Cotton v. Douglas County Department of Corrections et al
MEMORANDUM AND ORDER that defendant Douglas County Department of Corrections' Motion to Dismiss (Filing No. 13 ) is granted. Defendant Douglas County Department of Corrections is dismissed as a party defendant. Defendant Douglas County's M otion to Dismiss (Filing No. 13 ) is granted. The plaintiff is granted leave to file an Amended Complaint within fourteen (14) days of the date of this order. Defendants shall file an answer or otherwise plead within fourteen (14) days thereafter. Ordered by Judge Robert F. Rossiter, Jr. (JSF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MEMORANDUM AND ORDER
DOUGLAS COUNTY DEPARTMENT OF
CORRECTIONS, DOUGLAS COUNTY,
NEBRASKA and JACQUELINE ESCH, in
her official capacity as a medical doctor of
Defendant Douglas County, Corrections;
This matter is before the Court on a Motion to Dismiss filed by defendants
Douglas County Department of Corrections (“DCC”) and Douglas County (“County,” or,
collectively, “County defendants”) (Filing No. 13). 1 This is an action for deprivation of
civil rights under the Civil Rights Act of 1871, 42 U.S.C. § 1983; the Americans with
Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., as amended, and § 504 of
the Rehabilitation Act of 1973, 29 U.S.C. § 794. Jurisdiction is based on 28 U.S.C. §
1331 and 1343.
In his Complaint, James Cotton, a pretrial detainee in the custody of defendant
Douglas County Department of Corrections (“DCC”), alleges he is a person with
disabilities, including nerve damage that require him to wear a back brace and knee
problems that require him to wear a knee brace. He also alleges he requires, and has not
been provided, pain medications and has been denied the reasonable accommodation of a
wheelchair. Further, he alleges he (1) has physical impairments that substantially limit
No return of summons has been filed for Defendant Jacqueline Esch (“Dr. Esch”).
Dr. Esch has not moved to dismiss, nor has she filed an answer. She was sued only in her
official capacity and the record shows summons was issued to Jacqueline Esch, M.D.,
Medical Doctor for Douglas County Department of Corrections, 710 South 17th St.
Omaha, NE 68102.
his major life activities; (2) is otherwise qualified to receive the benefits from and
participate in DCC’s services, programs, and activities; (3) has been denied access to
those activities; and (4) “was generally discriminated against because of his disabilities.”
He alleges he has been denied the accommodations that would enable him to participate.
Dr. Esch, is identified as a doctor and agent of defendant DCC. 2 The plaintiff also
contends defendants knew and ignored excessive risks to his health and safety and asserts
the defendants’ conduct amounts to deliberate indifference to the plaintiff’s serious
medical needs in violation of the Eighth and Fourteenth Amendments to the U.S.
Defendant DCC moves to dismiss asserting that it is not a “person” subject to suit
under 42 U.S.C. § 1983, but is merely a department within Douglas County. The County
also contends it is not an entity subject to suit. It also seeks dismissal based on the
plaintiff’s failure to exhaust administrative remedies under the Prison Litigation Reform
Act of 1995 (“PLRA”), 42 U.S.C. § 1997e et seq.
The County also contends the plaintiff’s § 1983, ADA, and § 504 claims are
subject to dismissal for failure to state a claim upon which relief can be granted. It
argues, with respect to the plaintiff’s § 1983 claim, that the plaintiff has failed to allege a
custom or policy of the county, so as to subject it to municipal liability. It contends that
the plaintiff’s claims of discrimination in violation of Title II of the ADA and Section
Defendant Douglas County has filed an affidavit, with an attached excerpt from
an “Inmate Health and Mental Health Services Contract” between Correct Care Solutions
and Douglas County (Filing No. 14-1). The County contends the contract is a public
record that can be considered on a motion to dismiss. The Court finds it unnecessary to
determine whether or not the document can properly be considered since the document is
largely irrelevant. The excerpt from the contract purports to show that Care Consultants,
Inc. is an independent contractor. Dr. Esch has been sued only in her official capacity.
