United States District Court, D. Nebraska
JOSE E. RODRIGUEZ, Plaintiff,
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, SCOTT R. FRAKES, Director; DIANA SABATKA-RINE, Deputy Director; MICHAEL ROTHWELL, Deputy Director; and WAYNE CHANDLER, Mental Health Clinical Program Manager; Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
filed a Complaint on January 12, 2017. (Filing No.
1.) He has been given leave to proceed in forma
pauperis. (Filing No. 6.) As of April 10, 2017,
Plaintiff paid his full initial partial filing fee.
(See Docket Sheet.) The court now conducts an
initial review of Plaintiff's Complaint to determine
whether summary dismissal is appropriate under 28 U.S.C.
§§ 1915(e) and 1915A.
SUMMARY OF COMPLAINT
is a prisoner confined at the Lincoln Correctional Center in
Lincoln, Nebraska. (Filing No. 1 at CM/ECF p. 1.) He
sues the Nebraska Department of Correctional Services,
Director Scott R. Frakes, Deputy Director Diane Sabatka-Rine,
Deputy Director Michael Rothwell, and Mental Health Clinical
Program Manager Wayne Chandler. (Id. at CM/ECF pp.
1-2.) Plaintiff alleges that Defendants have denied him
access to programming (anger management, residential drug
treatment, and sex offender treatment) prior to his first
parole eligibility date in violation of due process and state
law. (Id. at CM/ECF pp. 4-6.) Plaintiff fears that
lack of programming will “force” his civil
commitment as a sex offender. (Id. at CM/ECF p. 5.)
He asserts that his needed programming is available at the
Omaha Correctional Center, where Defendants refuse to
transfer him because of his sentence structure. (Id.
at CM/ECF pp. 6, 8.) Plaintiff claims that he suffers from
insomnia, mental anguish/trauma, high blood pressure, acid
reflux, and depression as a result of Defendants'
actions. (Id. at CM/ECF p. 5.) He seeks monetary
damages and for immediate transfer to the Omaha Correctional
Center. (Id. at CM/ECF p. 6.)
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).
does not specify the capacity in which Defendants are sued.
Where a plaintiff fails to “expressly and
unambiguously” state that a public official is sued in
his individual capacity, the court “assume[s] that the
defendant is sued only in his or her official
capacity.” Johnson v. Outboard Marine Corp.,
172 F.3d 531, 535 (8th Cir. 1999). 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
Plaintiff seeks monetary damages against state employees.
Plaintiff's claims for monetary relief against Defendants
in their official capacities are barred by the Eleventh
Fourteenth Amendment ...