IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

TERRANCE ADRIAN LACEY,

Plaintiff, 

vs. 

MARK OVERMAN, in His Official Capacity 

as Sheriff of Scottsbluff Nebraska;

Defendant.

8:23CV194

MEMORANDUM AND ORDER

Plaintiff filed a Complaint on May 15, 2023. Filing No. 1. Plaintiff has been given 

leave to proceed in forma pauperis. Filing No. 7. The Court now conducts an initial 

review of Plaintiff’s claims to determine whether summary dismissal is appropriate under 

28 U.S.C. § 1915(e)(2).

I. SUMMARY OF COMPLAINT

Plaintiff sues Mark Overman (“Overman”) in his official capacity as Sheriff of 

Scottsbluff County, Nebraska, seeking $60 million in damages for injuries Plaintiff 

sustained while he was a pretrial detainee in the Scottsbluff County Detention Facility 

(“SCDF”). On November 7, 2022,1 Plaintiff “[w]as assaulted by three Scottsbluff Jail 

Detention Employees whose identities are unknown to [him]. The assault happened in 

[Plaintiff’s] cell. [Plaintiff] was never charged with any assault or any other violation 

within the facility.” Filing No. 1 at 5.

Plaintiff was admitted into the emergency room at the Regional West Hospital in 

Scottsbluff, Nebraska, where he was treated for both eye and soft tissue injuries. 

1 Plaintiff mistakenly lists “November 7, 2023,” as the date of the assault in his Complaint, Filing No. 1 at 

5, but correctly lists November 7, 2022, as the date in the civil cover sheet attached to his Complaint, 

Filing No. 1 at 12.

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Plaintiff “also was later treated for physical rehab during the months of January . . . 

2023.” Id. (spelling corrected). Plaintiff alleges “[a]ll employees of that hospital were 

employed under contract by Wellpath Medical Corporation” and “this assault occurred 

as an act of retaliation from a current pending U.S. District Court Denver Colorado case 

#21-cv-00048 that was filed against both Wellpath Medical and Bill Elder in his official 

capacity as El Paso County Sheriff.” Id. (spelling corrected & capitalization altered from 

original). Plaintiff also appears to allege that Wellpath employees at Regional West 

Hospital “changed medical transcripts in order to deceive the US District Court in 

Colorado.” Id. at 4 (punctuation corrected).

II. APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW

The Court is required to review in forma pauperis complaints to determine 

whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). 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, 

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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

Liberally construed, Plaintiff here alleges federal constitutional 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); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 

1993). For the reasons that follow, Plaintiff’s Complaint fails to state a claim for relief 

against Defendant Overman, but Plaintiff will be given leave to allege his excessive 

force claim against proper defendants. 

A. Claims against Defendant Overman

Plaintiff names as the only defendant Overman in his official capacity as the 

Scottsbluff County Sheriff. A claim against an individual in his official capacity is, in 

reality, a claim against the entity that employs the official—in this case, Scottsbluff 

County. See 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.” (internal citations omitted)). Scottsbluff County may only be liable under section 

1983 if its “policy” or “custom” caused a violation of Plaintiff’s constitutional rights. See

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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 (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 does not present any allegations of an official policy or custom in his 

Complaint. Therefore, he has not alleged sufficient facts to “nudge” his claim against 

Scottsbluff County across the line from conceivable to plausible under the Jane Doe

standard.

Even if Plaintiff had sued Overman in his individual capacity, the Complaint fails 

to state a plausible claim for relief against Overman as Plaintiff did not allege any facts 

regarding Overman’s involvement in the alleged constitutional violations. “To prevail on 

a § 1983 claim, a plaintiff must show each individual defendant’s personal involvement 

in the alleged violation.” Kingsley v. Lawrence Cty., 964 F.3d 690, 700 (8th Cir. 2020)

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(quoting White v. Jackson, 865 F.3d 1064, 1081 (8th Cir. 2017)). A plaintiff must plead 

that each Government-official defendant, through the official’s own individual actions, 

has violated the Constitution. Iqbal, 556 U.S. 662, 676 (2009). Moreover, “[i]t is well 

settled that § 1983 does not impose respondeat superior liability.” Hughes v. 

