Doe v. Olson et al

Filing 10

ORDER re § 1915(e)(2) Screening, for Service of Complaint, and to Show Cause. By Magistrate Judge Charles S. Miller, Jr.(KT) Distributed on 12/9/2014 (jt).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
NORTHWESTERN DIVISION
Jose Doe,

)
)
Plaintiff,
)
)
vs.
)
)
Jason T. Olson, Chief of Police, Minot
)
Police Department; Sgt. Dave Goodman,
)
in his individual and official capacities;
)
Detective Thompson, in her individual and )
official capacities; Detective Jesse Smith, )
in his individual and official capacities;
)
Criminal Investigation Bureau, and
)
an Unknown Number of Unknown Federal )
(ICE) and City of Minot Agents of Law
)
Enforcement,
)
)
Defendants.
)

ORDER RE § 1915(e)(2) SCREENING,
FOR SERVICE OF COMPLAINT,
AND TO SHOW CAUSE

Case No. 4:14-cv-119

Plaintiff Jose Doe (“Doe”) has been granted leave to proceed in forma pauperis in the abovecaptioned case. The matter is now before the court for screening pursuant to 28 U.S.C. § 1915(e)(2)
in advance of the court ordering service of process. Plaintiff has consented to the exercise of
jurisdiction by the undersigned. For the reasons set forth below, Doe’s claims against defendants
Jason T. Olson and the Criminal Investigation Bureau will not be permitted to proceed at this point,
and Doe will be permitted to proceed with his claims against the remaining named defendants.1

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The court doubts that “Jose Doe” is plaintiff’s real name. This court’s order should not be taken as permitting
plaintiff to use a pseudonym in this litigation. This is a point that may have to be resolved later.

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I.

STANDARDS GOVERNING § 1915(e)(2) REVIEW
Section 1915(e)(2) provides that, notwithstanding financial eligibility, “the court shall

dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Federal Rule of Civil
Procedure 8(a)(2) requires a claim for relief contain “a short and plain statement of the claim
showing that the pleader is entitled to relief[.]” To meet this standard, a complaint must include
“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007). In applying the standard, the court must accept the plaintiff’s factual
allegations as true. Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Pro se complaints must be liberally construed. Stone
v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). However, in construing a pro se complaint, the court
“will not supply additional facts, nor . . . construct a legal theory for plaintiff that assumes facts that
have not been pleaded.” Id. (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989)).
To state a cognizable claim for violation of federal civil rights under 42 U.S.C. § 1983, the
plaintiff must allege a violation of a right secured by the Constitution or the laws of the United
States and that the violation was committed by a person acting under color of state law. West v.
Atkins, 487 U.S. 42, 48 (1988); Walker v. Reed, 104 F.3d 156, 157 (8th Cir. 1997). The pleading
must also allege a sufficient causal link between the alleged violation and the basis upon which the
particular defendant is to be held responsible, keeping in mind that persons sued in their individual
capacities must be personally involved or directly responsible since § 1983 does not impose
respondeat superior liability. Iqbal, 556 U.S. at 676-77; Gordon v. Hansen, 168 F.3d 1109, 1113

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(8th Cir. 1999).
II.

DISCUSSION
A.

Claims against Chief of Police Jason T. Olson

Doe’s complaint does not allege that Minot Chief of Police Olson was directly involved in
the actions Doe asserts give rise to his claims. The only place Olson’s name appears in the
complaint is in the portions where the defendants are identified.
“In a § 1983 case an official ‘is only liable for his . . . own misconduct’ and is not
‘accountable for the misdeeds of [his] agents’ under a theory such as respondeat superior or
supervisor liability.” Nelson v. Corr. Med. Servs., 583 F.3d 522, 534-35 (8th Cir. 2009) (quoting
Ashcroft v. Iqbal, 556 U.S. 677 (2009)). A supervisor may be held individually liable for direct
participation in a constitutional violation or if a failure to properly supervise and train an employee
caused a deprivation of constitutional rights. Tlamka v. Serrell, 244 F.3d 628, 635 (8th Cir. 2001).
To show liability for failure to train, a plaintiff must show “that the supervisor was deliberately
indifferent to or tacitly authorized the offending acts” which “requires a showing that the supervisor
had notice that the training procedures and supervision were inadequate and likely to result in a
constitutional violation.” Id.
The allegations in Doe’s complaint are insufficient to state a claim against Olson for
supervisory liability, for any other § 1983 violation, or under any other theory. Accordingly, Doe’s
claims against Olson are subject to dismissal.
B.

Claims against Criminal Investigation Bureau

In naming the “Criminal Investigation Bureau,” the court assumes that Doe intended to refer
to the North Dakota Bureau of Criminal Investigation. The Bureau of Criminal Investigation is an

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agency of the North Dakota Attorney General’s Office.2
The Eleventh Amendment bars “any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign
State.” Congress may abrogate the States’ sovereign immunity by expressing its unequivocal
intention to do so and acting pursuant to a valid grant of constitutional authority, or a State may
waive its sovereign immunity by consenting to suit in federal court. See Bd. of Trustees of Univ.
of Alabama v. Garrett, 531 U.S. 356, 363 (2001); Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73
(2000); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Congress did not
abrogate the States’ sovereign immunity in enacting § 1983, Quern v. Jordan, 440 U.S. 332, 340-45
(1979), and North Dakota has not waived its immunity. Moore v. Hoeven, No. 3:08-CV-50, 2009
WL 3064742 , at * 3 (D.N.D. Sept. 22, 2009) (citing N.D.C.C. § 32-12.2-10). Further, a State is not
is a “person” that can be held liable for damages under § 1983. Will v. Michigan Dep’t of State
Police, 491 U.S. 58, 71 (1989). North Dakota’s Eleventh Amendment immunity extends to state
agencies and entities when the state itself is the real party in interest. See, e.g., Regents of the Univ.
of California v. Doe, 519 U.S. 425, 429-30 (1997); Becker v. Univ. of Nebraska at Omaha, 191 F.3d
904, 908 (8th Cir. 1999). State immunity applies regardless of the nature of the relief requested.
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984).
The North Dakota Bureau of Criminal Investigation is a state agency immune from suit in
federal court. Accordingly, Doe’s claims against the “Criminal Investigation Bureau” are subject
to dismissal.

2

See North Dakota Attorney General, nd.gov, http://www.ag.nd.gov/BCI/BCI.htm (accessed December 4,

2014).

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C.

Claims against Sergeant David Goodman, Detective Thompson, and Detective
Jesse Smith

Doe’s complaint contains specific allegations against Goodman, Thompson, and Smith.
Upon initial review, the court is not prepared to conclude that no claim for relief has been stated.
Accordingly, the court will order that service of process be made upon these defendants.
III.

ORDER
For the reasons stated above, the court ORDERS that:
1.

The Clerk’s Office shall effectuate service of the summons and complaint upon
defendants Goodman, Thompson, and Smith in accordance with Rule 4 of the
Federal Rules of Civil Procedure, and if necessary, service shall be made by the
United States Marshals Service.

2.

The court will not order the Clerk’s Office to serve either Chief of Police Jason T.
Olson or the Criminal Investigation Bureau and these defendants will be dismissed
without prejudice for the reasons stated above unless Doe within fifteen (15) days
of the filing of this order shows cause why they should not be dismissed.

Dated this 9th day of December, 2014.

/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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