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Mick v. Wade

United States District Court, D. Nebraska

June 26, 2017

STEVEN E. MICK, Plaintiff,
v.
STEPHEN WADE JR., and DOUGLAS COUNTY DEPARTMENT OF CORRECTIONS, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Plaintiff, an inmate in the Douglas County Jail, brings this action pursuant to 42 U.S.C. § 1983 against the Douglas County Department of Corrections and correctional officer Stephen Wade, alleging that Wade used excessive force against Plaintiff and was deliberately indifferent to Plaintiff's medical needs, in violation of the Eighth Amendment. The court previously granted Plaintiff permission to proceed in forma pauperis in this action. The court now conducts an initial review of the Complaint (Filing No. 1) to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.

         I. SUMMARY OF COMPLAINT

         Plaintiff alleges that Douglas County Corrections Officer Stephen Wade insisted Plaintiff walk to “medical” to get treatment for an unknown condition or sign “refusal papers.” Plaintiff apparently refused to walk because his feet hurt from diabetic neuropathy. After Plaintiff offered to sign the refusal papers, Wade allegedly tripped Plaintiff, causing him to fall backwards onto the floor and to hit his head on the metal bed frame. Wade then kneed Plaintiff in the left rib cage, breaking his ribs. Plaintiff was dragged out of his cell in shackles and handcuffs. After Wade got tired of dragging Plaintiff, Wade transported Plaintiff by wheelchair to the “L.t. office, ” where “the L.t.” threatened Plaintiff and told him the incident was his fault.

         Plaintiff claims he was housed in the “H module, ” which is apparently on the second floor, requiring Plaintiff to climb stairs. Although the chronology of these events is not clear, Plaintiff appears to allege that after the broken-rib incident, he was unable to lie down for 18 days, had to sleep upright with his head on a table, and had difficulty eating. “Medical” eventually came to Plaintiff's cell, where he explained that his ribs were broken and he did not receive any medical help. Plaintiff claims he requested a grievance, but he did not receive one.

         Plaintiff requests monetary damages in the amount of $ 2 million.

         II. LEGAL STANDARDS ON INITIAL 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

         Plaintiff sues two defendants: the Douglas County Department of Corrections (“DCDC”) and correctional officer Stephen Wade. Because the DCDC is not a separate legal entity from Douglas County, Plaintiff's claims against the DCDC shall be construed as claims against Douglas County. Parsons v. McCann, 138 F.Supp.3d 1086, 1097 (D. Neb. 2015) (Nebraska law allows counties to sue and be sued, but the same is not true of county offices and departments); Griggs v. Douglas Cty. Corr. Ctr., No. 8:07CV404, 2008 WL 1944557, at *1 (D. Neb. Apr. 29, 2008) (same); Porter v. Hennepin Cty., No. CIV. 06-3142, 2006 WL 3841540, at *1 (D. Minn. Dec. 29, 2006) (dismissing county department of community corrections as defendant in 42 U.S.C. § 1983 action because department was not separate legal entity from county itself).

         Similarly, because Plaintiff did not specify whether defendant correctional officer Stephen Wade is being sued in his official or individual capacity, the court must presume he is being sued in his official capacity only. See Johnson v. Outboard Marine Corp.,172 F.3d 531, 535 (8th Cir. 1999) (reiterating that when a plaintiff fails to “expressly and unambiguously” state that a public official is sued in his or her ...


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