Davis v. Nebraska Department of Health and Human Services et al

Filing 6

MEMORANDUM AND ORDER - Plaintiff shall file an amended complaint by December 15, 2016. Failure to file an amended complaint will result in the dismissal of this action without further notice to Plaintiff. The clerk of court is directed to set a case management deadline in this case using the following text: December 15, 2016: check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy e-mailed to pro se party) (KLF) Modified on 11/15/2016 to correct text (KLF).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JASON J. DAVIS,
Plaintiff,
V.
NEBRASKA DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
NEBRASKA
FAMILIES
COLLABORATIVE, SARPY
COUNTY ATTORNEY, CASA OF
SARPY COUNTY, CAPSTONE
BEHAVIORAL HEALTH,
BE N E F I CIAL BE H A V I O RA L
HEALTH, ANGELA THELEN, PSW
NDHHS and Individual, DAVID
NEWELL, NFC and Individual,
DONNA ROZELL, NFC and
Individual,
JEFFERY
VANDENBERG, NFC and Individual,
LISA MINARDI, NFC and Individual,
JENNIFER RICHEY, NFC and
Individual, MICHELLE ADAMS,
NFC and Individual, SANDRA
MARKLEY, Deputy Sarpy County
Attorney and Individual, and RAY
KOPP, CASA of Sarpy County and
Individual,
Defendants.

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8:16CV385

MEMORANDUM AND ORDER

This matter is before the court on initial review of Plaintiff’s Complaint (Filing
No. 1) under 28 U.S.C. § 1915(e). The court finds that Plaintiff’s complaint fails to
state a claim. However, out of an abundance of caution, the court will grant Plaintiff
leave to file an amended complaint.

I. SUMMARY OF COMPLAINT
Plaintiff’s Complaint (Filing No. 1) names multiple defendants, including the
Nebraska Department of Health and Human Services, Nebraska Families
Collaborative, Sarpy County Attorney’s Office, CASA of Sarpy County, Capstone
Behavioral Health, Beneficial Behavioral Health, and several purported state and
county employees. Plaintiff maintains that the defendants failed to properly
investigate claims relating to a petition which sought to have Plaintiff’s children
removed from his custody. He also asserts that the defendants interfered with a state
investigation and conspired to cover-up their misconduct. In addition, Plaintiff
vaguely references religious discrimination and harassment claims. Plaintiff seeks
monetary relief, the termination and prosecution of certain employees, a public
apology, and that the State of Nebraska be ordered to terminate its contractual
relationship with Defendant Nebraska Families Collaborative.
II. APPLICABLE 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.”).

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“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).
III. DISCUSSION
1.

Claims Against the State of Nebraska and Official Capacity Claims

Plaintiff has failed to state claims against the State of Nebraska. 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). Any
award of retroactive monetary relief payable by the state, including for back pay or
damages, is proscribed by the Eleventh Amendment absent a waiver of immunity by
the state or an override of immunity by Congress. See, e.g., id.; Nevels v. Hanlon, 656
F.2d 372, 377-78 (8th Cir. 1981). Sovereign immunity does not, however, bar
damages claims against state officials acting in their personal capacities, nor does it
bar claims brought pursuant to 42 U.S.C. §1983 that seek equitable relief from state
employee defendants acting in their official capacity.
Here, Plaintiff seeks monetary damages against the Nebraska Department of
Health and Human Services, as well as other purported state entities. These claims
are barred by the Eleventh Amendment. Likewise, Plaintiff’s claims seeking
monetary relief against the state employee defendants in their official capacities are

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precluded.1
2.

Claims Against Sarpy County

Plaintiff has failed to state a claim against Sarpy County and the county
employees acting in their official capacities. As a municipality, Sarpy 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).
Moreover, a claim against an individual in his official capacity is, in reality, a claim
against the entity that employs the official, in this case, Sarpy County. See Parrish
v. Luckie, 963 F.2d 201, 203 n.1 (8th Cir. 1992). Plaintiff has failed to allege that a
county policy or custom caused a violation of his constitutional rights. Therefore,
Plaintiff has not stated viable claims against Sarpy County or its employees in their
official capacities.
3.

Individual Capacity Claims

Plaintiff has also asserted individual capacity claims against purported state and
county employees. However, Plaintiff’s allegations fail to state viable causes of
action. Plaintiff’s claims are wholly conclusory and fail to set forth the factual detail
necessary to state plausible claims. Plaintiff does not provide any details of the
referenced legal proceedings, or present factual allegations to substantiate his claims
of harassment and discrimination. Moreover, Plaintiff’s allegations fail to clearly
specify the precise wrongful acts performed by each defendant. Therefore, Plaintiff’s
This court does not have authority to direct an official to prosecute claims
or order someone to apologize for behavior. See Sullivan v. Ortley, No. CV-11131-M-DWM-JCL, 2011 WL 4857384, *3 (D. Mont. Oct. 13, 2011) (stating that
the court did not have authority to grant plaintiff’s request for an apology or order
that individuals be prosecuted for alleged crimes). Moreover, the court does not
have authority to order that employees be terminated or that Nebraska terminate
contractual relationships.
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individual capacity claims fail.
Out of an abundance of caution, the court will grant Plaintiff leave to file an
amended complaint. In doing so, Plaintiff shall keep the deficiencies outlined above
in mind. The amended complaint will supersede, rather than supplement, the
Complaint filed in this case.
IT IS THEREFORE ORDERED:
1.

Plaintiff shall file an amended complaint by December 15, 2016. Failure
to file an amended complaint will result in the dismissal of this action
without further notice to Plaintiff.

2.

The clerk of court is directed to set a case management deadline in this
case using the following text: December 15, 2016: check for amended
complaint.

DATED this 15th day of November, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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