The plaintiff alleges that Dr. Esch is a state actor and is acting under color of law. It is
widely accepted that independent contractors may act under color of law. See West v.
Atkins, 487 U.S. 42, 55-56 (1988) (holding that a prison physician who furnishes medical
services to state prison inmates as part of his contractual duties to that state acts under
color of state law for the purposes of § 1983); Lugar v. Edmondson Oil Co., 457 U.S.
922, 941 (1982) (“To act under color of law does not require that the accused be an
officer of the State” (internal quotation marks omitted)).
504 are conclusory allegations insufficient to state plausible claims to relief. The County
argues the plaintiff’s Complaint is “devoid of factual enhancement describing how he
was discriminated against” and fails to identify or describe the accommodations he needs.
The County also argues that the plaintiff cannot maintain a § 1983 action because
his “§ 1983 claims for alleged violations of his Eighth and Fourteenth Amendment rights
are predicated on the same allegations underlying his ADA and Section 504 claims,
warranting dismissal because violations of the ADA and Section 504 are not intended to
also be cognizable under § 1983.”
Standard of Review/Pleading Standards
Under the Federal Rules of Civil Procedure, a complaint must contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2); accord Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 n.3 (2007). “Specific
facts are not necessary; the statement need only ‘give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89,
93 (2007) (quoting Twombly, 550 U.S. at 555).
Courts follow a “two-pronged approach” to evaluate Federal Rule of Civil
Procedure 12(b)(6) challenges. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, the
Court divides the allegations between factual and legal allegations; factual allegations
should be accepted as true, but legal conclusions should be disregarded. Id. Second, the
Court reviews factual allegations for facial plausibility.
“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.” Id. at 677
(stating that the plausibility standard does not require a probability but asks for more than
a sheer possibility that a defendant has acted unlawfully).
There is no heightened pleading requirement in a § 1983 suit against a
municipality. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit,
507 U.S. 163, 168 (1993). Thus, “[t]he failure of the [plaintiff] to specifically plead the
existence of an unconstitutional policy or custom, in itself, is not fatal to [his] claim for
relief.” Doe ex rel. Doe v. School Dist. of Norfolk, 340 F.3d 605, 614 (8th Cir. 2003)
(noting that when a complaint is filed, a plaintiff may not be privy to the facts necessary
to accurately describe or identify any policies or customs that may have caused the
deprivation of a constitutional right); see also Crumpley-Patterson v. Trinity Lutheran
Hosp., 388 F.3d 588, 591 (8th Cir. 2004) (explaining the plaintiff “need not . . .
specifically plead the existence of an unconstitutional policy or custom to survive a
motion to dismiss”). Nevertheless, a plaintiff’s complaint must contain “allegations,
reference, or language by which one could begin to draw an inference that the conduct
complained of . . . resulted from an unconstitutional policy or custom of [the defendant].”
Doe, 340 F.3d at 614.
Under the PLRA, “[n]o action shall be brought with respect to prison conditions
under § 1983 of this title, or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are available
are exhausted.” 42 U.S.C. § 1997e(a). Failure to exhaust is an affirmative defense under
the PLRA, and inmates are not required to specially plead or demonstrate exhaustion in
their complaints. Jones v. Bock, 549 U.S. 199, 216 (2007).
To state a claim under 42 U.S.C. § 1983, a plaintiff must show that he was
deprived of a right secured by the Constitution or the laws of the United States and that
the deprivation was committed by a person acting under color of state law. Alexander v.
Hedback, 718 F.3d 762, 765 (8th Cir. 2013); see also 42 U.S.C. § 1983. The conditions
of confinement for pretrial detainees are analyzed under the Due Process Clause of the
Fourteenth Amendments, not the Eighth Amendment. Vaughn v. Gray, 557 F.3d 904,
908 n.4 (8th Cir. 2009). However, “‘the identical deliberate-indifference standard’ is
applied to both pretrial detainees and convicted criminals.” Id.; see also Coleman v.
