Nickman v. Zarraga et al

Filing 21

MEMORANDUM AND ORDER - Plaintiff shall file an amended complaint by October 3, 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 dismissin g 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: October 3, 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
JOSHUA M. NICKMAN,
Plaintiff,
V.
JUAN M. ZARRAGA, official
capacity, SHELBY L. RAWLINGS,
official capacity, ANDREW L.
MCLEAN, official capacity, COLTON
J. GUERRERO, official capacity,
MICHAEL TUBBS, official capacity,
JESUS J. RAMIREZ, official capacity,
JAIME LYN CRAFT, official capacity,
JESSICA M. STROUP, official
capacity, SCOTT B. ANDREALA,
official capacity, ERIC JON LITTLE,
official capacity, JONATHAN R.
TRIPP, official capacity, AARON
CRAY, official capacity, TODD
BAHENSKY, official capacity, LACY,
official capacity, HALL COUNTY
CORRECTIONS, official capacity, and
J. JONES, official capacity,

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8:16CV262

MEMORANDUM
AND ORDER

Defendants.

Plaintiff, who is currently incarcerated at the Lincoln Diagnostic Center, filed
his Complaint on June 13, 2016. (Filing No. 1.) Plaintiff was given leave to proceed
in forma pauperis. (Filing No. 6.) At this time, the court conducts 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
Plaintiff alleges he was assaulted by jail staff while incarcerated at Hall County
Corrections. (Filing No. 1.) Plaintiff further contends that he did not receive proper
medical treatment for the injuries he sustained in the assault.
Plaintiff has named multiple corrections officers and officials at Hall County
Corrections as defendants. Defendants are sued in their official capacities only.
Plaintiff seeks monetary relief.
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.
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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
Plaintiff has sued Hall County employees acting in their official capacities. A
claim against an individual in his official capacity is, in reality, a claim against the
entity that employs the official, in this case, Hall County. See Parrish v. Luckie, 963
F.2d 201, 203 n.1 (8th Cir. 1992). As a municipality, Hall 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 Hall County policy or custom caused a violation of
his constitutional rights. Therefore, Plaintiff’s claims against the employees in their
official capacities fail to state a claim.
Plaintiff’s Complaint also fails to state cognizable Eighth Amendment claims
for deprivation of medical care because he has not sufficiently alleged that any
defendant was deliberately indifferent to his medical needs. To establish a § 1983
claim for deliberate indifference, 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
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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).
Plaintiff alleges he sustained torn skin, bruising, and a leg injury during the
assault. The court doubts that Plaintiff’s injuries could be classified as serious
medical needs. Moreover, Plaintiff alleges that he was given pain medication, ice, and
antibiotic creme to treat his injuries. (Filing No. 1 at CM/ECF 6.) It does not appear
from the Complaint that medical staff purposefully ignored any of his medical needs.

Additionally, Plaintiff’s Complaint does not identify the actions taken by each
named defendant. Multiple defendants are not even mentioned in the body of the
Complaint. “Individual liability under § 1983 must be based on personal involvement
in the alleged constitutional violation.” Gallagher v. Shelton, 587 F.3d 1063, 1069
(10th Cir. 2009). A complaint that only lists a defendant’s name in the caption without
alleging that the defendant was personally involved in the alleged misconduct fails to
state a claim against that defendant. Krych v. Hvass, 83 F. App’x 854, 855 (8th Cir.
2003).
Out of an abundance of caution, the court will granted Plaintiff leave to file an
amended complaint that states a claim upon which relief can be granted. Failure to
file an amended complaint within the time specified by the court will result in the
court dismissing this action without further notice to Plaintiff.
THEREFORE ORDERED that
1.
Plaintiff shall file an amended complaint by October 3, 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.
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2.
The clerk of the court is directed to set a pro se case management
deadline using the following text: October 3, 2016 check for amended complaint.
DATED this 2nd day of September, 2016.
BY THE COURT:
S/ Richard G. Kopf
Senior United States District Judge

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