Mixon v. Omaha Police Department Officers et al

Filing 42

MEMORANDUM AND ORDER - Douglas County Correctional Center is dismissed from this matter because it is a non-suable entity. Plaintiff shall have 30 days to file a second amended complaint in accordance with this Memorandum and Order. Failure to file a second amended complaint within the time specified by the court will result in the court dismissing this case without further notice to Plaintiff. In his second amended complaint, Plaintiff must identify each defendant by name and set forth all of P laintiff's claims (and any supporting factual allegations) against that defendant. Plaintiff should be mindful to explain in his second amended complaint what each defendant did to him, when the defendant did it, and how the defendant's act ions harmed him. In the event that Plaintiff files a second amended complaint, Plaintiff shall restate the allegations of the Amended Complaint (filing no. 36 ) and any new allegations. Failure to consolidate all claims into one document may result in the abandonment of claims. Plaintiff is warned that a second amended complaint will supersede, not supplement, his prior pleadings. The court reserves the right to conduct further review of Plaintiff's claims pursuant to 28 U.S.C. §§ ; 1915(e) and 1915A in the event he files a second amended complaint. The clerk of the court is directed to set a pro se case management deadline using the following text: June 17, 2019: check for second amended complaint. The clerk of court i s directed to send to Plaintiff a blank civil complaint form for violation of civil rights (prisoner). The clerk's office is directed to remove Defendants Omaha Police Department Officers and Douglas County Correctional Center from this action. The clerk's office is further directed to amend the caption to reflect that "Correct Care Solutions" is named as a Defendant in this matter and to change Defendant Mark Foxall's title so that his name reads "Mark Foxhall, Dir ector." Plaintiff shall keep the court informed of his current address at all times while this case is pending. Failure to do so may result in dismissal without further notice. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MATTHEW O. MIXON,
Plaintiff,

8:17CV325

vs.
OMAHA POLICE DEPARTMENT
OFFICERS, on 09-07-2015; DOUGLAS
COUNTY DEPT. OF CORRECTIONS,
MEDICAL DEPARTMENT
EMPLOYEES, DOUGLAS COUNTY
NEBRASKA, all as Defendants;
DOUGLAS COUNTY
CORRECTIONAL CENTER, MARK
FOXALL, Director Correct Care
Solutions; and DOCTOR ASH,

MEMORANDUM
AND ORDER

Defendants.
This matter is before the court upon review of Plaintiff’s Amended
Complaint (filing no. 36) to determine whether summary dismissal is appropriate
under 28 U.S.C. §§ 1915(e) and 1915A.
I. BACKGROUND
Plaintiff, an inmate currently in the custody of the Nebraska Department of
Correctional Services (“NDCS”) at the Work Ethic Camp in McCook, Nebraska,
filed this action on September 6, 2017, seeking damages for alleged injuries and
rights violations relating to his 2015 arrest, conviction, and incarceration in the
Douglas County Department of Corrections (“DCDC”). Plaintiff sued various
Omaha Police Department (“OPD”) officers, Jacquelyn Morrison (“Morrison”) of
the Douglas County Public Defender’s Office, Julie L. Medina (“Medina”) of the
Douglas County Attorney’s Office, unspecified Medical Department Employees of

the DCDC (hereinafter “DCDC medical employees”), and Douglas County
alleging violations of his rights under the Fourth, Sixth, Eighth, and Fourteenth
Amendments.
The court conducted an initial review of Plaintiff’s Complaint on October
30, 2018. (Filing No. 35.) The court dismissed Plaintiff’s claims against the OPD
officers, Medina, and Morrison in their official capacities for failure to state a
claim and determined amendment would be futile as such claims would either be
barred by prosecutorial immunity or the Supreme Court’s decision in Heck v.
Humphrey, 512 U.S. 477 (1994). The court, however, gave Plaintiff leave to file an
amended complaint with respect to his Eight Amendment deliberate indifference
claim against Douglas County and/or the DCDC medical employees.
Plaintiff filed his Amended Complaint on November 26, 2018. (Filing No.
36.)
II. SUMMARY OF AMENDED COMPLAINT
Plaintiff’s Amended Complaint alleges violations of his rights under the
Eighth and Fourteenth Amendments against the Douglas County Correctional
Center1; Mark Foxall (“Foxall”), Director of the DCDC; Correct Care Solutions;
Dr. Ash of the DCDC Medical Department; the DCDC medical employees; and
Douglas County in their official and individual capacities.
Plaintiff’s “Summary of Facts” borrows language from the court’s
Memorandum and Order on initial review (filing no. 36) and states, in relevant
part:

