Johnson v. Douglas County Department of Corrections et al
MEMORANDUM AND ORDER - On the court's own motion, the court will give Plaintiff 30 days in which to file an Amended Complaint that alleges sufficient facts to show that the court has subject matter jurisdiction over the claim alleged. Failure to file an Amended Complaint within 30 days will result in the court dismissing the case without further notice to Plaintiff. The clerk of the court is directed to set the following pro se case management deadline: February 9, 2018: 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
VERNON R. JOHNSON,
DOUGLAS COUNTY DEPARTMENT OF )
CORRECTIONS, CORRECT CARE
SOLUTIONS, and DOCTOR ASH,
Plaintiff, Vernon Johnson, filed his Complaint (Filing No. 1) on November 30,
2017, and was subsequently granted leave to proceed in forma pauperis (Filing No.
7). The court now conducts an initial review of Johnson’s Complaint and to determine
whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.
I. SUMMARY OF COMPLAINT
Johnson is confined at the Douglas County Corrections Center (“DCCC”).
Johnson alleges a request for medication he submitted on September 23, 2017, was
denied. He claims Defendants were negligent in failing to provide medical care.
II. LEGAL STANDARDS ON INITIAL REVIEW
The court is required to review prisoner and in forma pauperis complaints
seeking relief against a governmental entity or an officer or employee of a
governmental entity to determine whether summary dismissal is appropriate. See 28
U.S.C. §§ 1915(e) and 1915A. 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
III. DISCUSSION OF CLAIMS
Johnson alleges his Complaint is filed pursuant to the Nebraska Political
Subdivisions Tort Claims Act (“PSTCA”), Neb. Rev. Stat. §§ 13-901 to 13-928.1 No
claim arising under federal law is alleged.
Federal court diversity jurisdiction of state law claims requires an amount in
controversy greater than $75,000 and complete diversity of citizenship between the
litigants. 28 U.S.C. § 1332(a). The allegations of Johnson’s Complaint fail to show
that either jurisdictional requirement is satisfied here.
The Complaint erroneously references “§ 13-1905 et seq.”
“In this circuit, the amount in controversy is measured by the value to the
plaintiff of the right sought to be enforced.” Federated Mut. Ins. Co. v. Moody Station
& Grocery, 821 F.3d 973, 977 (8th Cir. 2016) (quoting Schubert v. Auto Owners Ins.
Co., 649 F.3d 817, 821 (8th Cir. 2011)). Johnson does not allege the jurisdictional
amount is satisfied, or even request an award of monetary damages, but merely
complains he did not receive adequate medical treatment for relief of “pain, numbness
and locking of joints in both hands” associated with carpal tunnel syndrome.
Johnson does not allege his citizenship. Although Douglas County Department
of Corrections is not a proper Defendant, 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), the county is a political subdivision
of the State of Nebraska. Thus, if Douglas County is named as a Defendant, and if
Johnson is a citizen of Nebraska, diversity jurisdiction does not exist and an action
under Nebraska’s PSTCA cannot be brought in federal court. The same is true if either
Correct Care Solutions or Doctor Ash are citizens of the same State as Johnson.
Johnson’s Complaint fails to show that the court has subject matter jurisdiction
over the claim alleged. On the court’s own motion, however, Johnson will be given
30 days in which to file an Amended Complaint to correct this pleading defect.
IT IS ORDERED:
1. On the court’s own motion, the court will give Plaintiff 30 days in which to
file an Amended Complaint that alleges sufficient facts to show that the court has
subject matter jurisdiction over the claim alleged. Failure to file an Amended
Complaint within 30 days will result in the court dismissing the case without further
notice to Plaintiff.
2. The clerk of the court is directed to set the following pro se case management
deadline: February 9, 2018: check for amended complaint.
DATED this 10th day of January, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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