United States District Court, D. Nebraska
CHARLIE B. BUSH, Plaintiff,
JESSICA DRYER, in her capacity; and STATE OF NEBRASKA, Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge.
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.
SUMMARY OF COMPLAINT
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.)
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.)
APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
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. §
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
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.
State of Nebraska
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.
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, § 1983 does not create a
cause of ...