Shepard v. State of Nebraska et al
MEMORANDUM AND ORDER - Plaintiff's claim under the Health Insurance Portability and Accountability Act ("HIPAA") is dismissed with prejudice. Plaintiff will have 30 days in which to file an amended complaint within 30 days will result in the court dismissing this action without further notice. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 5/19/2016: check for amended complaint: dismiss if none filed). Plaintiff's Motion for Appointment of counsel 3 is denied without prejudice to reassertion.Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GEORGE SHEPARD, Individually
and on behalf of all persons similarly
STATE OF NEBRASKA, DOUG
PETERSON, Attorney General,
SHERRI DAWSON, COURTNEY
MILLER, DEPT OF HEALTH &
HUMAN SERVICES, MENTAL
HEALTH BOARD OF DOUGLAS
CO., TY LYNNE BAUERS, STEPHEN
O’NEILL, NORFOLK REGIONAL
CENTER, SANAT ROY, SHANNON
BLACK, LINCOLN REGIONAL
CENTER, and JANE AND JOHN
DOES, in their official and individual
Plaintiff, who currently resides in the Norfolk Regional Center, filed his
Complaint on December 30, 2015. (Filing No. 1.) Plaintiff has been given leave to
proceed in forma pauperis. (Filing No. 6) The court now conducts an initial review of
the Complaint to determine whether summary dismissal is appropriate under 28 U.S.C.
I. SUMMARY OF COMPLAINT
Plaintiff alleges that following the completion of his prison sentence, he was
involuntarily confined in the Norfolk Regional Center as a dangerous sex offender in
violation of his constitutional rights. (Filing No. 1.)
Plaintiff also alleges, among other things, that while at the Norfolk Regional
Center, he has been denied job opportunities, private living conditions, and adequate
access to the law library. Plaintiff further alleges that he has been denied access to
family, friends, property, money, media, newspapers, and television. Moreover,
Plaintiff alleges that Defendants have failed to provide residents of the Norfolk Regional
Center with adequate therapy, hire a sufficient number of mental health professionals
to treat residents, explain the criteria used to evaluate residents’ progress through the
treatment program, and comply with internal management and procedures. (Filing No.
Additionally, Plaintiff asserts he has received inadequate medical care. Plaintiff
also maintains that Defendants have violated HIPAA by forcing him to disclose his
medical conditions to other residents of the Norfolk Regional Center. (Filing No. 1.)
Plaintiff named the State of Nebraska, Nebraska Department of Health & Human
Services, Norfolk Regional Center, Lincoln Regional Center, and the “Mental Health
Board of Douglas County” as defendants in this suit. Plaintiff also identified several
purported state employees as defendants. Plaintiff’s claims are brought against the
individuals in both their individual and official capacities. (Filing No. 1.)
II. APPLICABLE STANDARDS ON INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). 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).
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).
III. DISCUSSION OF CLAIMS
Liberally construed, Plaintiff’s Complaint asserts various types of claims. These
claims are discussed separately below.
Release from Custody
Plaintiff’s Complaint challenges the Mental Health Board’s decision to confine
him as a dangerous sex offender. However, the Rooker-Feldman doctrine precludes
consideration of this claim in this court. The Rooker-Feldman doctrine provides that,
with the exception of habeas corpus petitions, lower federal courts lack subject matter
jurisdiction over challenges to state court judgments and state proceedings. Mosby v.
Ligon, 418 F.3d 927, 931 (8th Cir. 2005). See D.C. Court of Appeals v. Feldman, 460
U.S. 462, 476 (1983); Rooker v. Fid. Trust Co., 263 U.S. 413 (1923). Specifically, the
doctrine “bars federal courts from hearing cases brought by the losing parties in state
court proceedings alleging ‘injury caused by the state-court judgment and seeking
review and rejection of that judgment.’” Mosby, 418 at 931 (quoting Exxon Mobil Corp.
v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005)). The Rooker-Feldman doctrine also
applies to state proceedings that are essentially judicial in nature. Feldman, 460 U.S.
The court cannot review the constitutionality of Plaintiff’s commitment without
questioning the validity of the Mental Health Board’s judgment. Therefore, the RookerFeldman doctrine bars consideration of this claim. In order for Plaintiff to properly
challenge his confinement, he must seek the appropriate state remedies. Once Plaintiff
has exhausted his state remedies, he may seek habeas corpus relief in this court. Thus,
Plaintiff’s claims relating to the constitutionality of his confinement at the Norfolk
Regional Center will be dismissed, but the court will do so without prejudice to
reassertion in a habeas or other similar proceeding after he has exhausted his state
Section 1983 Claims
Plaintiff asserts claims under 42 U.S.C. § 1983 against the State of Nebraska, as
well as several state agencies and state employees, alleging unlawful conditions of
confinement and deficient medical care. 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). However, 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. Plaintiff
has sued Nebraska state employees and seeks monetary relief against them. To the
extent Plaintiff seeks to sue the employees in their official capacities, the Eleventh
Amendment bars his claims. Thus, these claims will be dismissed.