1

Plaintiff refers both to the Douglas County Correctional Center and the Douglas County
Department of Corrections in his Amended Complaint. The court will consider the names
interchangeable and as referring to the same entity.

2

Plaintiff’s injuries arise out of his arrest on September 7, 2015,
and November 19, 2015, both times while being confined within the
(“DCDC”) for the same injuries.
Plaintiff states that the Defendant’s [sic], DCDC medical
employees knew that Plaintiff needed medications, delayed giving
him his medications, did not give him his medications correctly or in
the proper amount and failed to properly house him while confined
within (DCDC). As a result, Plaintiff experienced confusion,
dizziness, sleepiness, loss of appetite, multiple seizures, and injuries
from falling due to seizures. . . . Plaintiff further states that the DCDC
placed him on the second floor and required him to walk up the stairs
which was dangerous due to his seizure condition not being properly
provided and medicated. . . . Plaintiff also states he [was] forced to
live [in] an “unsafe housing [sic] mod” where he lacked access to an
emergency button if he had a seizure and where no corrections
officers were in the mod between 11:00 p.m. and 7:00 A.M.
(Filing No. 36 at CM/ECF pp. 2–3 (citations omitted) (fourth alteration in
original).)
As relief, Plaintiff seeks $2,000,000.00 in damages and “sanctions” against
all Defendants. (Id. at CM/ECF p. 4.)
III. DISCUSSION
Liberally construed, Plaintiff alleges claims of deliberate indifference to his
medical needs against Defendants in their official and individual capacities. As an
initial matter, the DCDC and/or the Douglas County Correctional Center is not a
distinct legal entity subject to suit. See Dan v. Douglas Cty. Dep’t of Corr., No.
8:06CV714, 2009 WL 483837, at *4 (D. Neb. Feb. 25, 2009) (“the Department of
Corrections and other units within the DCCC and Douglas County lack the legal
capacity to sue or be sued in their own names”); see also Ketchum v. City of West
Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992) (departments or subdivisions of
local government are “not juridical entities suable as such”); Marsden v. Fed.
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Bureau of Prisons, 856 F.Supp. 832, 836 (S. D. N. Y. 1994) (jails are not entities
amenable to suit). Accordingly, any claims against the DCDC are dismissed.
A. Official Capacity Claims
Plaintiff’s official capacity claims against Foxall, Dr. Ash, and the DCDC
medical employees are claims against Douglas County. “A suit against a public
employee in his or her official capacity is merely a suit against the public
employer.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999);
see also Owens v. Scott Cty. Jail, 328 F.3d 1026, 1027 (8th Cir. 2003) (“[C]ounty
jails are not legal entities amenable to suit.”). Plaintiff also alleges an officialcapacity claim against Correct Care Solutions. Plaintiff must allege that a “policy”
or “custom” caused a violation of his constitutional rights in order to state a
plausible claim against Douglas County or Correct Care Solutions.
A county may only be liable under section 1983 if its “policy” or “custom”
caused a violation of Plaintiff’s constitutional rights. Doe By and Through Doe v.
Washington County, 150 F.3d 920, 922 (8th Cir. 1998) (citing Monell v.
Department of Soc. Servs., 436 U.S. 658, 694 (1978)). Similarly, “[a] corporation
acting under color of state law will only be held liable under § 1983 for its own
unconstitutional policies.” Sanders v. Sears, Roebuck & Col., 984 F.2d 972, 975
(8th Cir. 1993) (citing Monell, 436 U.S. at 690). An “official policy” involves a
deliberate choice to follow a course of action made from among various
alternatives by an official who has the final authority to establish governmental
policy. Jane Doe A By and Through Jane Doe B v. Special School Dist. of St. Louis
County, 901 F.2d 642, 645 (8th Cir.1990) (citing Pembaur v. City of Cincinnati,
475 U.S. 469, 483 (1986)).
To establish the existence of a governmental custom, a plaintiff must prove:
1) The existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entity’s employees;
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2) Deliberate indifference to or tacit authorization of such conduct by
the governmental entity’s policymaking officials after notice to the
officials of that misconduct; and
3) That plaintiff was injured by acts pursuant to the governmental
entity’s custom, i.e., that the custom was the moving force behind the
constitutional violation.
Jane Doe, 901 F.2d at 646.
Here, no facts are alleged in the Amended Complaint to show that Plaintiff’s
injuries were caused by a policy or custom of Douglas County or Correct Care
Solutions. Plaintiff merely alleges in conclusory fashion that “[w]hen ‘DCDC’
failed to follow their policy in providing medical attention and medications, this
was a deliberate choice made to follow a seperate [sic] course of action made from
various alternatives by the Medical Staff and an official who has the final authority
to establish such policy.” (Filing No. 36 at CM/ECF p. 6.) Additionally, Plaintiff
claims that “the governmental entity’s employees” engaged in a “continuing,
widespread persistent pattern of unconstitutional misconduct” by “fail[ing] to
adequately provide Plaintiff his medication, to adequately provide the Housing of
Medical Unit due to his serious nature of ‘SEIZURES’, after it was clearly known
of its existence, and the prolonged time to properly follow the (‘policy or
customs’).” (Id. at CM/ECF pp. 6–7.) Plaintiff further alleges that Correct Care
Solutions failed to provide him any medication after his initial medical screening at
the DCDC, that Plaintiff had to have his wife provide him medications from his
home, and that “[t]his custom is not the practices of any Medical Provider, nor of
Douglas County Department of Corrections and to allow Correct Care Solutions to
impliment [sic] different policy is a direct cause of Plaintiffs deliberate
indiff[e]rence to his medical [needs] throughout his confine[ment] within
(D.C.C.C.).” (Id. at CM/ECF p. 11–12.)

