United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge
Thomas Duane Strawder, a pro se litigant now incarcerated at
the Lincoln Correctional Center (“LCC”), filed
this 42 U.S.C. § 1983 action in which he complains about
what he views as substandard medical care. The court has
granted Plaintiff permission to proceed in forma pauperis,
and the court now conducts an initial review of the Complaint
(Filing No. 1) and Supplement (Filing No.
6) to determine whether summary dismissal is
appropriate under 28 U.S.C. §§ 1915(e) and 1915A.
SUMMARY OF COMPLAINT & SUPPLEMENT
brings this § 1983 suit for alleged violations of the
Eighth and Fourteenth Amendments due to the “Lack of
community standard Health care” and the Defendants'
failure to refer him to an “outside expert
Dermatologist” for a sore on his head that has bothered
him since December 2017. (Filing No. 1 at CM/ECF p.
3.) Plaintiff alleges that Defendant Rollins told him
the sore was “an ingrown hair, ” but Plaintiff
wonders if the sore is gangrene or melanoma, alleging that he
has a family history of cancer and that “[a] popular
singer had cancer on his toe he died” (Filing No. 1
at CM/ECF p. 5.)
alleges that his “contageous [sic] sore” was
treated with antibiotics two times a day for 20 days in
December 2017, and after no improvement was noted, he had a
biopsy of the area on January 16, 2018. The results of the
biopsy showed that the “sore” was benign. (Filing
No. 1 at CM/ECF p. 5.) He was prescribed an
“Rx cream, ” but it has not healed the sore,
which is allegedly spreading. Plaintiff claims that his
“unknown disease disorder” is ongoing, he has yet
to receive effective treatment, and he needs a travel order
to see a specialist. (Filing No. 1 at CM/ECF p. 5;
Filing No. 6 at CM/ECF p. 18.) Plaintiff demands
money damages and referral to an “expert Dermatology
clinic outside prison.” (Filing No. 1 at CM/ECF pp.
3, 5, 7; Filing No. 6 at CM/ECF p.
LEGAL 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.
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. 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).
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).
initial matter, Defendant Lincoln Correctional Center Medical
Clinic must be dismissed as an improper defendant in a §
1983 action. Kochel v. Slykhuis, No. CIV. 05-4027,
2005 WL 1240173, at *3 (D.S.D. May 24, 2005)
(“Plaintiff's complaint against the ‘Prison
Health Services' should be dismissed with prejudice for
failure to state a claim upon which relief can be
granted.”); see also Smith v. Harness, No.
4:14CV00753, 2017 WL 243985, at *3 (E.D. Ark. Jan. 19, 2017)
(“The Jacksonville Police Department is not an entity
capable of being sued and therefore could be dismissed on
that basis.”); Caldwell v. Dub Brassell Det.
Ctr., No. 5:15CV352, 2015 WL 9855535, at *2 (E.D. Ark.
Dec. 21, 2015), report and recommendation adopted,
No. 5:15CV352, 2016 WL 233663 (E.D. Ark. Jan. 19, 2016)
(“the sole Defendant-the Jail-is not considered a
‘person' within the meaning of 42 U.S.C. §
1983, and cannot be sued”).
B.Defendants in Official Capacities/Sovereign