Wilson v. Sabatka-Rine et al

Filing 15

MEMORANDUM AND ORDER Plaintiff's monetary damages claims against Defendants in their official capacities are dismissed with prejudice. Plaintiffs due process claims related to his protective custody classification are dismissed without prejudic e. Plaintiffs Amended Complaint fails to state a claim upon which reliefmay be granted. However, Plaintiff shall have until March 5, 2012, to amend his first Amended Complaint to clearly state a claim upon which relief may be granted in accordance w ith this Memorandum and Order. Plaintiffs Motions for Appointment of Counsel (filing nos. 11 and 13 ) are denied without prejudice to reassertion. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 3/5/2012:Review amended complaint on March5, 2012; dismiss if not filed. )Ordered by Judge Joseph F. Bataillon. (Copy mailed/e-mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HAROLD B. WILSON,
Plaintiff,
v.
DIANE SABATKA-RINE, et al.,
Defendants.

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4:11CV3215

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on November 25, 2011. (Filing No.
1.) Thereafter, Plaintiff filed an Amended Complaint. (Filing No. 12.) Also pending
are two Motions for Appointment of Counsel. (Filing Nos. 11 and 13.) The court
now conducts an initial review of the Complaint to determine whether summary
dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.
I.

SUMMARY OF COMPLAINT

Plaintiff filed his Complaint on November 25, 2011. (Filing No. 1.) Thereafter,
Plaintiff filed an Amended Complaint against nine employees of the Nebraska
Department of Corrections.1 (Filing No. 12 at CM/ECF pp. 1-2.) Plaintiff sues each
Defendant in both their individual and official capacities. (Id.) Plaintiff is currently
confined in the Nebraska State Penitentiary in Lincoln, Nebraska. (Id. at CM/ECF p.
2; see also Docket Sheet.)
Plaintiff asserts numerous claims against Defendants, including several state
law claims. For the purposes of this Memorandum and Order the court will focus its

Plaintiff may amend his once as a matter of course within 21 days, after service
of a responsive pleading. Fed. R. Civ. P. 15(a)(1). Plaintiff has not yet served his
Amended Complaint upon Defendants.
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discussion on Plaintiff’s federal claims. Condensed and summarized, Plaintiff asserts
four federal claims.
Claim One:

Defendants deprived Plaintiff of his right to be part of the
general population without due process. (Id. at CM/ECF
pp. 5, 9, 11.) Plaintiff alleges that he was placed in
protective custody on October 31, 2011, and that he is “at
risk” in protective custody because he has conflicts with
other protective custody inmates that are “unresolved.” (Id.
at CM/ECF p. 4.) He also alleges that he suffers from
diabetes, “kidney failure and incontinence which are not
conducive to being placed in[] a two man cell for 23
hours.” (Id. at CM/ECF p. 5.) Before Plaintiff was placed
in protective custody, he appealed the prison’s protective
custody classification decision pursuant to prison
procedures. (Id. at CM/ECF pp. 3-4.)

Claim Two:

Defendants denied Plaintiff his First Amendment free
exercise rights because they (1) did not permit him to attend
group rituals, (2) denied him possession of his religious
medallion for 30 days, (3) denied him access to religious
hardcover books while he was in segregation, (4) denied
him access to several religious items while he was in
segregation, and (5) failed to recruit religious Wiccan
clergy. (Id. at CM/ECF pp. 5, 12.)

Claim Three:

Defendants denied Plaintiff meaningful access to the courts
because they limited his access to the law library to only 50
minutes per week, and denied him access to his legal
documents for 58 days. (Id. at CM/ECF p. 7.)

Claim Four:

Defendants denied Plaintiff equal protection in violation of
the Fourteenth Amendment because similarly situated
inmates are given preferential treatment as part of a
“transition program.” (Id. at CM/ECF p. 8.)

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Plaintiff seeks a court order that directs Defendants to release him from
segregation, return him to general population and restore his single-cell status. (Id.
at CM/ECF p. 11.) He also seeks compensatory and punitive damages. (Id.)
II.

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).
III.

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
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Cir. 1995); Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446-47 (8th Cir.
1995). Any award of retroactive monetary relief payable by the state, including for
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 nine state employees in both their individual and official
capacities. (Filing No. 12 at CM/ECF pp. 1-2.) As set forth above, the Eleventh
Amendment bars claims for damages by private parties against employees of a state
sued in their official capacities. Consequently, Plaintiff’s monetary damages claims
against Defendants in their official capacities are barred by the Eleventh Amendment.
However, the Eleventh Amendment does not bar Plaintiff’s equitable relief claims
against Defendants in their official capacities or Plaintiff’s claims against Defendants
in their individual capacities.
B.

