United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge
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.
SUMMARY OF COMPLAINT
brings this action pursuant to 42 U.S.C. § 1983 against
the Nebraska Department of Correctional Services
(“NDCS”); 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.
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.)
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.)
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.)
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.)
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.)
APPLICABLE 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. §
1915(e)(2)(B); 28 U.S.C. § 1915A(b).
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.”
Topchian, 760 F.3d at 849 (internal quotation marks
and citations omitted).
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).
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 ...