United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
Charles and Arnetta Swift, filed their Complaint (Filing No.
1) on October 5, 2017, and have since been granted
leave to proceed in forma pauperis (Filing No. 5).
The court now conducts an initial review of Plaintiffs'
Complaint to determine whether summary dismissal is
appropriate under 28 U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
allege their minor child was assaulted by another minor in a
foster care setting. Plaintiffs seek to recover $100 million
in damages from Nebraska Family Cooperative
(“NFC”), the State of Nebraska, and unknown
LEGAL STANDARDS ON INITIAL REVIEW
court is required to review in forma pauperis complaints to
determine whether summary dismissal is appropriate. See 28
U.S.C. § 1915(e). 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).
indicate their action is filed pursuant to 42 U.S.C. §
1983, which provides a cause of action for “the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws” of the United States. As
will be discussed below, there are several problems with
Eleventh Amendment Immunity
State of Nebraska is immune from suit in federal court in an
action brought under 42 U.S.C. § 1983. See Will v.
Mich. Dep't of State Police, 491 U.S. 58, 65-66
(1989) (“[A] State is not a ‘person' within
the meaning of § 1983 ... The Eleventh
Amendment bars ... suits [against States for alleged
deprivations of civil liberties] unless the State has waived
its immunity.”). This action for damages can only
proceed against NFC and persons who are sued in their
individual capacities (as opposed to their official
capacities, which would be equivalent to suing the State).
Importantly, Plaintiffs will need to allege and prove that
NFC and any other Defendants were acting under color of state
law. See West v. Atkins, 487 U.S. 42, 49 (1988)
(“The traditional definition of acting under color of
state law requires that the defendant in a §
1983 action have exercised power ‘possessed by
virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state
do not allege that they were deprived of any rights,
privileges or immunities, or were injured in any way. It
appears Plaintiffs are instead claiming that their minor
child's constitutional rights were violated.
“[P]arents lack standing to bring individual claims
under § 1983 based solely upon deprivation of a
child's constitutional rights.” Phillips ex
rel. Green v. City of New York, 453 F.Supp.2d 690, 734
(S.D.N.Y. 2006). Plaintiffs might be able to sue in a
representative capacity as the child's legal guardians.
See Fed.R.Civ.P. 17(a)(1)(C) (“The following may sue in
their own names without joining the person from whose benefit
the action is brought: ... a guardian ....”) and
(c)(1)(A) (“The following representatives may
sue or defend on behalf of a minor or incompetent person: ...
a general guardian ....”). ...