SaLazar v. Norfolk Regional Center et al

Filing 11

MEMORANDUM AND ORDER - Plaintiffs Motion to Dismiss (filing no. 10 ) is granted. The Clerk of the court is directed to dismiss the Mental Health Board of Platte County and Carl K. Hart, Jr., shall from this matter. Plaintiffs Complaint fails to state a Fourteenth Amendment claim related to his restraints upon which relief may be granted. Plaintiff shall have until March 12, 2012, to amend his Complaint and clearly state a Fourteenth Amendment claim related to his restraints upon which rel ief may be granted, in accordance with this Memorandum and Order. If Plaintiff fails to file an amended complaint, his Fourteenth Amendment claim related to his restraints will be dismissed for failure to state a claim upon which relief may be gra nted. Plaintiffs Motion for Appointment of Counsel (filing no. 7 ) is denied without prejudice to reassertion. Because Plaintiff has paid the initial partial filing fee in this matter (see Docket Sheet), Plaintiffs Motion for Extension of Time (fi ling no. 8 ) and Motion Regarding Filing Fees (filing no. 9 ) are denied as moot. If Plaintiff has questions regarding the collection of the remaining filing fee installments, he should refer to the courts December 5, 2012, Memorandum and Order. Pro Se Case Management Deadline set for 3/12/2012: Check for amended complaint on March 12, 2012). Ordered by Senior Judge Richard G. Kopf. (Copy mailed/e-mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
AMBROSIO SALAZAR JR.,

)
)
Plaintiff,
)
)
v.
)
)
NORFOLK REGIONAL CENTER, et )
al.,
)
)
Defendants.
)

4:11CV3207

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on November 21, 2011. (Filing No.
1.) Plaintiff has previously been given leave to proceed in forma pauperis. (Filing
No. 6.) Also pending are Plaintiff’s Motion for Appointment of Counsel (filing no.
7), Motion for Extension of Time regarding payment of his filing fee (filing no. 8),
Motion Regarding Filing Fees (filing no. 9) and Motion to Dismiss (filing no. 10).
The court will address Plaintiff’s Motion to Dismiss and then conduct an initial review
of the Complaint to determine whether summary dismissal is appropriate under 28
U.S.C. §§ 1915(e) and 1915A.
I.

MOTION TO DISMISS
On January 13, 2012, Plaintiff filed a Motion to Dismiss. (Filing No. 10.) In

this Motion, Plaintiff states that the Mental Health Board of Platte County and Carl
K. Hart, Jr., had no involvement in this matter and should be dismissed as Defendants.
(Id.) Plaintiff’s Motion to Dismiss is granted and the Mental Health Board of Platte
County and Carl K. Hart, Jr., shall be dismissed from this matter.
II.

SUMMARY OF COMPLAINT
Plaintiff, a “Mexican” American, filed his Complaint on November 21, 2011,

against the Norfolk Regional Center (“NRC”), five named individuals and “John

Doe’s.” (Filing No. 1 at CM/ECF pp. 1-3, 9.) Plaintiff sues the individual Defendants
in both their individual and official capacities. (Id. at CM/ECF p. 1-3.) Plaintiff is
currently confined in the Lincoln Correctional Center in Lincoln, Nebraska. (See
Docket Sheet.)
Condensed and summarized, Plaintiff alleges that on July 18, 2010, while he
was housed at the Norfolk Regional Center, a “Caucasian” man named “Henry”
elbowed him and spit coffee in his face. (Filing No. 1 at CM/ECF pp. 2-4.) During
this altercation, Plaintiff “moved in close” so Henry could not hit him. (Id. at
CM/ECF p. 4.) After Plaintiff “moved in close” to Henry, NRC staff members
knocked Plaintiff down and restrained him. (Id.) NRC staff did not restrain Henry.
(Id.) NRC security guards then took Plaintiff into a room and placed him in five-point
restraints. (Id.) Plaintiff asked Defendant Stephen O’Neill (“O’Neill”) why Henry
was not being restrained. (Id. at CM/ECF p. 5.) O’Neill replied, because “he has been
here longer than you and he is Caucasian.” (Id.)
After the altercation, Plaintiff remained in five-point restraints for “a few
weeks” and was then placed in three-point restraints. (Id. at CM/ECF p. 5.) A few
days later, Plaintiff asked O’Neill if he could be released from three-point restraints.
(Id. at CM/ECF p. 6.) O’Neill said “No,” and kept Plaintiff in both three-point and
five-point restraints for three “months.” (Id. at CM/ECF pp. 6, 8.) At night, the
restraints were so tight that Plaintiff’s hands, waist and ankles would go numb. (Id.
at CM/ECF p. 6.) The restraints bruised Plaintiff’s waist and made his wrists turn
“bluish purple.” (Id.) At one point an NRC security guard noticed the bruises and
reported them to a registered nurse. (Id.) Plaintiff alleges Defendant John Kroll
directed NRC staff to place the restraints on him tightly. (Id. at CM/ECF pp. 6-7.)
Plaintiff seeks monetary damages and other relief as the court “sees fit.” (Id. at
CM/ECF pp. 9-11.)

