United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge
filed a Complaint on June 26, 2017. (Filing No. 1.)
He has been given leave to proceed in forma pauperis.
(Filing No. 9.) 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 currently confined at the Douglas County
Correctional Center in Omaha, Nebraska. He brings this action
pursuant to 42 U.S.C. § 1983 against the Nebraska
Department of Correctional Services, the warden of the
Diagnostic and Evaluation Center (“DEC”), and
corrections officer Corporal Sorenson. He seeks only monetary
damages. (Filing No. 1 at CM/ECF pp. 1-2,
September 3, 2016, a Caucasion inmate attacked Plaintiff, an
African-American, with a razor blade at DEC. Plaintiff
alleges that, although Corporal Sorenson ordered both inmates
to stop fighting, he focused on Plaintiff when he called
Plaintiff a “black-ass nigger” and sprayed him
“excessively” with pepper spray. Corporal
Sorenson is Caucasion. Plaintiff further contends that
Corporal Sorenson lied in his written report and during a
subsequent disciplinary hearing when he stated that he did
not see the other inmate with a weapon. Plaintiff alleges
that video surveillance, viewed by the disciplinary board,
shows Corporal Sorenson threw away the weapon after he found
it on the upper deck floor. According to Plaintiff, Corporal
Sorenson threw away the weapon to justify his use of force
against Plaintiff. The disciplinary board found Plaintiff not
guilty because Plaintiff was not the aggressor in the fight
between himself and the other inmate. (Id. at CM/ECF
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).
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).
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). Sovereign immunity does not bar
damages claims against state officials acting in their
personal capacities, nor does it bar claims brought pursuant
to 42 U.S.C. §1983 that seek equitable relief from state
employee defendants acting in their official capacity.
sues the Nebraska Department of Correctional Services and two
state employees and seeks only monetary relief against them.
The Eleventh Amendment bars his claims against them in their
official capacities. Plaintiff's claims for monetary