Smith v. Diagnostics and Evaluation Center et al

Filing 53

ORDER - IT IS ORDERED: The defendants' motion for summary judgment (Filing No. 38 ) and plaintiff's objection thereto (Filing No. 52 ) are denied as moot. The plaintiff's motion to file summary judgment, etc. (Filing No. 37 ) is denied as moot. The defendants' motion to dismiss (Filing No. 50 ) is denied. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID SMITH,
Plaintiff,

4:13CV3041

v.
ORDER
SARGENT TURNER, in their Individual
capacities; CORPORAL BELL, in their
Individual capacities; and DIANE SABATKARINE, Warden (N.S.P.);
Defendants.

This matter is before the court on a motion to dismiss for failure to state a claim
under Fed. R. Civ. P. 12(b)(6) and for lack of subject matter jurisdiction under Fed. R. Civ.
P. 12(b)(1) filed by defendants Sargent Turner, Corporal Bell and Warden Diane SabatkaRine (hereinafter, collectively “State Defendants”), Filing No. 50.1 This is an action for
violations of civil rights under 42 U.S.C. § 1983 and for negligence under state law.
I.

FACTS

The plaintiff, pro se, an inmate at the Diagnostics and Evaluation Center of the
Nebraska Department of Corrections, essentially alleges, in various pleadings, that
defendants were deliberately indifferent to his health and safety needs, in violation of the
Eighth Amendment. See Filing No. 1, Complaint; Filing No. 8, Amended Complaint; and
Filing No. 46, Second Amended Complaint. The plaintiff alleges that on several occasions
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Also pending is a motion for summary judgment, Filing No. 38, and an objection thereto, Filing No.
52. The defendants' motion for summary judgment is based on assertions that the plaintiff failed to exhaust
administrative remedies. Brief at 2, In response to the defendants' motion, the plaintiff submitted a document
stating that he sent two grievances to the department of correctional services and copies of grievances.
Accordingly, the court finds the defendants’ motion for summary judgment has been rendered moot. Filing No.
43, Response at 2; Filing No. 44, Supplemental Response. The plaintiff has also filed a largely
incomprehensible pleading captioned "Motion to File Summary Judgement; and to Continue to Seek Trial
Against Defendant's, and to Strike All Other Options," Filing No. 37. The pleading seeks no specific relief and
is more in the nature of a brief or argument in opposition to the defendants' motion for summary judgment.
Accordingly, the motion will similarly be denied as moot.

in June 2012, he was forced to eat in the day room with one inch of fecal matter and
sewage water on the floor and then ordered “bucket up sewage water and solid waste” with
only gloves to protect him from the waste. Filing No. 1, Complaint at 4-5. He alleges that
defendants Turner and Bell disregarded a known risk of harm to the plaintiff and caused him
to face possible contraction of H.I.V. and Hepatitis.

Id. at 5. In his second amended

complaint, he alleges that defendant Sabatka-Rine, the warden, was aware that food has
been exposed hazardous wastes.

Filing No. 46, Second Amended Complaint at 1-2.

Further, he alleges that “worn out sewer parts” causes waste from the “upper restroom” to
“flood[ ] down into the kitchen.” Id. at 2. Additionally, the plaintiff alleges he has to “clean
the filth up” by using “brooms, rags, and then [is] forc[ed] to put the mess in tea containers
that the inmates use to mix their daily meals . . . ." Id. at 2. The court granted the plaintiff
leave "to file a second amended complaint to incorporate his allegations against SabatkaRine." Filing No. 45, Order at 1.
The state defendants move to dismiss the second amended complaint alleging that
the doctrine of sovereign immunity provides a complete bar to plaintiff’s § 1983 claims
against state defendants in their official capacities. Further, they contend that the plaintiff
fails to plead facts in the second amended complaint that state defendants Turner and
Smith personally participated in the alleged constitutional violations and fails to state a claim
against those defendants.
II.

LAW

Pro se civil rights complaints are ordinarily accorded a liberal construction and are
held to a less stringent standard than formal pleadings drafted by lawyers.

Ailshire v.

Darnell, 508 F.2d 526 (8th Cir. 1974). Pro se complaints, "'however inartfully pleaded,' [are]
held to 'less stringent standards than formal pleadings drafted by lawyers.'"
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Estelle v.

Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)); see
also Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995) (noting that “civil rights
pleadings should be construed liberally”). Nonetheless, a pro se complaint must comply
with the minimal requirements set forth in the Federal Rules of Civil Procedure. Quam v.
Minnehaha Cnty. Jail, 821 F.2d 522, 522 (8th Cir. 1987); Fed. R. Civ. P. 8 (specifically
requiring pleadings to contain “a short and plain statement of the claim showing that the
pleader is entitled to relief”).
States and arms of the state possess sovereign immunity from suits.

Alden v.

