Swift v. Sheriff of Douglas County Correctional Center
Filing
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MEMORANDUM AND ORDER - After initial review of the complaint:1. Plaintiff shall file an amended complaint by August 1, 2016, that states a claim upon which relief may be granted against Defendant. Failure to file an amended complaint within the t ime 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: August 1, 2016, check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(JAB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ARNETTA SWIFT,
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Plaintiff,
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V.
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SHERIFF OF DOUGLAS COUNTY )
CORRECTIONAL CENTER,
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Defendant.
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8:16CV152
MEMORANDUM
AND ORDER
Plaintiff filed her Complaint in this matter on April 8, 2016. (Filing No. 1.)
Plaintiff has been given leave to proceed in forma pauperis. (Filing No. 14.) The
court now conducts and initial review of the Complaint to determine whether
summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I. SUMMARY OF COMPLAINT
Plaintiff alleges that she was held at the Douglas County Correctional Center
illegally. She contends that Judge Coffey ordered that she be released, but she was
held an extra day and placed on “lock down for no apparent reason.” (Filing No. 1 at
CM/ECF p. 1.) She claims that when she got into a physical altercation with another
inmate, she was “maced” by an officer even though she suffers from asthma. Plaintiff
seeks damages in the amount of $100,000,000.00.
II. STANDARDS ON INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). 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).
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).
III. DISCUSSION
Liberally construed, Plaintiff seeks damages for alleged violations of her Fourth
and Eighth Amendment rights. Plaintiff’s Complaint names the “Sheriff of Douglas
County Correctional Center” as the defendant. However, Plaintiff does not specify
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whether she is suing Defendant in his official or individual capacity. Consequently,
this court presumes Defendant is sued in his official capacity 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.”). A claim against an
individual in his official capacity is, in reality, a claim against the entity that employs
the official, in this case, Douglas County, Nebraska. See Parrish v. Luckie, 963 F.2d
201, 203 n.1 (8th Cir. 1992) (“Suits against persons in their official capacity are just
another method of filing suit against the entity. A plaintiff seeking damages in an
official-capacity suit is seeking a judgment against the entity.”) (internal citations
omitted)). Douglas County can only be liable under § 1983 if a municipal policy or
custom caused Plaintiff’s injury. See Monell v. New York Department of Social
Services, 436 U.S. 658, 694 (1978). Plaintiff has not made allegations supporting
such a claim.
Additionally, Plaintiff did not indicate how Defendant was personally involved
in the events described in the Complaint.
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 August 1, 2016, that states
a claim upon which relief may be granted against Defendant. 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: August 1, 2016, check for amended complaint.
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DATED this 1st day of July, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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