IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA
JESSIE L. SULLIVAN,
Plaintiff, 8:21CV287
vs. MEMORANDUM MEDICAL STAFF and DOUGLAS AND ORDER COUNTY DEPARTMENT OF CORRECTIONS,
Defendants.
Plaintiff is a pretrial detainee at the Douglas County Correctional Center. The court has granted Plaintiff permission to proceed in forma pauperis (Filing 7), and the court now conducts an initial review of the Complaint (Filing 1) to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.
I. SUMMARY OF COMPLAINT
Plaintiff sues the Douglas County Department of Corrections and its “medical staff” in their official capacities under 42 U.S.C. § 1983 for giving him Tylenol and ibuprofen as his primary treatment after he fell from his top bunk. Plaintiff claims it took “months” to get an x-ray and surgery on a broken bone caused by the fall. For relief, Plaintiff requests money damages and the installation of ladders on all bunk beds in the facility.
II. LEGAL STANDARDS ON INITIAL REVIEW
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).
III. DISCUSSION
A. Defendant Douglas County Department of Corrections
Plaintiff fails to state a claim against the Douglas County Department of Corrections because it is not a distinct legal entity subject to suit. See Dan v. Douglas Cty. Dep’t of Corr., No. 8:06CV714, 2009 WL 483837, at *4 (D. Neb. Feb. 25, 2009) (“the Department of Corrections and other units within the DCCC and Douglas County lack the legal capacity to sue or be sued in their own names”); see also Owens v. Scott Cty. Jail, 328 F.3d 1026, 1027 (8th Cir. 2003) (“[C]ounty jails are not legal entities amenable to suit.”). Accordingly, Plaintiff’s claims against the Douglas County Department of Corrections will be dismissed.
2 B. Defendant Medical Staff
Unknown, unnamed Defendants characterized as “medical staff” are alleged to have neglected Plaintiff’s medical needs after his fall, but they are not otherwise identified. “‘[A]n action may proceed against a party whose name is unknown if the complaint makes allegations specific enough to permit the identity of the party to be ascertained after reasonable discovery.’” Perez v. Does 1-10, 931 F.3d 641, 646 (8th Cir. 2019) (quoting Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995)). The allegations in Plaintiff’s Complaint regarding these unknown, unnamed Defendants are not sufficiently specific to satisfy the exception to the general prohibition against fictitious parties. See id. The Complaint “does not sufficiently allege who [these] Defendants are, what they allegedly did, what their position is for the [County], or any other facts that would permit [them] to be noticed or identified through discovery.” Id. The court will give Plaintiff leave to amend his Complaint to identify by name the members of the medical staff he alleges violated his constitutional rights.
Plaintiff should be aware that because he has sued these Defendants in their official capacities only, such claims are actually asserted against Douglas County itself. Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006) (“A suit against a public official in his official capacity is actually a suit against the entity for which the official is an agent.”); Parrish v. Luckie, 963 F.2d 201, 203 n.1 (8th Cir. 1992) (“Suits against persons in their official capacity are just another method of filing suit against the entity. A plaintiff seeking damages in an official-capacity suit is seeking a judgment against the entity.”) (citation omitted).
A county may only be liable under section 1983 if a “policy” or “custom” of the county caused a violation of the Plaintiff’s constitutional rights. Doe By and Through Doe v. Washington County, 150 F.3d 920, 922 (8th Cir. 1998) (citing Monell v. Department of Soc. Servs., 436 U.S. 658, 694 (1978)). An “official policy” involves a deliberate choice to follow a course of action made from among various alternatives by an official who has the final authority to establish governmental policy. Jane Doe A By and Through Jane Doe B v. Special School Dist. of St. Louis County, 901 F.2d 642, 645 3 (8th Cir. 1990) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)). To establish the existence of a governmental “custom,” a plaintiff must prove:
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA
JESSIE L. SULLIVAN,
Plaintiff, 8:21CV287
vs. MEMORANDUM MEDICAL STAFF and DOUGLAS AND ORDER COUNTY DEPARTMENT OF CORRECTIONS,
Defendants.
Plaintiff is a pretrial detainee at the Douglas County Correctional Center. The court has granted Plaintiff permission to proceed in forma pauperis (Filing 7), and the court now conducts an initial review of the Complaint (Filing 1) to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.
I. SUMMARY OF COMPLAINT
Plaintiff sues the Douglas County Department of Corrections and its “medical staff” in their official capacities under 42 U.S.C. § 1983 for giving him Tylenol and ibuprofen as his primary treatment after he fell from his top bunk. Plaintiff claims it took “months” to get an x-ray and surgery on a broken bone caused by the fall. For relief, Plaintiff requests money damages and the installation of ladders on all bunk beds in the facility.
II. LEGAL STANDARDS ON INITIAL REVIEW
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).
