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Menyweather v. Department of Correction Serv.

United States District Court, D. Nebraska

June 9, 2017

DEPARTMENT OF CORRECTION SERV., SCOTT FRAKES, Director; and DOSSOU, Officer, Corpal; Defendants.


          Richard G. Kopf Senior United States District Judge.

         Plaintiff filed a Complaint on March 27, 2017. (Filing No. 1.) He has been given leave to proceed in forma pauperis. (Filing No. 8.) Plaintiff paid his initial partial filing fee on May 10, 2017. (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.


         Plaintiff is a prisoner confined at the Lincoln Correctional Center. (Filing No. 1 at CM/ECF p. 1.) He names Scott Frakes (“Frakes”), Director of the Nebraska Department of Correctional Services (“NDCS”), Corporal Dossou (“Dossou”), an employee at the Diagnostic and Evaluation Center (“DEC”), and any known and unknown NDCS employees as Defendants in his Complaint. (Id. at CM/ECF p. 9.) He sues Frakes in his official capacity. (Id.) He sues Dossou and any known and unknown NDCS employees in their official and individual capacities. (Id.) Plaintiff seeks monetary relief. (Id. at CM/ECF p. 6.)

         Plaintiff was previously confined at DEC. (Id. at CM/ECF p. 10.) Plaintiff alleges that Dossou sprayed an entire can of O.C. (pepper spray) into his eyes at close range despite Plaintiff's compliance with Dossou's instruction to place his hands behind his back. (Id.) Plaintiff also claims to have been in “a very non-defensive stance.” (Id.) Plaintiff claims that his medical records evidence serious injury to his eyes from the spray, and that he must now use reading and “seeing” glasses. (Id.) He also claims to suffer from mental health issues as a result of the incident. (Id.) Plaintiff alleges Dossou's actions constituted excessive force and assault and battery. (Id. at CM/ECF pp. 11-13.)


         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).


         A. Sovereign Immunity

         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.

         Plaintiff has sued state employees - Frakes, Dossou, and any known and unknown NDCS employees - and seeks monetary relief against them. The Eleventh Amendment bars these claims against Defendants in their official capacities. Accordingly, Plaintiff's claims for ...

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