Wilson v. Sabatka-Rine et al

Filing 19

MEMORANDUM AND ORDER - In accordance with this Memorandum and Order, and the courts February 9, 2012, Memorandum and Order, Plaintiffs due process and equal protection claims are dismissed without prejudice. Plaintiffs First Amendment religious ri ghts claims, First Amendment access to courts claims and Plaintiffs state law claims may proceed to service. To obtain service of process on Defendant, Plaintiff must complete and return the summons forms which the Clerk of the court will provide. The Clerk of the court shall send SEVEN (10) summons forms and SEVEN (10) USM-285 forms (for service on Defendants in their individual and official capacities) to Plaintiff together with a copy of this Memorandum and Order. Plaintiff is hereby not ified that failure to obtain service of process on a defendant within 120 days of the date of this order may result in dismissal of this matter without further notice as to such defendant. A defendant has twenty (20) days after receipt of the summ ons to answer or otherwise respond to a complaint. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 9/3/2012: Check for completion of service of summons.) Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party as directed)(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

I. BACKGROUND
Plaintiff filed his original Complaint in this matter on November 25, 2011.
(Filing No. 1.) Thereafter, Plaintiff filed an Amended Complaint. (Filing No. 12.)
On February 9, 2012, the court conducted an initial review of Plaintiff’s Amended
Complaint and dismissed Plaintiff’s monetary damages claims against Defendants in
their official capacities and Plaintiff’s due process claims related to his classification
in protective custody. (Filing No. 15.) The court also concluded that Plaintiff had
failed to state a federal claim upon which relief could be granted. (Id.) However, the
court gave Plaintiff an opportunity to file a second amended complaint. (Id.) On
March 15, 2012, Plaintiff timely filed a Second Amended Complaint. (Filing No. 18.)
The court now conducts a review of the Second Amended Complaint to determine
whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.

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
In his Second Amended Complaint, Plaintiff alleges four claims. (Filing No.
18.) The court will address each claim in turn.
A.

Claim One

In “Claim [O]ne,” Plaintiff reasserts the protective custody classification claim
the court previously dismissed. (Id. at CM/ECF pp. 1-7.) For the reasons discussed
in the court’s February 9, 2012, Memorandum and Order, Plaintiff’s protective
custody classification claim shall remain dismissed. (See Filing No. 15.) Plaintiff’s
“Claim [O]ne” also includes allegations that his “single cell” status was removed
without due process. (Filing No. 18 at CM/ECF pp. 1-7.) However, as the court
previously informed Plaintiff, 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, 696 (8th Cir. 2004)
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(unpublished per curiam decision) (stating that inmates have “no liberty interest in a
particular classification”). Indeed, Plaintiff does not possess a liberty interest in his
single cell status. See, e.g., Bondurant v. Gonzalez, No. 1:11–cv–00159–GBC (PC),
2012 WL 1413871, at *3 (E.D. Cal. April 23, 2012) (concluding “placement in
segregated housing, on single cell status, on walk alone yard, and in administrative
segregation do not implicate a protected interest”); Cox v. Palmer, No.
3:08–cv–00663–ECR (RAM), 2011 WL 4344047, at *13 (D. Nev. July 27, 2011)
(finding no protected liberty interest in single cell status that was revoked); Wyatt v.
Stratton, 2:06–cv–05210FCD–KJM, 2009 WL 385613, at *2 (E.D. Cal. Feb. 12,
2009) (concluding inmate had no due process claim as a result of revocation of his
single cell status).
B.

Claim Two

In “Claim Two,” Plaintiff reasserts his First Amendment religious rights claims
from his Amended Complaint. (Filing No. 18 at CM/ECF pp. 7-9.) However, unlike
Plaintiff’s Amended Complaint, Plaintiff’s Second Amended Complaint describes
how Defendants’ actions substantially burdened Plaintiff’s ability to practice his
religion. (Compare Id. with Filing No. 12.) For example, Plaintiff alleges that
Defendants prevented him from practicing the central tenants of his religion because
they (1) would not permit him to attend Wiccan sabbats, and (2) confiscated his book
of shadows and a religious medallion. (Filing No. 18 at CM/ECF pp. 7-9.) Liberally
construed, the court finds that Plaintiff has alleged sufficient facts to “nudge” his First
Amendment religious rights claims 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 Second Amended Complaint and is not a
determination of the merits of Plaintiff’s claims or potential defenses thereto.
C.

