Winters v. Baker et al

Filing 30

MEMORANDUM AND ORDER - The Defendants' Motion to Dismiss plaintiff's assault and battery claims 26 is granted. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BEAUFORD WILMER WINTERS,
Plaintiff,
v.
BAKER, Sgt. (of the Tecumseh
State Correctional
Institution), BALLUE, Cpl,
SANFORD, Cpl., and HERREA, &
Cpl. (of the Tecumseh State
Correctional Institution),
Defendants.

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4:13CV3135

MEMORANDUM AND ORDER

This matter is before the Court on the motion (Filing
No. 26) of the defendants to dismiss plaintiff’s state tort
claims.

The defendants have filed an accompanying brief (Filing

No. 26).

The plaintiff, Beauford Winters (“Winters”), appears

pro se and has failed to respond.

Winters filed a § 1983 action

which purports to open a Nebraska State Tort Claims Act action as
well.

The issue is whether the Court has jurisdiction to hear

Winters’s state law claims.
I.

STANDARD OF REVIEW
In deciding a motion to dismiss, the reviewing court

views the facts in a way most favorable to the nonmoving party,
and gives the nonmoving party the benefit of all reasonable
inferences that can be drawn from the facts.

Knaub v. Knaub, 245

Neb. 172, 512 N.W.2d 124 (1994).

If there is evidence in favor

of the nonmoving party, the case may not be decided as a matter
of law, and a motion to dismiss may not be granted.

Id.

Under

Haines v. Kerner, pleadings prepared by inmates who lack access
to counsel must be liberally construed.

404 U.S. 519 (1972).

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).

However, the pleadings must still

contain sufficient facts upon which a claim can be based.

See

e.g., Brandon v. County of Richardson, 252 Neb. 839, 566 N.W.2d
766 (1997).
II.

DISCUSSION
Where a plaintiff does not specify the capacity in

which a defendant is sued, it is presumed that a defendant is
sued in his official capacity only.

See, e.g., Johnson v.

Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999)(stating
that “in order to sue a public official in his or her individual
capacity, a plaintiff must expressly and unambiguously state so
in the pleadings, otherwise, it will be assumed that the
defendant is sued only in his or her official capacity.”).

Here,

plaintiff sues four individual state employees but does not
specify the capacity in which he sues these individuals (Filing

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No. 13, at 3-5).

Thus, the Court construes the suit as being

against the defendants in their official capacities only.
Winters alleged the following violations of state or
local law:

Excessive Force, Harassment, Assault, Violation of

Civil Rights, Battery, and Violation of Inmate Rights.
13, at 4.

Filing

The defendants wish to dismiss the assault and battery

claims pursuant to the Nebraska State Tort Claims Act (“the
Act”).

The Act applies to any tort claim or action against the

state or a state employee:
[N]o suit shall be maintained
against. . . any employee of the
state on any tort claim except to
the extent, and only to the extent,
provided by the State Tort Claims
Act.
Neb. Rev. Stat. § 81-8,209.

The Act generally waives Nebraska’s

sovereign immunity from suit but specifically retains sovereign
immunity against certain tort claims.
8,215; 81-8,219.

Neb. Rev. Stat. §§ 81-

The Act exempts assault and battery claims from

its general waiver, so employees of the state retain sovereign
immunity from assault and battery claims.
8,219(4).

Neb. Rev. Stat. § 81-

Therefore, Winters’s assault and battery claims will

be dismissed due to the sovereign immunity retained by Nebraska
in the Act.

See id.

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IT IS ORDERED that defendants’ motion to dismiss
plaintiff’s assault and battery claims is granted.
DATED this 17th day of July, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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