Menyweather v. Department of Correction Serv. et al

Filing 14

MEMORANDUM AND ORDER regarding Complaint 1 filed by Latitus Romale Menyweather. Plaintiff's claims for monetary relief against Defendants in their official capacities are dismissed as barred by the Eleventh Amendment. Plaintiff's Eigh th Amendment excessive force claim against Defendant "Corporal Dossou" in his individual capacity and related assault and battery state law claim against Defendant "Corporal Dossou" may proceed to service of process. All other claims against all other Defendants in their individual capacities are dismissed for failure to state a claim. Plaintiff's motion for counsel is denied without prejudice to reassertion. For service of process on Defendant "Corporal Dossou " in his individual capacity, the clerk of the court is directed to complete a summons form and a USM-285 form for Defendant "Corporal Dossou" using the address "Diagnostic and Evaluation Center, 3220 W Van Dorn St, Lincoln, NE 68 522," and forward them together with a copy of the Complaint and a copy of this Memorandum and Order to the Marshals Service. The Marshals Service shall serve Defendant "Corporal Dossou" personally in his individual capacity at the Dia gnostic and Evaluation Center, 3220 W Van Dorn St, Lincoln, NE 68522. The United States Marshal shall serve all process in this case without prepayment of fees from Plaintiff. Ordered by Senior Judge Richard G. Kopf. (Copies mailed to pro se party and forms/copies provided to USM as directed) (SLP)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LATITUS ROMALE
MENYWEATHER,
4:17CV3040
Plaintiff,
MEMORANDUM
AND ORDER

vs.
DEPARTMENT OF CORRECTION
SERV., SCOTT FRAKES, Director; and
DOSSOU, Officer, Corpal;
Defendants.

Plaintiff filed a Complaint on March 27, 2017. (Filing No. 1.) He has been
given leave to proceed in forma pauperis. (Filing No. 8.) Plaintiff paid his initial
partial filing fee on May 10, 2017. (See Docket Sheet.) 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) and 1915A.
I. SUMMARY OF COMPLAINT
Plaintiff is a prisoner confined at the Lincoln Correctional Center. (Filing
No. 1 at CM/ECF p. 1.) He names Scott Frakes (“Frakes”), Director of the
Nebraska Department of Correctional Services (“NDCS”), Corporal Dossou
(“Dossou”), an employee at the Diagnostic and Evaluation Center (“DEC”), and
any known and unknown NDCS employees as Defendants in his Complaint. (Id. at
CM/ECF p. 9.) He sues Frakes in his official capacity. (Id.) He sues Dossou and
any known and unknown NDCS employees in their official and individual
capacities. (Id.) Plaintiff seeks monetary relief. (Id. at CM/ECF p. 6.)

Plaintiff was previously confined at DEC. (Id. at CM/ECF p. 10.) Plaintiff
alleges that Dossou sprayed an entire can of O.C. (pepper spray) into his eyes at
close range despite Plaintiff’s compliance with Dossou’s instruction to place his
hands behind his back. (Id.) Plaintiff also claims to have been in “a very nondefensive stance.” (Id.) Plaintiff claims that his medical records evidence serious
injury to his eyes from the spray, and that he must now use reading and “seeing”
glasses. (Id.) He also claims to suffer from mental health issues as a result of the
incident. (Id.) Plaintiff alleges Dossou’s actions constituted excessive force and
assault and battery. (Id. at CM/ECF pp. 11-13.)
II. APPLICABLE STANDARDS OF 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)
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(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).
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
A. Sovereign Immunity
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.
Plaintiff has sued state employees – Frakes, Dossou, and any known and
unknown NDCS employees - and seeks monetary relief against them. The
Eleventh Amendment bars these claims against Defendants in their official
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capacities. Accordingly, Plaintiff’s claims for monetary relief against Defendants
in their official capacities must be dismissed.
B. Dossou – Excessive Force Claim
Plaintiff raises an Eighth Amendment excessive force claim against Dossou.
“It is well established that a malicious and sadistic use of force by a prison official
against a prisoner, done with the intent to injure and causing actual injury, is
enough to establish a violation of the Eighth Amendment's cruel and unusual
punishment clause.” Williams v. Jackson, 600 F.3d 1007, 1012 (8th Cir. 2010),
(internal quotations omitted). However, “‘not ... every malevolent touch by a
prison guard gives rise to a federal cause of action,’ a de minimis application of
force will not give result in a constitutional violation.” Id. (quoting Hudson v.
McMillan, 503 U.S. 1, 9 (1992)); see also Wilkins v. Gaddy, 130 S.Ct. 1177–78
(2010), (“An inmate who complains of a push or shove that causes no discernable
injury almost certainly fails to state a valid excessive force claim.” (internal
quotation marks omitted)). Where the force applied is excessive, however, a
constitutional claim may survive summary dismissal even if the resulting injury is
de minimis. Wilkins, 130 S.Ct. at 1180.
Plaintiff alleges that Dossou sprayed him in his face with a full can of O.C.
at close range despite Plaintiff’s compliance with Dossou’s instruction to place his
hands behind his back. Plaintiff alleges that his eyesight and mental health suffer
because of the incident. Liberally construed, Plaintiff has alleged sufficient facts to
suggest that Dossou applied excessive force in spraying him with O.C. This claim
will proceed against Dossou in his individual capacity. The court cautions Plaintiff
that this is only a preliminary determination based on his allegations, and is not a
determination of the merits of his claims or potential defenses thereto.1
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This is particularly so given Plaintiff’s attachments to his Complaint. The
State Claims Board rejected Plaintiff’s claim, because it was determined after
follow-up medical attention that Plaintiff did not sustain damage to his eyes and
Plaintiff did not request further medical treatment. (Filing No. 1 at CM/ECF p. 19.)
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C. Remaining Defendants
Plaintiff asserts claims against Frakes based upon his role as a supervisor.
He asserts claims against any known and unknown NDCS employees because they
committed “unlawful transgressions” and lied for Dossou. (Filing No. 1 at
CM/ECF pp. 4, 9.) The court will dismiss any claims against Frakes and any
known and unknown NDCS employees (with the exception of Dossou) in their
individual capacities from this action because respondeat superior is not a basis for
liability under 42 U.S.C. § 1983, and because Plaintiff does not allege that they
were personally involved in the underlying incident. See Krych v. Hvass, 83 F.
Appx. 854, 855 (8th Cir. 2003) (unpublished) (finding merely listing individuals as
defendants in a complaint and not alleging personal involvement in the
constitutional violations insufficient to state a claim); Keeper v. King, 130 F.3d
1309, 1314 (8th Cir. 1997) (finding that general responsibility for supervising
operations of prison is insufficient to establish personal involvement required to
support liability). Nor do responses to Plaintiff’s grievance constitute a violation of
Plaintiff’s constitutional rights. See Lomholt v. Holder, 287 F.3d 683, 684 (8th Cir.
2002) (holding that allegations regarding actions of prison officials in handling
prisoner’s grievances, and regulating his access to his attorney, were insufficient to
state a constitutional claim).
D. State Law Claim
Plaintiff alleges an assault and battery claim against Dossou under state law.
Because the court is permitting Plaintiff’s Eighth Amendment excessive force

