Bass v. Douglas County Corrections

Filing 14

MEMORANDUM AND ORDER - Plaintiff shall have until 30 days from the date of this Memorandum and Order to file an amended complaint that clearly states a claim upon which relief may be granted against Defendant(s) in accordance with this Memorandum and Order. If Plaintiff fails to file an amended complaint, his claims against Defendants will be dismissed without further notice. The Clerk's Office is directed to send to Plaintiff a copy of the prisoner civil complaint form. The Clerk's O ffice is directed to set a pro se case management deadline in this case using the following text: April 4, 2025: Check for amended complaint. 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 John M. Gerrard. (Copy mailed to pro se party with prisoner civil complaint form) (JES)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TIGUE N BASS IV,
Plaintiff,

8:24CV353

vs.
MEMORANDUM AND ORDER
DOUGLAS COUNTY
CORRECTIONS, Official Capacity;
Defendant.
Plaintiff Tigue N. Bass IV (“Plaintiff”) filed a Complaint, Filing No. 1,
and three documents this Court construes as supplements to the Complaint
(collectively the “Complaint”), see Filing Nos. 3, 4, and 8. The Court now
conducts an initial review of the Complaint to determine whether summary
dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A, and finds that
it is. However, in lieu of dismissal Plaintiff shall be granted 30 days to amend
his Complaint consistent with this Memorandum and Order.
I. SUMMARY OF COMPLAINT
The subject matter of this case arises from what this Court construes as
allegations of Eighth Amendment failure to protect and violations of prison
policy by a sole defendant described as: “Government Agency/Douglas County
Corrections (“DCC”) Supervisor/Director,” (the “Doe Defendant”). Filing No. 1
at 2. Plaintiff sues the Doe Defendant only in his or her official capacity,
supporting his claims as follows: “The Douglas County Correction officer
showed unprofessional conduct within a negligence tort within a special duty
doctrine going against the Douglas County Corrections rules of procedure an
[sic] a violation of rules of regulations feeding restricted lockdown inmates and

