Cotton v. Douglas County, Nebraska

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge.

         Plaintiff, James Cotton, currently an inmate at the Tecumseh State Correctional Center, filed his pro se Complaint (Filing 1) on October 4, 2018. Plaintiff was granted leave to proceed in forma pauperis on October 9, 2018 (Filing 6), and paid an initial partial filing fee on November 2, 2018. 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) and 1915A.

         I. SUMMARY OF COMPLAINT

         Plaintiff alleges that on October 24, 2016, while being held at the Douglas County Correction Center (“DCCC”), he became involved in an altercation with a cellmate in the max-1 protective custody unit, as a result of which a female corrections officer handcuffed Plaintiff and seated him in a chair. Several minutes later, two male corrections officers, Defendants Stevens and Estevez, “came into the unit and began talking loudly to Plaintiff as they yanked him out of his chair.” (Filing 1, p. 8). “Plaintiff advised both [men] that due to his disability that he needed his medically issued wheelchair.” (Filing 1, pp. 8-9). They “ignore[d] plaintiff and stated ‘well your [sic] walking today Motherfucker.' Both the female c.o. and unit c.o. (names unknown) also advised defendants Stevens and Estevez that Plaintiff needed a wheelchair for transport. [T]he defendants abusively grabbed plaintiff and began running with Plaintiff leaving the max-1 unit into the hallway. Stevens was verbally abusing plaintiff and Estevez advised plaintiff, ‘since you like suing people, you can sue us too'. Plaintiff's legs gave out from underneath him. The defendants then slammed Plaintiff head first into the concrete floor knocking him unconscious.... Plaintiff was taken to the infirmary, where they glued his eyebrow shut to stop the bleeding, ....” (Filing 1, p. 9). Plaintiff alleges he “sustained a concussion, black eyes, head trauma (severe) swollen rib Intercostal torn and severe bruising.” (Filing 1, p. 8).

         Four claims are alleged by Plaintiff: (1) an Eighth Amendment excessive force claim against Stevens and Estevez, in their individual capacities (“Count Four”); (2) an Eighth Amendment claim against Douglas County for failing to train and supervise Stevens and Estevez (“Count One”); (3) an Americans with Disabilities Act (“ADA”) claim against DCCC based on the refusal of Stevens and Estevez to transport Plaintiff in a wheelchair (“Count Two”); and (4) a Rehabilitation Act claim against DCCC, also based on such refusal by the officers (“Count Three”). (Filing 1, pp. 5-7).

         II. LEGAL STANDARDS ON INITIAL REVIEW

         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. 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. § 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.” Id., at 849 (quotation marks and citations omitted).

         III. DISCUSSION OF CLAIMS

         A. Excessive Force Claims

         Although Plaintiff claims Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment, the allegations of the Complaint do not reveal whether Plaintiff was a pretrial detainee or a convicted prisoner at the time of the alleged incident. The Eighth Amendment “has no application” until there has been a “formal adjudication of guilt.” Walton v. Dawson, 752 F.3d 1109, 1117 (8th Cir. 2014) (quoting City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)). But the Fourteenth Amendment gives state pretrial detainees rights which are “at least as great as the Eighth Amendment protections available to a convicted prisoner.” Id. (emphasis in original; quoting City of Revere, 463 U.S. at 244). The Constitution affords greater protection to a pretrial detainee compared to a convicted inmate in the sense that “[d]ue process requires that a pretrial detainee not be punished.” Id. (quoting Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979)).

         Excessive force claims of pretrial detainees are analyzed under an objective reasonableness standard. Ryan v. Armstrong, 850 F.3d 419, 427 (8th Cir. 2017). A court must assess the actions of each officer “from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.” Id. (quoting Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473 (2015)). A court must also account for the “legitimate interests that stem from [the government's] need to manage the facility in which the individual is detained, ” appropriately deferring to “policies and practices that in th[e] judgment” of jail officials “are needed to preserve internal order and discipline and to maintain institutional security.” Id. (quoting Bell, 441 U.S. at 520). Factors relevant to assessing the objective reasonableness of force used by officers include:

the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.

Id. (quoting Kingsley, 135 S.Ct. at 2473).

         “After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Jackson v. Gutzmer, 866 F.3d 969, 974 (8th Cir. 2017) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). “[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishment Clause, the core judicial inquiry is that set out in Whitley: whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Id. (quoting Hudson v. McMillian, 503 U.S. 1, 6-7 (1992)). This inquiry turns on “such factors as the need for the application of force, the relationship between the need and the amount of force that was used, and the extent of injury inflicted, ” from which “inferences may be drawn as to whether the use of force could plausibly have been thought necessary, or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur.” Id. (quoting Whitley, 475 U.S. at 321). The word “sadistically” is not surplusage; “‘maliciously' and ‘sadistically' have different meanings, and the two together establish a higher level of intent than would either alone.” Id. (quoting Howard v. Barnett, 21 F.3d 868, 872 (8th Cir. 1994)). “One acts ‘maliciously' by undertaking, without just cause or reason, a course of action intended to injure another; in contrast, one acts ‘sadistically' by engaging in extreme or excessive cruelty or by delighting in cruelty.” United States v. Miller, 477 F.3d 644, 647 (8th Cir. 2007) (quoting Howard v. Barnett, 21 F.3d 868, 872 (8th Cir.1994)).

         1. Defendants Stevens and Estevez

         In Count Four of his Complaint, ^[1] Plaintiff alleges:

Defendants Stevens and Estevez ignored plaintiff's request to be provided a “wheelchair”, for transport, due to his disability on October 24, 2016, when escorting plaintiff out of protective custody unit max-1 at the DCCC. Instead the defendants used excessive [force] against Plaintiff that was unnecessary, maliciously and ...