Dvorak v. State of Nebraska et al
Filing
8
MEMORANDUM AND ORDER - The State of Nebraska is dismissed as a Defendant. The clerk of the court shall amend the caption in this case by replacing defendant Douglas County Corrections with Douglas County. If Plaintiff wishes to pursue claims against Douglas County, he will need to allege facts indicating thatDouglas County has a policy or custom of being deliberately indifferent to the serious medical needs of inmates at the Douglas County Correctional Center pursuant to the discussion in sectio n III(A) of this Memorandum and Order. Plaintiff shall file an amended complaint that states a claim upon whichrelief may be granted by April 20, 2018. Failure to file an amended complaint within the time specified by the court will result in the cou rt dismissing this case without further notice to Plaintiff. Plaintiff's requests for the appointment of counsel and an investigator are denied. The clerk of the court is directed to set a pro se case management deadline using the following text: April 20, 2018amended complaint due.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
ZACHEREY DANIEL DVORAK,
Plaintiff,
v.
STATE OF NEBRASKA and
DOUGLAS COUNTY
CORRECTIONS,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
8:17CV467
MEMORANDUM
AND ORDER
Plaintiff, an inmate in the Douglas County Correctional Center, brings this 42
U.S.C. § 1983 action for money damages against Douglas County Corrections and the
State of Nebraska. The court previously granted Plaintiff permission to proceed in
forma pauperis in this action. The court now conducts an initial review of the
Complaint (Filing No. 1) to determine whether summary dismissal is appropriate
under 28 U.S.C. §§ 1915(e) and 1915A.
I. SUMMARY OF COMPLAINT
Plaintiff alleges that the Defendants are violating “all [his] civil rights” because
“they are ignoring [him].” (Filing No. 1 at CM/ECF p. 4.) Plaintiff claims unnamed
“state employees” have ignored his grievances regarding denial of medical attention
and have “come into [his] cell while [he] was sleep[ing] and done surgery.” (Filing
No. 1 at CM/ECF p. 5.)
Plaintiff asks the court to obtain his grievances because “they” will not send
him copies; to “compare [his] body to old x-rays of doctors and hospitals”; to
“investigate all employees” regarding his allegations; to “help [him] to gain control
of [his] life and put things back together to be an American citizen with rights as every
American”; and to “provide a legal team.” (Filing No. 1 at CM/ECF pp. 5, 7-8
(capitalization corrected).)
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); 28 U.S.C. § 1915A(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
omitted).
Liberally construed, Plaintiff here attempts to allege federal constitutional
claims. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of
2
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).
III. DISCUSSION
A. Douglas County Department of Corrections
The 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 DCDC lacks the legal capacity to sue or be sued in its own
name because it has no elected or appointed governing body with the authority to
make appropriations and expenditures apart from Douglas County). Because the
DCDC is not a separate legal entity from Douglas County, Plaintiff’s claims against
the DCDC shall be construed as claims against Douglas County. Parsons v. McCann,
138 F. Supp. 3d 1086, 1097 (D. Neb. 2015) (Nebraska law allows counties to sue and
be sued, but the same is not true of county offices and departments); Griggs v.
Douglas Cty. Corr. Ctr., No. 8:07CV404, 2008 WL 1944557, at *1 (D. Neb. Apr. 29,
2008) (same); Porter v. Hennepin Cty., No. CIV. 06-3142, 2006 WL 3841540, at *1
(D. Minn. Dec. 29, 2006) (dismissing county department of community corrections
as defendant in 42 U.S.C. § 1983 action because department was not separate legal
entity from county itself).
A county “may only be held liable for constitutional violations which result
from a policy or custom of the municipality,” Yellow Horse v. Pennington Cty., 225
F.3d 923, 928 (8th Cir. 2000), whether the policy or custom is “made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official
policy.” Gladden v. Richbourg, 759 F.3d 960, 968 (8th Cir. 2014); Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 691 (1978) (“Congress did not intend municipalities to be
3
held liable unless action pursuant to official municipal policy of some nature caused
a constitutional tort.”).
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;
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.
As presently written, Plaintiff’s Complaint fails to state a claim upon which
relief can be granted because Plaintiff makes no allegations whatsoever relating to the
existence of a Douglas County policy or custom of being deliberately indifferent to
the serious medical needs of inmates at the Douglas County Correctional Center.1
1
To prevail on an Eighth Amendment deliberate-indifference claim, Plaintiff
must prove that the defendant 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. Plaintiff must
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,
4
Specifically, Plaintiff does not allege any pattern of conduct by Douglas County
employees, does not allege any “deliberate indifference to or tacit authorization” by
Douglas County’s policymaking officials “after notice to the officials of that
misconduct,” and does not allege that a custom or practice “was the moving force
behind the constitutional violation,” as required by Jane Doe.
B. Sovereign Immunity
Plaintiff sues the State of Nebraska for money damages. The Eleventh
Amendment bars claims for damages by private parties against the state and its
agencies or departments. See 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. Egerdahl, 72 F.3d at
618-19. Here, there is nothing in the record before the court showing that the State of
Nebraska waived, or that Congress overrode, sovereign immunity in this matter.