III. DISCUSSION
A. Defendant Douglas County Department of Corrections
Plaintiff fails to state a claim against the Douglas County Department of Corrections because it is not a distinct legal entity subject to suit. See Dan v. Douglas Cty. Dep’t of Corr., No. 8:06CV714, 2009 WL 483837, at *4 (D. Neb. Feb. 25, 2009) (“the Department of Corrections and other units within the DCCC and Douglas County lack the legal capacity to sue or be sued in their own names”); see also Owens v. Scott Cty. Jail, 328 F.3d 1026, 1027 (8th Cir. 2003) (“[C]ounty jails are not legal entities amenable to suit.”). Accordingly, Plaintiff’s claims against the Douglas County Department of Corrections will be dismissed.
2 B. Defendant Medical Staff
Unknown, unnamed Defendants characterized as “medical staff” are alleged to have neglected Plaintiff’s medical needs after his fall, but they are not otherwise identified. “‘[A]n action may proceed against a party whose name is unknown if the complaint makes allegations specific enough to permit the identity of the party to be ascertained after reasonable discovery.’” Perez v. Does 1-10, 931 F.3d 641, 646 (8th Cir. 2019) (quoting Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995)). The allegations in Plaintiff’s Complaint regarding these unknown, unnamed Defendants are not sufficiently specific to satisfy the exception to the general prohibition against fictitious parties. See id. The Complaint “does not sufficiently allege who [these] Defendants are, what they allegedly did, what their position is for the [County], or any other facts that would permit [them] to be noticed or identified through discovery.” Id. The court will give Plaintiff leave to amend his Complaint to identify by name the members of the medical staff he alleges violated his constitutional rights.
Plaintiff should be aware that because he has sued these Defendants in their official capacities only, such claims are actually asserted against Douglas County itself. Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006) (“A suit against a public official in his official capacity is actually a suit against the entity for which the official is an agent.”); Parrish v. Luckie, 963 F.2d 201, 203 n.1 (8th Cir. 1992) (“Suits against persons in their official capacity are just another method of filing suit against the entity. A plaintiff seeking damages in an official-capacity suit is seeking a judgment against the entity.”) (citation omitted).
A county may only be liable under section 1983 if a “policy” or “custom” of the county caused a violation of the Plaintiff’s constitutional rights. Doe By and Through Doe v. Washington County, 150 F.3d 920, 922 (8th Cir. 1998) (citing Monell v. Department of Soc. Servs., 436 U.S. 658, 694 (1978)). An “official policy” involves a deliberate choice to follow a course of action made from among various alternatives by an official who has the final authority to establish governmental policy. Jane Doe A By and Through Jane Doe B v. Special School Dist. of St. Louis County, 901 F.2d 642, 645 3 (8th Cir. 1990) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)). To establish the existence of a governmental “custom,” a plaintiff must prove:
1) The existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity’s employees;
2) Deliberate indifference to or tacit authorization of such conduct by the governmental entity’s policymaking officials after notice to the officials of that misconduct; and
3) That plaintiff was injured by acts pursuant to the governmental entity’s custom, i.e., that the custom was the moving force behind the constitutional violation.
Jane Doe, 901 F.2d at 646.
Plaintiff’s Complaint fails to allege that any actions were taken pursuant to a policy or custom of Douglas County. “Although [Plaintiff] need not set forth with specificity the existence of an unconstitutional policy or custom at the pleading stage, he must nonetheless present some allegations, references, events, or facts from . . . which the court could begin to draw an inference that the conduct complained of . . . resulted from an unconstitutional policy or custom of the County or a deliberate choice by a decision-maker with final authority.” Cotton v. Douglas Cty. Dep’t of Corr., No. 8:16CV153, 2016 WL 5816993, at *6 (D. Neb. Oct. 5, 2016).
The court will grant Plaintiff leave to file an amended complaint to properly bring claims against specific, named defendants in their official capacities. If Plaintiff chooses to file an amended complaint, he may also allege claims against such defendants in their individual capacities. If he does so, he should keep in mind that he “must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). In other words, Plaintiff must explain how each defendant personally participated in the alleged constitutional violation. For Plaintiff’s guidance in filing an amended complaint, below is a discussion of the constitutional claim suggested by his Complaint.
4 C. Constitutional Claim Suggested by Complaint
When a pretrial detainee’s Fourteenth Amendment claim alleges constitutionally deficient medical care, the Eighth Amendment deliberate-indifference standard applies. Scott v. Benson, 742 F.3d 335, 339 (8th Cir. 2014).
To prevail on an Eighth Amendment claim for deprivation of medical care, an inmate must show that the prison official was deliberately indifferent to the inmate’s serious medical needs. This requires a two-part showing that (1) the inmate suffered from an objectively serious medical need, and (2) the prison official knew of the need yet deliberately disregarded it.
Schaub v. VonWald, 638 F.3d 905, 914 (8th Cir. 2011) (internal quotations and citations omitted). “A serious medical need is one that has been diagnosed by a physician as requiring treatment, or one that is so obvious that even a layperson would easily recognize the necessity for a doctor’s attention.” Id. (internal quotation and citation omitted).
