Valentine v. Foxall et al
MEMORANDUM AND ORDER - Plaintiff shall file an amended complaint by November 27, 2017, 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 dismissi ng 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: November 27, 2017 - check for amended complaint. 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
FOXALL, Director of Douglas
County of Correctional Center, and
UNKNOWN JANE AND JOHN
DOE CORRECTIONAL OFFICERS, )
Plaintiff filed her Complaint in this matter on September 8, 2017. (Filing No.
1.) Plaintiff has been given leave to proceed in forma pauperis. (Filing No. 5.) The
court now conducts and initial review of the Complaint to determine whether summary
dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I. SUMMARY OF COMPLAINT
Plaintiff alleges that on September 7, 2017, Judge Randall ordered that she be
released from the Douglas County Jail, but she was held in jail until the next day. She
seeks relief in the amount of $100,000,000.00.
II. 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
other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations
Liberally construed, Plaintiff here 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).
Plaintiff contends that Defendants failed to follow a court order which directed
that she be released from custody. However, because Plaintiff’s Complaint does not
specify whether she is suing Defendants in their official or individual capacities, this
court presumes they are sued in their official capacities only. See Johnson v. Outboard
Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (“This court has held that, in order
to sue a public official in his or her individual capacity, a plaintiff must expressly and
unambiguously state so in the pleadings, otherwise, it will be assumed that the
defendant is sued only in his or her official capacity.”). A claim against an individual
in his official capacity is, in reality, a claim against the entity that employs the
official—in this case, Douglas County, Nebraska. 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. A plaintiff seeking damages in an
official-capacity suit is seeking a judgment against the entity.” (internal citations
omitted)). Douglas County can only be liable under § 1983 if a municipal policy or
custom caused Plaintiff’s injury. See Monell v. New York Department of Social
Services, 436 U.S. 658, 694 (1978). Plaintiff has not made allegations supporting such
On the court’s own motion, the court will provide Plaintiff with an opportunity
to file an amended complaint 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.
IT IS THEREFORE ORDERED that:
Plaintiff shall file an amended complaint by November 27, 2017, 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.
The clerk of the court is directed to set a pro se case management deadline
using the following text: November 27, 2017—check for amended complaint.
DATED this 25th day of October, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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