United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
filed a Complaint on June 19, 2017. (Filing No. 1.)
He has been given leave to proceed in forma pauperis.
(Filing No. 5.) The court now conducts an initial
review of Plaintiff's Complaint to determine whether
summary dismissal is appropriate under 28 U.S.C. §
SUMMARY OF COMPLAINT
is confined at the Lincoln Regional Center
(“LRC”) as a dangerous sex offender. (Filing
No. 1 at CM/ECF p. 1.) He alleges that he has been
diagnosed with anti-social personality disorder and substance
abuse disorder. (Id. at CM/ECF p. 4.) He names in
his Complaint: LRC, Dr. Dennis Connelly (“Dr.
Connelly”), and Theresa Hansen (“Hansen”).
(Id. at CM/ECF pp. 1-2.) He sues Connelly and Hansen
in their official and individual capacities. (Id. at
CM/ECF pp. 3-4.) He seeks declaratory, injunctive, and
monetary relief. (Id. at CM/ECF pp. 10-12.)
August 6, 2016, while playing football, Plaintiff broke the
fifth metatarsal bone in his right foot. (Id. at
CM/ECF pp. 5-6.) Hansen, a registered nurse, examined
Plaintiff that same day. (Id. at CM/ECF p. 5.)
Believing that Plaintiff's foot was sprained, Hansen
provided Plaintiff an ice pack and crutches. (Id.)
Plaintiff contends the crutches were too tall for him.
(Id.) Two days later, on August 8th, Dr. Connelly
examined Plaintiff and ordered x-rays. (Id.) Three
days later, on August 11th, Plaintiff learned that the x-rays
showed he broke the fifth metatarsal bone in his right foot.
(Id.) Plaintiff alleges that, the following two
days, he asked Hansen “to be put in a boot or
something.” (Id. at CM/ECF p. 6.) Hansen
denied Plaintiff's requests and told him that she and Dr.
Connelly agreed that Plaintiff had to wait to discuss the
issue Dr. Bozart at his appointment on August 16th.
(Id.) Plaintiff claims Defendants' actions
constituted deliberate indifference because he was denied
adequate treatment and that denial resulted in
“significant physical and emotional pain and
August 16th, Dr. Bozart placed Plaintiff's foot in a
boot. (Id.) On November 8, 2016, Dr. Bozart informed
Plaintiff that he needed surgery for his foot because it did
not heal properly. (Id.) On November 24, 2016,
Plaintiff asked Hansen if the date had been set for his
surgery. (Id. at CM/ECF p. 7.) Hansen replied to
Plaintiff that no one had time to call to schedule it.
(Id.) Plaintiff states that, during this time, a
minimum wage job was given to another because of
Plaintiff's foot. (Id.) On December 8, 2016,
Plaintiff had surgery on his foot. (Id.)
brings this action pursuant to 42 U.S.C. § 1983 for
Fourteenth Amendment violations. (Id. at CM/ECF pp.
7-8.) He claims Defendants denied him medical care because
they were aware that he needed to be immediately taken to the
hospital or that the movement of his foot needed to be
restricted after the x-rays showed it to be broken.
(Id.) He also brings this action pursuant to Title
II of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12131 et seq.,
and Section 504 of the Rehabilitation Act (“RA”).
(Id. at CM/ECF pp. 2, 8.) He states he has
“mental health diagnoses, injured right foot, . . . is
substantially limited in movement in activities, [a]nd deals
frequently with pain.” (Id. at CM/ECF p. 8.)
He claims LRC discriminated against him in violation of Title
II of the ADA and the RA “for failing to provide
reasonable accommodations and/or modifications of policies to
rec[ei]ve healthcare and by failing to provide healthcare in
the most integrated setting appropriate to [his]
needs.” (Id. at CM/ECF pp. 2, 8.)
APPLICABLE STANDARDS OF REVIEW
court is required to review in forma pauperis complaints to
determine whether summary dismissal is appropriate.
See28 U.S.C. § 1915(e)(2). 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).
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).
Official Capacity Section 1983 Claims
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). Congress did not abrogate the
states' sovereign immunity when it enacted 42 U.S.C.
§ 1983. Smith v. Beebe, 123 F.Appx. 261, 262
(8th Cir. 2005) (unpublished) (citations omitted). Sovereign
immunity does not bar damages ...