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Beck v. Osmund

United States District Court, D. Nebraska

May 11, 2017

CHRISTOPHER STEPHEN BECK, Plaintiff,
v.
SHERIFF DAN OSMUND, Custer County Jail; Defendant.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Plaintiff filed his Complaint on April 29, 2016. (Filing No. 1.) He has been given leave to proceed in forma pauperis. (Filing No. 15.) Plaintiff paid his initial partial filing fee on January 17, 2017. (See Docket Sheet.) The court ordered Plaintiff to file an amended complaint because his Complaint failed to state a claim upon which relief could be granted. (Filing No. 16.) The court now conducts review of Plaintiff s Amended Complaint (Filing No. 19).

         I. SUMMARY OF AMENDED COMPLAINT

         Plaintiff was a prisoner at the Custer County Jail in Broken Bow, Nebraska. (Filing No. 19 at CM/ECF p. 1.) He is now a prisoner at a facility in Huntsville, Texas. (Id.) Plaintiff alleges that, while confined at the Custer County Jail between August - November of 2014, he informed Head Jailor Pamela Hunter (“Hunter”) and Sheriff Dan Osmund (“Osmund”) about his stomach pain. (Id. at CM/ECF p. 2.) Plaintiff states that he could barely eat or get out of bed for several days. (Id.) He requested to see a doctor, but Osmund referred him to Hunter and Hunter refused to let him see a doctor. (Id.) Plaintiff later advised Hunter that he saw blood in his stool. (Id. at CM/ECF p. 3.) Plaintiff alleges that Hunter returned several hours later with a prescription bottle with Plaintiffs name on it and told him to take the pills in the bottle. (Id.) Plaintiff states that he refused to take any prescription without seeing a doctor. (Id.) Plaintiff never saw a doctor. (Id.) Plaintiff seeks declaratory, injunctive, and monetary relief. (Id. at CM/ECF p. 4.) He sues Hunter and Osmund in their official and individual capacities. (Id. at CM/ECF p. 2.)

         II. APPLICABLE STANDARDS OF REVIEW

         The 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).

         Pro se 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.”).

         “The 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).

         Liberally 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).

         III. DISCUSSION

         A. Official Capacity Claims

         Plaintiff's claims against Defendants in their official capacities are actually claims against their employer: Custer County, Nebraska. “A suit against a public employee in his or her official capacity is merely a suit against the public employer.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999).

         A county may only be liable under section 1983 if its “policy” or “custom” caused a violation of 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 ...


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