United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge
an inmate 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)
SUMMARY OF COMPLAINT
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.
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.)
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. (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
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. 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).
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 ...