United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
filed his Complaint on April 29, 2016. (Filing No.
1.) He has been given leave to proceed in forma
pauperis. (Filing No. 15.) The court now conducts an
initial review of Plaintiff's Complaint to determine
whether summary dismissal is appropriate under 28 U.S.C.
SUMMARY OF COMPLAINT
time of his Complaint, Plaintiff was a prisoner at the Custer
County Jail. (Filing No. 1 at CM/ECF p. 2.) He is
now a prisoner at a facility in Huntsville, Texas.
(Id.) Plaintiff names one defendant in his
Complaint: Dan Osmund, Custer County Sheriff. (Id.)
Plaintiff alleges that jailors at the Custer County Jail were
deliberately indifferent to his serious medical need when
they would not answer his grievances or let him see a doctor
about his severe acid reflux. (Id. at CM/ECF p. 3.)
He claims that he was in so much pain that he could not move
or eat. (Id.) Petitioner alleges that Sheriff Osmund
refused to answer his grievance. (Id.) He seeks
declaratory and monetary damages against Sheriff Osmund.
(Id. at CM/ECF p. 5.)
APPLICABLE STANDARDS OF REVIEW 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 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).
Complaint fails to state a claim upon which relief may be
granted. To maintain a § 1983 claim against an
individual supervisory party, (e.g., a county
sheriff), Plaintiff must allege facts showing that the
supervisory party himself personally violated the
Plaintiff's constitutional rights. Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009) (“[b]ecause
vicarious liability is inapplicable to ... § 1983 suits,
a plaintiff must plead that each Government-official
defendant, through the official's own individual actions,
has violated the Constitution”) (emphasis added).
Plaintiff's allegations are insufficient to show that
Sheriff Osmund personally violated his constitutional rights.
His allegations that Sheriff Osmund failed to respond to his
grievance does not state a violation of his constitutional
rights. See Buckley v. Barlow, 997 F.2d 494 (8th
Cir.1993) (holding that prison officials' failure to
process inmates' grievances, without more, is not
actionable under section 1983).
court will provide Plaintiff with an opportunity to file an
amended complaint that states a claim upon which relief may
be granted. Plaintiff is warned that his amended complaint
will supersede, not supplement, his Complaint. Failure to
file an amended complaint within the time specified by the
court will result in the court dismissing this case without
further notice to Plaintiff.
THEREFORE ORDERED that:
Plaintiff shall file an amended complaint by April 9, 2017,
that states a claim upon which relief may be granted.
Plaintiff is warned that his amended complaint will
supersede, not supplement, his Complaint. Failure to file an
amended complaint within the time specified by the court ...