Ornelas v. Houston et al

Filing 31

MEMORANDUM AND ORDER that Houston, Hopkins, Kohl, and Kenny's Motion to Dismiss Plaintiff's official capacity claims 27 is denied. Defendants' Motion to Dismiss Plaintiff's individual capacity claims 29 is denied. Plaintiff&# 039;s Motion to Appoint Counsel 4 is denied without prejudice to reassertion. In accordance with Federal Rule of Civil Procedure 12(a)(4)(A), Defendants shall file their answer no later than 14 days from the date of this Memorandum and Order. A separate progression order will be entered progressing this matter to final disposition. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
FRANCISCO ORNELAS,
Plaintiff,
v.
ROBERT HOUSTON,
Defendants.

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8:13CV118

MEMORANDUM
AND ORDER

This matter is before the court on two Motions to Dismiss filed by Defendants.
(Filing Nos. 27 and 29.)
I. BACKGROUND
Plaintiff filed his Complaint in this matter on April 12, 2013, against the
Director of the Nebraska Department of Correctional Services (“NDCS”) Robert
Houston (“Houston”), NDCS Deputy Director Frank Hopkins (“Hopkins”), NDCS
Medical Director Randy Kohl (“Kohl”), Omaha Correctional Center (“OCC”) Warden
Mike Kenny (“Kenny”), OCC Medical Doctor Mary Flearl (“Flearl”), and OCC
Physician’s Assistant Margaret Antley (“Antley”). (Filing No. 1 at CM/ECF pp. 1-3.)
Plaintiff sues Houston, Hopkins, Kohl, and Kenny in both their individual and official
capacities. (Id.) Plaintiff sues Flearl and Antley in their individual capacities only.
(Id.) Plaintiff is currently confined at OCC in Omaha, Nebraska. (Id.; See Docket
Sheet.)
On August 26, 2013, the court conducted an initial review of Plaintiff’s
Complaint. (Filing No. 16.) In doing so, the court dismissed Plaintiff’s monetary
damages claims against Houston, Hopkins, Kohl, and Kenny in their official
capacities. (Id. at CM/ECF p. 7.) However, the court also concluded that Plaintiff’s
claims for declaratory relief, Plaintiff’s Eighth Amendment medical claims against

Defendants in their individual capacities, and Plaintiff’s state law claims against
Defendants could proceed to service. (Id.)
On October 22, 2013, Defendants Houston, Hopkins, Kohl, and Kenny moved
to dismiss Plaintiff’s claims against them in their official capacities because Plaintiff
failed to serve summons in accordance with Neb. Rev. Stat. § 25-510.02(1). (Filing
Nos. 27 and 28.) That same day, all of the Defendants in this matter filed a Motion
to Dismiss. (Filing No. 29.) In this second Motion, Defendants assert that Plaintiff’s
claims against them in their individual capacities should be dismissed because
Plaintiff has failed to state a claim upon which relief may be granted. (Id.) In support
of the second Motion, Defendants filed an exact copy of the Motion as a “Brief.”
(Compare Filing No. 29 with Filing No. 30.) Plaintiff failed to respond to both
Motions to Dismiss. (See Docket Sheet.)
II. ANALYSIS
A.

Motion to Dismiss Standard

A pro se plaintiff must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 129 S. Ct.
1937, 1950 (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.”). Regardless of whether a plaintiff is represented
or is appearing pro se, the plaintiff’s complaint must allege specific facts sufficient
to state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
However, a pro se plaintiff’s allegations must be construed liberally. Burke v. North
Dakota Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations
omitted).
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B.

Motion to Dismiss Official Capacity Claims

Defendants Houston, Hopkins, Kohl, and Kenny move to dismiss Plaintiff’s
claims against them in their official capacities because Plaintiff failed to serve
summons in accordance with Neb. Rev. Stat. § 25-510.02(1). (Filing Nos. 27 and
28.) Federal Rule of Civil Procedure 4(j) requires that service on “[a] state, a
municipal corporation, or any other state-created governmental organization1 . . . must
be served by: (A) delivering a copy of the summons and of the complaint to its chief
executive officer; or (B) serving a copy of each in the manner prescribed by that
state’s law for serving a summons or like process on such a defendant.” Fed. R. Civ.
P. 4(j)(2). With regard to section (B), the State of Nebraska states that:
The State of Nebraska, any state agency as defined in section 81-8,210,
and any employee of the state as defined in section 81-8,210 sued in an
official capacity may be served by leaving the summons at the office of
the Attorney General with the Attorney General, deputy attorney
general, or someone designated in writing by the Attorney General, or
by certified mail service addressed to the office of the Attorney
General.
Neb. Rev. Stat. § 25-510.02(1).
Plaintiff did not serve Defendants in their official capacities under Nebraska
law. However, under federal law, a governmental organization is served when a copy
of the summons and complaint are delivered to its chief executive officer. Fed. R.
Civ. P. 4(j)(2). Defendants have not argued that the chief executive officers of
Defendants’ public employers were not served. (See Filing No. 28.) Accordingly,

