United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge.
filed a Complaint on June 5, 2017. (Filing No. 1.)
She has been given leave to proceed in forma pauperis.
(Filing No. 8.) 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 Nebraska Correctional Center
for Women in York, Nebraska. She names several Nebraska
Department of Correctional Services (“NDCS”)
employees as Defendants in this action.
took her property to be “sent out, donated, and/or
destroyed” prior to her anticipated transfer to a
correctional facility in Oregon. (See Filing No. 1 at CM/ECF
pp. 1-9.) After further review, NDCS declined Plaintiff's
request for transfer. (Id. at CM/ECF p. 10.) The
Office of Risk Management and the State Claims Board
subsequently denied Plaintiff's claims for reimbursement.
(Id. at CM/ECF pp. 11-16.) Plaintiff's
attachments show she knew that she could file a lawsuit in
the district court of the appropriate county if she disagreed
with the decision of the State Claims Board. (Id. at
CM/ECF pp. 15-16.) Now, in this action, Plaintiff seeks
reimbursement for her lost personal property and
“related expenses” associated with her cancelled
transfer. (Id. at CM/ECF p. 7.) She further alleges
that she suffered emotional and mental stress from this
experience. (Id. at CM/ECF p. 6.)
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).
construed, Plaintiff alleges NDCS employees violated her due
process rights under the Fourteenth Amendment when they lost
her property.However, if a state provides adequate
remedies to compensate individuals for wrongful property
loss, there is no absence of due process. See
Hudson v. Palmer, 468 U.S. 517, 533 (1984)
(intentional and negligent deprivations of property not
actionable under section 1983 if suitable state remedy);
Parratt v. Taylor, 451 U.S. 527, 542 (1981). There
is no constitutional violation here, because the Nebraska
State Tort Claims Act provides adequate post-deprivation
remedies to compensate individuals for personal property
loss. See Neb. Rev. Stat. § 81-8, 209 et
seq. It appears that Plaintiff did not avail herself of
the full remedies under the State Tort Claims Act.
Accordingly, IT IS THEREFORE ORDERED that:
case is dismissed with prejudice for failure ...