Johnson v. Ogg
MEMORANDUM AND ORDER that plaintiff DaVaughn Johnson has 30 days in which to file an amended complaint that states a claim upon which relief may be granted. The clerk of the court is directed to set a pro se case management deadline in this case: January 15, 2016: check for amended complaint. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party) (JSF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
Plaintiff DaVaughn Johnson filed his Complaint (Filing No. 1) in this case on
May 7, 2015. The court has given Johnson leave to proceed in forma pauperis. The
court now conducts an initial review of Johnson’s Complaint to determine whether
summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.
I. SUMMARY OF COMPLAINT
Johnson is currently incarcerated at the Lincoln Correctional Center in Lincoln,
Nebraska. The court can discern from Johnson’s Complaint and the documents
attached to the Complaint that his claims are based on an incident that occurred while
he was incarcerated at the Nebraska State Penitentiary. (Filing No. 1 at CM/ECF p.
8.) Johnson alleged that on January 25, 2015, Defendant Russell Ogg, a prison case
manager with the Nebraska Department of Correctional Services, sprayed Johnson in
the face with pepper spray. (Filing No. 1 at CM/ECF p. 5.) Johnson alleged that Ogg
did so at a time when Johnson was handcuffed, shackled, and strapped to a gurney
with a spit rag covering his face. (Filing No. 1 at CM/ECF pp. 4-5.) Johnson alleged
he was not being combative or trying to move off of the gurney. (Filing No. 1 at
CM/ECF p. 5.) Rather, Johnson alleged his face was “bleeding very badly” and the
spit rag was making it difficult for him to breathe so he was attempting to pull it off
of his face. (Filing No. 1 at CM/ECF p. 5.)
Johnson seeks an unspecified amount of money damages. (Filing No. 1 at
CM/ECF p. 6.)
II. 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
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).
Johnson alleged Ogg sprayed him in the face with pepper spray while he was
handcuffed, shackled to a gurney, and wearing a spit mask. (Filing No. 1.) While
such claims are analyzed under the Eighth Amendment, the court must ask a threshold
question: whether the Eleventh Amendment bars Johnson’s claims against Ogg.
Johnson did not specify whether Ogg is sued in his official or individual
capacity or in both capacities. As such, the court assumes he is sued in his official
capacity only. See Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir.
1999) (“This court has held 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
The Eleventh Amendment to the United States Constitution provides states,
state agencies, and state officials acting in their official capacities with immunity from
suits brought by citizens of other states and from suits brought by a state’s own
citizens. See Hadley v. North Arkansas Cmty. Technical Coll., 76 F.3d 1437, 1438
(8th Cir. 1996), cert. denied, 519 U.S. 1148 (1997); Hans v. Louisiana, 134 U.S. 1,
15 (1890). 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). An exception to this
immunity was recognized by the Supreme Court in Ex Parte Young, 209 U.S. 123
(1908), which permits prospective injunctive relief against state officials for ongoing
federal law violations. This exception does not apply to cases involving requests for
purely retroactive relief. Green v. Mansour, 474 U.S. 64 (1985).
Here, Johnson seeks monetary relief against Ogg in his official capacity for
alleged past violations of federal law. There is nothing in the record before the court
showing that the State of Nebraska waived, or that Congress overrode, sovereign
immunity in this matter. Thus, Johnson’s claim against Ogg in his official capacity is
barred by the Eleventh Amendment. On the court’s own motion, the court will give
Johnson an opportunity to file an amended complaint that states a claim for relief
against a defendant who is not immune from suit. To the extent Johnson intends to
sue Ogg in his individual capacity, official capacity, or in both capacities, he must so
specifically state in his amended complaint.
IT IS THEREFORE ORDERED that:
Johnson has 30 days in which to file an amended complaint that states
a claim upon which relief may be granted.
The clerk of the court is directed to set a pro se case management
deadline in this case: January 15, 2016: check for amended complaint.
DATED this 14th day of December, 2015.
BY THE COURT:
s/ John M. Gerrard
United States District Judge
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