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A suit against a public employee in his or her official capacity is merely a suit against the
public employer. See Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999);
Kentucky v. Graham, 473 U.S. 159, 165 (1985). Thus, service upon public employees in their
official capacities must be effected as though the action is against their employer.

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the court will deny Houston, Hopkins, Kohl, and Kenny’s Motion to Dismiss
Plaintiff’s claims against them in their official capacities. See Lawver v. Dep’t of
Corr., No. 8:07CV100, 2007 WL 3376742, *4 (D. Neb. Nov. 7, 2007) (finding that
the delivery of a copy of the summons and complaint on Robert Houston amounted
to proper service of the NDCS).
C.

Motion to Dismiss Individual Capacity Claims

As discussed above, Defendants also move to dismiss Plaintiff’s claims against
them in their individual capacities. (Filing No. 29.) In support of this Motion,
Defendants filed an exact copy of their Motion to Dismiss as “Brief.” (Compare
Filing No. 29 with Filing No. 30.)
On August 26, 2013, the court performed a detailed initial review of Plaintiff’s
Complaint. (Filing No. 16.) In that Memorandum and Order, the court liberally
construed and analyzed each of Plaintiff’s claims. (Id.) The court determined that
Plaintiff had set forth allegations sufficient to “nudge” his Eighth Amendment
medical claims against Defendants across the line from “conceivable to plausible,”
the same standard used to resolve a motion to dismiss filed under Federal Rule of
Civil Procedure 12(b)(6). See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70
(2007); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (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.”); Burke
v. N.D. Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (holding
that a pro se complaint must be construed liberally).
Rather than file an answer, Defendants chose to file a Motion to Dismiss,
arguing that Plaintiff’s Complaint fails to state a claim upon which relief may be
granted. (Filing Nos. 22 and 23.) However, the court already resolved that question
and declines to revisit it now. For the reasons set forth in its August 26, 2013,
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Memorandum and Order, Plaintiff has set forth allegations sufficient to “nudge” his
Eighth Amendment medical claims against Defendants across the line from
“conceivable to plausible.” Because the court permitted Plaintiff’s Eighth
Amendment medical claims to proceed, Plaintiff’s state law claims may also proceed.
While Plaintiff’s claims may not ultimately withstand a motion for summary
judgment, they are enough to withstand the pending Motion to Dismiss.
D.

Motion to Appoint Counsel

Also pending is Plaintiff’s Motion to Appoint Counsel. (Filing No. 4.) The
court previously took this Motion under advisement. (See Filing No. 16 at CM/ECF
p. 5.) 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. . . . The trial court has broad discretion to decide
whether both the plaintiff and the court will benefit from the appointment of
counsel . . . .” Id. (quotation and citation omitted). Although Plaintiff may benefit
from the appointment of an attorney at some point in this litigation, no such a benefit
is apparent at this time. Plaintiff’s Motion to Appoint Counsel is therefore denied
without prejudice to reassertion. Accordingly,
IT IS THEREFORE ORDERED that:
1.
Houston, Hopkins, Kohl, and Kenny’s Motion to Dismiss Plaintiff’s
official capacity claims (filing no. 27) is denied.
2.
Defendants’ Motion to Dismiss Plaintiff’s individual capacity claims
(filing no. 29) is denied.
3.
Plaintiff’s Motion to Appoint Counsel (filing no. 4) is denied without
prejudice to reassertion.

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4.
In accordance with Federal Rule of Civil Procedure 12(a)(4)(A),
Defendants shall file their answer no later than 14 days from the date of this
Memorandum and Order.
5.
A separate progression order will be entered progressing this matter to
final disposition.
DATED this 18th day of March, 2014.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District
Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third
parties or the services or products they provide on their Web sites. Likewise, the court has no
agreements with any of these third parties or their Web sites. The court accepts no responsibility for
the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
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