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“Although [Plaintiff] 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 . . . which the court
could begin to draw an inference that the conduct complained of . . . resulted from
an unconstitutional policy or custom of the County or a deliberate choice by a
decision-maker with final authority.” Bartunek v. Hall Cty. Nebraska, No.
8:18CV489, 2019 WL 1126056, at *3 (D. Neb. Mar. 12, 2019) (quoting Cotton v.
Douglas Cty. Dep’t of Corr., No. 8:16CV153, 2016 WL 5816993, at *6 (D. Neb.
Oct. 5, 2016)). “‘At a minimum, a complaint must allege facts which would
support the existence of an unconstitutional policy or custom.’” CrumpleyPatterson v. Trinity Lutheran Hosp., 388 F.3d 588, 591 (8th Cir. 2004) (quoting
Doe v. Sch. Dist. of Norfolk, 340 F.3d 605, 614 (8th Cir. 2003)).
“Determining whether a complaint states a plausible claim for relief will . . .
be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “But
where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—
‘that the pleader is entitled to relief.’” Id. (quoting Fed. R. Civ. P. 8(a)(2)). “While
legal conclusions can provide the framework of a complaint, they must be
supported by factual allegations.” Id. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id. at
678.
Plaintiff does not identify any unconstitutional policy that Defendants might
have been following during his confinement at the DCDC, but rather alleges that
Defendants acted contrary to established policy by failing to provide him his
medication. Plaintiff attempts to allege that Defendants made a deliberate choice to
disregard their policy when they failed to provide him proper medical attention and
medications, but his allegations are wholly unsupported by any factual allegations
and, instead, rely on vague generalities. In other words, Plaintiff’s Amended
Complaint did not fix the problem that this court identified in its October 30, 2018
6

