United States District Court, D. Nebraska
MEMORANDUM AND ORDER
John M. Gerrard United States District Judge
Plaintiff Julio Juarez filed his Complaint (Filing No. 1) on May 28, 2015. The court has given Juarez leave to proceed in forma pauperis in this case. The court now conducts a pre-service screening of Juarez’s Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.
I. SUMMARY OF COMPLAINT
Juarez is currently incarcerated at the Omaha Correctional Center in Omaha, Nebraska. (Docket Sheet.) His claims are based on incidents that occurred while he was incarcerated at the Dakota County Jail in Dakota City, Nebraska. He named as the defendants Dakota County Jail and nursing staff and Mercy Medical Center. (Filing No. 1 at CM/ECF p. 1.)
Juarez alleged that on March 22, 2015, he fell down stairs while incarcerated at the Dakota County Jail and injured his back, shoulder, and neck. Before paramedics arrived to transport Juarez to Mercy Medical Center, “the night shift staff were moving and shifting [his] body around, which caused a lot more pain in [his] left shoulder and back.” (Filing No. 1 at CM/ECF p. 2.)
When Juarez returned to the Dakota County Jail, jail staff forced him to sleep on the top bunk for over two months. After numerous requests and grievances, Juarez was examined by a doctor on May 21, 2015, who determined Juarez should sleep on the bottom bunk. (Filing No. 1 at CM/ECF p. 3.)
Juarez claims he is in constant pain and suffers from severe migraines, but he is afraid to ask jail and nursing staff for “help” because they are angry with him and have “harassed” him in response to a grievance he filed. (Filing No. 1 at CM/ECF p. 3.) Juarez also claims he submitted numerous grievances to jail staff and only one has been answered. (Filing No. 1 at CM/ECF p. 3.)
For relief, Juarez seeks money damages and for the court to order the defendants to provide him with medical attention, including physical therapy. (Filing No. 1 at CM/ECF p. 5.)
II. STANDARDS ON INITIAL 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 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. Wes ...