general population inmates living in the same housing unit.” Id. at 4. It also
appears Plaintiff seeks to bring a state law negligence claim against the Doe
Defendant (or another unnamed defendant), a claim or claims against any
supervisor overseeing DCC employees who are responsible for Plaintiff’s
injuries, see Filing No. 8 at 2, and a claim or claims against the Doe Defendant
or another unnamed defendant related to the taking of Plaintiff’s personal
property including legal mail and items of spiritual importance to Plaintiff.
Filing No. 4 at 3.
Specifically, Plaintiff alleges that on December 23, 2021, between 6 and
6:30 p.m., due to an unknown DCC employee’s failure to comply with DCC
rules and regulations regarding feeding general and “lockdown” population
inmates separately, Plaintiff, a lockdown inmate, was attacked by a general
population inmate who severely injured Plaintiff’s head. Filing No. 1; Filing
No. 4 at 2. Plaintiff alleges he was taken to the hospital and given stitches for
his head injury. Id.
He contends that during his hospitalization that some of his personal
property including legal mail and items of “important intrinsic spiritual value”
went missing and were “stolen,” presumably by unnamed prison employees.
Filing No. 4 at 3. Finally, he also alleges that he was placed in lockdown from
November 10, 2021, through August 22, 2022, due to refusing to take a
tuberculosis shot. Id.
Plaintiff asserts that in addition to his physical injuries he suffered
“psychological suffering [and] trauma.” Filing No. 4 at 2. He seeks $7.1 billion
dollars in actual and punitive damages. Filing No. 1 at 5; Filing No. 4 at 3.
II. APPLICABLE 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)
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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).
III. DISCUSSION
Title 42 of the United States Code, section 1983 allows individuals to
bring suit against persons who, under color of state law, have caused them to
be “depriv[ed] of any rights, privileges, or immunities secured by the
Constitution and laws” of the United States. 42 U.S.C. § 1983. Section 1983
itself “creates no substantive rights; it merely provides remedies for
deprivation of rights established elsewhere.” City of Oklahoma City v. Tuttle,
471 U.S. 808, 816 (1985) (citations omitted). 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).
Federal Rule of Civil Procedure 8 requires that every complaint contain
“a short and plain statement of the claim showing that the pleader is entitled
to relief” and that “each allegation . . . be simple, concise, and direct.” Fed. R.
Civ. P. 8(a)(2), (d)(1). The allegations must state enough about each claim to
“‘give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While “[a] pro se complaint must
be liberally construed, and pro se litigants are held to a lesser pleading
standard than other parties,” Topchian v. J.P. Morgan Chase Bank, 760 F.3d
843, 849 (8th Cir. 2014) (internal quotation marks and citations omitted),
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complaints filed by pro se plaintiffs must contain enough factual allegations to
“nudge[ ] their claims across the line from conceivable to plausible,” or “their
complaint must be dismissed.” Twombly, 550 U.S. at 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.”).
Here, while Plaintiff names just one defendant and brings suit against
the sole defendant in their official capacity only, regardless of capacity, as
pleaded none of Plaintiff’s claims can proceed.
A. Official Capacity Claims
As an initial matter, it is unclear if the only defendant Plaintiff intends
to sue in his Complaint is a Douglas County Correction officer or that officer’s
supervisor. Either way, Plaintiff seeks to sue the sole defendant in his or her
official capacity only. Filing No. 1 at 3. As pleaded, regardless of whether
Plaintiff intends to sue the officer or supervisor, as both are county employees,
the official capacity claims cannot proceed.
“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). Here, Plaintiff’s claims are made against a
Douglas County Correction officer or his or her supervisor, either of which is
employed by Douglas County. However, a county may only be liable under
Section 1983 if its “policy” or “custom” caused a violation of a plaintiff’s
constitutional rights. Doe By and Through Doe v. Washington Cnty., 150 F.3d
920, 922 (8th Cir. 1998) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694
(1978)). Plaintiff does not allege any policy or custom of Douglas County
caused his injuries. See Filing Nos. 1, 3, 4 & 8. As such, Plaintiff has failed to

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allege a plausible claim for relief against the Doe Defendant in his or her
official capacity.
If Plaintiff intended to name the supervisor of the Doe Defendant as a
defendant, the same issues related to the failure to allege a policy, or custom
would apply to any potential supervisor-defendant as an employee of Douglas
County. More importantly however, there is no vicarious liability in § 1983
actions, Iqbal, 556 U.S. at 676, as the “general responsibility for supervising
the operations of a prison is insufficient to establish the personal involvement
required to support [§ 1983] liability,” Keeper v. King, 130 F.3d 1309, 1314 (8th
Cir. 1997). Thus, to proceed against a supervisor a prisoner “must plead that
each Government-official defendant, through the official’s own individual
actions, has violated the Constitution.” Iqbal, 556 U.S. at 676.
Here, to the extent Plaintiff sought to name DCC supervisory personnel
as defendants, those claims cannot proceed as he has not provided any facts
explaining how any supervisory personnel were personally involved in the
alleged constitutional violations. To state a plausible claim, he must do so.
Ultimately, Plaintiff’s official capacity claims cannot proceed against any
Douglas County official as pleaded. As Plaintiff only brought suit against the
defendant in his or her official capacity, the Complaint must be amended or
dismissed if any claims may potentially proceed.
B. Individual Capacity Claims
As Plaintiff did not bring individual capacity claims against the Doe
Defendant the Court shall not engage in a lengthy discussion of potential
individual capacity claims. In a nutshell, even had Plaintiff alleged individual
capacity claims against the Doe Defendant, only some of the claims have the
potential to proceed and only with significant amendment.

