Swift et al v. Moss et al

Filing 8

MEMORANDUM AND ORDER - This case is dismissed without prejudice. Judgment will be entered by separate document. 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
CHARLES SWIFT, and ARNETTA
SWIFT,
Plaintiffs,
V.
EUSTACHIA MOSS, individually
and officially, and MICHELLE
ADAMS, individually and officially,
Defendants.

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8:16CV293

MEMORANDUM
AND ORDER

The court previously conducted an initial review of Plaintiffs’ Complaint to
determine whether summary dismissal was appropriate under 28 U.S.C. § 1915(e)(2).
Upon review, the court concluded that Plaintiffs had failed to state a claim. (Filing
No. 6.) However, Plaintiffs were given leave to file an amended complaint. Plaintiffs
have submitted an Amended Complaint and the court will now review it to determine
whether Plaintiffs have asserted any viable claims.
I. SUMMARY OF COMPLAINT
Plaintiffs’ Amended Complaint is one page in length. (Filing No. 7.) It states
that “[w]e stand on our complaint as written,” and then simply states, without detail,
that Defendants illegally searched their trailer. (Filing No. 7 at CM/ECF p. 1.)
II. DISCUSSION
Plaintiffs’ Amended Complaint fails to set forth cognizable claims. The
Eleventh Amendment bars claims for damages by private parties against a state, state
instrumentalities, and an employee of a state sued in the employee’s official capacity.

See, e.g., Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir. 1995); Dover
Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446-47 (8th Cir. 1995).
Consequently, Plaintiffs’ official capacity claims against Defendants, who are
allegedly employed by the State of Nebraska, fail.
Additionally, Plaintiffs have failed to specify how each defendant was
personally involved in the events described in the Amended Complaint. Plaintiffs’
original Complaint named Eustachia Moss and Michelle Adams as defendants.
However, the caption of the Amended Complaint only names “Eustachia” as a
defendant. There are no other specific references to Eustachia in the body of the
Amended Complaint, and Michelle Adams is not mentioned anywhere in the
document. 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. See Krych v. Hvass, 83 F. App’x 854, 855 (8th
Cir. 2003). Plaintiffs’ conclusory allegation that defendants illegally searched their
trailer is insufficient to state a cognizable claim.
IT IS THEREFORE ORDERED that this case is dismissed without prejudice.
Judgment will be entered by separate document.
DATED this 11th day of October, 2016.
BY THE COURT:
S/ Richard G. Kopf
Senior United States District Judge

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