Frank v. Douglas County, et al

Filing 23

MEMORANDUM AND ORDER - Plaintiff's Motion for miscellaneous relief (Filing No. 22 ) is denied without prejudice. Defendant Douglas County is dismissed from the action without prejudice. Defendant Correct Care Solutions is dismissed from the act ion without prejudice. Officers Parks and Rose, in their official and individual capacities, are dismissed from the action without prejudice. Officers Estives, Grothe, and Grahm, in their official capacities only, are dismissed from the action withou t prejudice. The clerk of the court will modify the docket sheet to list Officers Officers Estives, Grothe, and Grahm, in their individual capacities, as the only Defendants of record. The only claim alleged in Plaintiff's Amended Complaint (Fil ing No. 21 ) that will be allowed to proceed is a Fourth Amendment "excessive force" claim alleged against Officers Estives, Grothe, and Grahm, in their individual capacities. All other claims are dismissed without prejudice. For service o f process on Defendants Estives, Grothe, and Grahm, in their individual capacities, the clerk of the court is directed to complete a summons form and a USM-285 form for each Defendant using the address "Douglas County Correctional Center, 710 So uth 17th Street, Omaha, NE 68102," and forward them together with a copy of the Amended Complaint (Filing No. 21 ) and a copy of this Memorandum and Order to the Marshals Service. The Marshals Service shall serve Defendants personally in their individual capacities at the Douglas County Correctional Center, 710 South 17th Street, Omaha, NE 68102. Service may also be accomplished by using any of the following methods: residence, certified mail, or designated delivery service. See Fed eral Rule of Civil Procedure 4(e); Neb. Rev. Stat. § 25-508.01(Reissue 2016). Federal Rule of Civil Procedure 4(m) requires service of the complaint on a defendant within 90 days of filing the complaint. However, Plaintiff is granted, on the cou rt's own motion, an extension of time until 90 days from the date of this order to complete service of process. The United States Marshal shall serve all process in this case without prepayment of fees from Plaintiff. The clerk of the court is directed to set the following pro se case management deadline: January 29, 2018 - Check for completion of service of process. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JESSE A. FRANK,
Plaintiff,
v.
DOUGLAS COUNTY and
CORRECT CARE SOLUTIONS,
Defendants.

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8:17CV0298

MEMORANDUM
AND ORDER

On September 11, 2017, the court entered a Memorandum and Order giving
Plaintiff, who has been granted leave to proceed in forma pauperis, “30 days in which
to file an amended complaint that states a claim on which relief may be granted
against Defendants Douglas County and Correct Care Solutions” (Filing No. 18).1
Plaintiff’s pro se Amended Complaint (Filing No. 21) was filed on October 11, 2017.2
The court now conducts an initial review of the Amended Complaint to determine
whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2).
I. SUMMARY OF AMENDED COMPLAINT
Plaintiff asserts multiple claims pertaining to a 33-day period during which he
was confined in the Douglas County jail as a pretrial detainee.3 Plaintiff alleges he (1)
1

In a Memorandum and Order entered on August 28, 2017 (Filing No. 8), the
court found that Plaintiff’s original Complaint failed to state a claim upon which relief
could be granted against any Defendant. The U.S. Government and Douglas County
Department of Corrections were dismissed from the action as not being subject to suit.
2

Plaintiff also filed a Motion (Filing No. 22) requesting miscellaneous relief.
This Motion will be denied without prejudice.
3

Because Plaintiff was not a prisoner at the time suit was filed, the provisions
of the Prison Litigation Reform Act, including the exhaustion-of-administrative-

was denied medical treatment; (2) was not read his Miranda rights; (3) was wrongly
placed in administrative confinement and was mistreated; (4) was attacked by three
officers; (5) was denied access to the courts; and (6) was denied access to a Bible and
newspaper. Plaintiff seeks to recover $51 billion in damages. In addition to Douglas
County and Correct Care Solutions, Plaintiff names five officers as Defendants:
Estevez, Grahm, Rose, Parks, and Grothe.
II. LEGAL 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

remedies requirement, 42 U.S.C. § 1997e(a), do not apply. See Doe By & Through
Doe v. Washington Cty., 150 F.3d 920, 924 (8th Cir. 1998).
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other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations
omitted).
III. DISCUSSION OF CLAIMS
Plaintiff indicates this action is brought pursuant to 42 U.S.C. § 1983,which
provides a cause of action for “the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws” of the United States. Plaintiff claims to have
been deprived of his rights under the First, Fifth, Sixth, and Fourteenth Amendments.4
A. Claims Against Douglas County
Plaintiff was advised in the court’s August 28th Memorandum and Order that
Douglas County may only be liable under section 1983 if a “policy” or “custom” of
the county caused a violation of the plaintiff’s constitutional rights. Doe, 150 F.3d at
922 (citing Monell v. Department of Soc. Servs., 436 U.S. 658, 694 (1978)). The court
also instructed Plaintiff what he needed to plead and prove in this regard.
Because Plaintiff has not included any factual allegations in the Amended
Complaint to establish the existence of a policy or custom, Douglas County will be
dismissed from the action. Any and all claims alleged against county officers in their
official capacities will also be dismissed. 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.”); Eagle v. Morgan, 88 F.3d 620, 629 n.5 (8th
Cir. 1996) (“‘[A]n official-capacity suit is, in all respects other than name, to be

