United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
filed his Complaint on January 11, 2017. (Filing No.
1.) He has been given leave to proceed in forma
pauperis. (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.
SUMMARY OF COMPLAINT
is a prisoner at Lancaster County Department of Correction in
Lincoln, Nebraska. (Filing No. 1 at CM/ECF p. 2.)
Plaintiff's Complaint names Correction Care Solutions
(“CCS”), Emiley Waltman (“Waltman”),
a nurse employed by Correction Care Solutions, and Lancaster
County Department of Correction (“LCDC”) as
Defendants. (Id.) He sues Waltman in her official
capacity. (Id.) Plaintiff brings § 1983 Eighth
Amendment and state law medical malpractice claims against
alleges that he broke his collar bone prior to his arrest.
(Id. at CM/ECF p. 6.) He informed the booking
officer at LCDC of his injury. (Id.) Waltman, the
“on call” nurse, checked Plaintiff.
(Id.) She did not believe Plaintiff that his collar
bone was broken and that he was in pain. (Id. at
CM/ECF p. 7.) Plaintiff alleges that, as a result of
Waltman's findings, LCDC made him lay on a concrete bench
without a blanket and without medication for several hours,
causing him further pain and suffering. (Id.)
Plaintiff immediately filed a medical request. (Id.)
As a result, another nurse ordered x-rays, which confirmed
that Plaintiffs collar bone was broken. (Id. at
CM/ECF pp. 7-8.) Plaintiff claims that the nurse told him
that he “will be deformed in that area - nothing we can
do.” (Id. at CM/ECF p. 8.) He was given
Tylenol for pain. (Id.) Plaintiff alleges that,
because of his repeated complaints, the x-rays were sent back
to a radiologist with a request for a recommendation.
(Id. at CM/ECF pp. 8-9.) Plaintiff had surgery on
his collar bone six weeks after he was booked into LCDC.
(Id. at CM/ECF p. 9.)
his return from the hospital, Plaintiff was moved for
observation from general population to the infirmary.
(Id.) Plaintiff claims that he was not given the
full amount of his pain medication after surgery and that he
suffered anxiety attacks and nervous breakdowns from
listening to other inmates in the infirmary. (Id. at
CM/ECF pp. 9-10, 16-17.) In a “Supplement” to his
Complaint, Plaintiff alleges that a doctor with CCS failed to
timely schedule him for a second surgery to have the plate
removed that was inserted during his first surgery.
(Filing No. 8 at CM/ECF pp. 2-3.) Plaintiff has
since had the plate removed during a second surgery.
(Id. at CM/ECF p. 1.) Plaintiff seeks an unspecified
amount of monetary relief for pain and suffering and for any
permanent damage. (Filing No. 1 at CM/ECF p. 12;
Filing No. 8 at CM/ECF p. 2.)
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).
Lancaster County Department of Correction
court liberally construes Plaintiff's claims against LCDC
as claims against Lancaster County. See Sullivan v. Sarpy
County Jail, 2015 WL 5124968 (D. Neb.) (Sarpy County was
the proper defendant, not the Sarpy County Jail). As a
municipal defendant, Lancaster County may only be liable
under section 1983 if its official “policy” or
“custom” caused a violation of the
plaintiff's constitutional rights. Doe By &
Through Doe v. Washington Cnty.,150 F.3d 920, 922 (8th
Cir. 1998) (citing Monell v. Dep't of Soc.
Servs.,436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611
(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
& Through Jane Doe B v. Special Sch. Dist. of St. ...