United States District Court, D. Nebraska
MEMORANDUM AND ORDER
JOSEPH F. BATAILLON, District Judge.
This matter is before the court on two Motions to Dismiss filed by Defendants. (Filing Nos. 27 and 29.)
Plaintiff filed his Complaint in this matter on April 12, 2013, against the Director of the Nebraska Department of Correctional Services ("NDCS") Robert Houston ("Houston"), NDCS Deputy Director Frank Hopkins ("Hopkins"), NDCS Medical Director Randy Kohl ("Kohl"), Omaha Correctional Center ("OCC") Warden Mike Kenny ("Kenny"), OCC Medical Doctor Mary Flearl ("Flearl"), and OCC Physician's Assistant Margaret Antley ("Antley"). (Filing No. 1 at CM/ECF pp. 1-3.) Plaintiff sues Houston, Hopkins, Kohl, and Kenny in both their individual and official capacities. ( Id. ) Plaintiff sues Flearl and Antley in their individual capacities only. ( Id. ) Plaintiff is currently confined at OCC in Omaha, Nebraska. ( Id. ; See Docket Sheet.)
On August 26, 2013, the court conducted an initial review of Plaintiff's Complaint. (Filing No. 16.) In doing so, the court dismissed Plaintiff's monetary damages claims against Houston, Hopkins, Kohl, and Kenny in their official capacities. ( Id. at CM/ECF p. 7.) However, the court also concluded that Plaintiff's claims for declaratory relief, Plaintiff's Eighth Amendment medical claims against Defendants in their individual capacities, and Plaintiff's state law claims against Defendants could proceed to service. ( Id. )
On October 22, 2013, Defendants Houston, Hopkins, Kohl, and Kenny moved to dismiss Plaintiff's claims against them in their official capacities because Plaintiff failed to serve summons in accordance with Neb. Rev. Stat. § 25-510.02(1). (Filing Nos. 27 and 28.) That same day, all of the Defendants in this matter filed a Motion to Dismiss. (Filing No. 29.) In this second Motion, Defendants assert that Plaintiff's claims against them in their individual capacities should be dismissed because Plaintiff has failed to state a claim upon which relief may be granted. ( Id. ) In support of the second Motion, Defendants filed an exact copy of the Motion as a "Brief." ( Compare Filing No. 29 with Filing No. 30.) Plaintiff failed to respond to both Motions to Dismiss. ( See Docket Sheet.)
A. Motion to Dismiss Standard
A pro se plaintiff must set forth enough factual allegations to "nudge their claims across the line from conceivable to plausible, " or "their complaint must be dismissed" for failing to state a claim upon which relief can be granted. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (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."). Regardless of whether a plaintiff is represented or is appearing pro se, the plaintiff's complaint must allege specific facts sufficient to state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). However, a pro se plaintiff's allegations must be construed liberally. Burke v. North Dakota Dep't of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations omitted).
B. Motion to Dismiss Official Capacity Claims
Defendants Houston, Hopkins, Kohl, and Kenny move to dismiss Plaintiff's claims against them in their official capacities because Plaintiff failed to serve summons in accordance with Neb. Rev. Stat. § 25-510.02(1). (Filing Nos. 27 and 28.) Federal Rule of Civil Procedure 4(j) requires that service on "[a] state, a municipal corporation, or any other state-created governmental organization... must be served by: (A) delivering a copy of the summons and of the complaint to its chief executive officer; or (B) serving a copy of each in the manner prescribed by that state's law for serving a summons or like process on such a defendant." Fed.R.Civ.P. 4(j)(2). With regard to section (B), the State of Nebraska states that:
The State of Nebraska, any state agency as defined in section 81-8, 210, and any employee of the state as defined in section 81-8, 210 sued in an official capacity may be served by leaving the summons at the office of the Attorney General with the Attorney General, deputy attorney general, or someone designated in writing by the Attorney General, or by certified mail service addressed to the office of the Attorney General.
Neb. Rev. Stat. § 25-510.02(1).
Plaintiff did not serve Defendants in their official capacities under Nebraska law. However, under federal law, a governmental organization is served when a copy of the summons and complaint are delivered to its chief executive officer. Fed.R.Civ.P. 4(j)(2). Defendants have not argued that the chief executive officers of Defendants' public employers were not served. ( See Filing No. 28.) Accordingly, the court will deny Houston, Hopkins, Kohl, and Kenny's Motion to Dismiss Plaintiff's claims against them in their official capacities. See Lawver v. Dep't of Corr., No. 8:07CV100, 2007 WL ...