United States District Court, D. Nebraska
LUCAS M. ORTIZ, Plaintiff,
STATE OF NEB DOUGLAS CO, Defendant.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
filed a Complaint on October 26, 2017. (Filing No.
1.) He has been given leave to proceed in forma
pauperis. (Filing No. 9.) The court now conducts an
initial review of Plaintiff s Complaint to determine whether
summary dismissal is appropriate under 28 U.S.C. §§
1915(e) and 1915A.
SUMMARY OF COMPLAINT
is currently incarcerated at the Douglas County Correctional
Center ("DCCC") in Omaha, Nebraska. He brings this
action pursuant to 42 U.S.C. § 1983 against Douglas
County, Nebraska and DCCC for deliberate indifference to his
serious medical needs. Plaintiff also alleges violations of
Section 504 of the Rehabilitation Act, 29 U.S.C. § 794,
and the Americans with Disabilities Act ("ADA"), 42
U.S.C. §§ 12101-12213.
alleges that he was shot twice on February 24, 2017, and was
taken by ambulance with police escort to UNMC Medical Center
in Omaha, Nebraska. Plaintiff underwent surgery on February
28, 2017, to "remove shrapnel" and had seven
permanent screws and a metal rod placed in his left knee.
(Filing No. 1 at CM/ECF p.5.) Medical staff at UNMC
informed Plaintiff that he "would need physical therapy
to learn how to walk again." (Id.)
March 3, 2017, Plaintiff was transferred to DCCC and placed
in "Medical MOD." (Id.) Upon arrival at
DCCC, Plaintiff alleges he had open wounds and, four months
later, he "developed a severe infection and swelling
that persist to this day [which] prevents total movement and
is still leaking puss [sic]." (Id.) Plaintiff
alleges that he was told by DCCC medical staff that he would
not receive any type of physical therapy or help learning to
walk again. (Id. at CM/ECF pp.4-6.) Presently,
Plaintiff states his ability to ambulate is severely impaired
and he "could becom[e] handicapped." (Id.
at CM/ECF pp.4, 6.) Plaintiff seeks $20, 000.00 in damages as
compensation "for not receiving the rehabilitative
therapy that is necessary to walk again." (Id.
at CM/ECF p.8.)
APPLICABLE STANDARDS OF 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. 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. Sounders, 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).
construed, Plaintiff names Douglas County, Nebraska, and DCCC
as Defendants in this suit. As an initial matter, DCCC is not
a distinct legal entity subject to suit. See Dan v.
Douglas Cty. Dep 't of Corr., No. 8:06CV714, 2009 WL
483837, at *4 (D. 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"); see also Ketchum v. City of West Memphis,
Ark, 978 F.2d 81, 82 (8th Cir. 1992) (departments or
subdivisions of local government are "not juridical
entities suable as such"); Marsden v. Fed. Bureau of
Prisons, 856 F.Supp. 832, 836 (S. D. N.Y.1994) (jails
are not entities amenable to suit). Accordingly, any claims
against DCCC are dismissed.