McDonald v. Nebraska Dept. of Corrections et al

Filing 25

MEMORANDUM AND ORDER - Plaintiff shall file an amended complaint by October 31, 2016 that states a claim upon which relief may be granted. 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. The clerk of the court is directed to set a pro se case management deadline using the following text: October 31, 2016 check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOSEPH H. MCDONALD,

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Plaintiff,
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V.
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NEBRASKA DEPT. OF )
CORRECTIONS, SCOTT FRAKES, )
and BRAD HANSON, et al,
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Defendants.
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)

4:16CV3075

MEMORANDUM
AND ORDER

This matter is before the court on initial review of Plaintiff’s Complaint. (Filing
No. 1.) For the reasons that follow, the court finds Plaintiff’s pleadings do not state
any claims upon which relief may be granted. However, the court will allow Plaintiff
to file an amended complaint.
I. SUMMARY OF COMPLAINT
Plaintiff, who is currently incarcerated at Tecumseh State Prison, brought suit
against the Nebraska Department of Corrections, as well as the Department’s director
and the warden of Tecumseh State Prison. Liberally construed, Plaintiff alleges that
he was “wrongfully held as a juvenile sentenced as an adult” and that Defendants have
failed to give him good time credit on his sentence. (Filing No. 1 at CM/ECF pp. 3-4.)
Plaintiff also alleges that Defendants are “liable to Plaintiff for cruel and unusual
punishment, with deliberate indifference and intentional infliction of emotional
distress, anxiety, outrage and defamation under the laws of the State of Nebraska.”
(Filing No. 1 at CM/ECF pp. 11-12.) Plaintiff seeks monetary relief.

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
omitted).
III. DISCUSSION
Plaintiff has failed to state viable claims against Defendants. Plaintiff did not
specify whether he is suing Scott Frakes and Brad Hanson in their official or individual
capacities. Therefore, this court presumes they are sued in their official capacities
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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 official
capacity.”). A claim against an individual in his official capacity is, in reality, a claim
against the entity that employs the official, in this case, the State of Nebraska. See
Parrish v. Luckie, 963 F.2d 201, 203 n.1 (8th Cir. 1992) (“Suits against persons in their
official capacity are just another method of filing suit against the entity. A plaintiff
seeking damages in an official-capacity suit is seeking a judgment against the entity.”)
(internal citations omitted)).
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, however, 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.
In this case, Plaintiff has sued the Nebraska Department of Corrections and
Nebraska state employees in their official capacities seeking monetary relief. These
claims are precluded by the Eleventh Amendment. Therefore, Plaintiff’s Complaint
fails to state a claim upon which relief can be granted.
Moreover, Plaintiff’s allegations are wholly conclusory. Plaintiff alleges that
Defendants are “liable to Plaintiff for cruel and unusual punishment, with deliberate
indifference and intentional infliction of emotional distress, anxiety, outrage and
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defamation under the laws of the State of Nebraska.” (Filing No. 1 at CM/ECF pp.
11-12.) Although Plaintiff references multiple causes of action, he fails to provide
factual context. In fact, Defendants Scott Frakes and Brad Hanson are only
specifically referenced twice in the Complaint. In short, Plaintiff needs more detailed
allegations to successfully assert a claim, including, but not limited to, an explanation
of how the employee-defendants participated in any wrongdoing.
IT IS THEREFORE ORDERED that:
1.

Plaintiff shall file an amended complaint by October 31, 2016 that states
a claim upon which relief may be granted. 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.

2.

The clerk of the court is directed to set a pro se case management
deadline using the following text: October 31, 2016 check for amended
complaint.

DATED this 29th day of September, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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