United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
Gregory Tyrrell, an inmate at the Omaha Correctional Center
in Omaha, Nebraska, filed his Complaint (Filing 1) on
September 5, 2019, and paid the required filing fee on
October 7, 2019. The court now conducts an initial review of
Plaintiff's Complaint to determine whether summary
dismissal is appropriate under 28 U.S.C. § 1915A.
SUMMARY OF COMPLAINT
are members of the Nebraska Parole Board, who are sued in
their individual and official capacities. Plaintiff claims
Defendants violated his rights under the First and Fourteenth
Amendments when they revoked his parole in December 2018 for
(1) violation of the special conditions of parole by engaging
in electronic communications and (2) violation of the
financial conditions of parole by failing to pay programming
fees as assessed. Plaintiff seeks to recover monetary damages
from Defendants and requests that they be enjoined from
considering these violations, as well as any undisclosed
information, at any future parole review hearing. Plaintiff
also filed a motion for a temporary restraining order and
preliminary injunction on October 15, 2019 (Filing 12),
requesting that Defendants be restrained and enjoined from
delaying his parole review hearing, which allegedly is
scheduled for December 2019.
LEGAL STANDARDS ON INITIAL REVIEW
court is required to “review, before docketing, if
feasible or, in any event, as soon as practicable after
docketing, a complaint in a civil action in which a prisoner
seeks redress from a governmental entity or officer or
employee of a governmental entity.” 28 U.S.C. §
1915A(a). On such initial review, the court must dismiss the
complaint if it: “(1) is frivolous, malicious, or fails
to state a claim upon which relief may be granted; or (2)
seeks monetary relief from a defendant who is immune from
such relief.” 28 U.S.C.A. § 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.”
Id., at 849 (internal quotation marks and citations
DISCUSSION OF CLAIMS
construing Plaintiff's Complaint, this is a civil rights
action brought pursuant to 42 U.S.C. § 1983. To state a
claim under § 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).
the defendants are state employees, the sovereign immunity
recognized and preserved by the Eleventh Amendment to the
U.S. Constitution bars the plaintiff from recovering damages
from the defendants in their official capacities.”
Blair v. Nebraska Parole Bd., No. 8:05CV31, 2006 WL
3544716, at *1 (D. Neb. Dec. 8, 2006) (citing Edelman v.
Jordan, 415 U.S. 651, 663 (1974)). “State officers
sued for damages in their official capacity are not
“persons” for purposes of [§ 1983] because
they assume the identity of the government that employs
them.” Hafer v. Melo, 502 U.S. 21 (1991)
(citing Will v. Michigan Dep't of State Police,
491 U.S. 58, 71 (1989)).
addition, because the defendants are members of a state
parole board, they are shielded by absolute immunity in their
individual capacities from the plaintiff's claims for
damages.” Blair, 2006 WL 3544716, at *1
(citing Figg v. Russell, 433 F.3d 593, 598 (8th Cir.
2006)); see Mayorga v. Missouri, 442 F.3d 1128, 1131
(8th Cir. 2006) (“Parole board members are entitled to
absolute immunity when considering and deciding parole
questions, as this function is comparable to that of
judges.”); Magee v. Nebraska Parole Admin.,
No. 4:05CV3224, 2006 WL 1720491, at *1 (D. Neb. June 19,
2006) (dismissing individual-capacity claims brought against
parole board members).
the past, absolute judicial immunity did not extend to suits
requesting declaratory and prospective injunctive relief.
Pulliam v. Allen, 466 U.S. 522, 536-38 (1984).
However, in 1996 Congress passed the Federal Courts
Improvement Act (‘FCIA'), which amended section
1983 and abrogated the Supreme Court's limitation on
judicial immunity.” Hillard v. Korslund, No.
8:09CV183, 2009 WL 2709318, at *2 (D. Neb. Aug. 25, 2009). As
amended, section 1983 now precludes injunctive relief against
a judicial officer “for an act or omission taken in
such officer's judicial capacity ... unless a declaratory
decree was violated or declaratory relief was
unavailable.” 42 U.S.C. § 1983. Claims for
injunctive relief against officials performing
quasi-adjudicative functions are likewise barred. See
Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999)
(holding parole board official could not be enjoined from
retaliating against plaintiff for filing § 1983 action
challenging revocation of his parole). Here, Plaintiff does
not allege that declaratory relief was unavailable or that a
declaratory decree was violated.
most courts hold that the amendment to § 1983 does not
bar declaratory relief against judges.” Justice
Network Inc. v. Craighead Cty., 931 F.3d 753, 763 (8th
Cir. 2019). However, declaratory relief is limited to
prospective declaratory relief.” Id.
at 764 (emphasis in original). To the extent Plaintiff's
Complaint may be construed as requesting declaratory relief,
it is limited to a declaration that his constitutional rights
were violated when his parole was revoked in December 2018.
Such retrospective relief is not available under § 1983.
See Id. (plaintiff's request for declaratory
judgment that defendant judges had effectuated an
unconstitutional municipal policy was purely retrospective,
even though plaintiffs sought to enjoin defendants from
executing such policy in the future); Davis v.
Campbell, No. 3:13-cv-0693 LEK/ATB, 2014 WL 234722, at
*9 (N.D.N.Y. Jan. 22, 2014) (quoted by Eighth Circuit in
Justice Network) (“[P]laintiff's request
for declaratory relief is purely retrospective. She seeks a
declaratory judgment that past actions that occurred in the
context of the Family Court proceedings violated her
constitutional rights. Although she states her requests for
‘relief' in future terms ..., essentially ... she
is asking the court to invalidate the actions of the Family
Court Judge.”)); see also Puerto Rico Aqueduct
& Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.
139, 146 (1993) (explaining that the Ex parte Young