Parkman, 349 F.3d 534, 538 (8th Cir. 2003) (noting that the Fourteenth Amendment’s
Due Process Clause extends at least as much protection to pre-trial detainees as the
Eighth Amendment affords to convicted criminals).
The Eighth Amendment prohibits prison officials’ cruel and unusual punishment
of inmates, and it has been interpreted as obligating prison officials to provide medical
care to inmates in their custody.
Tlamka v. Serrell, 244 F.3d 628, 632-33 (8th Cir.
2001). An inmate’s “right to medical care is violated if prison officials’ conduct amounts
to ‘deliberate indifference to [the prisoner’s] serious medical needs.’” Id. at 633 (quoting
Dulany v. Carnahan, 132 F.3d 1234, 1237-38 (8th Cir. 1997)). Deliberate indifference
has both an objective and a subjective component: the objective component requires a
plaintiff to demonstrate an objectively serious medical need and the subjective
component requires a plaintiff to show that the defendant actually knew of, but
deliberately disregarded, such need. Vaughn, 557 F.3d at 908; Holden v. Hirner, 663
F.3d 336, 342-43 (8th Cir. 2011) (likening the standard to criminal recklessness).
Municipalities are considered “persons” and may be sued under Section 1983, but
are liable only for injuries arising from an official policy or custom. Monell v. Dep’t of
Soc. Servs. of N.Y., 436 U.S. 658, 690 (1978).
There is “an important distinction
between claims based on official policies and claims based on customs.” Jenkins v.
County of Hennepin, 557 F.3d 628, 633 (8th Cir. 2009). “[A] custom can be shown only
by adducing evidence of a ‘continuing, widespread, persistent pattern of unconstitutional
misconduct.’” Id. at 634 (quoting Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir.
1999)). A plaintiff must also show either that policymakers were deliberately indifferent
to the misconduct or that they tacitly authorized it. Id. “From this standard it follows
that ‘[l]iability for an unconstitutional custom . . . cannot arise from a single act.’”
(quoting McGautha v. Jackson County, 36 F.3d 53, 57 (8th Cir. 1994)).
“[A] local government is liable under § 1983 for its policies that cause
constitutional torts.” Dean v. County of Gage, Neb., 807 F.3d 931, 940 (8th Cir. 2015).
“These policies may be set by the government’s lawmakers, ‘or by those whose edicts or
acts may fairly be said to represent official policy.’” Id. (quoting McMillian v. Monroe
County, 520 U.S. 781, 784 (1997)). “Because an official policy speaks for itself about
the intent of public officials, proof of a single act by a policymaker may be sufficient to
support liability.” Jenkins, 557 F.3d at 633; see also Dean, 807 F.3d at 940-41 (“An
unconstitutional governmental policy can be inferred from a single decision taken by the
highest official responsible for setting policy in that area of the government’s business.”);
Angarita v. St. Louis County, 981 F.2d 1537, 1546 (8th Cir. 1992) (holding that
municipal officials who have final policymaking authority may, by their actions, subject
the government to § 1983 liability); St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988).
“To establish the existence of a policy, [a plaintiff] must point to ‘a deliberate
choice of a guiding principle or procedure made by the municipal official who has final
authority regarding such matters.’” Jenkins, 557 F.3d at 633 (quoting Mettler, 165 F.3d
Moreover, a plaintiff must also demonstrate that, through its deliberate
conduct, the municipality was the moving force behind the injury alleged. Bd. of County
Comm’rs v. Brown, 520 U.S. 397, 404 (1997). In other words, “a plaintiff must show
that the municipal action was taken with the requisite degree of culpability and must
demonstrate a direct causal link between the municipal action and the deprivation of
federal rights.” Id.
