United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.
filed a Complaint on June 26, 2019. (Filing 1) He has been
given leave to proceed in forma pauperis. (Filing 6) and has
paid the required initial partial filing fee. 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) and 1915A.
SUMMARY OF COMPLAINT
is an inmate in the custody of the Nebraska Department of
Correctional Services (“NDCS”), confined at the
Nebraska State Penitentiary (“NSP”). Plaintiff
brings this action against Scott Frakes (Director of the
NDCS), Michelle Capps (Warden of the NSP) and two NSP
employees, Corporal A. Caliri and Shawn Shores, for alleged
violations of his constitutional rights under the Fourteenth
alleges that on March 11, 2019, he “was written up by
the kitchen cpl A.Caliri ... in the inside kitchen at NSP for
an incident between [Plaintiff] and another inmate” and
was labeled as the “aggressor” in the report.
Plaintiff complains he “was the only one in the
incident to be given a misconduct report, ” and, as a
result, “Shawn Shores FSD [Food Services Director] put
[Plaintiff] on admin lay in and [he] was fired from the
Inside Kitchen.” Plaintiff claims he was discriminated
against because Shores “treated the matter as one
sided, ” and alleges Defendants “did not follow
their procedures.” (Filing 1, pp. 5-7) Plaintiff seeks
an award of damages for “back and lost wages.”
(Filing 1, p. 9)
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).
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).
Plaintiff did not specify the capacity in which these various
NDCS officials and employees are sued, the court presumes
that they are sued in their official capacities only.
See, e.g., 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.”). Sovereign immunity prevents the
court from exercising jurisdiction over claims for damages
against Defendants in their official capacities.
Eleventh Amendment bars claims for damages by private parties
against a state. See, e.g., Egerdahl v.
Hibbing Cmty. Coll., 72 F.3d 615, 618-19 (8th Cir.
1995); Dover Elevator Co. v. Arkansas State Univ.,
64 F.3d 442, 446-47 (8th Cir. 1995). Any award of retroactive
monetary relief payable by the state, including for back pay
or damages, is proscribed by the Eleventh Amendment absent a
waiver of immunity by the state or an override of immunity by
Congress. See, e.g., Dover Elevator Co., 64
F.3d at 444; Nevels v. Hanlon, 656 F.2d 372, 377-78
(8th Cir. 1981). A state's sovereign immunity extends to
public officials sued in their official capacities as
“[a] suit against a public employee in his or her
official capacity is merely a suit against the public
employer.” Johnson, 172 F.3d at 535. An
exception to this immunity was recognized by the Supreme
Court in Ex Parte Young, 209 U.S. 123 (1908), which
permits prospective injunctive relief against state officials
for ongoing federal law violations. This exception does not
apply to cases involving requests for purely retroactive
relief. Green v. Mansour, 474 U.S. 64 (1985).
claims against Defendants in their official capacities are
claims against the State of Nebraska. There is nothing in the
record before the court showing that the State of Nebraska
waived, or that Congress overrode, sovereign immunity in this
matter. Therefore, this court lacks jurisdiction ...