United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.
Edgar Union, Sr., filed his Complaint (Filing No. 1)
on June 8, 2018, and has since been granted leave to proceed
in forma pauperis (Filing No. 8). The court now
conducts an initial review of Plaintiff's Complaint and
to determine whether summary dismissal is appropriate under
28 U.S.C. §§ 1915(e)(2) and 1915A.
SUMMARY OF COMPLAINT
is a prisoner at the Lancaster County Department of
Corrections in Lincoln, Nebraska. The Department of
Corrections and Correct Care Solutions are named as
Defendants. Plaintiff claims he has not received adequate
medical care to treat his diabetes and severe constipation.
Plaintiff has attached several “Inmate Medical/Mental
Health Request Forms, ” which are dated between October
24, 2017, and May 28, 2018. Not all pertain to the physical
conditions that are identified by Plaintiff as not having
been properly treated by Defendants. Plaintiff states he also
filed a grievance, but it is not attached.
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. §
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).
DISCUSSION OF CLAIMS
indicates he is suing Defendants under 42 U.S.C. § 1983.
To state a claim under that section, 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).
Plaintiff's Claim Against Lancaster County Department of
Department of Corrections 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 [Douglas County Correctional Center]
and Douglas County lack the legal capacity to sue or be sued
in their own names”); see also Ketchum v. City of
West Memphis, 974 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). But even liberally construing
Plaintiff's Complaint as a suit against Lancaster County
itself, no claim is stated upon which relief may be granted
under § 1983.
governing bodies, such as counties, are “persons”
for the purpose of § 1983, but are liable only for
injuries arising from an official policy or custom.
Monell v. Department of Social Services, 436 U.S.
658, 690 (1978). An official policy involves a deliberate
choice to follow a course of action made from among various
alternatives by an official who has the final authority to
establish governmental policy. Jane Doe A v. Special
School Dist., 901 F.2d 642, 645 (8th Cir. 1990) (citing
Pembaur v. City of Cincinnati, 475 U.S. 469, 483
(1986)). To establish the existence of a governmental custom,
a plaintiff must prove:
1) The existence of a continuing, widespread, persistent
pattern of unconstitutional misconduct by the governmental