United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
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.
SUMMARY OF COMPLAINT
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.)
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.)
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).
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.
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 ...