Claim One - Classification Status

Liberally construed, Plaintiff alleges Defendants deprived him of the right to
be a part of the general prison population without adequate due process. (Filing No.
12 at CM/ECF pp. 5, 9, 11.) The Due Process Clause by itself does not accord a
prisoner a liberty interest in remaining in the general population. Lekas v. Briley, 405
F.3d 602, 607 (7th Cir. 2005). Rather, prison officials must receive “wide-ranging
deference in the adoption and execution of policies and practices that in their
judgment are needed to preserve internal order and discipline and to maintain
institutional security.” Bell v. Wolfish, 441 U.S. 520, 547 (1979).
Accordingly, the Eighth Circuit has held that an inmate “does not have a
constitutional right to a particular prison job or classification.” Sanders v. Norris, 153
Fed. Appx. 403, 404 (8th Cir. 2005); Hartsfield v. Dep’t of Corr., 107 Fed. Appx. 695,
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696 (8th Cir. 2004) (unpublished per curiam decision) (stating that inmates have “no
liberty interest in a particular classification”). Thus, “[a]n inmate who makes a due
process challenge to his segregated confinement must make a threshold showing that
the deprivation of which he complains imposed an atypical and significant hardship.”
Portley-El v. Brill, 288 F.3d 1063, 1065 (8th Cir. 2002) (internal quotations omitted);
Sandin v. Conner, 515 U.S. 472, 484 (1995) (concluding a prison inmate only has a
liberty interest in a condition of confinement if it “imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life”). Moreover,
the Eighth Circuit has consistently held that “administrative and disciplinary
segregation are not atypical and significant hardships[.]” Portley-El, 288 F.3d at
1065; Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003) (“We have consistently
held that a demotion to segregation, even without cause, is not itself an atypical and
significant hardship.”).
Here, Plaintiff alleges that he was placed in protective custody on October 31,
2011, and that he is “at risk” in protective custody because he has “unresolved”
conflicts with other protective custody inmates. (Filing No. 12 at CM/ECF p. 4.) He
also alleges that he suffers from diabetes, “kidney failure and incontinence which are
not conducive to being placed in[] a two man cell for 23 hours.” (Id. at CM/ECF p.
5.) Even assuming these conditions constitute an atypical and significant hardship,
Plaintiff’s due process claim still fails because he was notified of the prison’s decision
to place him in protective custody and given the chance to appeal that decision
through prison procedures. (Id. at CM/ECF pp. 3-4.) See also Griggs v. Norris, 297
Fed App’x 553, 555 (8th Cir. 2008) (concluding due process requirements met where
inmate was given notice of his classification placement, reasons for his placement and
an opportunity to appeal the decision). Accordingly, Plaintiff has failed to state a due
process claim upon which relief may be granted.
C.

Claim Two - First Amendment

Plaintiff alleges that Defendants violated his First Amendment and Fourteenth
Amendment rights because they (1) did not permit him to attend group rituals, (2)
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denied him possession of his religious medallion for 30 days, (3) denied him access
to hardcover books while he was in segregation, (4) denied him access to several
religious items while he was in segregation, and (5) failed to recruit Wiccan clergy.
(Filing No. 12 at CM/ECF pp. 5, 12.)
To establish a First Amendment free exercise claim, Plaintiff must allege
sufficient facts to show that Defendants have placed a “substantial burden” on his
ability to practice his religion. See Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813
(8th Cir. 2008). “Substantially burdening one’s free exercise of religion means that
the regulation must significantly inhibit or constrain conduct or expression that
manifests some central tenet of a person’s individual religious beliefs; must
meaningfully curtail a person’s ability to express adherence to his or her faith; or must
deny a person reasonable opportunities to engage in those activities that are
fundamental to a person’s religion.” Id.
Plaintiff’s First Amendment allegations are conclusory. Although Plaintiff
alleges that Defendants did not permit him to attend group rituals, failed to recruit
religious clergy and denied him access to several religious items while he was in
segregation, he does not describe how these acts substantially burdened his ability to
practice his religion. Likewise, although Plaintiff asserts that he was restricted from
using hardcover books in segregation, he does not allege that he could not use soft
cover books. Plaintiff’s access to hardcover books while in segregation may be
limited where he is permitted soft cover reading materials. See, e.g., Roberts v.
Shearin, No. AW-09-1404, 2010 WL 3517019 at *2 (D. Md. Sept. 7, 2010)
(concluding a ban on hardcover books while an inmate was in segregation was
reasonable in light of the safety and security concerns associated with the conversion
of hardcover books into weapons). Further, a temporary deprivation of a religious
item does not rise to the level of a constitutional violation. See, e.g., Marsh v. Corrs.
Corp. of Am., No. 97-2070, 1998 WL 31435, at *3 (10th Cir. Jan. 28, 1998)
(concluding plaintiff’s allegations that defendants temporarily deprived her of
religious items for fifteen days failed to satisfy her burden of establishing a First
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Amendment violation); Fillmore v. Eichkorn, 891 F. Supp. 1482, 1493 (D. Kan. 1995)
(finding denial of arrestee’s religious requests for cotton clothing, distilled water and
a Holy Bible over a weekend did not establish constitutional violation), aff’d, 77 F.3d
492 (10th Cir. 1996); Bryan v. Admin. of F.C.I. Otisville, 897 F. Supp. 134, 137
(S.D.N.Y. 1995) (holding that given legitimate security concerns in prison context,
brief three-day confiscation of religious items does not seem unreasonable).
In short, Plaintiff has failed to allege sufficient facts to state a First Amendment
free exercise claim upon which relief may be granted. However, on the court’s own
motion, Plaintiff shall have 30 days to file an amended complaint that clearly
describes, in sufficient detail, how Defendants have substantially burdened his ability
to practice his religion. Any amended complaint shall restate the allegations of
Plaintiff’s first Amended Complaint (filing no. 12) and any new allegations. Failure
to consolidate all claims into one document may result in the abandonment of claims.
D.

