United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
filed his Complaint on May 4, 2016. (Filing No. 1.)
Plaintiff has been given leave to proceed in forma pauperis.
(Filing No. 5.) 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).
SUMMARY OF COMPLAINT
Complaint names the Department of Health and Human Services
(“DHHS”), as well as several purported DHHS
employees, as Defendants. The employees are named as
defendants in both their official and individual capacities.
Plaintiff is currently confined in the Lincoln Regional
Center in Lincoln, Nebraska.
who is Native American, maintains that Defendant Lisa Laurell
(“Laurell”) conducted a group treatment session
at the Lincoln Regional Center and made disparaging comments
about Native Americans. Plaintiff also contends that Laurell
disclosed “confidential” information about
Plaintiff, which led to a confrontation between Plaintiff and
another member of the treatment group.
maintains that he reported his concerns about Laurell’s
comments to Defendants Shannon Black (“Black”)
and Cindy Dykeman (“Dykeman”). Plaintiff contends
that in response to his complaints, Black and Dykeman
threatened to return Plaintiff to the “beginners
program” in Norfolk, Nebraska. Plaintiff alleges that
Laurell subsequently placed him in a different treatment
group in retaliation for vocalizing his concerns about her
comments. (Filing No. 1 at CM/ECF p. 3.)
also contends that Defendant Marilyn Bailey
(“Bailey”) made disparaging comments to him.
Plaintiff claims that Bailey took away Plaintiff’s
personal hygiene products and told Plaintiff he could not
possess the items because he was mentally ill and could drink
seeks compensatory and punitive damages, as well as a
declaration that his constitutional rights were violated.
APPLICABLE STANDARDS ON INITIAL REVIEW
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 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).
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 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. West
v. Atkins, 487 U.S. 42, 48 (1988); Buckley v.
Barlow, 997 F.2d 494, 495 (8th Cir. 1993).