Memorandum and Order, and his amended pleading still fails to state a claim of
deliberate indifference to his medical needs against Douglas County or against any
Defendants in their official capacities. Plaintiff’s official-capacity claims therefore
remain subject to dismissal under . . . The court will therefore dismiss Plaintiff’s
official capacity claims without prejudice and without leave to amend pursuant to
28 U.S.C. § 1915(e)(2). See, e.g., McCullough v. Sarpy Cty., No. 8:18CV194, 2019
WL 234776, at *3 (D. Neb. Jan. 16, 2019) (“Because Plaintiff has provided no
more than unadorned accusations, ‘supported by mere conclusory statements,’
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), the court finds that he has not pleaded
sufficient facts to state a claim against Sarpy County.”); Sailors v. US Marshals
Serv. Dep’t, No. 8:18CV189, 2018 WL 4300122, at *3 (D. Neb. Sept. 10, 2018)
(“Plaintiff’s Complaint includes the undefined phrase ‘policy and practice,’ but
does not allege facts even hinting at a City of Lincoln official’s deliberate choice to
follow a course of action made from among various alternatives (a ‘policy’) or a
continuing, widespread, persistent pattern of unconstitutional misconduct (a
‘custom’).”).
B. Individual Capacity Claims
Liberally construed, Plaintiff alleges claims of deliberate indifference to his
medical needs against Foxall, Dr. Ash, and the unspecified DCDC medical
employees in their individual capacities. To prevail on an Eighth Amendment
inadequate medical care claim, a plaintiff must prove that the defendants acted
with deliberate indifference to his serious medical needs. See Estelle v. Gamble,
429 U.S. 97, 106 (1976). The deliberate indifference standard includes both an
objective and a subjective component, requiring the plaintiff to demonstrate that
(1) he suffered from objectively serious medical needs, and (2) the defendants
knew of, but deliberately disregarded, those needs. See Jolly v. Knudsen, 205 F.3d
1094, 1096 (8th Cir. 2000) (citing Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th
Cir.1997)). For a claim of deliberate indifference, “the prisoner must show more
than negligence, more even than gross negligence, and mere disagreement with
treatment decisions does not rise to the level of a constitutional violation.
7

