Harris v. Lancaster Correctional Center

Filing 8

MEMORANDUM AND ORDER - IT IS ORDERED that: Plaintiff shall have 30 days in which to file an amended complaint. Failure to do so will result in dismissal of this matter without further notice to Plaintiff. The clerk's office is directed to se t a pro se case management deadline in this case using the following text: March 13, 2015: Check for amended complaint. The court will conduct further review of Plaintiffs amended complaint, should he file one, to determine whether summary dismissal of the amended complaint is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party)(TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LAWRENCE W. HARRIS,
Plaintiff,
v.
LANCASTER CORRECTIONAL
CENTER,
Defendant.

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8:14CV321

MEMORANDUM
AND ORDER

Plaintiff Lawrence Harris (“Plaintiff”) filed his Complaint (Filing No. 1) in this
matter on October 21, 2014. This court has given Plaintiff leave to proceed in forma
pauperis in this matter. (Filing No. 7.) The court now conducts an initial review of the
Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. §§
1915(e)(2) and 1915A.
I. SUMMARY OF COMPLAINT
Plaintiff is incarcerated in the Lancaster County Correctional Center in Lincoln,
Nebraska (“the correctional center”). He named the correctional center as the sole
defendant. (Filing No. 1 at CM/ECF p. 2.)
Plaintiff alleged that on August 21, 2014, an intoxicated inmate urinated on him.
Plaintiff later discovered, “[a]fter asking around the dorm,” that the inmate had
consumed hand sanitizer and, apparently, had become intoxicated. (Id.) Plaintiff
argues jail staff was at fault for allowing the inmate to acquire the hand sanitizer. (Id.
at CM/ECF pp. 2-3.)
Plaintiff also alleged staff did not “decontaminate” him following the incident
or assure him that the intoxicated inmate “had a clean bill of health.” (Id. at CM/ECF

p. 3.) Finally, Plaintiff alleged the inmate was not cited for assault. Rather, he was
only given time in segregation. (Id.)
As relief in this matter, Plaintiff seeks a “fair settlement” to compensate him for
his “pain[,] suffering and mental anguish.” (Id. at CM/ECF p. 5.)
II. APPLICABLE LEGAL 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

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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 OF CLAIMS
As pled, Plaintiff’s Complaint fails as a matter of law because he has not stated
a claim for relief against Lancaster County, Nebraska. Plaintiff named the Lancaster
County Correctional Center as the sole defendant. The court construes Plaintiff’s suit
against the correctional center as being a suit against Lancaster County, Nebraska. For
a municipality to be found liable under § 1983, “individual liability first must be found
on an underlying substantive claim.” McCoy v. City of Monticello, 411 F.3d 920, 922
(8th Cir. 2005). A municipality or government entity cannot be held vicariously liable
for the actions of one of its agents. Brockinton v. City of Sherwood, Arkansas, 503
F.3d 667, 674 (8th Cir. 2007). Rather, there must be a showing a governmental
employee was acting in accordance with a government policy or custom in order for
liability to attach to the municipality under § 1983. Id.
“Official policy involves ‘a deliberate choice to follow a course of action made
from among various alternatives’ by an official who has the final authority to establish
governmental policy.” Jane Doe A By and Through Jane Doe B v. Special Sch. Dist.
of St. Louis Cnty., 901 F.2d 642, 645 (8th Cir. 1990)(quoting Pembaur v City of
Cincinnati, 475 U.S. 469, 483 (1986)).

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In order to establish the existence of a governmental custom, a plaintiff must
prove:
1)

The existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entity’s
employees;

2)

Deliberate indifference to or tacit authorization of such conduct by
the governmental entity’s policymaking officials after notice to the
officials of that misconduct; and

3)

That plaintiff was injured by acts pursuant to the governmental
entity’s custom, i.e., that the custom was the moving force behind
the constitutional violation.

Jane Doe, 901 F.2d at 646.
Plaintiff has not asked the court to make a finding of individual liability against
any Lancaster County employees—a step necessary for a finding of municipal liability.
See McCoy, 411 F.3d at 922. Plaintiff also does not assert that the alleged
constitutional violation occurred because county officials were acting in accordance
with official government policy or that any individual who carried out the actions
against Plaintiff was responsible for establishing an official policy. In addition,
Plaintiff does not allege there was a continuing, widespread, persistent pattern of
unconstitutional misconduct by the county or its employees, or that county
policymaking officials were deliberately indifferent to or tacitly authorized any
unconstitutional conduct. Finally, Plaintiff does not allege that an unconstitutional
custom was the moving force behind his injuries. Accordingly, he has failed to allege
sufficient facts to state a claim for relief against the county.
On the court’s own motion, Plaintiff will have an opportunity to file an amended
complaint that states a plausible claim for relief against Lancaster County, Nebraska,
and names any other proper defendants.
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IV. STATE LAW CLAIMS
Plaintiff also raised state law negligence claims against Defendant. Pending the
filing of an amended complaint, the court makes no finding regarding its jurisdiction
over any potential state law claims.
IT IS ORDERED that:
1.
Plaintiff shall have 30 days in which to file an amended complaint.
Failure to do so will result in dismissal of this matter without further notice to Plaintiff.

2.
The clerk’s office is directed to set a pro se case management deadline in
this case using the following text: March 13, 2015: Check for amended complaint.
3.
The court will conduct further review of Plaintiff’s amended complaint,
should he file one, to determine whether summary dismissal of the amended complaint
is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.
DATED this 18th day of February, 2015.
BY THE COURT:

s/ Joseph F. Bataillon
Senior United States District Judge

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of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide
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