United States District Court, D. North Dakota, Northwestern Division
ORDER RE § 1915(E)(2) SCREENING, FOR SERVICE OF COMPLAINT, AND TO SHOW CAUSE
CHARLES S. MILLER, Jr., Magistrate Judge.
Plaintiff Jose Doe ("Doe") has been granted leave to proceed in forma pauperis in the above-captioned case. The matter is now before the court for screening pursuant to 28 U.S.C. § 1915(e)(2) in advance of the court ordering service of process. Plaintiff has consented to the exercise of jurisdiction by the undersigned. For the reasons set forth below, Doe's claims against defendants Jason T. Olson and the Criminal Investigation Bureau will not be permitted to proceed at this point, and Doe will be permitted to proceed with his claims against the remaining named defendants.
I. STANDARDS GOVERNING § 1915(e)(2) REVIEW
Section 1915(e)(2) provides that, notwithstanding financial eligibility, "the court shall dismiss the case at any time if the court determines that... the action... (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2). Federal Rule of Civil Procedure 8(a)(2) requires a claim for relief contain "a short and plain statement of the claim showing that the pleader is entitled to relief[.]" To meet this standard, a complaint must include "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In applying the standard, the court must accept the plaintiff's factual allegations as true. Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Pro se complaints must be liberally construed. Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). However, in construing a pro se complaint, the court "will not supply additional facts, nor... construct a legal theory for plaintiff that assumes facts that have not been pleaded." Id . (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989)).
To state a cognizable claim for violation of federal civil rights under 42 U.S.C. § 1983, the plaintiff must allege a violation of a right secured by the Constitution or the laws of the United States and that the violation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Walker v. Reed, 104 F.3d 156, 157 (8th Cir. 1997). The pleading must also allege a sufficient causal link between the alleged violation and the basis upon which the particular defendant is to be held responsible, keeping in mind that persons sued in their individual capacities must be personally involved or directly responsible since § 1983 does not impose respondeat superior liability. Iqbal, 556 U.S. at 676-77; Gordon v. Hansen, 168 F.3d 1109, 1113 (8th Cir. 1999).
A. Claims against Chief of Police Jason T. Olson
Doe's complaint does not allege that Minot Chief of Police Olson was directly involved in the actions Doe asserts give rise to his claims. The only place Olson's name appears in the complaint is in the portions where the defendants are identified.
"In a § 1983 case an official is only liable for his... own misconduct' and is not accountable for the misdeeds of [his] agents' under a theory such as respondeat superior or supervisor liability." Nelson v. Corr. Med. Servs., 583 F.3d 522, 534-35 (8th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 677 (2009)). A supervisor may be held individually liable for direct participation in a constitutional violation or if a failure to properly supervise and train an employee caused a deprivation of constitutional rights. Tlamka v. Serrell, 244 F.3d 628, 635 (8th Cir. 2001). To show liability for failure to train, a plaintiff must show "that the supervisor was deliberately indifferent to or tacitly authorized the offending acts" which "requires a showing that the supervisor had notice that the training procedures and supervision were inadequate and likely to result in a constitutional violation." Id.
The allegations in Doe's complaint are insufficient to state a claim against Olson for supervisory liability, for any other § 1983 violation, or under any other theory. Accordingly, Doe's claims against Olson are subject to dismissal.
B. Claims against Criminal Investigation Bureau
In naming the "Criminal Investigation Bureau, " the court assumes that Doe intended to refer to the North Dakota Bureau of Criminal Investigation. The Bureau of Criminal Investigation is an agency of the North Dakota Attorney General's Office.
The Eleventh Amendment bars "any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." Congress may abrogate the States' sovereign immunity by expressing its unequivocal intention to do so and acting pursuant to a valid grant of constitutional authority, or a State may waive its sovereign immunity by consenting to suit in federal court. See Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 363 (2001); Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Congress did not abrogate the States' sovereign immunity in enacting § 1983, Quern v. Jordan, 440 U.S. 332, 340-45 (1979), and North Dakota has not waived its immunity. Moore v. Hoeven, No. 3:08-CV-50, 2009 WL 3064742, at * 3 (D.N.D. Sept. 22, 2009) (citing N.D.C.C. § 32-12.2-10). Further, a State is not is a "person" that can be held liable for damages under § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). North Dakota's Eleventh Amendment immunity extends to state agencies and entities when the state itself is the real party in interest. See, e.g., Regents of the Univ. of California v. Doe, 519 U.S. 425, 429-30 (1997); Becker v. Univ. of Nebraska at Omaha, 191 F.3d 904, 908 (8th Cir. 1999). State immunity applies regardless of the nature of the relief requested. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984).
The North Dakota Bureau of Criminal Investigation is a state agency immune from suit in federal court. Accordingly, Doe's claims against the "Criminal ...