Jackson v. Nebraska Department of Corrections et al

Filing 11

MEMORANDUM AND ORDER - Jackson will have 30 days in which to file an amended complaint that states a claim for relief against a defendant who is not immune from suit. Failure to file an amended complaint within 30 days will result in the court dis missing this action without further notice. The clerk of the court is directed to set the following pro se case management deadline: August 5, 2015: check for amended complaint; dismiss if none filed. The court will conduct further review of any amended complaint to determine whether summary dismissal is appropriate. See 28 U.S.C. §§ 1915(e) and 1915A. Jackson's Motion for Appointment of Counsel (Filing No. 10 ) is denied at this time. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARCO MERRANDO JACKSON,
Plaintiff,
v.
NEBRASKA DEPARTMENT OF
CORRECTIONS, NEBRASKA
DEPARTMENT OF
CORRECTIONS - PHARMACY,
SCOTT FRAKES, Director, MIKE
KINNEY, Director (resigned),
MARIO PEART, Warden,
MATTHEW HECKMAN, Deputy
Warden, DR. HUSTAD, Medical
Supervisor, CHERYL FLYNN,
Physician, CATHERINE PALLAS,
Physician, SHAWN LUEBBE,
Physician, JACK NICKOLITE,
Orthopedic, DR. STRASBURGER,
Surgeon, LARRY WAYNE, Deputy
Director, and CHARLIE RINE,
Associate Warden,
Defendants.

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8:15CV93

MEMORANDUM
AND ORDER

This action was filed by Marco Merrando Jackson (“Jackson”), a pro se litigant
incarcerated at the Lincoln Correctional Center in Lincoln, Nebraska. His claims are
based on incidents that occurred while he was incarcerated with the Nebraska
Department of Correctional Services (“NDCS”). Liberally construed, he asserts
Eighth Amendment claims brought pursuant to 42 U.S.C. § 1983. He seeks monetary
relief from the defendants.

The court previously granted Jackson permission to proceed in forma pauperis
in this action. The court now conducts an initial review of the Complaint (Filing No.
1) to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)
and 1915A.
I. 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).
II. DISCUSSION
Jackson has sued the NDCS, a state agency, and state officials. Thus, the initial
question presented is whether the Eleventh Amendment bars his claims. Jackson did
not specify whether the NDCS officials are sued in their official or individual
capacities or in both capacities. As such, the court assumes they are sued in their
official capacities 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.”).
The Eleventh Amendment to the United States Constitution provides states,
state agencies, and state officials acting in their official capacities with immunity from
suits brought by citizens of other states and from suits brought by a state’s own
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citizens. See Hadley v. North Arkansas Cmty. Technical Coll., 76 F.3d 1437, 1438
(8th Cir. 1996), cert. denied, 519 U.S. 1148 (1997); Hans v. Louisiana, 134 U.S. 1,
15 (1890). 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). An exception to this
immunity was recognized by the Supreme Court in Ex Parte Young, 209 U.S. 123
(1908), which permits prospective injunctive relief against state officials for ongoing
federal law violations. This exception does not apply to cases involving requests for
purely retroactive relief. Green v. Mansour, 474 U.S. 64 (1985).
Jackson seeks solely monetary relief for alleged past violations of federal law.
In addition, there is nothing in the record before the court showing that the State of
Nebraska waived, or that Congress overrode, sovereign immunity in this matter.
Thus, Jackson’s claims against the NDCS and NDCS officials sued in their official
capacities are barred by the Eleventh Amendment. On the court’s own motion,
Jackson will be given an opportunity to file an amended complaint that states a claim
for relief against a defendant who is not immune from suit.
III. MOTION TO APPOINT COUNSEL
Jackson seeks the appointment of counsel. 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. The trial court has broad
discretion to decide whether both the plaintiff and the court will benefit from the
appointment of counsel[.]” Id. (internal citation and quotation marks omitted). No
such benefit is apparent here at this time. Thus, the request for the appointment of
counsel will be denied without prejudice to reassertion.

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IT IS THEREFORE ORDERED that:
1.
Jackson will have 30 days in which to file an amended complaint that
states a claim for relief against a defendant who is not immune from suit. Failure to
file an amended complaint within 30 days will result in the court dismissing this
action without further notice.
2.
The clerk of the court is directed to set the following pro se case
management deadline: August 5, 2015: check for amended complaint; dismiss if none
filed.
3.
The court will conduct further review of any amended complaint to
determine whether summary dismissal is appropriate. See 28 U.S.C. §§ 1915(e) and
1915A.
4.
Jackson’s Motion for Appointment of Counsel (Filing No. 10) is denied
at this time.
DATED this 6th day of July, 2015.
BY THE COURT:
s/ John M. Gerrard
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 directs the user to some other site does not affect the opinion of the court.

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