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Kellogg v. Douglas County

United States District Court, D. Nebraska

August 14, 2018



          Richard G. Kopf, Senior United States District Judge

         Plaintiff, an inmate[1] at the Douglas County Correctional Center (“DCCC”), brings this 42 U.S.C. § 1983 suit requesting $4 million for injuries he allegedly suffered when DCCC staff assaulted him. The court has granted Plaintiff permission to proceed in forma pauperis (Filing No. 6), and 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.


         Plaintiff claims that three DCCC officers assaulted him in the Unit-P/Gym on March 2, 2018, resulting in a swollen face and knots on the back of his head, as well as injuries to his jaw, neck, a tooth, and the front of his head. (Filing No. 1 at CM/ECF pp. 7, 10.) Attached to Plaintiff's Complaint are three disciplinary misconduct reports written by Dustin Luschwitz, Thomas Grothe, and A.R. Gillaspie describing the incident that allegedly resulted in Plaintiff's injuries.

         According to the disciplinary misconduct reports, a physical altercation occurred between Plaintiff and another inmate. When Luschwitz, Grothe, and Gillaspie attempted to restrain Plaintiff, he refused to follow multiple verbal commands and aggressively resisted by swinging his arms around with closed fists and striking Gillaspie. Plaintiff also “violently” kicked his legs, grazing Luschwitz's nose and kicking him in the forehead. Luschwitz responded by using “an open hand strike with [his] left hand on [Plaintiff's] left common peroneal and secured the left foot in restraints, ” and Gillaspie delivered four closed-fist strikes to Plaintiff's right super scapula and one to Plaintiff's head. Once the officers succeeded in restraining Plaintiff, other officers escorted him to receive medical attention and then to a housing unit. (Filing No. 1 at CM/ECF pp. 12-15.)

         Although Plaintiff names “Douglas County” as the only Defendant in the caption of his Complaint, it is apparent from the body of his Complaint that he also intends to sue Sergeant Whiter, Sergeant T.P. Swricek, Sergeant Hololenbeck, Officer R.M. Baier, Officer Dustin Luschwitz, Officer A.R. Gillaspie, Officer Grothe, and Officer Heather Yosten.[2] (Complaint, Filing No. 1 at CM/ECF pp. 2, 4.) However, as the Complaint is currently drafted, the court must presume that these Defendants are sued in their official capacities only.[3]


         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. 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 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).


         A. County Liability

         A county may only be liable under section 1983 if its “policy” or “custom” caused a violation of Plaintiff's constitutional rights. Doe By and Through Doe v. Washington County,150 F.3d 920, 922 (8th Cir. 1998) (citing Monell v. Department of Soc. Servs.,436 U.S. 658, 694 (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 By and Through Jane Doe B ...

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