Donnell King v. Robert Houston, et al

Filing

PER CURIAM OPINION FILED - THE COURT: Kermit E. Bye, Steven M. Colloton and Duane Benton (UNPUBLISHED) [4153777] [13-3660]

United States Court of Appeals
For the Eighth Circuit
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No. 13-3660
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Donnell King
lllllllllllllllllllll Plaintiff - Appellant
v.
Robert P. Houston, Director of the Nebraska Department of Corrections in his
Individual Capacity; Diane Sabatka-Rine; Joanne Hilgert, Tek Ind. Supervisor, in
her Individual Capacity; Mel Soyh, Tek Ind. Supervisor, in his Individual
Capacity; TEK Industries, Inc., in their Official or Individual Capacity
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: April 21, 2014
Filed: May 14, 2013
[Unpublished]
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Before BYE, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
Donnell King, an inmate at the Nebraska State Penitentiary (NSP), appeals the
preservice dismissal without prejudice of his 42 U.S.C. § 1983 action. This court
affirms in part and reverses in part.

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In his pro se complaint, as amended, King claims that Tek Industries (Tek) and
supervisors Joanne Hilgert and Mel Soyh racially discriminated against him, and that
Department of Correctional Services Director Robert Houston and NSP Warden
Diane Sabatka-Rine did not address his related grievances and also racially
discriminated.
King, who is black, alleged the following. He worked for Tek at NSP for 7-1/2
years without incident. While he was at work in February 2010, a prison guard found
him in possession of a prescription drug for which he did not have a prescription.
Hilgert and Soyh discharged King for violating Tek’s drug policy, and told him that
under new Tek policy he could reapply after 2 years without a Class I or Class II
misconduct report. The prison disciplinary committee found him guilty of drug
abuse. In April 2011, a prison guard found a homemade weapon in white inmate
Ricky Wilcox’s Tek work station. Wilcox admitted making the weapon. The prison
disciplinary committee found Wilcox guilty of possessing dangerous contraband,
punished him with segregated confinement, and explained that the violation was
serious because the weapon could have caused serious injuries and jeopardized prison
safety. Less than six weeks later, Tek allowed Wilcox to return to work and did not
terminate or discipline him. Tek’s written policies prohibited drug or weapon
possession at work, but did not contain the 2-year waiting period that Hilgert and
Soyh cited to King. Over the previous 10 years, Tek’s hiring ratio was 90% white,
and Tek had fired 95% of its black workers.
The district court construed King’s complaint as asserting a Title VII
employment-discrimination claim, and dismissed the claim because he did not
exhaust administrative remedies under Title VII and did not allege facts showing that
he was terminated due to his race. The district court also dismissed the claims against
Houston and Sabatka-Rine for failure to state a claim.

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Date Filed: 05/14/2014 Entry ID: 4153777

This court agrees that King failed to state a claim against Houston and SabatkaRine. King’s allegation that Houston and Sabatka-Rine discriminated, without
explaining how they were involved in Tek’s employment decisions, was too
conclusory to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Stone
v. Harry, 364 F.3d 912, 914 (8th Cir. 2004) (although liberally construed, pro se
complaint must still allege sufficient facts to support claim advanced). Likewise,
King’s allegation that they did not adequately consider his grievances did not state
a claim. See Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (per curiam)
(prison officials’ failure to process or investigate grievances, without more, is not
actionable under § 1983). This court also agrees that to the extent King was
attempting to bring a Title VII claim, his failure to timely seek administrative
remedies barred the claim. See 42 U.S.C. § 2000e-5(e)(1); Wilson v. Brinker Int’l,
Inc., 382 F.3d 765, 769 (8th Cir. 2004) (Title VII claim is time-barred if not filed
within administrative charge period).
Liberally construed, however, King’s complaint also could be understood to
raise employment-discrimination and equal-protection claims under 42 U.S.C.
§§ 1981 and 1983 against Tek and supervisors Hilgert and Soyh. The district court
did not address these claims, and we remand the case for the court to consider them
in the first instance.
For these reasons, this court affirms the dismissal of the Title VII claim and the
claims against Houson and Sebatka-Rine, but remands for consideration of claims
against Tek, Hilgert, and Soyh under 42 U.S.C. § 1981 and 42 U.S.C. § 1983.
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Date Filed: 05/14/2014 Entry ID: 4153777