Maine, 527 U.S. 706, 713 (1999); Dodd v. Jones, 623 F.3d 563, 569 (8th Cir. 2010) (holding
that a claim against a highway patrol officer in his official capacity is a claim against the
state highway patrol which is entitled to sovereign immunity as an arm of the state).
However, if a state official is named as a defendant instead of the state or one of its
agencies, the state officer is subject to suit under the doctrine announced in Ex Parte
Young, 209 U.S. 123, 159-60 (1908). Nix v. Norman, 879 F.2d 429, 432 (8th Cir. 1989);
see also Larson v. Kempker, 414 F.3d 936, 939-40 & n.3 (8th Cir. 2005) (dismissal on
ground of immunity not warranted where the defendants were sued in individual capacity).
Although “the Eleventh Amendment bars suits by private parties ‘seeking to impose a
liability which must be paid from public funds in the state treasury,’ courts may order
injunctions to prevent or to remedy a state officer’s conduct and “may also award a wide
range of prospective relief ‘which serves to bring an end to a present violation of federal law
. . . even though accompanied by a substantial ancillary effect on the state treasury.’”
Larson, 414 F.3d at 940 (quoting Edelman v. Jordan, 415 U.S. 651, 663 (1974)).
Under the doctrine of Ex Parte Young, 209 U.S. 123 (1908), a federal court,
consistent with the Eleventh Amendment, may enjoin state officials to conform their future
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conduct to the requirements of federal law. See id. (explaining the distinction between
permissible relief under the doctrine of Ex Parte Young and that barred by Eleventh
Amendment is the difference between prospective and retrospective relief); Idaho v. Coeur
d'Alene Tribe of Idaho, 521 U.S. 261, 276-281 (1996) (reaffirming the validity of the Ex
Parte Young doctrine although finding it inapplicable in the case of a functional equivalent of
a quiet title action against the state). This is so even if such an injunction may have an
ancillary effect on the state treasury. See Quern v. Jordan, 440 U.S. 332, 337 (1979). The
doctrine of Ex Parte Young recognizes that if a state official violates federal law, he is
stripped of his official or representative character and may be personally liable for his
conduct; the state cannot cloak the officer in its sovereign immunity. See Idaho v. Coeur
d'Alene, 521 U.S. at 288 (J. O'Connor, concurring). Where a plaintiff seeks prospective
relief to end a state officer's ongoing violation of federal law, such a claim can ordinarily
proceed in federal court. See id.
An individual capacity claim must be expressly stated in the pleadings, the court
cannot presume an individual capacity suit. See Johnson v. Outboard Marine Corp., 172
F.3d 531, 535 (8th Cir. 1999) (“Because section 1983 liability exposes public servants to
civil liability and damages, we have held that only an express statement that they are being
sued in their individual capacity will suffice to give proper notice to the defendants. Absent
such an express statement, the suit is construed as being against the defendants in their
official capacity.”) (internal citations omitted).
III.

DISCUSSION

Review of the record shows that the plaintiff was allowed to amend his complaint to
"incorporate" allegations against defendant Sabatka-Rine. Filing No. 45, Order at 1. Giving
the plaintiff's pleadings a liberal construction, the court finds that the record indicates that
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the second amended complaint should be read in conjunction with the allegations of the
earlier-filed complaints. Allegations specific to defendants Turner and Smith are included in
the original complaint, Filing No. 1, Complaint at 5-6. The court previously found that "the
allegations of the plaintiff’s complaint and amended complaint adequately state a claim for
deliberate indifference to serious health or safety needs." Filing No. 33, Memorandum and
Order at 7.
On initial review, the plaintiff was ordered to amend his complaint to clarify whether
defendants Turner and Smith were sued in their individual capacities. Filing No. 7, Order on
initial review at 3. Because the plaintiff had not explicitly stated the capacity, the court
presumed that the defendants had been sued in their official capacities.

Id. at 3.

In

response, the plaintiff filed an amended complaint stating that the defendants were sued in
their individual capacities. Filing No. 8. In his second amended complaint, the plaintiff
prays to be "awarded any other relief that the court deems fair and proper." Filing No. 46,
Second Amended Complaint at 5.
In his pleadings, the defendant alleges serious and ongoing violations of health and
sanitation standards. Despite the plaintiff's technical omission of explicit reference to an
official-capacity suit, liberal construction of the pleadings shows that in addition to money
damages, the plaintiff seeks to enjoin the defendants from continuing in the alleged conduct
that threatens the health and safety of the inmates. The court finds the defendants are on
sufficient notice from the plaintiff's allegations and his prayer for monetary damages and
"any other relief" that the claims are asserted against the defendants in both their individual
and official capacities. It is reasonable to assume that if the court were to find deliberate
indifference to the health and safety of the inmate, it would enjoin that future conduct.

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The court finds the defendants’ assertions of sovereign immunity are misplaced.
This action may proceed against the defendants in their individual capacities for damages
and against the defendants in their official capacities for prospective relief. Accordingly,
IT IS ORDERED:
1.

The defendants' motion for summary judgment (Filing No. 38) and plaintiff's

objection thereto (Filing No. 52) are denied as moot.
2.

The plaintiff's motion to file summary judgment, etc. (Filing No. 37) is denied

as moot.
3.

The defendants' motion to dismiss (Filing No. 50) is denied.

DATED this 9th day of April, 2015.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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