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First, “[t]t is generally impermissible to name fictitious parties as
defendants in federal court, but ‘an action may proceed against a party whose
name is unknown if the complaint makes allegations specific enough to permit
the identity of the party to be ascertained after reasonable discovery.’” Perez
v. Does 1-10, 931 F.3d 641, 646 (8th Cir. 2019) (quoting Est. of Rosenberg by
Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995)). The allegations in
Plaintiff’s Complaint regarding the sole defendant are not sufficiently specific
to satisfy the exception to the general prohibition against fictitious parties. See
id. The Complaint “does not sufficiently allege who the Doe Defendant[] [is],
what they allegedly did, what their position is for the [County], or any other
facts that would permit [them] to be noticed or identified through discovery.”
Id. Therefore, Plaintiff should take any reasonable steps he can to identify the
individual DCC employee (or employees) he seeks to sue and provide their
names in any amended complaint he chooses to file.
Second, claims alleging prison policy violations by prison staff and
allegations regarding assignment to housing in a certain security level are not
constitutional claims and are therefore outside the scope of this Court’s review.
See Gonzales v. Boyd, No. 8:23-CV-462, 2024 WL 5158785, at *1 n.2 (D. Neb.
Dec. 17, 2024) (the Court is unable to enforce prison policies and instead may
only address claims relating to policies that involve a constitutionally protected
interest) (citing Bushner v. Reynolds, No. 2:24-CV-1861, 2024 WL 2206213, at
*10 (S.D. Ohio May 16, 2024)); see also Olim v. Wakinekona, 461 U.S. 238, 245
(1983) (explaining there is no constitutional right to an assignment to a
particular housing security level). As such, any claim for failure to enforce or
follow prison policies (such as Plaintiff’s allegation that the Doe Defendant
violated prison policy by allowing general population and non-general

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population inmates to eat together) or assignment to housing of a heightened
security level cannot proceed as a stand-alone claim and is subject to dismissal.
Finally, while Plaintiff’s Eighth Amendment failure-to-protect claim is
potentially cognizable, as pleaded it is subject to dismissal. To succeed on an
Eighth Amendment failure-to-protect claim, an inmate must show that there
was a substantial risk of serious harm to him and that defendants were
deliberately indifferent to that risk. See Irving v. Dormire, 519 F.3d 441, 447
(8th Cir. 2008). To be liable, “the official must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S.
825, 837 (1994).
Here, Plaintiff alleges that an unknown DCC officer allowed lock-down
and general population inmates to eat together in violation of the Eighth
Amendment (and prison policy) resulting in Plaintiff being attacked and
severely injured by another inmate. However, Plaintiff simply concludes that
the defendant knew (or drew an inference) of the risk of harm to Plaintiff when
having the inmates eat together, and that he or she was deliberately
indifferent to that risk. Such conclusory statements do not meet pleading
standards as, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,” without any factual connection
between the named defendant and the alleged constitutional violation “do not
suffice.”1

Wit v. City of Lincoln, Nebraska, No. 4:19-CV-3006, 2019 WL

1459054, at *3 (D. Neb. Apr. 2, 2019) (citing Iqbal, 556 U.S. at 678).

1 These

same pleading requirements apply to Plaintiff’s allegations relating to the destruction or
confiscation of his personal property and legal mail as well as the state law negligence claims
mentioned in the Complaint, and to any future claims he may raise in an amended complaint.

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Accordingly,
IT IS ORDERED:
1. Plaintiff shall have until 30 days from the date of this Memorandum
and Order to file an amended complaint that clearly states a claim upon which
relief may be granted against Defendant(s) in accordance with this
Memorandum and Order. If Plaintiff fails to file an amended complaint, his
claims against Defendants will be dismissed without further notice.
2.

The Clerk's Office is directed to send to Plaintiff a copy of the

prisoner civil complaint form.
3.

The Clerk's Office is directed to set a pro se case management

deadline in this case using the following text: April 4, 2025: Check for
amended complaint.
4.

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 5th day of March, 2025.
BY THE COURT:
John M. Gerrard
Senior United States District Judge

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