Municipal departments, however, are generally not considered “persons” within
the meaning of 42 U.S.C. § 1983. Hervey v. Estes, 65 F.3d 784, 791 (9th Cir. 1995); see
also Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) (affirming a district court’s
dismissal of claims against a county sheriff’s department); Umhey v. County of Orange,
957 F. Supp. 525, 531-32 (S.D.N.Y. 1997) (holding that the county board of ethics was
merely a subunit of the county and as such, was not subject to suit under § 1983); Smith–
Berch, Inc. v. Baltimore County, 68 F. Supp. 2d 602, 626 (D. Md. 1999) (holding that
county council, permits department, police department, and the office of zoning
commissioner were not “persons” within the meaning of § 1983); Post v. City of Fort
Lauderdale, 750 F. Supp. 1131, 1133 (S.D. Fla. 1990) (holding that a city zoning
department is not a “person” under § 1983). Capacity to sue or be sued is determined “by
the law of the state in which the district court is held.” Fed. R. Civ. P. 17(b). Under
Nebraska law, only the County is an entity subject to suit—a department is not a separate
legal entity. 3 See Holmstedt v. York Cnty. Jail Supervisor, 739 N.W.2d 449, 461 (Neb.
Ct. App. 2007), rev’d on other grounds, 745 N.W.2d 317 (Neb. 2008).
“Public servants may be sued under § 1983 either in their official capacity, their
individual capacity, or both.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 535
(8th Cir. 1999). “Personal-capacity suits . . . seek to impose individual liability upon a
government officer for actions taken under color of state law.” Hafer v. Melo, 502 U.S.
21, 25 (1991). In contrast, suing a defendant in his official capacity is generally an
alternative means of suing the entity of which the defendant is an officer or agent.
Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). The real party in interest is the
entity, not the official named. Id. at 166 (“As long as the governmental entity receives
notice and an opportunity to respond, an official-capacity suit is, in all respects other than
name, to be treated as a suit against the entity”).
Official capacity claims are
“functionally equivalent to a suit against the employing governmental [or institutional]
entity.” Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010).
Under Neb. Rev. Stat. § 23–101, “[e]ach county, established in this state
according to the laws thereof, shall be a body politic and corporate, by the name and style
of the county of, and by that name may sue and be sued.” Similarly, cities have the
capacity to be sued. Neb. Rev. Stat. § 14–101. In addition to these specific provisions
for counties and cities, Nebraska law provides that any government entity may be sued in
its own name if it is an independent political subdivision. Neb. Rev. Stat. § 13–903.
Political subdivisions include “villages, cities of all classes, counties, school districts,
learning communities, public power districts, and all other units of local government.”
Id. A political subdivision is characterized by “a governing body with the power and
authority to appropriate funds and make expenditures.” Meyer v. Lincoln Police Dep’t,
347 F. Supp. 2d 706, 707 (D. Neb. 2004).
Because the governmental entity is liable in an official-capacity claim, a plaintiff
must demonstrate that the entity’s policy or custom played a part in the violation of the
plaintiff’s rights. Id. An official capacity suit against an individual is a suit not against
the individual but against her or his office and “[a]s such, it is no different from a suit
against the State itself.” Hafer, 502 U.S. at 26 (quoting Will v. Mich. Dept. of State
Police, 491 U.S. 58, 65 (1989)).
A plaintiff may use § 1983 to enforce not only rights contained in the Constitution,
but also rights that are defined by federal statutes. Alsbrook v. City of Maumelle, 184
F.3d 999, 1011 (8th Cir. 1999); Maine v. Thiboutot, 448 U.S. 1, 4-8 (1980). “An
exception to this general rule exists when a comprehensive remedial scheme evidences a
congressional intent to foreclose resort to § 1983 for remedy of statutory violations.” Id.
The ADA’s detailed remedial scheme bars a plaintiff from maintaining a § 1983 action
for alleged violations of the ADA. Id.; see also Holbrook v. City of Alpharetta, 112 F.3d
1522, 1531 (11th Cir. 1997) (holding that a plaintiff may not maintain a § 1983 action in
lieu of—or in addition to—an ADA or Rehabilitation Act cause of action if the only
alleged deprivation is of the employee's rights created by the ADA and Rehabilitation
ADA/ Rehabilitation Act § 504
Title II of the ADA, 42 U.S.C. § 12131 et seq., “prohibits qualified individuals
with disabilities from being excluded from participation in or the benefits of the services,
programs, or activities of a public entity.” Randolph v. Rodgers, 170 F.3d 850, 857 (8th
Cir. 1999). 4
A “public entity” under this provision includes a correctional facility.
