United States District Court, D. North Dakota
ORDER AND AMENDED REPORT AND RECOMMENDATION
ALICE R. SENECHAL, Magistrate Judge.
Under 28 U.S.C. § 1915A, the court must conduct an initial review of a complaint filed by plaintiff Delvin Lamont Shaw (Shaw), an inmate seeking redress from governmental actors for alleged use of excessive force. (Doc. #5). Shaw, proceeding pro se and in forma pauperis, (Doc. #3), asserts claims under 42 U.S.C. § 1983. The court conducted its initial review of the complaint and filed a report and recommendation on January 21, 2016. (Doc. #11). On January 29, 2016, Shaw filed an objection to the report and recommendation. (Doc. #12). In light of Shaw's objection, the court now issues this order and amended report and recommendation.
In his objection, Shaw provided additional facts regarding the alleged incident giving rise to his suit and requests video footage of the alleged incident. Because of the liberal construction standard the court must employ when reviewing pro se pleadings, the court will consider the additional information from Shaw's objection as a supplement to the complaint, and the court will order that its previous report and recommendation be withdrawn.
Having considered the additional information, the court maintains the recommendation that the claim against Grand Forks County Correctional Center (GFCCC) be dismissed with prejudice because GFCCC is not an entity that can be sued under § 1983. With regard to the claims against Shannon Shell (Shell), the court maintains the recommendation that the official capacity claims be dismissed without prejudice because Shaw fails to allege that any county policy, custom, or practice caused his alleged constitutional deprivation. However, Shaw's pleadings now sufficiently allege that Shell's actions were objectively unreasonable, and Shaw therefore now states a facially plausible claim. As a result, the excessive force claim against Shell in his personal capacity should proceed.
At this initial review stage of the proceedings, the court should defer ruling on Shaw's request to receive video footage of the alleged incident.
Shaw's initial complaint used a form that provides space for four claims; he included only one sentence under each claim. First, Shaw alleges, "I have a scar on my neck from Officer Shell['s] taser gun." (Doc. #5, p. 4). Second, he states, "I have a scar on my stomach from Officer Shell['s] taser gun." Id . Third, he contends, "I pulled muscles in my neck, while being tased by Officer Shell." Id. at 5. Fourth, Shaw alleges, "[My] muscles are jumping all over now, and [my] heart rate [is] much faster." Id . As defendants, Shaw names GFCCC and Shell in his official and personal capacities. Id. at 1, 3.
In his objection-which the court is considering as a supplement to the complaint-Shaw claims, "Shell shot me with 50, 000 volts over and over on video. I showed no threat to officers nor inmates." (Doc. #12, p. 1). Shaw requests "a copy of the video [of the alleged incident] from GFCCC... approximately 1520 on the date of 7/05/15, " alleging the video will show that Shell "violated policies and procedures for officers at GFCCC." Id . Shaw adds that "Shell didn't say anything about a taser before shooting me[;] he also shot me from the hallway when I was walking to my cell." Id.
Under 28 U.S.C. § 1915A(a), the court must conduct an initial screening of a prisoner complaint against a governmental entity, officer, or employee. The court must identify cognizable claims, and must dismiss claims that are frivolous, malicious, fail to state a claim, or seek monetary relief from an immune defendant. 28 U.S.C. § 1915A(b). A complaint fails to state a claim if it does not contain "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 579 (2007). When the factual content of a complaint allows the court to reasonably infer that a defendant is liable for the alleged misconduct, the complaint has stated a plausible claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While a court must accept factual allegations in a complaint as true, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, " are insufficient to state a facially plausible claim. Id.
Pleadings filed by pro se litigants must be liberally construed and are held to less stringent standards than are pleadings drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Applying that standard, the court construes Shaw's pleadings as asserting claims for use of excessive force.
Although Shaw's complaint names GFCCC as a defendant, county jails are not legal entities amenable to suit. See Owens v. Scott Cty. Jail, 328 F.3d 1026, 1027 (8th Cir. 2003). Therefore, the court recommends that any claims against GFCCC be dismissed with prejudice.
The court next considers whether Shaw has alleged cognizable claims against Shell in his ...