Wade v. Tecumseh State Correctional Institution

Filing 11

MEMORANDUM AND ORDER - Because the court has already granted Plaintiff 120 days to file an amended complaint, Plaintiff shall file a second amended complaint no later than August 22, 2017, correcting the aforementioned deficiencies. Failure to file a second amended complaint within the time specified by the court will result in the court dismissing this case without further notice to Plaintiff. In his second amended complaint, Plaintiff must identify the John Does present with CM Barker before h is claims against them can proceed to service of process, or he must identify the reasonable steps he took to identify them. Failure to do so will result in dismissal of the claims against the John Does without prejudice and without further notice. P laintiff's claims for monetary damages against John and Jane Does in their official capacities are dismissed as barred by the Eleventh Amendment. Plaintiff's Eighth Amendment deliberate indifference claims for monetary damages against John and Jane Does, not identified as CM Barker or the John Does present with her before medical personnel arrived, are dismissed with prejudice for failure to state a claim upon which relief may be granted. To the extent Plaintiff attempts to allege a fa ilure-to-train claim against TSCI, it too is dismissed with prejudice for failure to state a claim. The clerk of the court is directed to set a pro se case management deadline using the following text: August 22, 2017: check for second 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
JESSE LEE WADE,
Plaintiff,

4:17CV3002

vs.
TECUMSEH STATE
CORRECTIONAL INSTITUTION,
JANE DOE NO. 1, JOHN DOE NO. 2,
JOHN DOE NO. 3, JOHN DOE NO. 4,
JOHN DOE NO. 5, JANE DOE NO. 6,
and JOHN DOE NO. 7,

MEMORANDUM
AND ORDER

Defendants.
Plaintiff filed a Complaint on January 9, 2017. (Filing No. 1.) He was given
leave to proceed in forma pauperis. (Filing No. 6.) On March 22, 2017, the court
dismissed Plaintiff’s claims against the sole Defendant, Tecumseh State
Correctional Institution (“TSCI”), as barred by the Eleventh Amendment and
ordered Plaintiff to file an amended complaint. (Filing No. 7.) The court informed
Plaintiff that, in an amended complaint:
[he] must identify personal involvement or responsibility by a named
individual for the constitutional violations. See Ellis v. Norris, 179
F.3d 1078, 1079 (8th Cir. 1999) (stating that prisoner must allege
defendants’ personal involvement or responsibility for the
constitutional violations to state a § 1983 claim); see also Martin v.
Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985) (“Although it is to be
liberally construed, a pro se complaint must contain specific facts
supporting its conclusions.”). Plaintiff should be mindful to identify
the defendants and explain what each defendant did to him, when the
defendant did it, how the defendant’s actions harmed him, and what
specific legal right Plaintiff believes the defendant violated.

Id. Now, the court conducts review of Plaintiff’s Amended Complaint (Filing No.
10).
Plaintiff’s Amended Complaint continues to fail to state a claim upon which
relief may be granted. Plaintiff alleges that seven John and Jane Does, comprised
of corrections staff and medical personnel employed at TSCI, were deliberately
indifferent to his serious medical needs after he fell and hit his head on the floor
during a seizure. He seeks solely monetary damages against John and Jane Does.
However, Plaintiff did not specify the capacity in which the individual defendants
are sued. Where a plaintiff fails to “expressly and unambiguously” state that a
public official is sued in his individual capacity, the court “assume[s] that the
defendant is sued only in his or her official capacity.” Johnson v. Outboard Marine
Corp., 172 F.3d 531, 535 (8th Cir. 1999). Plaintiff’s claims against John and Jane
Does, purported employees of TSCI, in their official capacities under § 1983
solely for monetary relief are barred by the Eleventh Amendment. Id. (“A suit
against a public employee in his or her official capacity is merely a suit against the
public employer.”). 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). These claims will be dismissed. The court notes that, at the court’s
direction, the clerk of the court previously sent Plaintiff a complaint form (see
Filing No. 7), which allowed Plaintiff to clearly designate the capacity in which he
brings his complaint against each Defendant. Plaintiff opted not to utilize that
form.
Furthermore, Plaintiff did not follow the court’s order and identify personal
involvement or responsibility by a named individual. The court has carefully
reviewed Plaintiff’s attachments. It appears that CM Barker is “Jane Doe No. 1,”
who allegedly allowed inmates to move Plaintiff’s head without medical
assistance. (See Filing No. 10 at CM/ECF 5.) Assuming that Plaintiff “expressly
and unambiguously” states in a second amended complaint that he sues CM Barker
in her individual capacity, his Eighth Amendment claim for deliberate indifference
to his serious medical needs will be allowed to proceed to service of process
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against her. The claim will also proceed to service of process against any of the
John Does present with CM Barker before medical personnel arrived if (1) Plaintiff
identifies John Does in a second amended complaint, and (2) “expressly and
unambiguously” states that he sues them in their individual capacities.
In addition, and irrespective of capacity status, the court finds that Plaintiff
fails to state a claim against medical personnel, including Dr. Damme. Plaintiff
alleges that medical personnel failed to use a neck brace or back board; made him
stand to get on the stretcher; and made him walk to the x-ray room across the hall.
He also alleges that they were slow to the scene and to examine him. While
Plaintiff’s allegations against medical personnel may be enough to state a plausible
claim for negligence or medical malpractice, they are not enough to state a
plausible claim for deliberate indifference in violation of the Eighth Amendment.
See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (holding that mere negligence or
medical malpractice are insufficient to rise to a constitutional violation). Moreover,
to the extent Plaintiff attempts to allege a failure-to-train claim against TSCI,
Plaintiff continues to fail to allege that any “supervisor had notice that the training
procedures and supervision were inadequate and likely to result in a constitutional
violation.” Tlamka v. Serrell, 244 F.3d 628, 635 (8th Cir. 2001). The court advised
Plaintiff of these same propositions of law in its previous order (see Filing No. 7).
These claims will be dismissed.
On its own motion, the court will allow Plaintiff an opportunity to file a
second amended complaint that: (1) identifies the John Does present with CM
Barker before medical personnel arrived, and (2) states in which capacity Plaintiff
sues them and CM Barker. Failure to file a second amended complaint within the
time specified by the court will result in the court dismissing this case without
further notice to Plaintiff.

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IT IS THEREFORE ORDERED that:
1.
Because the court has already granted Plaintiff 120 days to file an
amended complaint, Plaintiff shall file a second amended complaint no later than
August 22, 2017, correcting the aforementioned deficiencies. Failure to file a
second amended complaint within the time specified by the court will result in the
court dismissing this case without further notice to Plaintiff.
2.
In his second amended complaint, Plaintiff must identify the John
Does present with CM Barker before his claims against them can proceed to
service of process, or he must identify the reasonable steps he took to identify
them. Failure to do so will result in dismissal of the claims against the John
Does without prejudice and without further notice.
3.
Plaintiff’s claims for monetary damages against John and Jane Does
in their official capacities are dismissed as barred by the Eleventh Amendment.
4.
Plaintiff’s Eighth Amendment deliberate indifference claims for
monetary damages against John and Jane Does, not identified as CM Barker or the
John Does present with her before medical personnel arrived, are dismissed with
prejudice for failure to state a claim upon which relief may be granted. To the
extent Plaintiff attempts to allege a failure-to-train claim against TSCI, it too is
dismissed with prejudice for failure to state a claim.
5.
The clerk of the court is directed to set a pro se case management
deadline using the following text: August 22, 2017: check for second amended
complaint.

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Dated this 8th day of August, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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