Section 504 of the Rehabilitation Act similarly provides that “[n]o otherwise
qualified individual with a disability . . . shall . . . be excluded from the participation in,
be denied the benefits of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance.” 29 U.S.C. § 794(a) (2000). The enforcement,
remedies, and rights are the same under both Title II of the ADA and § 504, although the
Rehabilitation Act contains the additional requirement that the plaintiff show the program
or activity from which he is excluded receives federal financial assistance. See Gorman
United States v. Georgia, 546 U.S. 151, 154 (2006). “‘[R]ecreational activities, medical
services, and educational and vocational programs’ at state prisons are benefits within the
meaning of Title II.” Mason v. Corr. Med. Servs., Inc., 559 F.3d 880, 886 (8th Cir. 2009)
(quoting Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 210 (1998)). The ADA “prohibits a
somewhat broader swath of conduct than the Constitution itself forbids.” Georgia, 546
U.S. at 160 n.* (Stevens, J., concurring).
Under the ADA, there are two means of discrimination: (1) disparate treatment
(intentional discrimination) and (2) the failure to make reasonable accommodations.
Peebles v. Potter, 354 F.3d 761, 765 (8th Cir. 2004). In order to sufficiently allege that a
correctional facility and its administrators and medical staff violated Title II of the ADA,
an inmate must allege “(1) that he is a qualified individual with a disability; (2) that he
was excluded from participation in or denied the benefits of the jail’s services, programs,
or activities, or was otherwise subjected to discrimination by the jail; and (3) that such
exclusion, denial of benefits, or other discrimination was by reason of his disability.”
Baribeau v. City of Minneapolis, 596 F.3d 465, 484 (8th Cir. 2010). Disparate treatment
discrimination is based on the “employer’s intent or actual motive,” whereas in the
second type of claim, “the ‘discrimination’ is framed in terms of the failure to fulfill an
affirmative duty—the failure to reasonably accommodate the disabled individual's
Id. at 767.
“The known disability triggers the duty to reasonably
accommodate and, if the employer fails to fulfill that duty, we do not care if he was
motivated by the disability.” Id. Title II provides that “‘qualified individual[s] with a
disability’ are entitled to ‘meaningful access’ to such benefits.” Mason, 559 F.3d at 886
(quoting Randolph, 170 F.3d at 857-58). To allege a violation of Title II, a plaintiff
“must specify a benefit to which he was denied meaningful access based on his
disability.” Id. at 888.
v. Bartch, 152 F.3d 907, 911 (8th Cir. 1998); Hoekstra v. Indep. Sch. Dist. No. 283, 103
F.3d 624, 626 (8th Cir. 1996); Thomlison v. City of Omaha, 63 F.3d 786, 788 (8th Cir.
1995). Given the similarities between the ADA and § 504, “cases interpreting either are
applicable and interchangeable.” Gorman, 152 F.3d at 912.
The Court first finds that DCC is not a proper defendant and the plaintiff’s claims
against DCC will be dismissed.
The County, however, can properly be a named
defendant in a § 1983 action.
Although the County may properly be named a defendant, a county is not subject
to liability for constitutional torts under the doctrine of respondeat superior. Rather, the
plaintiff must allege facts from which it can be inferred that the allegedly unconstitutional
conduct was directly attributable to the County. He must allege either an unconstitutional
custom or policy or conduct by a policymaker. Cotton has alleged no facts from which it
could be inferred that an unconstitutional policy exists. He has not alleged that any
alleged deprivations were the result of conduct by a policymaker or decision-maker.
Cotton has not alleged a plausible claim under § 1983 for municipal liability in this case.
