Coutts v. Kearney County, Nebraska et al

Filing 15

MEMORANDUM AND ORDER - Plaintiff shall file an amended complaint by September 15, 2016, that states a claim upon which relief may be granted. Failure to file an amended complaint within the time specified by the court will result in the court dismi ssing this case without further notice to Plaintiff. The clerk of the court is directed to set a pro se case management deadline using the following text: September 15, 2016, check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAMES A. COUTTS,

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Plaintiff,
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V.
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KEARNEY COUNTY, NEBRASKA, )
SHERIFF SCOTT WHITE, DEPUTY )
SHANE MONTHEY, DEPUTY
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COREY ZIOLA, and DEPUTY
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JUSTIN GLANZER,
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Defendants.
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8:16CV121

MEMORANDUM
AND ORDER

Plaintiff, who is currently incarcerated at the Nebraska State Penitentiary, filed
his Complaint on March 23, 2016 (Filing No. 1.) Plaintiff was given leave to proceed
in forma pauperis. (Filing No. 7.) Therefore, at this time, the court will conduct an
initial review of Plaintiff’s claims to determine whether summary dismissal is
appropriate under 28 U.S.C. § 1915(e)(2).
I. SUMMARY OF COMPLAINT
Liberally construed, Plaintiff alleges that Defendants were deliberately
indifferent to his medical needs. Plaintiff also contends that Defendants discriminated
against him by transporting another inmate to the hospital for medical treatment, and
refusing to transfer him to the hospital.
II. 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
other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations
omitted).
Liberally construed, Plaintiff 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).

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III. DISCUSSION
Plaintiff claims that Defendants were deliberately indifferent to his medical
needs in violation of the Eighth Amendment. To establish a § 1983 claim for
deprivation of medical care, Plaintiff must demonstrate that he suffered objectively
serious medical needs, and that officials actually knew of but deliberately disregarded
those needs. Johnson v. Hamilton, 452 F.3d 967, 972-73 (8th Cir. 2006). “Deliberate
indifference is equivalent to criminal-law recklessness, which is more blameworthy
than negligence, yet less blameworthy than purposefully causing or knowingly
bringing about a substantial risk of serious harm to the inmate.” Schaub v. VonWald,
638 F.3d 905, 914-15 (8th Cir. 2011) (citation omitted).
Even assuming Plaintiff had a serious medical need, Plaintiff has not adequately
alleged that Defendants were each aware that Plaintiff required immediate medical
attention, but were indifferent to his need for treatment.
Plaintiff also alleges that his right to equal protection was violated because he
was treated differently from another inmate. However, Plaintiff does not allege he
was subject to adverse treatment based on some constitutionally impermissible reason.
Rather, Plaintiff simply alleges that another inmate was transported to the hospital for
treatment of injuries sustained in a fight, but he was not. “[M]ere differential
treatment of similarly situated inmates, without more, fails to allege a violation of the
Equal Protection Clause.” McKensie v. Alabama Department of Corrections, No.
2:11-CV-97-ID, 2011 WL 1004875, *1 (M.D. Ala. Feb. 24, 2011). Therefore,
Plaintiff has failed to state a viable equal protection claim.
Also, Plaintiff has failed to state a claim against Kearney County, Nebraska,
because as a municipality, Kearney County can only be liable under § 1983 if a
municipal policy or custom caused his injury. See Monell v. New York Department
of Social Services, 436 U.S. 658, 694 (1978). Plaintiff has failed to plausibly suggest
that an official Kearney County policy or custom caused the allegedly deficient
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medical care.
Further, Plaintiff has asserted his claims against the individually-named
defendants in their official capacities only. A claim against an individual in his
official capacity is, in reality, a claim against the entity that employs the official, in
this case, Kearney County. See Parrish v. Luckie, 963 F.2d 201, 203 n.1 (8th Cir.
1992). As stated previously, Kearney County can only be liable under § 1983 if a
municipal policy or custom caused Plaintiff’s injury. Plaintiff has failed to make such
allegations.
On the court’s own motion, the court will provide Plaintiff with an opportunity
to file an amended complaint that states a claim upon which relief may be granted.
Failure to file an amended complaint within the time specified by the court will result
in the court dismissing this case without further notice to Plaintiff.
IT IS THEREFORE ORDERED that:
1.
Plaintiff shall file an amended complaint by September 15, 2016, that
states a claim upon which relief may be granted. Failure to file an amended complaint
within the time specified by the court will result in the court dismissing this case
without further notice to Plaintiff.
2.
The clerk of the court is directed to set a pro se case management
deadline using the following text: September 15, 2016, check for amended complaint.
DATED this 18th day of August, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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