United States District Court, D. Nebraska
STEVEN E. MICK, Plaintiff,
STEPHEN WADE JR., and DOUGLAS COUNTY DEPARTMENT OF CORRECTIONS, Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
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.
SUMMARY OF COMPLAINT
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.
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.
requests monetary damages in the amount of $ 2 million.
LEGAL STANDARDS ON INITIAL 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).
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).
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 ...