He has not pointed to “any officially accepted guiding principle or procedure that was
constitutionally inadequate” and has not pointed to a “‘deliberate choice of a guiding
principle or procedure made by the [institutional] official who has final authority
regarding such matters.’” Jenkins, 557 F.3d at 633 (quoting Mettler, 165 F.3d at 1204).
In his Complaint, the plaintiff alleges only that Dr. Esch is a doctor at the DCC
and the DCC and its agent, Dr. Esch, deliberately denied him medical care. Although
Cotton need not set forth with specificity the existence of an unconstitutional policy or
custom at the pleading stage, he must nonetheless present some allegations, references,
events, or facts from by which the court could begin to draw an inference that the conduct
complained of, namely deliberate indifference to serious medical needs, resulted from an
unconstitutional policy or custom of the County or a deliberate choice by a decisionmaker with final authority. See Doe, 340 F.3d at 614. The plaintiff does not fulfill the
minimum requirement that he allege facts that would support such an inference.
Accordingly, the Court finds the County’s motion to dismiss the plaintiff’s § 1983 claim
should be granted. 5
In the interests of justice, however, the Court finds the plaintiff should be granted
leave to amend. The Court cannot foreclose the possibility that Cotton may be able to
allege facts that establish the requisite municipal liability for a § 1983 claim against the
County. The failure to do so however, will likely lead to dismissal of plaintiff’s claims.
The Court’s findings with respect to the plaintiff’s allegations against the County
apply with equal force to Dr. Esch in her official capacity. A plaintiff must allege that a
policy or custom of the government entity is responsible for the alleged constitutional
violation in order to state a claim against a government official in his or her official
capacity. The claims against the County and Dr. Esch are duplicitous and, assuming the
plaintiff asserts the same claims in his amended complaint, one or the other of them
should not be included as a defendant.
With respect to the plaintiff’s ADA and § 504 claims, the Court rejects the
County’s contention that the plaintiff’s Complaint is subject to dismissal for failure to
exhaust administrative remedies. Exhaustion is an affirmative defense and does not have
to be alleged in the complaint.
However, the Court finds the plaintiff’s ADA allegations are deficient in other
The plaintiff’s allegation that he is disabled, though thin, is sufficient to
withstand a motion to dismiss. His allegations of denial of reasonable accommodations,
however, set out only labels and conclusions and amount to a “formulaic recitation of the
elements of a cause of action.” Twombly, 550 U.S. at 555.
There are no allegations
The Court finds the County’s argument that the plaintiff cannot maintain a § 1983
claim because it is predicated on the same allegations as his ADA and § 504 claims is
unavailing. His reliance on Holbrook, 112 F.3d at 1531, in support of that contention is
misplaced. In contrast to the plaintiff in Holbrook, Cotton’s § 1983 claim appears that it
is not based on an ADA or § 504 violation, it is based on an alleged constitutional
concerning the nature of the benefits, services, programs or activities to which he was
denied meaningful access, nor are there allegations that relate to whether and to whom he
requested such accommodations. Also, there is no factual support for the allegation that
he was “generally discriminated against because of his disability”. The court finds the
plaintiff’s Complaint does not contain sufficient factual matter to state an ADA or
Rehabilitation Act claim that is plausible on its face. Again, however, in the interest of
justice, the plaintiff will be granted leave to amend to address the deficiencies in his
IT IS ORDERED:
Defendant Douglas County Department of Corrections’ Motion to
Dismiss (Filing No. 13) is granted.
Defendant Douglas County Department of Corrections is dismissed
as a party defendant.
Defendant Douglas County’s Motion to Dismiss (Filing No. 13) is
The plaintiff is granted leave to file an Amended Complaint within
fourteen (14) days of the date of this order.
Defendants shall file an answer or otherwise plead within fourteen
(14) days thereafter.
Dated this 5th day of October, 2016.
BY THE COURT:
s/ Robert F. Rossiter, Jr.
United States District Judge
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