4

In addition, Plaintiff claims a violation of Neb. Rev. Stat. § 47-705(2), which
provides that “[a]ny person who denies medical services to any individual who is
arrested, detained, taken into custody, or incarcerated, solely on the basis that the
individual is without ... health insurance, ... shall be answerable in civil damages to
the individual denied medical services.” Plaintiff has alleged no facts to show that he
was denied medical care solely because he was uninsured.
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treated as a suit against the entity.”’ (quoting Kentucky v. Graham, 473 U.S. 159, 165
(1985)).
B. Claims Against Correct Care Solutions
Plaintiff was also advised in the court’s August 28th Memorandum and Order
that to state a claim under section 1983 he would need to allege that the deprivation
of his rights 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). The Amended Complaint fails to show that the alleged lack of medical care
was attributable to Correct Care Solutions or that it was acting under color of state
law. Correct Care Solutions therefore will be dismissed from the action.
C. Claims Against Officers
Plaintiff alleges that “on July 6th upon being falsely accused of my assault on
an officer and failure to comply I had three ribs severly [sic] bruised or broken my T4
vertibre [sic] broken, three of my toes were broken by Officers Estives, Grothe,
Grahm, and others that will be brought forward through video evidence. During this
time I was handcuffed behind my back and also had ankle shackles. These officers
carried me behind my back using extreme force dislocating my wrists. Through my
attempts of screaming for help, my face was covered by a wet fabric and these officers
attempted to end my life.” (Filing No. 21 at CM/ECF p. 2, ¶ 4) These allegations are
sufficient to state a plausible Fourth Amendment “excessive force” claim against
Officers Estives, Grothe, and Grahm in their individual capacities. See Kingsley v.
Hendrickson, 135 S. Ct. 2466, 2473 (2015) (“[T]he Due Process Clause protects a
pretrial detainee from the use of excessive force that amounts to punishment.”).
Remaining allegations of the Amended Complaint fail to show that any of these
named Defendants engaged in the conduct that allegedly deprived Plaintiff of his
constitutional rights. That is, Officers Estives, Grothe, and Grahm are not alleged to
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have participated in denying Plaintiff’s requests for prescribed medication (Filing No.
21 at CM/ECF p. 1, ¶ 1), in failing to give Plaintiff Miranda warnings (Filing No. 21
at CM/ECF p. 1, ¶ 2),5 in causing Plaintiff to be placed in administrative confinement
based on false allegations (Filing No. 21 at CM/ECF p. 1, ¶ 3),6 in depriving Plaintiff
of food, clothing, or shower facilities (Filing No. 21 at CM/ECF p. 2, ¶ 3), in denying
Plaintiff’s requests for medical treatment (Filing No. 21 at CM/ECF p. 2, ¶¶ 5, 6), in
denying Plaintiff paper and writing supplies (Filing No. 21 at CM/ECF p. 2, ¶ 7), or
in denying Plaintiff access to a Bible (Filing No. 21 at CM/ECF p. 2, ¶ 8).
Plaintiff does allege that “[a]t one point I was aloud [sic] an hour of ‘recreation
time’ I saw a Free on the Inside Bible, took it to my cell and Officers Parks and Rose
remove[d] said Bible from cell” (Filing No. 21 at CM/ECF p. 2, ¶ 8). Plaintiff further
alleges that “[d]uring this time officer [P]arks also removed a copy of the Omaha
World Herald Newspaper from my cell” (Filing No. 21 at CM/ECF p. 2, ¶ 9). It is
conceivable that these seizures may have violated Plaintiff’s First Amendment rights.
See Kendrick v. Pope, 671 F.3d 686 (8th Cir. 2012) (per curiam) (genuine issue of
material fact as to whether corrections officer confiscated inmate’s Catholic Bible,
rosary beads, and other religious materials during a cell shakedown, and subsequently
failed to return those items, precluded summary judgment in inmate’s § 1983 action
against the officer); Cooper v. Schriro, 189 F.3d 781 (8th Cir. 1999) (prison official’s
alleged denial of “all magazines” and legal and religious materials to prisoner was
restriction on First Amendment rights valid only if reasonably related to legitimate

5

In any event, “[t]he reading of Miranda warnings is a procedural safeguard
rather than a right arising out of the fifth amendment itself, ... the remedy for a
Miranda violation is the exclusion from evidence of any compelled self-incrimination,
not a section 1983 action.” Warren v. City of Lincoln, 864 F.2d 1436, 1442 (8th Cir.
1989) (en banc); Hannon v. Sanner, 441 F.3d 635, 636 (8th Cir. 2006) (same).
6

