United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
Eva Marie Fisher, a prisoner being held at the Douglas County
Department of Corrections in Omaha, Nebraska, filed her
Complaint (Filing 1) on November 15, 2018. Plaintiff was
granted leave to proceed in forma pauperis on November 27,
2018, without payment of an initial partial filing fee
(Filing 8). 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.
SUMMARY OF COMPLAINT
alleges she “was mistreated the whole time [she] was at
F.M.C. Carswell” and claims she “is entitled to
$1, 000, 000.00 due to mistreatment, rape, and physical
[assault] suffered while [she] was at F.M.C. Carswell in Fort
Worth, Texas” (Filing 1, pp. 5-6). Named as Defendants
are the Federal Medical Center, Carswell, and four
individuals: Jody Rupton, warden; Timothy Bollinger, doctor;
Mr. Cottrell, unit manager; and I. Franklin, correctional
officer (Filing 1, pp. 1-2). Plaintiff alleges she is a
Nebraska citizen and claims Defendant violated her rights
under the First and Eighth Amendments to the United States
Constitution (Filing 1, p. 3).
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. 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. §
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.”
Id., at 849 (internal quotation marks and citations
DISCUSSION OF CLAIMS
well established that, absent an express waiver, the doctrine
of sovereign immunity bars a plaintiff's claim for money
damages against the United States, its agencies, and its
officers in their official capacities. See FDIC v.
Meyer, 510 U.S. 471, 475 (1994). “Sovereign
immunity is jurisdictional in nature.” Id.
(citing United States v. Mitchell, 463 U.S.
206, 212 (1983) (“It is axiomatic that the United
States may not be sued without its consent and that the
existence of consent is a prerequisite for
jurisdiction”)). No. such waiver of sovereign immunity
applies in this case.
FMC, Carswell is not a suable entity, but is merely a
facility operated by the Federal Bureau of Prisons (BOP). As
a federal agency, BOP has sovereign immunity and cannot be
made a party to this action.
court construes Plaintiff's Complaint as being brought
against Defendants Rupton, Bollinger, Cottrell, and Franklin,
only in their official capacities, as federal
employees. See Johnson v. Outboard Marine
Corp., 172 F.3d 531, 535 (8th Cir. 1999) (“This
court has held that, in order to sue a public official in his
or her individual capacity, a plaintiff must expressly and
unambiguously state so in the pleadings, otherwise, it will
be assumed that the defendant is sued only in his or her
official capacity.”). As such, these Defendants also
have immunity because the action is considered a suit against
the United States. See Searcy v. Donelson, 204 F.3d
797, 798 (8th Cir. 2000).
court therefore determines that Plaintiff's Complaint
should be dismissed without prejudice for lack of
jurisdiction. On its own motion, however, the court will give
Plaintiff 30 days to file an Amended Complaint in order to
assert claims against Defendants Rupton, Bollinger, Cottrell,
and Franklin in their individual capacities.
Amended Complaint, in order to state a plausible Eighth
Amendment claim, Plaintiff will need to provide details about
the mistreatment, rape, and physical assault she allegedly
suffered while at FMC, Carswell, and will also need to
describe how each individual Defendant caused her injury. For
example, if Plaintiff is claiming she did not receive
adequate medical care, she will need to include facts showing
that she suffered from some objectively serious medical need
that Defendants knew of, but deliberately disregarded.
See Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir.
2000). Or, as another example, if Plaintiff is claiming
Defendants failed to protect her from being raped or