United States District Court, D. Nebraska
JOSEPH H. MCDONALD, Plaintiff,
NEBRASKA DEPT. OF CORRECTIONS, SCOTT FRAKES, and BRAD HANSON, et al, Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
matter is before the court on initial review of
Plaintiff's Complaint. (Filing No. 1.) For the reasons
that follow, the court finds Plaintiff's pleadings do not
state any claims upon which relief may be granted. However,
the court will allow Plaintiff to file an amended complaint.
SUMMARY OF COMPLAINT
who is currently incarcerated at Tecumseh State Prison,
brought suit against the Nebraska Department of Corrections,
as well as the Department's director and the warden of
Tecumseh State Prison. Liberally construed, Plaintiff alleges
that he was “wrongfully held as a juvenile sentenced as
an adult” and that Defendants have failed to give him
good time credit on his sentence. (Filing No. 1 at CM/ECF pp.
3-4.) Plaintiff also alleges that Defendants are
“liable to Plaintiff for cruel and unusual punishment,
with deliberate indifference and intentional infliction of
emotional distress, anxiety, outrage and defamation under the
laws of the State of Nebraska.” (Filing No. 1 at CM/ECF
pp. 11-12.) Plaintiff seeks monetary relief.
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
has failed to state viable claims against Defendants.
Plaintiff did not specify whether he is suing Scott Frakes
and Brad Hanson in their official or individual capacities.
Therefore, this court presumes they are sued in their
official capacities only. See Johnson v. Outboard Marine
Corp., 172 F.3d 531, 535 (8th Cir. 1999) (“This
court has held 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.”). A claim against an individual in
his official capacity is, in reality, a claim against the
entity that employs the official, in this case, the State of
Nebraska. 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.”) (internal citations omitted)).
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.
case, Plaintiff has sued the Nebraska Department of
Corrections and Nebraska state employees in their official
capacities seeking monetary relief. These claims are
precluded by the Eleventh Amendment. Therefore,
Plaintiff's Complaint fails to state a claim upon which
relief can be granted.
Plaintiff's allegations are wholly conclusory. Plaintiff
alleges that Defendants are “liable to Plaintiff for
cruel and unusual punishment, with deliberate indifference
and intentional infliction of emotional distress, anxiety,
outrage and defamation under the laws of the State of
Nebraska.” (Filing No. 1 at CM/ECF pp. 11-12.) Although
Plaintiff references multiple causes of action, he fails to
provide factual context. In fact, Defendants Scott Frakes and
Brad Hanson are only specifically referenced twice in the
Complaint. In short, Plaintiff needs more ...