Furby v. Lancaster County Jail, et al

Filing 11

MEMORANDUM AND ORDER that the Plaintiff shall file an amended complaint by August 1, 2018, 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 d ismissing 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: August 1, 2018: check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CLEVONE JEREMIAH FURBY,
Plaintiff,

8:17CV470

vs.
LANCASTER COUNTY JAIL, and
UNAMEDED AND UNKNOWN JANE
AND JOHN DOE,

MEMORANDUM
AND ORDER

Defendants.
Plaintiff filed a Complaint on December 8, 2017. (Filing No. 1-1.)1 He has
been given leave to proceed in forma pauperis. (Filing No. 7.) The court now
conducts an initial review of Plaintiff’s Complaint to determine whether summary
dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.
I. SUMMARY OF COMPLAINT
Plaintiff is a prisoner currently confined at the Omaha Correctional Center.
He brings this action pursuant to 42 U.S.C. § 1983 against Lancaster County Jail
and Unknown John and Jane Doe Defendants in their official capacities for
violations of his Eighth Amendment rights. (Filing No. 1-1.)
Plaintiff alleges that on December 25, 2014, he was a pretrial detainee
confined at the Lancaster County Jail. (Id. at CM/ECF p.7.) On that date, Plaintiff
was attacked and beaten by another inmate as Plaintiff and other inmates were
returning inside to the day room from an outer yard. The attack occurred in full
view of the jail security staff’s desk, but Plaintiff alleges security did not intervene
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When initially filed, the Complaint (filing no. 1) lacked Plaintiff’s signature and
Plaintiff was directed to correct the deficiency. See NECivR 11.1. Plaintiff submitted a signed
copy of the Complaint on December 26, 2017. (Filing No. 1-1.)

to come to his defense for at least fifteen minutes while the inmate punched
Plaintiff and beat his head on the concrete floor. Plaintiff alleges he tried to shield
his face with his arms but received a blow to his right eye that rendered him
momentarily unconscious. When Plaintiff regained his senses, back up security had
just arrived. The other inmate was charged for the attack on Plaintiff. (Id. at
CM/ECF pp.14–16.)
After the attack, Plaintiff was escorted to medical where he was given an ice
pack, some type of pain reliever, and some gauze for his bleeding nose. Plaintiff
alleges that he suffered from migraines, dizziness, and loss of balance every time
he stood up, pain in his eye, and constant bleeding from his nose and down his
throat. After Plaintiff wrote several “kites” to medical, he was placed in the
infirmary for hourly checks and was seen by the doctor only on the first and last
day of his stay. (Id. at CM/ECF p.16.) Plaintiff alleges no x-rays were performed
and medical staff never treated or found any solution to his issues. (Id. at CM/ECF
pp.13, 16.) Plaintiff bonded out of jail eleven days after the attack on January 5,
2015. Plaintiff alleges that he cannot recall for certain if he filed a grievance before
he bonded out due to his injuries, but he believes he did and did not receive a
response. (Id. at CM/ECF p.9.)
After Plaintiff left Lancaster County Jail, he visited Bryan LGH West and
learned that he had a fractured right eye socket and has since been diagnosed with
tendinosis and a labral tear in his left shoulder. Plaintiff continues to suffer vision
problems related to his eye injury and is currently seeking treatment for his
tendinosis and shoulder injuries. Plaintiff seeks $1,000,000 in damages for his
medical expenses, pain and suffering, “PTSD from this incident,” and life-long
vision disability. (Id. at CM/ECF p.5.)
II. APPLICABLE STANDARDS OF 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
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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 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).

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III. DISCUSSION
Plaintiff sues Lancaster County Jail and the Unknown John and Jane Doe
medical and security jail staff for failing to protect him and for deliberate
indifference to his serious medical needs in violation of the Eighth Amendment. As
an initial matter, Lancaster County Jail 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 Owens v. Scott Cty. Jail, 328 F.3d 1026, 1027 (8th Cir. 2003)
(“[C]ounty jails are not legal entities amenable to suit.”). Accordingly, any claims
against Lancaster County Jail are dismissed.
A. Official Capacity Claims
Because Plaintiff does not specify in what capacity the Unknown John and
Jane Doe Defendants are being sued, the court must assume they are sued in their
official capacities. See Alexander v. Hedback, 718 F.3d 762, 766 n.4 (8th Cir.
2013) (“‘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.’”) (quoting Johnson v. Outboard Marine Corp., 172 F.3d
531, 535 (8th Cir. 1999)). Liberally construed, Plaintiff’s claims against the
Unknown John and Jane Doe Defendants are claims against Lancaster County. “A
suit against a public employee in his or her official capacity is merely a suit against
the public employer.” Johnson, supra. To state a plausible claim against Lancaster
County, Plaintiff must allege that a “policy” or “custom” caused a violation of his
constitutional rights.
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.
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Department of Soc. Servs., 436 U.S. 658, 694 (1978)). 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.
Here, Plaintiff does not allege that there is a continuing, widespread,
persistent pattern of unconstitutional misconduct by Lancaster County’s
employees, or that Lancaster County’s policymaking officials were deliberately
indifferent to or tacitly authorized any unconstitutional conduct. In addition,
Plaintiff does not allege that an unconstitutional custom was the moving force
behind the alleged constitutional violations. In other words, Plaintiff has not
alleged that Lancaster County has a policy or custom of deliberately disregarding
prisoners’ objectively serious medical needs or failing to protect prisoners from
attacks by other inmates. Accordingly, Plaintiff has failed to allege sufficient facts
to “nudge” his claims against Lancaster County across the line from conceivable to
plausible.

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B. Leave to Amend Eighth Amendment Claims
On its own motion, the court will grant Plaintiff leave to file an amended
complaint that states a claim under the Eighth Amendment upon which relief may
be granted against Lancaster County and/or the Unknown John and Jane Doe
Defendants whom Plaintiff alleges failed to respond appropriately to the attack
upon his person and to his medical needs after the attack.
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. 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).
The deliberate indifference standard is equally applicable to Plaintiff’s
failure-to-protect claim. “[P]rison officials have a duty . . . to protect prisoners
from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825,
833 (1994). However, prison officials do not incur constitutional liability for every
injury suffered by a prisoner. Id. at 834. A prison official violates the Eighth
Amendment “only if he knows that inmates face a substantial risk of serious harm
and disregards that risk by failing to take reasonable measures to abate it.” Id. at
847. In other words, a prison official violates the Eighth Amendment if he or she
is deliberately indifferent to the inmate’s health or safety. Id. at 834.
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If Plaintiff wishes to proceed on his Eighth Amendment claims against
Lancaster County, he must amend his Complaint to allege facts demonstrating that
Lancaster County has a policy or custom of deliberately disregarding the
objectively serious medical needs of prisoners and failing to protect prisoners from
attacks by other inmates. If Plaintiff wants to pursue his Eighth Amendment claims
against the individual Unknown John and Jane Doe corrections employees, then he
must clearly specify that the employees are being sued in their individual
capacities and he must allege facts showing that the employees acted with
deliberate indifference to his health, safety, and medical needs. Failure to file an
amended complaint within the time specified by the court will result in the court
dismissing this action without further notice to Plaintiff.
IT IS THEREFORE ORDERED that:
1.
Plaintiff shall file an amended complaint by August 1, 2018, 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.
2.
The clerk of the court is directed to set a pro se case management
deadline using the following text: August 1, 2018: check for amended complaint.
Dated this 2nd day of July, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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