Harvey v. Nebraska Department of Correctional Services et al
Filing
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MEMORANDUM and ORDER - Harvey 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 dismi ssing this action without further notice. Harvey's Motion to Amend Complaint (Filing No. 5) is granted. 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. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(SLP)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JASON WILLIAM HARVEY,
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Plaintiff,
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v.
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NEBRASKA DEPARTMENT OF
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CORRECTIONAL SERVICES,
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NDCS, RANDY KOHL, Dr., Medical )
Director, STEVEN E.
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RADEMACHER, Dr., Infectious
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Disease Specialist, and JULIE A.
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PEW, APRN,
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Defendants.
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8:15CV102
MEMORANDUM
AND ORDER
This action was filed by Jason Harvey (“Harvey”), a pro se litigant incarcerated
at the Nebraska State Prison 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 state law claims and also Eighth
Amendment claims brought pursuant to 42 U.S.C. § 1983. He seeks monetary relief
from the defendants.
The court previously granted Harvey permission to proceed in forma pauperis
in this action. The court now conducts an initial review of the Amended Complaint1
(Filing No. 6) to determine whether summary dismissal is appropriate under 28 U.S.C.
§§ 1915(e) and 1915A.
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Harvey filed his original Complaint (Filing No. 1) in this matter on March 20,
2015. On May 7, 2015, he filed a Motion to Amend Complaint (Filing No. 5) as well
as an Amended Complaint (Filing No. 6). It is clear Harvey intended for the
Amended Complaint to supersede his original Complaint. Therefore, the court
considers Harvey’s Amended Complaint the operative complaint in this matter.
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
Harvey has sued the NDCS, a state agency, and Randy Kohl, Steven
Rademacher, and Julie Pew. Harvey alleged Kohl, Rademacher, and Pew are NDCS
officials. Thus, the initial question presented is whether the Eleventh Amendment
bars his claims.
Harvey did not specify whether Kohl, Rademacher, and Pew 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
citizens. See Hadley v. North Arkansas Cmty. Technical Coll., 76 F.3d 1437, 1438
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(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).
Harvey seeks solely monetary relief for alleged past violations of federal law.
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, Harvey’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, Harvey 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.
IT IS THEREFORE ORDERED that:
1.
Harvey 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.
Harvey’s Motion to Amend Complaint (Filing No. 5) is granted.
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4.
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.
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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