United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
filed his Complaint on January 9, 2017. (Filing No.
1.) He has been given leave to proceed in forma
pauperis. (Filing No. 6.) 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 Tecumseh State Correctional Institution
(“TSCI”). (Filing No. 1.) He names TSCI
as the sole defendant in his Complaint. (Id. at
CM/ECF p. 2.)
September 12, 2016, Plaintiff hit his head on the floor while
suffering from a seizure. (Id. at CM/ECF p. 17.)
Plaintiff alleges that staff allowed inmates to move his head
without medical assistance while Plaintiff was unconscious.
(Id. at CM/ECF pp. 17-18.) He asserts that, when
medical personnel arrived twenty minutes later, they made him
stand to lay on the stretcher and failed to secure his head
and neck. (Id. at CM/ECF p. 18.) Plaintiff alleges
that it was another twenty minutes after his arrival at the
medical department before anyone saw him. (Id. at
CM/ECF p. 19.) He states that he was made to stand and walk
to the x-ray room, where he had another seizure.
(Id.) He alleges that he had to put himself on the
stretcher again. (Id.) At this point, Dr. Damme
called for an ambulance. (Id.) Plaintiff alleges
that he suffers from constant neck pain and severe headaches.
(Id. at CM/ECF pp. 18-19.) He seeks $200, 000 in
monetary damages. (Id. at CM/ECF p. 20.)
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).
sues TSCI, a state instrumentality. The Eleventh Amendment
bars claims for damages by private parties against a state,
state instrumentalities, and an employee of a state sued in
the employee's official capacity. See, e.g.,
Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619
(8th Cir. 1995); Dover Elevator Co. v. Arkansas State
Univ., 64 F.3d 442, 446-47 (8th Cir. 1995). Any award of
retroactive monetary relief payable by the state, including
for back pay or damages, is proscribed by the Eleventh
Amendment absent a waiver of immunity by the state or an
override of immunity by Congress. See, e.g., id.;
Nevels v. Hanlon, 656 F.2d 372, 377-78 (8th Cir.
1981). Sovereign immunity does not bar damages claims against
state officials acting in their personal capacities, nor does
it bar claims brought pursuant to 42 U.S.C. §1983 that
seek equitable relief from state employee defendants acting
in their official capacity. Accordingly, Plaintiff's
claims against TSCI are barred by the Eleventh Amendment.
own motion, the court will allow Plaintiff an opportunity to
file an amended complaint that states a claim upon which
relief may be granted. Plaintiff must identify personal
involvement or responsibility by a named individual for the
constitutional violations. See Ellis v.
Norris, 179 F.3d 1078, 1079 (8th Cir. 1999) (stating
that prisoner must allege defendants' personal
involvement or responsibility for the constitutional
violations to state a § 1983 claim); see also Martin
v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985)
(“Although it is to be liberally construed, a pro se
complaint must contain specific facts supporting its
conclusions.”). Plaintiff should be mindful to identify
the defendants and explain what each defendant did to him,
when the defendant did it, how the defendant's actions
harmed him, and what specific legal right Plaintiff believes
the defendant violated.
drafting his amended complaint, Plaintiff should note that,
to prevail on an Eighth Amendment claim, a plaintiff must
prove that the defendants acted with deliberate indifference
to his serious medical needs. See Estelle v. Gamble,429 U.S. 97, 106 (1976). The deliberate indifference standard
includes both an objective and a subjective component. This
means Plaintiff must demonstrate that (1) he suffered from
objectively serious medical needs, and (2) the defendants
knew of, but deliberately disregarded, those needs. See
Jolly v. Knudsen,205 F.3d 1094, 1096 (8th Cir. 2000)
(quoting Dulany v. Carnahan,132 F.3d 1234, 1239
(8th Cir.1997)). Allegations suggesting that staff acted
negligently are insufficient to support an Eighth Amendment
claim. See Estelle, supra(holding that mere negligence or
medical malpractice are insufficient to rise to a
constitutional violation). Moreover, a supervisor may not be
held liable under § 1983 for the constitutional
violations of a subordinate on a respondeat superior theory.
Tlamka v. Serrell,244 F.3d 628, 635 (8th Cir.
2001). Rather, a supervisor's liability arises if
“a failure to properly supervise and train the
offending employee ...