Deliberate indifference is akin to criminal recklessness, which demands more than
negligent misconduct.” Popoalii v. Corr. Med. Servs., 512 F.3d 488, 499 (8th Cir.
2008) (internal quotation marks and citations omitted).
Here, Plaintiff names the DCDC Director Foxall and “Dr. Ash of the
Medical Department for ‘DCDC medical employees’” as defendants but does not
allege any specific acts committed by them. “It is well settled that § 1983 does not
impose respondeat superior liability.” Hughes v. Stottlemyre, 454 F.3d 791, 798
(8th Cir. 2006) (internal quotation marks omitted). To state a § 1983 claim, the
plaintiff must allege that the defendant was personally involved in or had direct
responsibility for incidents that resulted in injury. Martin v. Sargent, 780 F.2d
1334, 1338 (8th Cir. 1985). “Supervisors can, however, ‘incur liability . . . for their
personal involvement in a constitutional violation, or when their corrective inaction
amounts to deliberate indifference to or tacit authorization of violative practices.’”
Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010) (quoting Choate v. Lockhart,
7 F.3d 1370, 1376 (8th Cir. 1993)). Plaintiff does not allege any facts suggesting
that Foxall and Dr. Ash were personally involved in any violations of Plaintiff’s
constitutional rights or were responsible for any incidents that resulted in injury to
Plaintiff. As such, Plaintiff has failed to state plausible claims for relief against
Foxall and Dr. Ash in their individual capacities. Out of an abundance of caution,
the court will grant Plaintiff leave to file a second amended complaint that states a
plausible claim of deliberate indifference to Plaintiff’s medical needs against
Foxall and Dr. Ash in their individual capacities.
Plaintiff alleges that the unspecified DCDC medical employees failed to
provide him his necessary seizure medication resulting in injuries to Plaintiff. In
light of the liberal pleading standard afforded to pro se litigants, the court finds that
Plaintiff has stated a plausible claim of deliberate indifference to Plaintiff’s
medical needs under the Eighth and Fourteenth Amendments against the DCDC
medical employees in their individual capacities. See Dadd v. Anoka Cty., 827 F.3d
749, 756–57 (8th Cir. 2016) (“When an official denies a person treatment that has
been ordered or medication that has been prescribed, constitutional liability may
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follow.”); Phillips v. Jasper Cty. Jail, 437 F.3d 791, 796 (8th Cir. 2006) (“[T]he
knowing failure to administer prescribed medicine can itself constitute deliberate
indifference.”). However, Plaintiff has not provided “any identifying information
about specific DCDC medical employees who he alleges were deliberately
indifferent to his medical needs” as directed by the court in its Memorandum and
Order on initial review. (Filing No. 35 at CM/ECF p. 11.) Normally, as a litigant
proceeding in forma pauperis in this case, Plaintiff would be entitled to have
service of process performed by the United States Marshals. However, the United
States Marshal’s Service cannot initiate service upon unknown defendants, and
Plaintiff’s claims cannot proceed against unspecified and unknown defendants.
IV. CONCLUSION
In its present form, Plaintiff’s Amended Complaint fails to state a claim
upon which relief can be granted against Defendants in their official capacities or
against Foxall and Dr. Ash in their individual capacities. Plaintiff’s individualcapacity claims against the unspecified DCDC medical employees cannot proceed
forward so long as the defendants remain unknown and unidentified.
On the court’s own motion, Plaintiff shall have 30 days from the date of this
Memorandum and Order to file a second amended complaint that sufficiently states
his Eighth and Fourteenth Amendment claims against specific, named defendants.
The second amended complaint must specify in what capacity defendants are sued,
must identify each defendant by name, and must set forth all of Plaintiff’s claims
(and any supporting factual allegations) against that defendant. To be clear,
Plaintiff’s second amended complaint must restate the relevant allegations of his
Amended Complaint (filing no. 36) and any new allegations. Plaintiff should be
mindful to explain what each defendant did to him, when the defendant did it, and
how the defendant’s actions harmed him. Plaintiff is warned that any amended
complaint he files will supersede, not supplement, his prior pleadings. Plaintiff is
encouraged to use the court-approved form to draft his second amended complaint,
which the clerk of the court will provide to him.
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If Plaintiff fails to file a second amended complaint in accordance with this
Memorandum and Order, this action will be dismissed without prejudice and
without further notice. The court reserves the right to conduct further review of
Plaintiff’s claims pursuant to 28 U.S.C. §§ 1915(e) and 1915A after he addresses
the matters set forth in this Memorandum and Order.
IT IS THEREFORE ORDERED:
1.
Douglas County Correctional Center is dismissed from this matter
because it is a non-suable entity.
2.
Plaintiff shall have 30 days to file a second amended complaint in
accordance with this Memorandum and Order. Failure to file a second amended
complaint within the time specified by the court will result in the court dismissing
this case without further notice to Plaintiff. In his second amended complaint,
Plaintiff must identify each defendant by name and set forth all of Plaintiff’s
claims (and any supporting factual allegations) against that defendant.
Plaintiff should be mindful to explain in his second amended complaint what
each defendant did to him, when the defendant did it, and how the
defendant’s actions harmed him.
3.
In the event that Plaintiff files a second amended complaint, Plaintiff
shall restate the allegations of the Amended Complaint (filing no. 36) and any new
allegations. Failure to consolidate all claims into one document may result in the
abandonment of claims. Plaintiff is warned that a second amended complaint
will supersede, not supplement, his prior pleadings.
4.
The court reserves the right to conduct further review of Plaintiff’s
claims pursuant to 28 U.S.C. §§ 1915(e) and 1915A in the event he files a second
amended complaint.

10

5.
The clerk of the court is directed to set a pro se case management
deadline using the following text: June 17, 2019: check for second amended
complaint.
6.
The clerk of court is directed to send to Plaintiff a blank civil
complaint form for violation of civil rights (prisoner).
7.
The clerk’s office is directed to remove Defendants Omaha Police
Department Officers and Douglas County Correctional Center from this action.
The clerk’s office is further directed to amend the caption to reflect that “Correct
Care Solutions” is named as a Defendant in this matter and to change Defendant
Mark Foxall’s title so that his name reads “Mark Foxhall, Director.”
8.
Plaintiff shall keep the court informed of his current address at all
times while this case is pending. Failure to do so may result in dismissal without
further notice.
Dated this 16th day of May, 2019.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

11