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Schram v. Department of Health and Services

United States District Court, D. Nebraska

August 2, 2016

BRIAN SCHRAM, Plaintiff,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES, LISA LAURELL, Social Worker, SHANNON BLACK, Program Director, CINDY YKEMAN, Program Manager, and MARILYN BAILEY, Administration Assistance, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         Plaintiff 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).

         I. SUMMARY OF COMPLAINT

         Plaintiff’s Complaint names the Department of Health and Human Services (“DHHS”)[1], 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.

         Plaintiff, 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.

         Plaintiff 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.)

         Plaintiff 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 the products.

         Plaintiff seeks compensatory and punitive damages, as well as a declaration that his constitutional rights were violated.

         II. APPLICABLE 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 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).

         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. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).

         III. ...


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