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III.

APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
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
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); 28 U.S.C. § 1915A.
A pro se plaintiff must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 129 S. Ct.
1937, 1950 (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.”). Regardless of whether a plaintiff is represented
or is appearing pro se, the plaintiff’s complaint must allege specific facts sufficient to
state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). However,
a pro se plaintiff’s allegations must be construed liberally. Burke v. North Dakota
Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations omitted).
IV.

DISCUSSION OF CLAIMS
A.

Sovereign Immunity

The Eleventh Amendment bars claims for damages by private parties against
a state, state instrumentalities and an employee of a state sued in the employee’s
official capacity. See, e.g., Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th
Cir. 1995); Dover Elevator Co. v. Ark. State Univ., 64 F.3d 442, 446-47 (8th Cir.
1995). Any award of retroactive monetary relief payable by the state, including for
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back pay or damages, is proscribed by the Eleventh Amendment absent a waiver of
immunity by the state or an override of immunity by Congress. See, e.g., Dover
Elevator Co., 64 F.3d at 444; Nevels v. Hanlon, 656 F.2d 372, 377-78 (8th Cir. 1981).
Sovereign immunity does not bar damages claims against state officials acting in their
personal capacities, nor does it bar claims brought pursuant to 42 U.S.C. §1983 that
seek equitable relief from state employee defendants acting in their official capacity.
Here, Plaintiff sues NRC, a state instrumentality, five individual state
employees, and unnamed “John Doe’s” in both their individual and official capacities.
(Filing No. 1 at CM/ECF pp. 1-3.) As set forth above, the Eleventh Amendment bars
claims for damages by private parties against state instrumentalities and employees
of a state sued in their official capacities. Consequently, Plaintiff’s monetary damages
claims against NRC and the individual Defendants in their official capacities are
barred by the Eleventh Amendment. However, the Eleventh Amendment does not bar
Plaintiff’s equitable relief claims against NRC, his equitable relief claims against the
individual Defendants in their official capacities, or his claims against the individual
Defendants in their individual capacities.
B.

Fourteenth Amendment - Tightness of Restraints

It is unclear from the Complaint why Plaintiff was housed at NRC. Thus, the
court will assume that he was involuntarily committed. As an involuntarily committed
individual, Plaintiff’s “confinement is subject to the same safety and security concerns
as that of a prisoner.” Revels v. Vincenz, 382 F.3d 870, 874 (8th Cir. 2004). However,
because an involuntarily committed individual is confined for treatment rather than
incarcerated for the purpose of punishment following conviction, the Eighth
Amendment does not apply. Id. at 875. The rights of patients in psychiatric hospitals
more appropriately arise under the Fourteenth Amendment. Youngberg v. Romeo, 457
U.S. 307, 324-25 (1982). Recognizing that Plaintiff’s rights may arise under the
Fourteenth Amendment, and that Plaintiff is currently incarcerated at the Lincoln
Correctional Center, the court will analyze his cruel and unusual punishment
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allegations as if he were a prisoner with standing to make an Eighth Amendment
claim.

