United States District Court, D. Nebraska
DAMON E. FITZGERALD, Plaintiff
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, SCOTT FRAKES, FRANK HOPKINS, DIANE SABATKA-RINE, RICHARD CRUICKSHANK, APRIL JUNE-BULLINGS, JILL KUBICEK, ROBERT MADSEN, JASON HURT, BRANDON NOORDHOEK, MATTHEW TRACY, sued in their official and individual capacities, and WILLIAM HENDRICKS, sued in his individual capacity, Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
who is currently incarcerated at Tecumseh State Prison,
filed his Complaint on March 2, 2016. (Filing No. 1.)
Plaintiff was given leave to proceed in forma pauperis.
(Filing No. 6.) Therefore, at this time, the court will
conduct an initial review of Plaintiff’s claims to
determine whether summary dismissal is appropriate under 28
U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
names the Nebraska Department of Correctional Services
(“NDCS”) and several NDCS officials as
defendants. The NDCS officials are named in their official
and individual capacities. Plaintiff seeks declaratory,
injunctive, and monetary relief.
Complaint seemingly sets forth four claims. First, Plaintiff
maintains that his Eighth Amendment rights were violated due
to poor living conditions at Nebraska State Penitentiary
(“NSP”). Second, Plaintiff contends that his
right to privacy was violated by female guards’ and
other inmates’ observation of him in the shower. Third,
Plaintiff asserts that his equal protection rights were
violated because he was treated differently from inmates
housed in other prison facilities. Finally, Plaintiff
contends that he was denied access to the courts because the
prison library lacked adequate materials and he was forced to
mail correspondence by regular, as opposed to inter-office,
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
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).
Against the Nebraska Department of Corrections,
Official Capacity Claims, and Request for
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., id.;
Nevels v. Hanlon, 656 F.2d 372, 377-78 (8th Cir. 1981).
Sovereign immunity does not, however, 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.
Plaintiff seeks monetary damages against the Nebraska
Department of Corrections. This claim is barred by the
Eleventh Amendment. Likewise, Plaintiff’s claims for
monetary relief against the ...