Claim Three

In “Claim Three,” Plaintiff alleges that Defendants have denied him
meaningful access to the courts because they restricted him to “50 minutes” of law
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library time per week and caused him to “lose” Lancaster County Court Case “#CI1114182, Woodlawn Estates v. Gracy Sedlack and Harold Wilson.” (Filing No. 18 at
CM/ECF pp. 9-10.) Again, when liberally construed the court finds that Plaintiff has
alleged sufficient facts to “nudge” his First Amendment access to courts 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 Second
Amended Complaint and is not a determination of the merits of Plaintiff’s claims or
potential defenses thereto.
D.

Claim Four

In “Claim Four,” Plaintiff reasserts the equal protection allegations from his
Amended Complaint, namely that similarly situated inmates are given preferential
treatment as part of a “transition program.” (Id. at CM/ECF pp. 10-12.) As the court
previously informed Plaintiff, the Equal Protection Clause of the Fourteenth
Amendment requires the government to treat similarly situated prison inmates alike.
Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 984 (8th Cir. 2004). However, 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). Plaintiff has not alleged that the different treatment he is
experiencing is based upon a suspect classification or a fundamental right. (Filing
No. 18.) To the extent Plaintiff is attempting to raise a “class of one” equal protection
claim, he has not alleged that he was intentionally treated differently from others
similarly situated or that there is no rational basis for the difference in treatment. See
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (stating that to allege a
successful “class of one” equal protection claim, a plaintiff must set forth facts
showing that she was “intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in treatment”). As a result,
Plaintiff’s equal protection allegations fail to state a claim upon which relief may be
granted and are dismissed.
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IT IS THEREFORE ORDERED that:
1.
In accordance with this Memorandum and Order, and the court’s
February 9, 2012, Memorandum and Order, Plaintiff’s due process and equal
protection claims are dismissed without prejudice.
2.
Plaintiff’s First Amendment religious rights claims, First Amendment
access to courts claims and Plaintiff’s state law claims may proceed to service.
3.
To obtain service of process on Defendant, Plaintiff must complete and
return the summons forms which the Clerk of the court will provide. The Clerk of the
court shall send SEVEN (10) summons forms and SEVEN (10) USM-285 forms (for
service on Defendants in their individual and official capacities) to Plaintiff together
with a copy of this Memorandum and Order. Plaintiff shall, as soon as possible,
complete the forms and send the completed forms back to the Clerk of the court. In
the absence of the forms, service of process cannot occur.
4.
Upon receipt of the completed forms, the Clerk of the court will sign the
summons form, to be forwarded with a copy of the Amended Complaint to the U.S.
Marshal for service of process. The Marshal shall serve the summons and Amended
Complaint without payment of costs or fees. Service may be by certified mail
pursuant to Fed. R. Civ. P. 4 and Nebraska law in the discretion of the Marshal. The
Clerk of the court will copy the Amended Complaint, and Plaintiff does not need to
do so.
5.
Fed. R. Civ. Pro. 4 requires service of a complaint on a defendant within
120 days of filing the complaint. However, because in this order Plaintiff is
informed for the first time of these requirements, Plaintiff is granted, on the court’s
own motion, an extension of time until 120 days from the date of this order to
complete service of process.
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6.
Plaintiff is hereby notified that failure to obtain service of process on a
defendant within 120 days of the date of this order may result in dismissal of this
matter without further notice as to such defendant. A defendant has twenty (20) days
after receipt of the summons to answer or otherwise respond to a complaint.
7.
The Clerk of the Court is directed to set a pro se case management
deadline in this case with the following text: “September 3, 2012: Check for
completion of service of summons.”
8.
The parties are bound by the Federal Rules of Civil Procedure and by the
Local Rules of this court. 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.
DATED this 8th day of May, 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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