United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
filed a Complaint on January 9, 2017. (Filing No.
1.) He was given leave to proceed in forma pauperis.
(Filing No. 6.) On March 22, 2017, the court
dismissed Plaintiff's claims against the sole Defendant,
Tecumseh State Correctional Institution (“TSCI”),
as barred by the Eleventh Amendment and ordered Plaintiff to
file an amended complaint. (Filing No. 7.) The court
informed Plaintiff that, in an amended complaint:
[he] must identify personal involvement or responsibility by
a named individual for the constitutional violations. See
Ellis v. Norris, 179 F.3d 1078, 1079 (8th Cir. 1999)
(stating that prisoner must allege defendants' personal
involvement or responsibility for the constitutional
violations to state a § 1983 claim); see also
Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir.
1985) (“Although it is to be liberally construed, a pro
se complaint must contain specific facts supporting its
conclusions.”). Plaintiff should be mindful to identify
the defendants and explain what each defendant did to him,
when the defendant did it, how the defendant's actions
harmed him, and what specific legal right Plaintiff believes
the defendant violated.
Id. Now, the court conducts review of
Plaintiff's Amended Complaint (Filing No. 10).
Amended Complaint continues to fail to state a claim upon
which relief may be granted. Plaintiff alleges that seven
John and Jane Does, comprised of corrections staff and
medical personnel employed at TSCI, were deliberately
indifferent to his serious medical needs after he fell and
hit his head on the floor during a seizure. He seeks solely
monetary damages against John and Jane Does. However,
Plaintiff did not specify the capacity in which the
individual defendants are sued. Where a plaintiff fails to
“expressly and unambiguously” state that a public
official is sued in his individual capacity, the court
“assume[s] that the defendant is sued only in his or
her official capacity.” Johnson v. Outboard Marine
Corp., 172 F.3d 531, 535 (8th Cir. 1999).
Plaintiff's claims against John and Jane Does, purported
employees of TSCI, in their official capacities under §
1983 solely for monetary relief are barred by the Eleventh
Amendment. Id. (“A suit against a public
employee in his or her official capacity is merely a suit
against the public employer.”). 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). These claims
will be dismissed. The court notes that, at the court's
direction, the clerk of the court previously sent Plaintiff a
complaint form (see Filing No. 7), which allowed
Plaintiff to clearly designate the capacity in which he
brings his complaint against each Defendant. Plaintiff opted
not to utilize that form.
Plaintiff did not follow the court's order and identify
personal involvement or responsibility by a named individual.
The court has carefully reviewed Plaintiff's attachments.
It appears that CM Barker is “Jane Doe No. 1, ”
who allegedly allowed inmates to move Plaintiff's head
without medical assistance. (See Filing No. 10 at CM/ECF
5.) Assuming that Plaintiff “expressly and
unambiguously” states in a second amended complaint
that he sues CM Barker in her individual capacity, his Eighth
Amendment claim for deliberate indifference to his serious
medical needs will be allowed to proceed to service of
process against her. The claim will also proceed to service
of process against any of the John Does present with CM
Barker before medical personnel arrived if (1) Plaintiff
identifies John Does in a second amended complaint, and (2)
“expressly and unambiguously” states that he sues
them in their individual capacities.
addition, and irrespective of capacity status, the court
finds that Plaintiff fails to state a claim against medical
personnel, including Dr. Damme. Plaintiff alleges that
medical personnel failed to use a neck brace or back board;
made him stand to get on the stretcher; and made him walk to
the x-ray room across the hall. He also alleges that they
were slow to the scene and to examine him. While
Plaintiff's allegations against medical personnel may be
enough to state a plausible claim for negligence or medical
malpractice, they are not enough to state a plausible claim
for deliberate indifference in violation of the Eighth
Amendment. See Estelle v. Gamble, 429 U.S. 97, 106
(1976) (holding that mere negligence or medical malpractice
are insufficient to rise to a constitutional violation).
Moreover, to the extent Plaintiff attempts to allege a
failure-to-train claim against TSCI, Plaintiff continues to
fail to allege that any “supervisor had notice that the
training procedures and supervision were inadequate and
likely to result in a constitutional violation.”
Tlamka v. Serrell, 244 F.3d 628, 635 (8th Cir.
2001). The court advised Plaintiff of these same propositions
of law in its previous order (seeFiling No. 7).
These claims will be dismissed.
own motion, the court will allow Plaintiff an opportunity to
file a second amended complaint that: (1) identifies the John
Does present with CM Barker before medical personnel arrived,
and (2) states in which capacity Plaintiff sues them and CM
Barker. Failure to file a second amended complaint within the
time specified by the court will result in the court
dismissing this case without further notice to Plaintiff.
THEREFORE ORDERED that:
Because the court has already granted Plaintiff 120 days to
file an amended complaint, Plaintiff shall file a second
amended complaint no later than August 22,
2017, correcting the aforementioned deficiencies.
Failure to file a second amended complaint within the time
specified by the court will result in the court dismissing
this case without further notice to Plaintiff.
In his second amended complaint, Plaintiff must
identify the John Does present with CM Barker before his
claims against them can proceed to service of process, or he
must identify the reasonable steps he took to identify them.
Failure to do so will result in dismissal of the claims
against the John Does without prejudice and without further
Plaintiff's claims for monetary damages against John and
Jane Does in their official capacities are dismissed as
barred by the Eleventh Amendment.
Plaintiff's Eighth Amendment deliberate indifference
claims for monetary damages against John and Jane Does, not
identified as CM Barker or the John Does present with her
before medical personnel arrived, are dismissed with
prejudice for failure to state a claim upon which relief may
be granted. To the extent Plaintiff attempts to allege a
failure-to-train claim against TSCI, it too is dismissed with
prejudice for failure to state a claim.
clerk of the court is directed to set a pro se case
management deadline using the following text: August