Still, Plaintiff has also named several purported state employees as defendants in
their individual capacities. Plaintiff did not, however, indicate that any of the employees
were personally involved in the events described in his Complaint. A complaint that
does not allege that a defendant was personally involved in the alleged misconduct fails
to state a claim against that defendant. See Krych v. Hvass, 83 F. App’x 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 committed a specific act and the complaint was silent as to defendant except
for his name appearing in caption)). Therefore, Plaintiff’s claims against the individual
defendants in their individual capacities fail.
However, on the court’s own motion, the court will provide Plaintiff with an
opportunity to file an amended complaint that states a viable cause of action under 42
U.S.C. § 1983. In doing so, Plaintiff should keep in mind the necessity of alleging
personal involvement and participation by individually named defendants, as well as the
need to set forth any alleged unconstitutional activity in a detailed, non-conclusory
manner. Failure to file an amended complaint within the time specified by the court will
result in the court dismissing this case without further notice to Plaintiff.
Americans with Disabilities Act & Rehabilitation Act
Plaintiff makes conclusory allegations that Defendants violated the Americans
with Disabilities Act (“ADA”) and § 504 of the Rehabilitation Act. To state a prima
facie claim under the ADA, a plaintiff must show: “(1) he is a person with a disability
as defined by statute; (2) he is otherwise qualified for the benefit in question; and (3) he
was excluded from the benefit due to discrimination based upon disability.” Randolph
v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999). The elements of a claim under the
Rehabilitation Act are the same, with the additional requirement that the plaintiff show
that the program or activity from which he is excluded receives federal financial
Plaintiff has failed to allege violations of the ADA or Rehabilitation Act. Plaintiff
did not even attempt to explain how these Acts were violated, nor did he actually
identify any alleged disability. In short, Plaintiff did not plead factual content that
would allow the court to draw the reasonable inference that he was subject to
discrimination or that he is a disabled person within the meaning of these Acts.
As set forth above, Plaintiff will have 30 days in which to file an amended
complaint that sets forth ADA and Rehabilitation Act claims upon which relief may be
granted. Any amended complaint filed by Plaintiff must also set forth whether he
exhausted his administrative remedies with respect to his claims.
Plaintiff alleges that Defendants violated his rights under the Health Insurance
Portability and Accountability Act (“HIPAA”) by forcing him to reveal his medical
conditions to other residents at the Norfolk Regional Center. However, HIPAA does
not provide Plaintiff with a private cause of action. Dodd v. Jones, 623 F.3d 563, 569
(8th Cir. 2010). “Since HIPAA does not create a private right, it cannot be privately
enforced either via § 1983 or through an implied right of action.” Adams v. Eureka Fire
Protection District, 352 Fed. App’x. 137, 139 (8th Cir. 2009). Therefore, Plaintiff’s
HIPAA claim will be dismissed for failure to state a cause of action.
IV. REQUEST FOR APPOINTMENT OF COUNSEL
Plaintiff has filed a Motion (Filing No. 3) seeking the appointment of counsel.
The court cannot routinely appoint counsel in civil cases. In Davis v. Scott, 94 F.3d 444,
447 (8th Cir. 1996), the Eighth Circuit Court of Appeals explained that “[i]ndigent civil
litigants do not have a constitutional or statutory right to appointed counsel.” Trial
courts have “broad discretion to decide whether both the plaintiff and the court will
benefit from the appointment of counsel, taking into account the factual and legal
complexity of the case, the presence or absence of conflicting testimony, and the
plaintiff’s ability to investigate the facts and present his claim.” Id. Having considered
these factors, the request for the appointment of counsel will be denied without
prejudice to reassertion.
IT IS THEREFORE ORDERED:
Plaintiff’s claim under the Health Insurance Portability and Accountability
Act (“HIPAA”) is dismissed with prejudice.
Plaintiff will have 30 days in which to file an amended complaint in
accordance with this order. Failure to file an amended complaint within
30 days will result in the court dismissing this action without further
The clerk of the court is directed to set the following pro se case
management deadline: May 19, 2016: check for amended complaint;
dismiss if none filed.
Plaintiff’s Motion for Appointment of Counsel (Filing No. 3) is denied
without prejudice to reassertion.
DATED this 18th day of April, 2016.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge
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