Claim Three - Access to Courts

Plaintiff alleges that Defendants have denied him meaningful access to the
courts because they limited his access to the law library to 50 minutes per week, and
denied him access to his legal documents for 58 days. (Filing No. 12 at CM/ECF p.
7.) To prove a violation of the right of meaningful access to the courts, Plaintiff must
establish that Defendants did not provide him with an opportunity to litigate his claim
in “a court of law, which resulted in actual injury, that is, the hindrance of a
nonfrivolous and arguably meritorious underlying legal claim.” Hartsfield v. Nichols,
511 F.3d 826, 831 (8th Cir. 2008) (citation omitted). “To prove actual injury,
[Plaintiff] must ‘demonstrate that a nonfrivolous legal claim had been frustrated or
was being impeded.’” Id. (quoting Lewis v. Casey, 518 U.S. 343, 353 (1996)).
Here, Plaintiff has not alleged sufficient facts to demonstrate that Defendants
frustrated or impeded his ability to bring a nonfrivolous legal claim. Thus, Plaintiff’s
access to courts claim against Defendants fails to state a claim upon which relief may
be granted. However, on the court’s own motion, Plaintiff shall have 30 days to file
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an amended complaint that clearly alleges that Defendants impeded his ability to bring
a nonfrivolous legal claim. Any amended complaint shall restate the allegations of
Plaintiff’s first Amended Complaint (filing no. 12) and any new allegations. Failure
to consolidate all claims into one document may result in the abandonment of claims.
E.

Claim Four - Equal Protection

Plaintiff alleges that Defendants denied him equal protection in violation of the
Fourteenth Amendment because similarly situated inmates are given preferential
treatment as part of a “transition program.” (Id. at CM/ECF p. 8.) The Equal
Protection Clause of the Fourteenth Amendment requires the government to treat
similarly situated people alike, a protection that applies to prison inmates. Murphy v.
Mo. Dep’t of Corr., 372 F.3d 979, 984 (8th Cir. 2004). In order to establish an equal
protection claim, a prisoner must show that he was treated differently from
similarly-situated inmates and that the different treatment was based upon either a
suspect classification or a fundamental right. Weems v. Little Rock Police Dep’t, 453
F.3d 1010, 1016 (8th Cir. 2006); Weiler v. Purkett, 137 F.3d 1047, 1052 (8th Cir.
1998).
Here, Plaintiff alleges that Defendants give similarly-situated inmates
preferential treatment in the form of “transition program” benefits. (Filing No. 12 at
CM/ECF p. 8.) However, Plaintiff fails to describe how he is similarly situated to the
other inmates in the “transition program.” (Id.) Moreover, he fails to allege that the
different treatment is based upon a suspect classification or a fundamental right. (Id.)
Accordingly, Plaintiff has failed to allege sufficient facts to state an equal protection
claim against Defendants upon which relief can be granted. Again, on the court’s own
motion, Plaintiff shall have 30 days to file an amended complaint that clearly alleges
an equal protection claim. Any amended complaint shall restate the allegations of
Plaintiff’s first Amended Complaint (filing no. 12) and any new allegations. Failure
to consolidate all claims into one document may result in the abandonment of claims.

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IV.

MOTIONS TO APPOINT COUNSEL

Also pending are Plaintiff’s Motions for Appointment of Counsel. (Filing Nos.
11 and 13.) 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 monetary damages claims against Defendants in their official
capacities are dismissed with prejudice.
2.
Plaintiff’s due process claims related to his protective custody
classification are dismissed without prejudice.
3.
Plaintiff’s Amended Complaint fails to state a claim upon which relief
may be granted. However, Plaintiff shall have until March 5, 2012, to amend his first
Amended Complaint to clearly state a claim upon which relief may be granted in
accordance with this Memorandum and Order. If Plaintiff fails to file a second
amended complaint, Plaintiff’s first Amended Complaint (filing no. 12) will be
dismissed without prejudice and without further notice for failure to state a claim upon
which relief may be granted.
4.
In the event that Plaintiff files a second amended complaint, Plaintiff
shall restate the allegations of his first Amended Complaint (filing no. 12), and any
new allegations. Failure to consolidate all claims into one document will 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: Review amended complaint on March
5, 2012; dismiss if not filed.
6.
Plaintiff’s Motions for Appointment of Counsel (filing nos. 11 and 13)
are denied without prejudice to reassertion.
DATED this 9th day of February, 2012.
BY THE COURT:
s/ Joseph F. Bataillon
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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