Deliberate indifference is equivalent to criminal-law recklessness, which is more blameworthy than negligence, yet less blameworthy than purposefully causing or knowingly bringing about a substantial risk of serious harm to the inmate. An obvious risk of harm justifies an inference that a prison official subjectively disregarded a substantial risk of serious harm to the inmate. Deliberate indifference must be measured by the official’s knowledge at the time in question, not by hindsight’s perfect vision.
Id. at 914-15 (internal quotations and citations omitted).
Here, Plaintiff alleges that the delay in allowing him to have an x-ray and surgery violated his constitutional rights. The Eighth Circuit has held that “[w]hen the inmate alleges that a delay in medical treatment rises to the level of an Eighth Amendment violation, the objective seriousness of the deprivation should also be measured by reference to the effect of delay in treatment.” Laughlin v. Schriro, 430 F.3d 927, 929 (8th Cir. 2005) (cleaned up; emphasis in original). To establish this effect, the Plaintiff will eventually be required to “‘place verifying medical evidence in the record to 5 establish the detrimental effect of delay in medical treatment . . . .’” Id. (quoting Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir. 1997)).
Plaintiff also alleges that the Defendants violated his constitutional rights by initially giving him pain-relief medications instead of more invasive treatment. A doctor’s decision to initially administer conservative treatment does not constitute deliberate indifference. See, e.g., Jenkins v. Cty. of Hennepin, 557 F.3d 628, 632 (8th Cir. 2009) (holding defendant who decided to postpone x-ray based on medical judgment that injury was not urgent entitled to summary judgment); Blondheim v. County of Olmsted, 47 Fed. App’x 766 (8th Cir. 2002) (unpublished) (doctors at correctional facility were not deliberately indifferent by treating inmate’s torn ACL conservatively over 4 years, mainly with Tylenol and ace bandages, even though they knew outside orthopedic surgeon had recommended surgery). Differences of opinion, mistakes, and even medical malpractice do not meet the exacting standard of deliberate indifference. See Jones v. Norris, 310 F.3d 610, 612 (8th Cir. 2002) (“At best, [the plaintiff’s] allegations state a difference in opinion between himself and his doctors or allege a mistake in classification or treatment. Neither differences of opinion nor medical malpractice state an actionable Constitutional violation.”).
IV. CONCLUSION
In its present form, Plaintiff=s Complaint fails to state a claim upon which relief can be granted against the Douglas County Department of Corrections or against the “medical staff” in their official capacities.
Plaintiff shall have 30 days from the date of this Memorandum and Order to file an amended complaint that sufficiently states his Fourteenth Amendment deliberate- indifference claim against specific, named defendants. The amended complaint must specify in what capacity the defendants are sued, must identify each defendant by name, and must set forth all of Plaintiff’s claims (and any supporting factual allegations) against that defendant. To be clear, Plaintiff’s amended complaint must restate the relevant allegations of his Complaint (Filing 1) and any new allegations. Plaintiff should be mindful to explain what each defendant did to him, when the defendant did it, and 6 how the defendant’s actions harmed him. Plaintiff is warned that any amended complaint he files will supersede, not supplement, his prior pleadings. Plaintiff is encouraged to use the court-approved form to draft his second amended complaint, which the clerk of the court will provide to him.
If Plaintiff fails to file an amended complaint in accordance with this Memorandum and Order, this action will be dismissed without prejudice and without further notice. The court reserves the right to conduct further review of Plaintiff’s claims pursuant to 28 U.S.C. §§ 1915(e) and 1915A after he addresses the matters set forth in this Memorandum and Order.
IT IS THEREFORE ORDERED:
1. Defendant Douglas County Correctional Center is dismissed from this matter because it is a non-suable entity.
2. Plaintiff shall have 30 days to file an amended complaint in accordance with this Memorandum and Order. Failure to file an amended complaint within the time specified by the court will result in the court dismissing this case without further notice to Plaintiff. In his amended complaint, Plaintiff must identify each defendant by name and set forth all of Plaintiff’s claims (and any supporting factual allegations) against that defendant. Plaintiff should be mindful to explain in his amended complaint what each defendant did to him, when the defendant did it, and how the defendant’s actions harmed him.
3. In the event that Plaintiff files an amended complaint, Plaintiff shall restate the allegations of the Complaint (Filing 1) and any new allegations. Failure to consolidate all claims into one document may result in the abandonment of claims. Plaintiff is warned that an amended complaint will supersede, not supplement, his prior pleadings.
4. The court reserves the right to conduct further review of Plaintiff’s claims pursuant to 28 U.S.C. §§ 1915(e) and 1915A in the event he files an amended complaint. 7 5. The clerk of the court is directed to set a pro se case management deadline using the following text: December 22, 2021: amended complaint due.
6. The clerk of court is directed to send to Plaintiff a blank civil complaint form for violation of civil rights (prisoner).
7. The clerk’s office is directed to remove Defendant Douglas County Correctional Center as a party to this action.
8. Plaintiff shall keep the court informed of his current address at all times while this case is pending. Failure to do so may result in dismissal without further notice.
DATED this 22nd day of November, 2021.
BY THE COURT:
Richard G. Kopi! Senior United States District Judge