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Dvorak v. State

United States District Court, D. Nebraska

March 20, 2018

ZACHEREY DANIEL DVORAK, Plaintiff,
v.
STATE OF NEBRASKA and DOUGLAS COUNTY CORRECTIONS, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Plaintiff, an inmate in the Douglas County Correctional Center, brings this 42 U.S.C. § 1983 action for money damages against Douglas County Corrections and the State of Nebraska. The court previously granted Plaintiff permission to proceed in forma pauperis in this action. The court now conducts an initial review of the Complaint (Filing No. 1) to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.

         I. SUMMARY OF COMPLAINT

         Plaintiff alleges that the Defendants are violating “all [his] civil rights” because “they are ignoring [him].” (Filing No. 1 at CM/ECF p. 4.) Plaintiff claims unnamed “state employees” have ignored his grievances regarding denial of medical attention and have “come into [his] cell while [he] was sleep[ing] and done surgery.” (Filing No. 1 at CM/ECF p. 5.)

         Plaintiff asks the court to obtain his grievances because “they” will not send him copies; to “compare [his] body to old x-rays of doctors and hospitals”; to “investigate all employees” regarding his allegations; to “help [him] to gain control of [his] life and put things back together to be an American citizen with rights as every American”; and to “provide a legal team.” (Filing No. 1 at CM/ECF pp. 5, 7-8 (capitalization corrected).)

         II. LEGAL 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. 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.”).

         “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.” Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).

         Liberally construed, Plaintiff here attempts to allege 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).

         III. DISCUSSION

         A. Douglas County Department of Corrections

         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 (D. Neb. Feb. 25, 2009) (the DCDC lacks the legal capacity to sue or be sued in its own name because it has no elected or appointed governing body with the authority to make appropriations and expenditures apart from Douglas County). Because the DCDC is not a separate legal entity from Douglas County, Plaintiff's claims against the DCDC shall be construed as claims against Douglas County. Parsons v. McCann, 138 F.Supp.3d 1086, 1097 (D. Neb. 2015) (Nebraska law allows counties to sue and be sued, but the same is not true of county offices and departments); Griggs v. Douglas Cty. Corr. Ctr., No. 8:07CV404, 2008 WL 1944557, at *1 (D. Neb. Apr. 29, 2008) (same); Porter v. Hennepin Cty., No. CIV. 06-3142, 2006 WL 3841540, at *1 (D. Minn. Dec. 29, 2006) (dismissing county department of community corrections as defendant in 42 U.S.C. § 1983 action because department was not separate legal entity from county itself).

         A county “may only be held liable for constitutional violations which result from a policy or custom of the municipality, ” Yellow Horse v. Pennington Cty.,225 F.3d 923, 928 (8th Cir. 2000), whether the policy or custom is “made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.” Gladden v. Richbourg, 759 F.3d 960, 968 (8th Cir. 2014); Monell v. Dep't of Soc. Servs.,436 U.S. 658, 691 (1978) (‚ÄúCongress did not intend ...


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