See, e.g., Revels, 382 F.3d at 874 (analyzing involuntarily committed

individual’s claim as if he were a prisoner with standing to make an Eighth
Amendment claim).
“The Supreme Court has interpreted the Eighth Amendment’s prohibition
against cruel and unusual punishment to include a right to safe and humane conditions
of confinement.” Brown v. Fortner, 518 F.3d 552, 558 (8th Cir. 2008) (citing Farmer
v. Brennan, 511 U.S. 825, 847 (1994)). However, a prisoner asserting a violation of
his Eighth Amendment rights must show that a defendant acted with “deliberate
indifference.” Tucker v. Evans, 276 F.3d 999, 1001 (8th Cir. 2002). This deliberate
indifference standard has both “an objective element, that the deprivation was
sufficiently serious, and a subjective element, that the defendant acted with a
sufficiently culpable state of mind.” Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir.
1997). “The subjective component of deliberate indifference requires proof that [a
Defendant] actually knew of and recklessly disregarded a substantial risk of serious
harm.” Butler v. Fletcher, 465 F.3d 340, 345 (8th Cir. 2006) (citation omitted).
Here, Plaintiff alleges he was kept in both three-point and five-point restraints
for three “months.” (Filing No. 1 at CM/ECF pp. 6, 8.) At night, the restraints were
put on so tight that Plaintiff’s hands, waist and ankles would go numb. (Id. at
CM/ECF p. 6.) The restraints bruised Plaintiff’s waist and made his wrists turn
“bluish purple.” (Id.) At one point an NRC security guard noticed the bruises and
reported them to a registered nurse. (Id.)
Although Plaintiff alleges Defendant John Kroll directed NRC staff to place the
restraints on tightly, he does not allege that Defendants continued to place the
restraints on tightly after they became aware of the bruising. (Id. at CM/ECF pp. 6-7.)
Accordingly, Plaintiff has not alleged that Defendants disregarded a substantial risk
of serious harm. However, on the court’s own motion, Plaintiff shall have 30 days to
file an amended complaint to allege facts sufficient to show that Defendants recklessly
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disregarded a substantial risk of serious harm to Plaintiff by keeping him in tight
restraints after becoming aware that the restraints were too tight. Any amended
complaint shall restate the allegations of Plaintiff’s prior Complaint (filing no. 1) and
any new allegations. Failure to consolidate all claims into one document will result
in the abandonment of claims. If Plaintiff fails to file an amended complaint in
accordance with this Memorandum and Order, Plaintiff’s Fourteenth Amendment
claim related to his restraints will be dismissed without prejudice for failure to state
a claim upon which relief may be granted.
C.

Equal Protection

The court also liberally construes Plaintiff’s Complaint to allege an equal
protection claim against Defendants. “The Equal Protection Clause of the Fourteenth
Amendment commands that no State shall deny to any person within its jurisdiction
equal protection of the laws, which is essentially a direction that all persons similarly
situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S.
432, 439 (1985). As a threshold matter, to state an equal protection claim, Plaintiff
must establish that he “was treated differently from others similarly situated.”
Creason v. City of Washington, 435 F.3d 820, 823 (8th Cir. 2006).
Here, Plaintiff alleges that Defendants treated him, a “Mexican” American,
differently than “Henry,” a similarly situated Caucasian. (Filing No. 1 at CM/ECF p.
3.) Specifically, Defendants chose to restrain Plaintiff, but did not restrain Henry.
(Id.) Liberally construed, this allegation is sufficient to “nudge” Plaintiff’s equal
protection claim across the line from “conceivable to plausible.” However, the court
cautions Plaintiff that this is only a preliminary determination based on the allegations
of the Complaint and is not a determination of the merits of Plaintiff’s claims or
potential defenses thereto.

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V.

MOTIONS TO APPOINT COUNSEL
Also pending is Plaintiff’s Motion for the Appointment of Counsel. (Filing No.

7.) The court cannot routinely appoint counsel in civil cases. In Davis v. Scott, 94
F.3d 444, 447 (8th Cir. 1996), the Eighth Circuit Court of Appeals explained that
“[i]ndigent civil litigants do not have a constitutional or statutory right to appointed
counsel. . . . The trial court has broad discretion to decide whether both the plaintiff
and the court will benefit from the appointment of counsel . . . .” Id. (quotation and
citation omitted). No such benefit is apparent here. Plaintiff’s request for the
appointment of counsel is therefore denied without prejudice.
IT IS THEREFORE ORDERED that:
1.

Plaintiff’s Motion to Dismiss (filing no. 10) is granted. The Clerk of the

court is directed to dismiss the Mental Health Board of Platte County and Carl K.
Hart, Jr., shall from this matter.
2.

Plaintiff’s Complaint fails to state a Fourteenth Amendment claim related

to his restraints upon which relief may be granted.
3.

Plaintiff shall have until March 12, 2012, to amend his Complaint and

clearly state a Fourteenth Amendment claim related to his restraints upon which relief
may be granted, in accordance with this Memorandum and Order. If Plaintiff fails to
file an amended complaint, his Fourteenth Amendment claim related to his restraints
will be dismissed for failure to state a claim upon which relief may be granted.
4.

In the event that Plaintiff files an amended complaint, Plaintiff shall

restate the allegations of the current Complaint (filing no. 1), and any new allegations.
Failure to consolidate all claims into one document may result in the abandonment of
claims.
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5.

The Clerk of the court is directed to set a pro se case management

deadline in this case using the following text: Check for amended complaint on March
12, 2012.
6.

Plaintiff’s Motion for Appointment of Counsel (filing no. 7) is denied

without prejudice to reassertion.
7.

Because Plaintiff has paid the initial partial filing fee in this matter (see

Docket Sheet), Plaintiff’s Motion for Extension of Time (filing no. 8) and Motion
Regarding Filing Fees (filing no. 9) are denied as moot. If Plaintiff has questions
regarding the collection of the remaining filing fee installments, he should refer to the
court’s December 5, 2012, Memorandum and Order.
8.

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 14 th day of February, 2012.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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