Stottlemyre, 454 F.3d 791, 798 (8th Cir. 2006) (internal quotation marks omitted). Put 

another way, Overman cannot be held liable for the actions of the three SCDF 

employees who assaulted Plaintiff based solely on his position as the Scottsbluff County 

Sheriff. See Luckert v. Dodge Cnty., 684 F.3d 808, 817 (8th Cir. 2012) (prison 

supervisors cannot be held liable under § 1983 based on respondeat superior theory). 

“Supervisors can, however, ‘incur liability . . . for their personal involvement in a 

constitutional violation, or when their corrective inaction amounts to deliberate 

indifference to or tacit authorization of violative practices.’” Langford v. Norris, 614 F.3d 

445, 460 (8th Cir. 2010) (quoting Choate v. Lockhart, 7 F.3d 1370, 1376 (8th Cir. 1993)).

Here, Plaintiff has alleged no facts with respect to Overman’s involvement in any 

of the alleged constitutional violations nor has Plaintiff alleged that Overman failed to 

take corrective action or tacitly authorized any violative practices. Accordingly, Plaintiff 

has failed to state a claim for relief against Overman.

Though Plaintiff’s Complaint fails to state a claim against the only named 

defendant, the Court will examine Plaintiff’s constitutional claims to determine whether 

Plaintiff should be given an opportunity to amend his Complaint to allege plausible 

claims for relief against Overman or other proper defendants in their individual 

capacities.

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B. Excessive Force Claim

Liberally construed, Plaintiff claims that three unnamed SCDF employees 

violated his right to be free from cruel and unusual punishment while being held as a 

pretrial detainee with the SCDF. See Filing No. 1 at 3–5. The Eighth Amendment “has 

no application” until there has been a “formal adjudication of guilt.” Walton v. Dawson, 

752 F.3d 1109, 1117 (8th Cir. 2014) (quoting City of Revere v. Mass. Gen. Hosp., 463 

U.S. 239, 244 (1983)). But the Fourteenth Amendment gives state pretrial detainees 

rights which are “at least as great as the Eighth Amendment protections available to a 

convicted prisoner.” Id. (emphasis in original) (quoting City of Revere, 463 U.S. at 244); 

Edwards v. Byrd, 750 F.3d 728, 732 (8th Cir. 2014) (“Therefore, if the use of force in this 

case would have violated the Eighth Amendment had the plaintiffs been prisoners, that 

conduct necessarily violated the plaintiffs’ rights under the Fourteenth Amendment.”)). 

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.” Walton, 752 F.3d at 1117 (quoting Bell v. Wolfish, 441 U.S. 520, 535 n.16 

(1979)).

Excessive-force claims of pretrial detainees are analyzed under an objectivereasonableness standard—that is, were the defendants’ actions objectively reasonable 

under the circumstances? Ryan v. Armstrong, 850 F.3d 419, 427 (8th Cir. 2017). A 

court must assess the actions of each officer “from the perspective of a reasonable 

officer on the scene, including what the officer knew at the time, not with the 20/20 

vision of hindsight.” Id. (quoting Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015)). A 

court must also account for the “legitimate interests that stem from [the government’s] 

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need to manage the facility in which the individual is detained,” appropriately deferring 

to “policies and practices that in th[e] judgment” of jail officials “are needed to preserve 

internal order and discipline and to maintain institutional security.” Kingsley, 576 U.S. at 

397 (quoting Bell, 441 U.S. at 520). Factors relevant to assessing the objective 

reasonableness of force used by officers include:

the relationship between the need for the use of force and the amount of 

force used; the extent of the plaintiff’s injury; any effort made by the officer 

to temper or to limit the amount of force; the severity of the security 

problem at issue; the threat reasonably perceived by the officer; and 

whether the plaintiff was actively resisting.

Ryan, 850 F.3d at 427 (quoting Kingsley, 135 S. Ct. at 2473).

Here, Plaintiff alleges the three unidentified SCDF employees assaulted Plaintiff 

in his cell, Plaintiff was never charged with any assault or other violation within the 

SCDF, and the assault was in retaliation for Plaintiff’s pending litigation against Wellpath 

Medical and the El Paso County, Colorado, Sheriff. Liberally construing Plaintiff’s 

allegations, the Court concludes Plaintiff has alleged a plausible excessive force claim 

under the Fourteenth Amendment against the three unnamed SCDF employees in their 

individual capacities as Plaintiff’s allegations suggest that the assault was not tied to 

any misconduct or aggressive behavior by Plaintiff and was motivated by Plaintiff’s 

lawsuit against another law enforcement officer. Accordingly, the Court will give Plaintiff 

leave to amend his Complaint to allege his excessive force claims against the three 

unnamed SCDF employees in their individual capacities. Plaintiff may also amend his 

Complaint to allege a plausible excessive force claim against Overman, if facts 

supporting such a claim can be truthfully pleaded. 