Accordingly, Plaintiff’s claim for money damages against the State of Nebraska is
barred by the Eleventh Amendment and shall be dismissed. Additionally, the State of
Nebraska is not a “person” against which § 1983 claims for money damages may be
brought. Kruger v. Nebraska, 820 F.3d 295, 301 (8th Cir. 2016).
205 F.3d 1094, 1096 (8th Cir. 2000) (quoting 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 than gross negligence, and more than a mere
disagreement with treatment decisions. Deliberate indifference is akin to criminal
recklessness, which demands more than negligent misconduct. Popoalii v.
Correctional Medical Services, 512 F.3d 488, 499 (8th Cir. 2008); Bender v. Regier,
385 F.3d 1133, 1137 (8th Cir. 2004).
5
C. Lack of Specific Factual Allegations
Plaintiff claims that unnamed “state employees” have ignored his grievances
regarding denial of medical attention and have performed surgery on him in his cell
while he was sleeping.
“Liability under section 1983 requires a causal link to, and direct responsibility
for, the deprivation of rights” protected by the Constitution. Madewell v. Roberts, 909
F.2d 1203, 1208 (8th Cir. 1990). To state a cognizable § 1983 claim, therefore,
Plaintiff must set forth specific factual allegations showing what each named
Defendant allegedly did or failed to do that purportedly violated Plaintiff’s
constitutional rights. The brief and vague assertions in Plaintiff’s Complaint, as well
as Plaintiff’s failure to name any specific employees who have acted or failed to act
in a matter that violates Plaintiff’s constitutional rights are not sufficient to state an
actionable § 1983 claim against any Defendant.
To the extent Plaintiff intends to base a § 1983 claim on his allegation that
unnamed defendants failed to respond to his grievances and complaints in a timely
fashion, such allegations do not constitute a violation of Plaintiff’s constitutional
rights. See Merryfield v. Jordan, 431 Fed. App’x 743, 749 (10th Cir. 2011) (holding
that civilly committed sex offender lacked any federal constitutional right to an
adequate grievance procedure); see also Lomholt v. Holder, 287 F.3d 683, 684 (8th
Cir. 2002) (holding that allegations regarding actions of prison officials in handling
prisoner’s grievances and regulating access to his attorney were insufficient to state
a constitutional claim); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (holding
that inmates have no “liberty interest” in the processing of their grievances, such as
would support § 1983 claim for prison official’s failure to pick up his completed
grievance forms).
To the extent Plaintiff intends to assert an Eighth Amendment claim for
deliberate indifference to serious medical needs, see footnote (1), above.
6
D. Request for Investigation and Counsel
Plaintiff asks the court to collect and analyze evidence regarding his medical
condition, to conduct an investigation, and to provide a legal team. These are not
judicial functions. However, to the extent Plaintiff requests that the court appoint
counsel and an investigator, those requests are denied.
[I]ndigent civil litigants do not have a constitutional or statutory right to
appointed counsel. Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996)
(citing Swope v. Cameron, 73 F.3d 850, 851-52 (8th Cir. 1996). And, by
extension, they do not have a right to a court-appointed investigator. Cf.
Pedraza v. Jones, 71 F.3d 194, 196 (5th Cir. 1995) (stating that the plain
language of section 1915 does not provide for the appointment of experts
to aid an indigent litigant).
Wheeler v. North Dakota, No. 1:07-CV-075, 2008 WL 90097, at *1 (D.N.D. Jan. 8,
2008); see also Davis, 94 F.3d at 447 (“The trial court has broad discretion to decide
whether both the plaintiff and the court will benefit from the appointment of counsel
. . . .” (quotation and citation omitted)). Because Plaintiff has yet to state an actionable
claim, and because the court has not yet determined whether summary dismissal is
appropriate under 28 U.S.C. §§ 1915(e) and 1915A, the court finds no benefit in
appointing counsel at this time. Thus, the Plaintiff’s requests for the appointment of
counsel and an investigator will be denied.
On its own motion, the court will provide Plaintiff an opportunity to file an
amended complaint that states a claim upon which relief may be granted. Plaintiff
shall file an amended complaint no later than April 20, 2018. 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.
7
IT IS ORDERED:
1.
The State of Nebraska is dismissed as a Defendant.
2.
The clerk of the court shall amend the caption in this case by replacing
defendant Douglas County Corrections with Douglas County. If Plaintiff wishes to
pursue claims against Douglas County, he will need to allege facts indicating that
Douglas County has a policy or custom of being deliberately indifferent to the serious
medical needs of inmates at the Douglas County Correctional Center pursuant to the
discussion in section III(A) of this Memorandum and Order.
3.
Plaintiff shall file an amended complaint that states a claim upon which
relief may be granted by April 20, 2018. 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.
4.
denied.
Plaintiff’s requests for the appointment of counsel and an investigator are
5.
The clerk of the court is directed to set a pro se case management
deadline using the following text: April 20, 2018—amended complaint due.
DATED this 20th day of March, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?