Concannon v. Nebraska Department of Corrections et al

Filing 15

MEMORANDUM AND ORDER - On the court's own motion, Concannon shall have 30 days to file an amended complaint that states a claim upon which relief can be granted. Failure to sufficiently amend his Complaint will result in dismissal of this acti on for failure to state claim. The clerk's office is directed to set a pro se case management deadline in this case using the following text: May 8, 2015: Check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KEVIN CONCANNON,
Plaintiff,
v.
NEBRASKA DEPARTMENT OF
CORRECTIONS, MICHAEL
KENNEY, Director, BRIAN GAGE,
Warden, and MICHELLE CAPPS,
Deputy Warden,
Defendants.

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4:14CV3173

MEMORANDUM
AND ORDER

Plaintiff Kevin Concannon (“Plaintiff or “Concannon”) filed his Complaint
(Filing No. 1) on August 22, 2014.1 This court has given Plaintiff leave to proceed in
forma pauperis. (Filing No. 8.) The court now conducts an initial review of Plaintiff’s
Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. §§
1915(e)(2) and 1915A.
I. SUMMARY OF COMPLAINT
Concannon is incarcerated at the Omaha Correctional Center in Omaha,
Nebraska. He was incarcerated at the Tecumseh State Correctional Institution in
Tecumseh, Nebraska, when he filed this action. (Filing No. 1 at CM/ECF p. 1.) He
sued a director of the Nebraska Department of Correctional Services, Michael Kenney,
and also two prison wardens, Brian Gage and Michelle Capps. Liberally construed,
Plaintiff alleges federal constitutional claims under 42 U.S.C. § 1983.

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It is this court’s practice to conduct an initial review of a complaint after the
plaintiff pays his or her initial partial filing fee. Here, Concannon tendered the total
payment of his initial partial filing fee on March 9, 2015.

Concannon’s allegations are very vague. He alleged he was attacked by a fellow
inmate on an unspecified date. He alleged prison staff “allowed” the attack and had
“written notice” that an attack would occur. In addition, he alleged he did not receive
proper medical care following the attack. (Filing No. 1 at CM/ECF pp. 3, 5.) For
relief, Concannon seeks $25,000,000.00 in monetary damages. (Id. at CM/ECF p. 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 of
it 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(b).
Pro se plaintiffs must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (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.”).
“The essential function of a complaint under the Federal Rules of Civil Procedure
is to give the opposing party ‘fair notice of the nature and basis or grounds for a claim,
and a general indication of the type of litigation involved.’” Topchian v. JPMorgan
Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199
F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must be liberally
construed, and pro se litigants are held to a lesser pleading standard than other parties.”
Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).
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Liberally construed, Plaintiff here alleges federal constitutional claims. To state
a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected by
the United States Constitution or created by federal statute and also must show that the
alleged deprivation was caused by conduct of a person acting under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.
1993).
III. DISCUSSION OF CLAIMS
The Eleventh Amendment bars claims for damages by private parties against a
state, state instrumentalities, and an employee of a state sued in the employee’s official
capacity. See, e.g., Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir. 1995);
Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446-47 (8th Cir. 1995). Any
award of retroactive monetary relief payable by the state, including for back pay or
damages, is proscribed by the Eleventh Amendment absent a waiver of immunity by the
state or an override of immunity by Congress. See, e.g., id.; Nevels v. Hanlon, 656 F.2d
372, 377-78 (8th Cir. 1981). Sovereign immunity does not bar damages claims against
state officials acting in their personal capacities, nor does it bar claims brought pursuant
to 42 U.S.C. §1983 that seek equitable relief from state employee defendants acting in
their official capacity.
Concannon has sued state employees and seeks only monetary relief. To the
extent he seeks to sue Defendants in their official capacities, the Eleventh Amendment
bars his claims for damages.
In addition, Conannon does not allege any specific acts committed by Defendants.
In a cause of action under § 1983, it is necessary to specify the personal involvement of
each defendant. A complaint that only lists a defendant’s name in the caption without
alleging that the defendant was personally involved in the alleged misconduct fails to
state a claim against that defendant. Krych v. Hvass, 83 Fed. Appx. 854, 855 (8th Cir.
2003) (citing Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974) (holding that court
properly dismissed a pro se complaint where the complaint did not allege that defendant
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committed a specific act and the complaint was silent as to defendant except for his
name appearing in caption)). To the extent that Concannon seeks redress against
Defendants on a theory of respondeat superior, his claim fails because respondeat
superior is inapplicable to claims under 42 U.S.C. § 1983. Bell v. Kansas City Police
Dept., 635 F.3d 346, 347 (8th Cir. 2011).
As pled, Concannon’s allegations fail to state a claim upon which relief can be
granted. On the court’s own motion, the court will provide Concannon 30 days in which
to file an amended complaint that states a claim upon which relief can be granted against
Defendants. Failure to sufficiently amend his Complaint will result in dismissal of this
action for failure to state a claim.
IT IS THEREFORE ORDERED that:
1.
On the court’s own motion, Concannon shall have 30 days to file an
amended complaint that states a claim upon which relief can be granted. Failure to
sufficiently amend his Complaint will result in dismissal of this action for failure to state
a claim.
2.
The clerk’s office is directed to set a pro se case management deadline in
this case using the following text: May 8, 2015: Check for amended complaint.
DATED this 7th day of April, 2015.
BY THE COURT:
Richard G. Kopf
Senior 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.

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