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Bush v. Dryer

United States District Court, D. Nebraska

November 7, 2018

CHARLIE B. BUSH, Plaintiff,
JESSICA DRYER, in her capacity; and STATE OF NEBRASKA, Defendants.


          Richard G. Kopf, Senior United States District Judge.

         Plaintiff filed his Complaint on June 15, 2018. (Filing No. 1.) He has been given leave to proceed in forma pauperis. (Filing No. 5.) 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)(2).


         Liberally construed, Plaintiff sues Jessica Dryer, “the County Attorney office . . . case manager, ” and the State of Nebraska, alleging Dryer abused her authority and discriminated against him in violation of his equal protection rights. (Filing No. 1 at CM/ECF p. 1.) Plaintiff alleges he received notice on or about April 10, 2018, that his driver's license had been suspended for noncompliance with a child support order. Plaintiff alleges he had complied with the child support order on April 3, 2018, and provided proof of compliance to Dryer. Dryer told Plaintiff that his license had been suspended by mistake and reinstated his license. However, Dryer “put a stay on plaintiff[']s drivers liscence [sic] stating that they would need to receive another payment in 30 days or the liscense [sic] would be suspended.” (Id.)

         Plaintiff complains that Dryer is “abusing her power of authority by suspending the Plaintiff[']s drivers liscense [sic] when the child support obligation was paid in a timely manner” and “putting the Plaintiff into a position to have his car impounded, pay fines, or become incarcerated.” (Id. at CM/ECF p. 2.) Plaintiff further alleges Dryer discriminated against him based on her use of “racist gestures and being unprofessional rolling her eyes at the plaintiff” during their meeting and “by using her power to bully the plaintiff when he is an indigent and cannot afford the child support obligation.” (Id.) Plaintiff seeks $7, 317 in damages “for discrimination [and] loss of his liscense [sic] over the last two months.” (Id.)


         The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). 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).

         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 brings this action against Dryer and the State of Nebraska under 42 U.S.C. § 1983 alleging an equal protection violation. “To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. To state an equal protection claim, a plaintiff must establish that he was treated differently from others similarly situated to him. Johnson v. City of Minneapolis, 152 F.3d 859, 862 (8th Cir. 1998). As explained below, Plaintiff has failed to state a plausible equal protection claim under section 1983 against either of the Defendants.

         A. State of Nebraska

         Plaintiff seeks monetary damages from the State of Nebraska. The Eleventh Amendment bars claims for damages by private parties against a state. See, e.g., Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 618-19 (8th Cir. 1995); Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446-47 (8th Cir. 1995). Any award of retroactive monetary relief payable by the state, including for back pay or damages, is proscribed by the Eleventh Amendment absent a waiver of immunity by the state or an override of immunity by Congress. See, e.g., Dover Elevator Co., 64 F.3d at 444; Nevels v. Hanlon, 656 F.2d 372, 377-78 (8th Cir. 1981). Here, there is nothing in the record before the court showing that the State of Nebraska waived, or that Congress overrode, sovereign immunity in this matter.

         In addition, a suit may be brought under § 1983 only against a “person” who acted under color of state law. A state “is not a ‘person' as that term is used in § 1983, and is not suable under the statute, regardless of the forum where the suit is maintained.” Hilton v. South Carolina Pub. Railways Comm'n, 502 U.S. 197, 201 (1991). Thus, ยง 1983 does not create a cause of ...

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