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.) 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).
SUMMARY OF AMENDED COMPLAINT
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.)
APPLICABLE STANDARDS OF 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).
Official Capacity Claims
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).
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 ...