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In amending his Complaint, Plaintiff should do his best to attempt to identify the 

three SCDF employees who allegedly assaulted him. “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)). Plaintiff’s amended complaint 

should “sufficiently allege who [these] Defendants are, what they allegedly did, . . . [and] 

any other facts that would permit [them] to be noticed or identified through discovery.” 

Id. In its present form, Plaintiff’s Complaint alleges only that the three unnamed SCDF 

employees were working on November 7, 2022, but it does not allege any other 

identifying information such as gender, age, physical appearance, and title or position. 

Plaintiff should allege all facts known to him regarding the three unnamed SCDF 

employees in his amended complaint.

C. Claims Related to Colorado Litigation

Lastly, Plaintiff appears to allege that unidentified Wellpath employees at 

Regional West Hospital “changed medical transcripts in order to deceive the US District 

Court in Colorado.” Filing No. 1 at 4 (punctuation corrected). To the extent Plaintiff may 

be attempting to assert claims against these Wellpath employees based on 

manipulation of his medical transcripts, such claims would not be properly joined in this 

action with Plaintiff’s excessive force claims against the SCDF employees as the claims 

are not related and do not arise out of the same set of facts. See Fed. R. Civ. P. 

20(a)(2) (multiple defendants may be joined in the same action only if “any right to relief 

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is asserted against them jointly, severally, or in the alternative with respect to or arising 

out of the same transaction, occurrence, or series of transactions or occurrences” and 

there must be a “question of law or fact common to all defendants” in the action). 

Plaintiff must pursue such claims in a separately filed action. 

IV. OTHER PENDING MOTIONS

On August 16, 2023, Plaintiff filed what the Court docketed as a Motion for 

Summons and requested that the Court “serve[] summons of complaint on the 

defendant and set date for response to the complaint.” Filing No. 10. The Court is 

required to review in forma pauperis complaints to determine whether summary 

dismissal is appropriate. See 28 U.S.C. § 1915(e)(2). The Court must dismiss a 

complaint or any portion thereof 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). The Court has 

reviewed Plaintiff’s Complaint and determined that, as currently pleaded, Plaintiff’s 

Complaint fails to state a claim upon which relief may be granted against the named 

Defendant. Thus, this matter may not proceed to service of process on the present 

Complaint, and Plaintiff’s Motion for Summons is denied. If Plaintiff files an amended 

complaint, the Court will review Plaintiff’s amended complaint under 28 U.S.C. § 

1915(e)(2) and determine whether the matter may proceed to service of process.

V. CONCLUSION

Plaintiff’s Complaint fails to state a claim upon which relief may be granted 

against Defendant Overman in his official capacity. On the Court’s own motion, Plaintiff 

shall have 30 days from the date of this Memorandum and Order to file an amended 

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complaint that sufficiently states his excessive force claims against Overman and the 

three unnamed SCDF employees in their individual capacities. The amended complaint 

must identify each defendant by name or must provide as much identifying information 

for each defendant as possible if the defendant’s name is unknown 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 No. 1, and any new allegations. Plaintiff should be mindful to explain 

what each defendant did to him, when the defendant did it, and 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 courtapproved form to draft his 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) after he files an amended complaint which addresses 

the matters set forth in this Memorandum and Order.

IT IS THEREFORE ORDERED:

1. Plaintiff shall have until February 20, 2024, 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 or provide as much identifying information for each defendant as 

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possible 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.

2. In the event that Plaintiff files an amended complaint, Plaintiff shall restate 

the relevant allegations of the Complaint, Filing No. 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.

3. The Court reserves the right to conduct further review of Plaintiff’s claims 

pursuant to 28 U.S.C. § 1915(e) in the event he files an amended complaint.

4. The Clerk of the Court is directed to send to Plaintiff the Form Pro Se 14 

Complaint for Violation of Civil Rights (Prisoner).

5. The Clerk of the Court is further directed to set a pro se case management 

deadline using the following text: February 20, 2024: check for amended complaint. 

6. Plaintiff’s Motion for Summons, Filing No. 10, is denied.

7. 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 18th day of January, 2024.

BY THE COURT:

Joseph F. Bataillon

Senior United States District Judge

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