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Dan v. Douglas County

United States District Court, D. Nebraska

March 28, 2019

ANTHONY TERRY DAN, Plaintiff,
v.
DOUGLAS COUNTY, FOSTER, K. A. GAMBLE, Officer; C. L. GODWIN, Officer; KITCHEN STAFF, ADMINISTRATION STAFF, INMATE ACCOUNT STAFF, ESTEVEZ, RAIMEZ, S. M. ROSE, DONNA FRICKE, MEDICAL STAFF, DR. ESH, COMMISSARY STAFF, BLUM, GRAHAM, VALQUIR, Lieutenant; CUMMINGS, Sergeant; MANAGEMENT, BARBIE, Sergeant; N. A. JORDAN, LISA, badge No. #1589; MAINTENANCE STAFF, M. K. MCLELEAN, Sergeant; and HADDAD, Officer; Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         Plaintiff, a pro se litigant currently incarcerated at the Lincoln Diagnostic and Evaluation Center, filed his Complaint on January 29, 2018 seeking damages related to his conditions of confinement and his treatment by jail staff at the Douglas County Correctional Center (“DCCC”). (Filing No. 1.) Plaintiff was given leave to proceed in forma pauperis. (Filing No. 8.) After initial review, the court determined Plaintiff's Complaint failed to state a claim upon which relief could be granted and permitted Plaintiff to file an amended complaint as to certain claims against specific Defendants in their individual capacities. (Filing No. 21.) On August 6, 2018, Plaintiff filed an Amended Complaint (filing no. 27), a “Motion to Amend Grievances [filing no. (10)] to Case Number 8:18CV31” (hereinafter “Motion to Amend Grievances”) (filing no. 28), and a motion to amend complaint (filing no. 29).[1] The court now conducts review of Plaintiff's Amended Complaint pursuant to 28 U.S.C. § 1915(e).

         I. BACKGROUND AND SUMMARY OF AMENDED COMPLAINT

         In the initial review order, the court determined Plaintiff's Complaint failed to state a claim for relief against any of the Defendants in their official capacities as Plaintiff had failed to allege facts suggesting that a Douglas County “policy” or “custom” caused a violation of his constitutional rights. The court gave Plaintiff leave to amend his Complaint to assert the following claims against specific Defendants in their individual capacities:

• Unsanitary cell conditions against Sergeant Cummings;
• Nutritionally inadequate food portions;
• Eighth Amendment claims against Officer C.L. Godwin, Officer Graham, and Officer Foster for their comments about Plaintiff to other inmates that resulted in assaults by or altercations with other inmates;
• Failure-to-protect claim based on Plaintiff's assault by his cellmate;
• Excessive force claims against Officer Estevez and Officer C.L. Godwin;
• Excessive force claims against Officer Blum and Officer Haddad; and
• Retaliation claims against Officer C.L. Godwin, Officer Estevez, and specific individual Kitchen Staff members.

(Filing No. 21 at CM/ECF p. 22.)

         In his Amended Complaint, Plaintiff generally alleges violations of his First, Fifth, Sixth, and Eighth Amendment rights and asks for $3, 900, 000.00 in damages. (Filing No. 27 at CM/ECF pp. 4, 7; see also Filing No. 30 at CM/ECF p. 3.) In his “Statement of Claim, ” Plaintiff refers to “attached Case Number 8:18CV31. 4 stamped envelopes with court documents inside.” (Filing No. 27 at CM/ECF p. 5.) The documents to which Plaintiff refers consist of an application to proceed in forma pauperis (filing no. 27-1), Plaintiff's Motion to Amend Grievances (filing no. 28) along with a supplement to the motion consisting of two grievances, two inmate request forms, and Plaintiff's explanation of the same (filing no. 28-1), and Plaintiff's motion to amend complaint (filing no. 29). The court will consider these documents as part of the Amended Complaint and will grant Plaintiff's Motion to Amend Grievances (filing no. 28) and motion to amend complaint (filing no. 29) to that extent. SeeFed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.”).

         Liberally construed, Plaintiff's Motion to Amend Grievances (filing no. 28) seeks to incorporate the grievances attached to his previous motion to amend grievances (filing no. 10) into his Amended Complaint.[2] The grievances which Plaintiff references relate to the alleged attack on Plaintiff by ...


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