his official capacity because Plaintiff did
not allege that a policy or custom caused a violation of his constitutional rights. (Id.
at CM/ECF p. 3.) In addition, the court determined that Plaintiff had failed to allege
facts sufficient to state a claim against Defendant under Title II of the Americans with
Disabilities Act (“ADA”). (Id. at CM/ECF p. 5.)
Plaintiff filed an Amended Complaint on August 23, 2013. (Filing No. 24.)
Plaintiff abandoned the ADA claim, and merely reiterated the allegations set forth in
support of the Eighth Amendment claim. Plaintiff did not allege that an official policy
caused a violation of his constitutional rights or that there was a continuing,
widespread, persistent pattern of unconstitutional misconduct by Buffalo County or
its employees. Indeed, Plaintiff alleges in his Amended Complaint that Defendant “is
the so called Boss of the county jail” and that “all complaints about the jail go to him”
(id. at CM/ECF p. 1), but he does not allege in his Complaint or Amended Complaint
that he grieved any matter relating to the conditions of his confinement to Defendant.
For these reasons, and for the reasons set forth in the court’s Memorandum and Order
dated August 16, 2013, this matter will be dismissed.

IT IS THEREFORE ORDERED that:
1.
This matter is dismissed without prejudice for failure to state a claim
upon which relief may be granted.
2.
The clerk’s office is directed to place the “28USC1915(g)_STR” flag on
this matter.
3.
A separate judgment will be entered in accordance with this
Memorandum and Order.
DATED this 11th day of October, 2013.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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