United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge.
filed her Complaint in this matter on September 8, 2017.
(Filing No. 1.) Plaintiff has been given leave to
proceed in forma pauperis. (Filing No. 5.) The court
now conducts and initial review of the Complaint to determine
whether summary dismissal is appropriate under 28 U.S.C.
SUMMARY OF COMPLAINT
alleges that on September 7, 2017, Judge Randall ordered that
she be released from the Douglas County Jail, but she was
held in jail until the next day. She seeks relief in the
amount of $100, 000, 000.00.
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. §
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).
contends that Defendants failed to follow a court order which
directed that she be released from custody. However, because
Plaintiff's Complaint does not specify whether she is
suing Defendants in their official or individual capacities,
this court presumes they are sued in their official
capacities only. See Johnson v. Outboard Marine
Corp., 172 F.3d 531, 535 (8th Cir. 1999) (“This
court has held that, in order to sue a public official in his
or her individual capacity, a plaintiff must expressly and
unambiguously state so in the pleadings, otherwise, it will
be assumed that the defendant is sued only in his or her
official capacity.”). A claim against an individual in
his official capacity is, in reality, a claim against the
entity that employs the official-in this case, Douglas
County, Nebraska. See Parrish v. Luckie, 963 F.2d
201, 203 n.1 (8th Cir. 1992) (“Suits against persons in
their official capacity are just another method of filing
suit against the entity. A plaintiff seeking damages in an
official-capacity suit is seeking a judgment against the
entity.” (internal citations omitted)). Douglas County
can only be liable under § 1983 if a municipal policy or
custom caused Plaintiff's injury. See Monell v. New
York Department of Social Services, 436 U.S. 658, 694
(1978). Plaintiff has not made allegations supporting such a
court's own motion, the court will provide Plaintiff with
an opportunity to file an amended complaint that states a
claim upon which relief may be granted. Failure to file an
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:
Plaintiff shall file an amended complaint by November 27,
2017, that states a claim upon which relief may be granted.
Failure to file an amended complaint within the time
specified by the court will result in the ...