This claim also fails in general. See Webb v. Hedrick, 409 F. App’x 33, 35 n.
1 (8th Cir. 2010) (“The prohibition against cruel and unusual punishment is focused
on the conditions of the administrative segregation, not on the reasons for placement
there.”).
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penological interests). Whether the allegations made against Officers Parks and Rose
are sufficient to satisfy the “plausibility” pleading standard of Twombly is debatable,
but this question does not need to be answered because their alleged seizures of the
Bible and newspaper from Plaintiff’s cell are unrelated to the Fourth Amendment
“excessive force” claim that is alleged against the other officers.
While a plaintiff may join in one action as many claims as he has against a
single defendant, see Fed. R. Civ. P. 18(a), “in actions where more than one defendant
is named, such as the one at bar, the analysis under Rule 20 precedes that under Rule
18.” Houston v. Shoemaker, No. 2:16-CV-36-CDP, 2017 WL 35699, at *2 (E.D. Mo.
Jan. 4, 2017). Rule 20 provides in part: “Persons ... may be joined in one action as
defendants if ... any right to relief is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same transaction, occurrence, or series
of transactions or occurrences; and ... any question of law or fact common to all
defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). Thus, “[d]espite the
broad language of Rule 18(a), plaintiff may join multiple defendants in a single action
only if plaintiff asserts at least one claim to relief against each of them that arises out
of the same transaction or occurrence and presents questions of law or fact common
to all.” Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 1655 (3d ed. 2016). That situation does not exist in this case.
“Misjoinder of parties is not a ground for dismissing an action,” but the court
on its own may “drop a party” or “sever any claim against a party” in order to
eliminate the misjoinder. Fed. R. Civ. P. 21. Officers Parks and Rose therefore will
be dismissed from the action.
IV. CONCLUSION
Plaintiff’s Amended Complaint fails to state a claim upon which relief can be
granted against Douglas County and Correct Care Solutions, but a plausible Fourth
Amendment “excessive force” claim is alleged against Officers Estives, Grothe, and
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Grahm in their individual capacities. First Amendment claims alleged against Officers
Parks and Rose cannot be joined with the Fourth Amendment claim.
IT IS THEREFORE ORDERED:
1.

Plaintiff’s Motion for miscellaneous relief (Filing No. 22) is denied
without prejudice.

2.

Defendant Douglas County is dismissed from the action without
prejudice.

3.

Defendant Correct Care Solutions is dismissed from the action without
prejudice.

4.

Officers Parks and Rose, in their official and individual capacities, are
dismissed from the action without prejudice.

5.

Officers Estives, Grothe, and Grahm, in their official capacities only, are
dismissed from the action without prejudice.

6.

The clerk of the court will modify the docket sheet to list Officers
Officers Estives, Grothe, and Grahm, in their individual capacities, as
the only Defendants of record.

7.

The only claim alleged in Plaintiff’s Amended Complaint (Filing No. 21)
that will be allowed to proceed is a Fourth Amendment “excessive force”
claim alleged against Officers Estives, Grothe, and Grahm, in their
individual capacities. All other claims are dismissed without prejudice.

8.

For service of process on Defendants Estives, Grothe, and Grahm, in
their individual capacities, the clerk of the court is directed to complete
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a summons form and a USM-285 form for each Defendant using the
address “Douglas County Correctional Center, 710 South 17th Street,
Omaha, NE 68102,” and forward them together with a copy of the
Amended Complaint (Filing No. 21) and a copy of this Memorandum
and Order to the Marshals Service. The Marshals Service shall serve
Defendants personally in their individual capacities at the Douglas
County Correctional Center, 710 South 17th Street, Omaha, NE
68102. 7 Service may also be accomplished by using any of the following
methods: residence, certified mail, or designated delivery service. See
Federal Rule of Civil Procedure 4(e); Neb. Rev. Stat. § 25-508.01
(Reissue 2016).
9.

Federal Rule of Civil Procedure 4(m) requires service of the complaint
on a defendant within 90 days of filing the complaint. However, Plaintiff
is granted, on the court’s own motion, an extension of time until 90 days
from the date of this order to complete service of process.

10.

The United States Marshal shall serve all process in this case without
prepayment of fees from Plaintiff.

7

Pro se litigants proceeding in forma pauperis are entitled to rely on service by
the United States Marshals Service. Wright v. First Student, Inc., 710 F.3d 782, 783
(8th Cir. 2013). Pursuant to 28 U.S.C. § 1915(d), in an in forma pauperis case, “[t]he
officers of the court shall issue and serve all process, and perform all duties in
such cases.” See Moore v. Jackson, 123 F.3d 1082, 1085 (8th Cir. 1997) (language
in § 1915(d) is compulsory). See, e.g., Beyer v. Pulaski County Jail, 589 Fed. Appx.
798 (8th Cir. 2014) (unpublished) (vacating district court order of dismissal for failure
to prosecute and directing district court to order the Marshal to seek defendant’s lastknown contact information where plaintiff contended that the jail would have
information for defendant’s whereabouts); Graham v. Satkoski, 51 F.3d 710, 713 (7th
Cir. 1995) (when court instructs Marshal to serve papers for prisoner, prisoner need
furnish no more than information necessary to identify defendant; Marshal should be
able to ascertain defendant’s current address).
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11.

The clerk of the court is directed to set the following pro se case
management deadline: January 29, 2018—Check for completion of
service of process.

DATED this 30th day of October, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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