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McGrone v. Boyd

United States District Court, D. Nebraska

June 24, 2019



          Richard G. Kopf, Senior United States District Judge

         Plaintiff Bruce McGrone is a pro se litigant in the custody of the Douglas County Department of Corrections on pending criminal charges. The court has granted Plaintiff permission to proceed in forma pauperis (filing no. 12) and now conducts an initial review of the Complaint (filing no. 1) to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.


         Plaintiff brings this action pursuant to 42 U.S.C. § 1983 against the Nebraska Department of Correctional Services (“NDCS”)[1]; Taggart Boyd, the Warden of the NDCS' Diagnostic and Evaluation Center (“DEC”); Corporal Sorensen, a DEC correctional officer; and Judge Shelly R. Stratman in their individual capacities. Liberally construed, Plaintiff alleges Defendants violated his due process rights, were deliberately indifferent to his health, safety, and serious medical needs, and subjected him to cruel and unusual punishment.

         Plaintiff's claims arise out of an incident on September 3, 2016, at the DEC. Plaintiff alleges Sorensen instructed Plaintiff to “lock up” in his cell, but Plaintiff asked if he could wait a few minutes because his cellmate was using the restroom within the cell. Sorensen replied in the negative. (Filing No. 1 at CM/ECF pp. 16- 17.) As Plaintiff's attention was focused on Sorensen, another inmate, Millner, attacked Plaintiff, hitting him hard in the face with his fist and kicking him in the chest. Plaintiff was knocked backwards and “land[ed] extremely hard against the upper deck banister pole on [his] lower backbone.” (Id. at CM/ECF p. 17.) Plaintiff was warned by another inmate that Millner had a razor in his hand, and Plaintiff began defending himself. As a result of the attack, Plaintiff suffered injuries to his face, “inner jaw and lip, ” teeth, lower back, and chest. (Id. at CM/ECF pp. 14, 17- 19.)

         Plaintiff alleges Sorensen “[saw] what occurred and failed to stop the incident before it got too serious.” (Id. at CM/ECF p. 17.) Sorensen also “spray[ed] [Plaintiff] excessively with mace, instead of [his] assailant[, ]” and “used racist language . . . when he said out of ang[er], ‘Black-ass nigger.'” (Id. at CM/ECF p. 12.) Plaintiff further alleges Sorensen lied in his disciplinary misconduct report by stating no weapon was involved and tried to conceal the razor as evidence by throwing it away in the garbage. (Id. at CM/ECF pp. 12-13, 18.)

         With respect to Warden Taggart Boyd, Plaintiff alleges Boyd “refused to acknowledge [Plaintiff's] Step I & II grievances” and ignored Plaintiff's request to press charges against his assailant and to have the “U.S. State Patrol” investigate the matter. (Id. at CM/ECF p. 13; see also Id. at CM/ECF p. 7.) Plaintiff believes Boyd refused to take any action because “the [misconduct] report was dismissed and he assumed that [Plaintiff] was satisfied with the results of the situation” and because Boyd knew Plaintiff “was going home December 26, 2016.” (Id. at CM/ECF p. 13.) Plaintiff further alleges that “[u]nder [Boyd's] administration, the medical staff refused to give [Plaintiff] proper medical care as far as receiving X- Rays for [his] headache and lower back injury” and “stitches for a major cut on [his] chest.” (Id. at CM/ECF p. 14.)

         Plaintiff alleges Judge Stratman “sentenced [Plaintiff] excessively” and “gave [him] too much post-release supervision” contrary to Nebraska statutory sentencing guidelines. (Id. at CM/ECF p. 15.) As a result of Judge Stratman's allegedly excessive sentence, Plaintiff was “sent . . .back to confinement at the Diagnostic & Evaluation Center where the altercation happened, ” which he alleges makes Judge Stratman responsible for the harms he suffered while incarcerated. (Id. at CM/ECF pp. 15, 20.)

         As relief, Plaintiff seeks “to be compensated for the harm that was done to [him] . . . as well as . . . punitive damages.” (Id. at CM/ECF p. 5.)


         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); 28 U.S.C. § 1915A(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).

         Liberally construed, Plaintiff here alleges federal constitutional claims. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected by the United States Constitution or created by federal statute and also must show that the alleged deprivation was caused by conduct of a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).


         A. NDCS

         As an initial matter, a suit may be brought under § 1983 only against a “person” who acted under color of state law. Generally, a state, its agencies and instrumentalities, and its employees in their official capacities are “not ‘person[s]' as that term is used in § 1983, and [are] 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, 200-01 (1991). See alsoMcLean v. Gordon, 548 F.3d 613, 618 (8th Cir. 2008) (states, arms of the state, and state officials acting in ...

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