United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
filed his Complaint (Filing No. 1) on December 12,
2016, and was granted leave to proceed in forma pauperis on
January 23, 2017 (Filing No. 7). The court now
conducts an initial review of Plaintiff's Complaint to
determine whether summary dismissal is appropriate under
28 U.S.C. §§ 1915(e)(2) and
SUMMARY OF COMPLAINT
Complaint, which is in the form of a letter to the court,
indicates that Plaintiff struck a prison worker, Randy
Bradley, because Bradley had been bullying Plaintiff and
other prisoners; that Bradley struck back after Plaintiff was
handcuffed by two officers; and that after Bradley was
restrained by additional officers he broke free and again
started hitting Plaintiff. Plaintiff accuses various prison
officials of covering up the incident and of conspiring with
prosecutors to prevent criminal charges being filed against
Bradley for assault and against a State Patrol investigator
for obstruction of justice. There is no request for relief.
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. § 1915(e)(2)(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 omitted).
construing the Complaint, it appears Plaintiff is attempting
to allege one or more 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 CLAIMS
court is unable to tell from the Complaint who Plaintiff
intends to sue or what relief he expects to receive. The date
of the incident is not stated, nor can it be determined how
or when the alleged conspiracies took place. Plaintiff
contends he attempted to exhaust administrative remedies, and
that his grievances were destroyed by officers involved in
the incident, but no factual details are provided. As
pleaded, the Complaint fails to state a plausible claim for
own motion, the court will give Plaintiff 30 days to file an
Amended Complain using a standard form that will be provided
to him by the clerk of the court. Among other things, the
form will require Plaintiff to identify the defendants, to
set forth the facts of each claim against the defendants, to
describe any injuries sustained, to state the relief
Plaintiff requests, and to detail his efforts to exhaust
administrative remedies. If an Amended Complaint is not
timely filed, the action will be dismissed without further
the court's own motion, the court will give Plaintiff 30
days in which to file an Amended Complaint using a standard
form Complaint for Violation of Civil Rights (Prisoner).
Plaintiff's failure to file an Amended Complaint within
30 days will ...