United States District Court, D. Nebraska
MEMORANDUM AND ORDER
JOHN M. GERRARD, District Judge.
Plaintiff filed his Complaint in this matter on September 25, 2013. (Filing No. 1.) Plaintiff has previously been given leave to proceed in forma pauperis. (Filing No. 9.) The court now conducts an initial review of the Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I. SUMMARY OF COMPLAINT
Plaintiff filed his Complaint in this matter on September 25, 2013, against five individuals: Corporal Hurt ("Hurt"), Officer Kline ("Kline"), Sargent Steinbeck ("Steinbeck"), Dennis Bakewell ("Bakewell"), and Robert Houston ("Houston"). (Filing No. 1 at CM/ECF p. 1.) Plaintiff sues Defendants in both their individual and official capacities. ( Id. ) Plaintiff is currently incarcerated at Lincoln Correctional Center in Lincoln, Nebraska. ( See Docket Sheet.)
Condensed and summarized, Plaintiff alleges on September 13, 2013, while he was incarcerated at the Diagnostic and Evaluation Center, he informed officer Dixon that another inmate named "Harris" had threatened him. (Filing No. 1 at CM/ECF p. 2.) The next morning, Plaintiff informed Hurt that Harris had threatened to "kill" Plaintiff. ( Id. at CM/ECF pp. 2-3.) Later that day, Harris removed his shoelaces and Plaintiff followed up with Hurt about the threat, letting him know that Harris had removed his shoelaces. ( Id. at CM/ECF pp. 2-3, 5.) Eventually, Harris used the shoelaces to assault and choke Plaintiff. ( Id. ) During the assault, Harris bit Plaintiff and Plaintiff "severely" injured his back. ( Id. )
After the assault, Plaintiff was placed in segregation and requested medical attention for his injuries on three separate occasions. ( Id. at CM/ECF pp. 4, 7.) However, Plaintiff's requests were ignored. ( Id. ) Plaintiff also states that Defendants were aware that Harris had a history of assaulting other inmates and failed to take reasonable measures to protect him. ( Id. at CM/ECF pp. 4-5.) Plaintiff seeks monetary damages and any other relief that the court deems just and fair. ( Id. at CM/ECF pp. 8-9.)
II. APPLICABLE LEGAL 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). The court must dismiss a complaint or any portion thereof 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).
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).
III. DISCUSSION OF CLAIMS
A. Official Capacity Claims for Monetary Damages
The Eleventh Amendment bars claims for damages by private parties against a state, state instrumentalities and an employee of a state sued in the employee's official capacity. See, e.g., 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. See, e.g., Dover Elevator Co., 64 F.3d at 444; Nevels v. Hanlon, 656 F.2d 372, 377-78 (8th Cir. 1981). Sovereign immunity does not bar damages claims against state officials acting in their personal capacities, nor does it bar claims brought pursuant to 42 U.S.C. §1983 that seek equitable relief from state employee defendants acting in their official capacity.
Here, Plaintiff sues several individual state employees in both their individual and official capacities. (Filing No. 1 at CM/ECF p. 1.) As set forth above, the Eleventh Amendment bars claims for damages by private parties against employees of a state sued in their official capacities. Consequently, Plaintiff's monetary damages ...