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Fitzgerald v. Nebraska Department of Correctional Services

United States District Court, D. Nebraska

August 22, 2016

DAMON E. FITZGERALD, Plaintiff
v.
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

         Plaintiff, who is currently incarcerated at Tecumseh State Prison, [1] 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).

         I. SUMMARY OF COMPLAINT

         Plaintiff 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.

         Plaintiff’s 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, mail.

         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 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. DISCUSSION

         1.Claims Against the Nebraska Department of Corrections, Official Capacity Claims, and Request for Injunctive Relief

         The 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.

         Here, 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 ...


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