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Johnson v. Douglas County Department of Corrections

United States District Court, D. Nebraska

March 19, 2018

VERNON R. JOHNSON, Plaintiff,
v.
DOUGLAS COUNTY DEPARTMENT OF CORRECTIONS; MARK FOXALL, Director; and DOCTOR ASH, Director Medical Staff, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Plaintiff, Vernon Johnson, is a prisoner at the Douglas County Corrections Center ("DCCC"). Johnson alleged in a pro se Complaint filed on November 30, 2017, that the Douglas County Department of Corrections, Correct Care Solutions, and Dr. Ash had been negligent in failing to provide him adequate medical care; he sought unspecified relief under the Nebraska Political Subdivisions Tort Claim Act. (Filing No.1)

         In a Memorandum and Order entered on January 10, 2018, the court found on initial review that Johnson's Complaint failed to show the court has subject matter jurisdiction over a state-law negligence claim because the amount in controversy would not appear to exceed $75, 000 and diversity of citizenship might be lacking. On the court's own motion, Johnson was given 30 days in which to file an amended complaint. (Filing No. 8.)

         Johnson's Amended Complaint was filed on February 12, 2018. Johnson now claims that the Douglas County Department of Corrections, Mark Foxall (Director), and Dr. Ash (Director Medical Staff) have violated his constitutional rights and federal statutes. A state-law negligence claim is no longer alleged. (Filing No. 11.)

         I. STANDARDS ON INITIAL REVIEW

         The 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).

         Pro se 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. Iqbak 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."). "The 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." Id. at 849.

         II. DISCUSSION

         As an initial matter, the court again points out to Johnson that the Douglas County Department of Corrections is not a proper defendant. See Dan v. Douglas Cty. Dep't of Corr., No. 8:06CV714, 2009 WL 483837, at *4 (P. Neb. Feb. 25, 2009) (the Department of Corrections and other units within the DCCC and Douglas County lack the legal capacity to sue or be sued in their own names). The Department therefore will be dismissed as a party.

         Claims are brought against Foxall and Ash in their individual and official capacities. (Filing No. 11 at CM/ECF p. 1, ¶ 1) "A suit against a government officer in his official capacity is functionally equivalent to a suit against the employing governmental entity." Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010).

         Johnson alleges that Defendants "violated his U.S. Constitutional rights to receive adequate medical [care] and [to] be free from arbitrary and capricious actions, in not giving proper medical treatment and showing indifference to inmates confined in the correctional institution" and were "negligent in their lack [sic] to seek alternative medical treatment." (Filing No. 11 at CM/ECF p. 2, ¶ 4 (internal quotation marks and underlined omitted).) He further alleges that Defendants "have shown cruel and unusual punishment; inadequate levels of health care, and denial of access by a disabled inmate, which violate Plaintiffs constitutional rights to a community standard of health care and violate federal statutes governing care for inmates with disabilities." (Filing No. 11 at CM/ECF p. 2, ¶ 5.)

         These allegations are simply conclusions of law, unsupported by any factual allegations, and are insufficient to state a claim upon which relief can be granted. See Mick v. Raines, F.3d, No. 17-1644, 2018 WL 1147124, at *2 (8th Cir. Mar. 5, 2018) ('"Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, are not sufficient to survive a motion to dismiss.") (quoting Iqbal, 556 U.S. at 678). The Amended Complaint is therefore subject to dismissal under 28U.S.C.§§ 1915(e)(2) and 1915A.

         Under our local rules, the court has discretionary authority to treat an amended pro se pleading "as supplemental to, rather than as superseding, the original pleading, unless the pleading states that it supersedes the prior pleading." NECivR 15.1(b). In this case, the court declines to treat the Amended Complaint as a supplemental pleading because Johnson has elected to change the nature of his action by dropping his state-law negligence claim in favor of a federal constitutional or statutory claim. But even if the court were to consider the original Complaint in conjunction with the Amended Complaint, no actionable claim for relief is stated.

         The original Complaint is lacking in factual allegations. Essentially, Johnson alleges that "on September 23, 2017, [he] filed an Inmate Request Form to see medical within DCCC, . . . complain[ing] of severe pain, numbness and locking of joints in both hands, " and that he "requested medication . . . [which] was denied." (Filing No. 1 at CM/ECF p. 2, ¶ 4.) However, three ...


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