The Prison Litigation and Reform Act prohibits a prisoner from receiving
compensatory damages for mental or emotional distress if the plaintiff does not
allege a physical injury. See 42 U.S.C. § 1997e(e). However, out of an abundance
of caution and because Plaintiff alleges that he did sustain physical injury to his
eyes, the court will allow Plaintiff’s claim to proceed at this early proceeding stage.
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claim to proceed against Dossou, it will also permit Plaintiff’s state law claim to
proceed against him.
IV. Motion for Counsel
Plaintiff requests counsel. (Filing No. 1 at CM/ECF p. 6.) 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 that:
1.
Plaintiff’s claims for monetary relief against Defendants in their
official capacities are dismissed as barred by the Eleventh Amendment.
2.
Plaintiff’s Eighth Amendment excessive force claim against
Defendant “Corporal Dossou” in his individual capacity and related assault and
battery state law claim against Defendant “Corporal Dossou” may proceed to
service of process. All other claims against all other Defendants in their individual
capacities are dismissed for failure to state a claim.
3.
Plaintiff’s motion for counsel is denied without prejudice to
reassertion.
4.
For service of process on Defendant “Corporal Dossou” in his
individual capacity, the clerk of the court is directed to complete a summons form
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and a USM-285 form for Defendant “Corporal Dossou” using the address
“Diagnostic and Evaluation Center, 3220 W Van Dorn St, Lincoln, NE 68522,”
and forward them together with a copy of the Complaint and a copy of this
Memorandum and Order to the Marshals Service. The Marshals Service shall
serve Defendant “Corporal Dossou” personally in his individual capacity at the
Diagnostic and Evaluation Center, 3220 W Van Dorn St, Lincoln, NE 68522.
Service may also be accomplished by using any of the following methods:
residence, certified mail, or designated delivery service. See Federal Rule of Civil
Procedure 4(e); Neb. Rev. Stat. § 25-508.01 (Reissue 2016).2
5.
The United States Marshal shall serve all process in this case without
prepayment of fees from Plaintiff.
6.
The clerk of the court is directed to set the following pro se case
management deadline: September 7, 2017: check for completion of service of
process.

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Pro se litigants proceeding in forma pauperis are entitled to rely on service
by the United States Marshals Service. Wright v. First Student, Inc., 710 F.3d 782,
783 (8th Cir. 2013). Pursuant to 28 U.S.C. § 1915(d), in an in forma pauperis case,
“[t]he officers of the court shall issue and serve all process, and perform all duties
in such cases.” See Moore v. Jackson, 123 F.3d 1082, 1085 (8th Cir. 1997)
(language in § 1915(d) is compulsory). See, e.g., Beyer v. Pulaski County Jail, 589
Fed. Appx. 798 (8th Cir. 2014) (unpublished) (vacating district court order of
dismissal for failure to prosecute and directing district court to order the Marshal to
seek defendant’s last-known contact information where plaintiff contended that the
Jail would have information for defendant’s whereabouts); Graham v. Satkoski, 51
F.3d 710, 713 (7th Cir. 1995) (when court instructs Marshal to serve papers for
prisoner, prisoner need furnish no more than information necessary to identify
defendant; Marshal should be able to ascertain defendant’s current address).
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Dated this 9th day of June, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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