United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
Michael Tee Stokes, Sr., a prisoner at the Nebraska State
Penitentiary, has been granted leave to proceed in forma
pauperis in this action brought pursuant to 42 U.S.C.
§ 1983. (Filing No. 6.) The court now
conducts an initial review of Plaintiff’s Complaint
(Filing No. 1) to determine whether summary
dismissal is appropriate under 28 U.S.C. §§
1915(e)(2) and 1915A. For the reasons that
follow, the court finds that Plaintiff’s pleadings do
not state any claims on which relief may be granted. However,
the court will allow Plaintiff to file an amended complaint.
SUMMARY OF COMPLAINT
alleges that while he was incarcerated for 10 months at the
Kearney County Jail beginning in May 2014, Sheriff Scott
White ignored his numerous requests for medical care related
to severe back pain. Plaintiff’s worsening back
condition prevented him from bending over and sitting, caused
pain to shoot up his back and numbness in his legs, and
required other inmates to help Plaintiff stand up. Plaintiff
claims that White aggressively told him that Kearney County
"did not have the money to pay for a MRI" and
"he’d send [Plaintiff] to prison and they could
pay for it." (Filing No. 1 at CM/ECF p. 5.)
Plaintiff asserts that had White not intentionally ignored
his repeated requests for treatment, he would not have been
forced to endure a later-diagnosed herniated disc, pinched
nerve, and spinal surgery. Plaintiff claims that four other
inmates were given medical aid, but Plaintiff’s
complaints went ignored.
states that after he was sentenced in March 2015, he was
moved to other correctional institutions, where his pain
increased and he completely lost mobility. He eventually
received X-rays, pain medication, and spinal surgery, but he
still suffers pain. Plaintiff requests money damages and
injunctive relief, claiming that defendant White violated his
rights to medical care under the Eighth Amendment and to
equal protection. Plaintiff also alleges "Racial
discrimination, " which presumably relates to his
STANDARDS ON INITIAL REVIEW
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).
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.").
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).
construed, Plaintiff 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. West
v. Atkins, 487 U.S. 42, 48 (1988); Buckley v.
Barlow, 997 F.2d 494, 495 (8th Cir. 1993).
does not specify whether he sues defendant White in his
individual or official capacity. Where a plaintiff does not
specify the capacity in which a defendant is sued, it is
presumed that a defendant is sued in his official capacity
only. See, e.g., Johnson v. Outboard Marine Corp.,
172 F.3d 531, 535 (8th Cir. 1999) (stating that "in
order to sue a public official in his or her individual
capacity, a plaintiff must expressly and unambiguously state
so in the pleadings, otherwise, it will be assumed that the
defendant is sued only in his or her official
capacity."). In addition, a claim against an individual,
in her official capacity, is in reality a claim against the
entity that employs the official. See Parrish v.
Luckie, 963 F.2d 201, 203 n. 1 (8th Cir. 1992)
("Suits against persons in their official capacity are
just another method of filing suit against the entity. . . .
A plaintiff seeking damages in an official-capacity suit is
seeking a judgment against the entity. . . . Therefore, the
appellants in this case will collectively be referred to as
the City.") (quotations omitted). Accord Eagle v.
Morgan, 88 F.3d 620, 629 n.5 (8th Cir. 1996)
("‘[A]n official-capacity suit is, in all respects
other than name, to be treated as a suit against the
entity."’) (quoting Kentucky v. Graham,
473 U.S. 159, 165 (1985)). Therefore, Plaintiff’s
claims against defendant White in his official capacity are
actually asserted against Kearney County,
municipal defendant, Kearney County may only be liable under
section 1983 if its "policy" or "custom"
caused a violation of the plaintiff’s constitutional
rights. Doe By and Through Doe v. Washington County,
150 F.3d 920, 922 (8th Cir. 1998) (citing Monell
v. Department of Soc. Servs., 436 U.S. 658, 694 (1978)).
An "official policy" involves a deliberate choice
to follow a course of action made from among various
alternatives by an official who has the final authority to
establish governmental policy. Jane Doe A By and Through
Jane Doe B v. Special ...