United States District Court, D. Nebraska
DEROISE J. WASHINGTON, Plaintiff,
MARK FOXHALL, Director, MARY EARLY, Captain, and ESCH, Medical Doctor, Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
filed his Complaint (Filing No. 1) on January 6,
2017, and was subsequently granted leave to proceed in forma
pauperis (Filing No. 7). A Supplement to the
Complaint (Filing No. 9) was filed on January 26,
2017. The court now conducts an initial review of
Plaintiff's Complaint and Supplement to determine whether
summary dismissal is appropriate under 28 U.S.C. §§
1915(e)(2) and 1915A.
SUMMARY OF COMPLAINT
is confined at the Douglas County Corrections Center. He
claims Defendants have denied him due process by failing to
provide adequate treatment for various medical conditions,
including psoriatic and osteo arthritis, a femoral head
collapse which requires total hip replacement surgery,
bulging and ruptured discs which also require surgery, and
sciatic nerve compression.
LEGAL 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. §
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 omitted).
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).
DISCUSSION OF CLAIM
does not specify whether he sues Defendants in their
individual or official capacities. Where a plaintiff does not
specify the capacity in which a defendant is sued, it is
presumed that a defendant is sued in his official capacity
only. See, e.g., Johnson v. Outboard Marine Corp.,
172 F.3d 531, 535 (8th Cir. 1999) (stating 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.”). In addition, a claim against an
individual, in her official capacity, is in reality a claim
against the entity that employs the official. 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. . . . Therefore, the
appellants in this case will collectively be referred to as
the City.”) (quotations omitted). Accord Eagle v.
Morgan, 88 F.3d 620, 629 n.5 (8th Cir. 1996)
(“‘[A]n official-capacity suit is, in all
respects other than name, to be treated as a suit against the
entity.”') (quoting Kentucky v. Graham,
473 U.S. 159, 165 (1985)). Therefore, Plaintiff's claims
against Defendants in their official capacities are actually
asserted against Douglas County, Nebraska.
municipal defendant, Douglas County may only be liable under
section 1983 if its “policy” or
“custom” caused a violation of the
plaintiff's constitutional rights. Doe By and Through
Doe v. Washington County, 150 F.3d 920, 922 (8th Cir.
1998) (citing Monell v. Department of Soc. Servs.,
436 U.S. 658, 694 (1978)). An “official policy”
involves a deliberate choice to follow a course of action
made from among various alternatives by an official who has
the final authority to establish governmental policy.
Jane Doe A By and Through Jane Doe B v. Special School
Dist. of St. Louis County, 901 F.2d 642, 645 (8th Cir.
1990) (citing Pembaur v. City of Cincinnati, 475
U.S. 469, 483 (1986)). To establish the existence of a
governmental “custom, ” a plaintiff must prove:
1) The existence of a continuing, widespread, persistent
pattern of unconstitutional misconduct by the governmental
2) Deliberate indifference to or tacit authorization of such
conduct by the governmental entity's policymaking
officials after notice to the ...