United States District Court, D. Nebraska
VERNON R. JOHNSON, Plaintiff,
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
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)
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.)
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
STANDARDS ON INITIAL 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. 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.
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.
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).
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.)
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.
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.
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