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Bartunek v. Hall County Nebraska

United States District Court, D. Nebraska

March 12, 2019



          Richard G. Kopf, Senior United States District Judge

         Plaintiff Gregory P. Bartunek, a pretrial detainee formerly held at the Hall County Department of Corrections (“DOC”), filed his Complaint (Filing No. 1) on October 15, 2018, was granted leave to proceed in forma pauperis on January 25, 2019 (Filing No. 11), and paid his initial partial filing fee on February 14, 2019. 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.


         Plaintiff was a pretrial detainee at the Hall County DOC from April 25, 2018, to an unknown date prior to November 8, 2018, when he advised the court that he had been moved to a detention center in Leavenworth, Kansas (Filing Nos. 7 & 9). He complains about the conditions of his confinement while at the Hall County DOC-specifically, that contrary to the DOC's Inmate/Detainee Manual, he was allowed out of his cell only four to five hours per day, got only five to six hours of sleep per night, and suffered from cold conditions with limited access to proper clothing and blankets. Without supporting details, Plaintiff also claims the DOC refused to repair his broken glasses and hearing aids and to provide Plaintiff shoulder surgery, proper treatment for back pain, a dental exam, religious services, and classes. Plaintiff claims that he contacted the U.S. Marshals regarding his complaints at the DOC's direction “to no avail.” (Filing No. 1 at CM/ECF pp. 12-14.)

         Plaintiff sues the United States of America and an “Unknown Person in charge of U.S. Marshal's office in Omaha, NE” under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), as well as Hall County, Nebraska, and Todd Bahensky, Director of the Hall County Department of Corrections, under 42 U.S.C. § 1983. Plaintiff brings claims against all Defendants in their individual and official capacities. (Filing No. 1 at CM/ECF pp. 2-4.)

         Plaintiff claims that as a result of the conditions of his confinement, he has experienced physical and mental anguish, anxiety, stress, depression, hostility, and bitterness, and that the noisy, harsh environment will cause him to develop Alzheimer's disease and will reduce his life span. (Filing No. 1 at CM/ECF p. 15.) For relief, Plaintiff requests $50, 000 in compensatory damages; $300, 000 in punitive damages; and injunctive relief requiring that Plaintiff be released from his cell for eight hours per day, be allowed eight hours of uninterrupted sleep per night, have access to cold-weather clothing, and receive an eye exam and new glasses, a dental exam with necessary repairs and preventative treatment, repaired or replaced hearing aids, shoulder surgery, proper medical treatment for back pain, and “[c]ontinued proper medical treatment.” (Filing No. 1 at CM/ECF p. 16.)


         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.” Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).


         A. Types of Relief Requested

         As a preliminary matter, Plaintiff's transfer from the Hall County DOC to the detention center in Leavenworth, Kansas, moots Plaintiff's claims for injunctive relief. See Randolph v. Rodgers, 253 F.3d 342, 345 (8th Cir. 2001) (when actions required by injunction would be impossible for correctional-center defendants to execute because plaintiff was moved to another institution, plaintiff's claims for injunctive relief against defendants were moot); Beck by Beck v. Missouri Stale High School Activities Ass'n, 18 F.3d 604, 605 (8th Cir. 1994) (per curiam) (noting that a case is moot when circumstances change to such a degree that “a federal court can no longer grant effective relief); Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985) (concluding that claim for injunctive relief against warden was moot because prisoner was transferred to another prison). Therefore, compensatory and punitive damages are the only remaining types of relief requested.

         B. The Parties

         1. Hall County & Todd Bahensky in Official Capacity

         Plaintiff sues Hall County and Todd Bahensky, Director of the Hall County Department of Corrections, in his official capacity. Plaintiff's claims against Defendant Bahensky in his official capacity are actually claims against Hall County. Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006) (“A suit against a public official in his official capacity is actually a suit against the entity for which the official is an agent.”).

         A county may only be liable under section 1983 if a “policy” or “custom” of the county caused a violation of the 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 v. Special School Dist. of St. Louis County, 901 F.2d 642, 645 (8th Cir. 1990) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)). To establish the existence of a governmental “custom, ” a plaintiff must prove:

1) The existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental ...

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