Jaso v. Schlemat, 4:19CV3106

CourtUnited States District Courts. 8th Circuit. United States District Court of Nebraska
Docket Number4:19CV3106
Decision Date20 April 2020

Plaintiff, Albert Jaso, a state prisoner, filed his pro se Complaint (Filing 1) on October 28, 2019, and subsequently was granted leave to proceed in forma pauperis. After Jaso paid the required initial partial filing fee on February 12, 2020, the court conducted an initial review of the Complaint and determined that it failed to state a claim upon which relief may be granted. In a Memorandum and Order entered on February 19, 2020 (Filing 12), the court on its own motion gave Jaso 30 days (i.e., until March 20, 2020) to amend his pleading.

On March 23, 2020, the clerk of the court received a pro se Amended Complaint (Filing 16) from Jaso via the United States Postal Service. The mailing is postmarked March 20, 2020, and the signed certificate of service is dated March 18, 2020. Such filing was timely under the "prison mailbox rule." See United States v. Harrison, 469 F.3d 1216, 1217 (8th Cir. 2006) ("Under the prison mailbox rule, a pro se pleading is deemed filed upon deposit in the prison mail system prior to the expiration of the filing deadline."); Epp v. Frakes, No. 4:16CV3176, 2017 WL 2608694, at *1 (D. Neb. June 15, 2017). Accordingly, the court now conducts an initial review of the Amended Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.


Jaso alleges in his Amended Complaint that while he was confined at the Dawson County Jail in Lexington, Nebraska, on May 13, 2019, he was assaulted by two officers, Area1 and Schlemat, while a third officer,2 Castellano, watched and may have participated in the assault. (Filing 16, ¶¶ 8-10.) These three officers are alleged to be employees of the Dawson County Sheriff's Department, and are being sued in their individual and official capacities. (Ibid., ¶¶ 4-6.) Jaso also sues unknown, unnamed jail employees who allegedly failed to protect him from the use of excessive force or who may have actively participated. (Ibid., ¶¶ 7, 10.)

Jaso alleges: "Schlemat started to assault me for no reason, I had to defend myself." (Ibid., ¶ 8.) Area allegedly threw Jaso against a wall and a cell door. (Ibid., ¶ 20.) Jaso alleges that Area and Schlemat struck him numerous times with their fists, knees, and elbows until he lost consciousness. (Ibid., ¶ 21.) Castellano allegedly remained outside the cell and did not intervene to protect Jaso. (Ibid., ¶ 23.) Jaso believes Castellano and unknown, unnamed officers may also have kicked and struck him while he was down. (Ibid., ¶ 10.) Jaso alleges he "did not resist or threaten the officers in any fashion or break any jail rules, he was only trying to protect himself from being struck." (Ibid., ¶ 12.)

Jaso alleges that during the assault he received an injury to his shoulder, a split nose, a cracked tooth, lacerations to his face and scalp, and numerous abrasions to his arms, legs, torso, face, and head. (Ibid., ¶¶ 22, 26.) He allegedly was placed in a holding cell for 96 hours before being taken to a hospital for medical treatment. (Ibid., ¶ 24.) Jaso alleges he was not taken to the hospital until after his sister filed a formal complaint with the Sheriff's office. (Ibid., ¶¶ 14, 25.)

Jaso twice alleges that "Schlemat and Area have repeatedly engaged in excessive force against inmates in the past." (Ibid., ¶¶ 11, 13.)

Jaso alleges that "[a]fter the assault by the officers, and after contacting the Ombudsman's office, he was moved to the Lincoln Diagnostic and Evaluation Center in Lancaster County, Nebraska. (Ibid., ¶ 16.) Jaso also alleges he "was later moved from the County Jail because of multiple threats made by Officer Schlemat with more bodily harm like he did before." (Ibid., ¶ 17.)

Jaso alleges he is currently being seen by a psychologist for treatment of post-traumatic stress disorder. (Ibid., ¶ 18.) He alleges: "I'm afraid for my life because these defendants did this because of my recent charges I am going to court for now" (Ibid., ¶ 19.)


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).

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 complaintmust 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 omitted).


Jaso indicates he is seeking to recover damages under 42 U.S.C. § 1983 for "excessive use of force, denial of medical care and failure to protect in violation of the Eighth Amendment to the United States Constitution," and also under state law for "the torts of assault and battery and negligence." (Filing 16, p. 1.) The only named Defendants are Schlemat, Castellano, and Area, but claims made against these officers in their official capacities are, in effect, made against Dawson County. See 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) ("A plaintiff seeking damages in an official-capacity suit is seeking a judgment against the entity.").

Unknown, unnamed Defendants are alleged to have been "employed during the events decribed [sic] in this complaint" (Filing 16, ¶ 7), but are not otherwise identified. "It is generally impermissible to name fictitious parties as defendants in federal court, but 'an 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 Jaso's Amended Complaint regarding these unknown, unnamed Defendants are not sufficiently specific to satisfy the exception to the general prohibition against fictitious parties. See id. The Amended 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. All claims alleged against the unknown, unnamed Defendants will therefore be dismissed without prejudice. See, e.g., Roe v. Nebraska, No. 4:15CV3071, 2015 WL 6159212, at *4 (D. Neb. Oct. 20, 2015) (dismissing claims alleged against unknown "agents and employees" of the State), aff'd, 861 F.3d 785 (8th Cir. 2017).

A. Section 1983 Claims

To 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). Local government units, such as counties, are considered "persons" under § 1983, but may only be held liable for violations that result from an official policy or custom. See Scheeler v. City of St. Cloud, 402 F.3d 826, 832 (8th Cir. 2005).

1. Excessive Force

Jaso claims Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment, but the allegations of the Complaint do not reveal whether Jaso was a pretrial detainee or a convicted prisoner at the time of the alleged incident. Although "the Eighth Amendment has no application" until there has been a "formal adjudication of guilt," the Fourteenth Amendment gives state pretrial detainees—just as the Fifth Amendment gives federal pretrial detainees—rights which are "at least as great as the Eighth Amendment protections available to a convicted prisoner." Walton v. Dawson, 752 F.3d 1109, 1117 (8th Cir. 2014) (emphasis in original; quoting City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)). The Constitution affords greater protection to a pretrial detainee compared to a convicted inmate in the sense that "[d]ue process requires that a pretrial detainee not be punished." Id. (quoting Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979)). In other words, the Constitution shields pretrial detainees not just from "cruel and unusual punishments," U.S. Const. amend. VIII, but from any punishment whatsoever. Id.; see Revere, 463 U.S. at 244; Bell, 441 U.S. at 535 n. 16.

Excessive force claims of pretrial detainees are analyzed under an objective...

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