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Nickman v. Zarraga

United States District Court, D. Nebraska

October 12, 2016

JOSHUA M. NICKMAN, Plaintiff,
v.
JUAN M. ZARRAGA, official capacity, SHELBY L. RAWLINGS, official capacity, ANDREW L. MCLEAN, official capacity, COLTON J. GUERRERO, official capacity, MICHAEL TUBBS, official capacity, JESUS J. RAMIREZ, official capacity, JAIME LYN CRAFT, official capacity, JESSICA M. STROUP, official capacity, SCOTT B. ANDREALA, official capacity, ERIC JON LITTLE, official capacity, JONATHAN R. TRIPP, official capacity, AARON CRAY, official capacity, TODD BAHENSKY, official capacity, LACY, official capacity, HALL COUNTY CORRECTIONS, official capacity, and J. JONES, official capacity, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         The court previously conducted an initial review of Plaintiff's Complaint to determine whether summary dismissal was appropriate under 28 U.S.C. § 1915(e)(2). Upon review, the court concluded that Plaintiff had failed to state a claim. (Filing No. 21.) However, Plaintiff was given leave to file an amended complaint. Plaintiff has submitted an Amended Complaint and the court will now review it to determine whether Plaintiff has asserted any viable claims.

         I. SUMMARY OF AMENDED COMPLAINT

         Plaintiff, who is currently incarcerated at the Lincoln Diagnostic Center, alleges he was assaulted by jail staff while incarcerated at Hall County Corrections. (Filing No. 1.) Plaintiff further contends that he did not receive proper medical treatment for the injuries he sustained in the assault.

         Plaintiff has named Hall County Corrections, and multiple correctional officers and officials at Hall County Corrections as defendants. The officers are sued in their individual capacities only.

         II. DISCUSSION

         1. Plaintiff's Claim Against Hall County Corrections

         As a municipality, Hall County can only be liable under § 1983 if a municipal policy or custom caused his injury. See Monell v. New York Department of Social Services, 436 U.S. 658, 694 (1978). Plaintiff has failed to plausibly suggest that an official Hall County policy or custom caused a violation of his constitutional rights. Therefore, Plaintiff's claims against Hall County will be dismissed.

         2. Plaintiff's Excessive Force Claim

         The Eighth Amendment forbids the wanton and unnecessary infliction of pain upon prisoners. In an Eighth Amendment excessive force case, “the core judicial inquiry is whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Santiago v. Blair, 707 F.3d 984, 990 (8th Cir. 2013) (internal quotation omitted). “Whether the force used was reasonable is judged from the perspective of a reasonable officer on the scene and in light of the particular circumstances.” Story v. Norwood, 659 F.3d 680, 686 (8thCir. 2011) (internal quotation omitted).

         Plaintiff alleges that Defendants McLean, Zarraga, and Gray took him into a room to question him about a grievance he was planning to file. Plaintiff claims he was seated in a chair at a table and Defendants McLean, Zarraga, and Gray “came at” him and body slammed him into the corner of the room. Then, Defendants Rawlings, Guerrero, Tubbs, Ramirez, Craft, Stroup, Andreala, Little and Trip came into the room and piled on top of Plaintiff. Plaintiff contends that these Defendants pinned him down and repeatedly punched and choked him.

         The court finds that Plaintiff has sufficiently alleged an Eighth Amendment excessive force claim against Defendants McLean, Zarraga, Gray, Rawlings, Guerrero, Tubbs, Ramirez, Craft, Stroup, Andreala, Little and Trip. Liberally construed, Plaintiff alleges he was attacked because he planned to file a grievance. Plaintiff maintains that he was in an interview room with three officers and seated in a chair at a table when the assault began. These allegations are sufficient to suggest that the force used against Plaintiff was unreasonable. Therefore, the court will allow Plaintiff's excessive force claims to proceed to service of process against these Defendants.

         However, the court will dismiss Plaintiff's claims against Jones and Bahensky. The Amended Complaint does not identify the actions taken by these defendants. “Individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation.” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009). A complaint that only lists a defendant's name without alleging that the defendant was personally involved in the alleged misconduct fails to state a claim against that defendant. Krych v. Hvass, 83 F. App'x 854, 855 (8th Cir. 2003).

         3.Plaintiff's Eighth ...


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