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Ortiz v. State of Neb Douglas Co

United States District Court, D. Nebraska

May 10, 2018

LUCAS M. ORTIZ, Plaintiff,


          Richard G. Kopf Senior United States District Judge

         Plaintiff 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.


         Plaintiff 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[1] 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.

         Plaintiff 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.)

         On 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.)


         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. 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).

         Liberally 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).


         Liberally 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.

         A. ...

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