King v. Houston et al

Filing 13

MEMORANDUM AND ORDER - Plaintiff's claims for monetary relief against Houston and Sabatka-Rine and plaintiff's claims against "C.S.I. Director" are dismissed without prejudice. Plaintiff shall have 30 days from the date of this Memorandum and Order to amend his complaint to state a claim upon which relief may be granted in accordance with this Memorandum and Order, and to file a copy of his right-to-sue notice. If plaintiff fails to file an amended complaint within 30 day s, this matter will be dismissed without further notice. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: September 26, 2013: Check for amended complaint and right-to-sue notice. P laintiff's Motion for Status of Filing Fee (Filing No. 11 ) is granted, and plaintiff's Motion for Status (Filing No. 12 ), which seeks summons forms for service on defendants, is denied. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DONNELL KING,

)
)
Plaintiff,
)
)
v.
)
)
ROBERT P. HOUSTON, Director, )
DIAN SABATKA-RINE, Warden,
)
JOANNE HILGERT, Tek Ind.
)
Supervisor, MEL SOYH, Tek Ind.)
Supervisor, and C.S.I.
)
DIRECTOR,
)
)
Defendants.
)
______________________________)

4:13CV3061

MEMORANDUM AND ORDER

This matter is before the Court on initial review of
plaintiff’s complaint (Filing No. 1).

Plaintiff has been granted

leave to proceed in forma pauperis in this matter (Filing No.
10).

The Court now conducts an initial review of plaintiff’s

complaint to determine whether summary dismissal is appropriate
under 28 U.S.C. §§ 1915(e)(2) and 1915A.
I.

SUMMARY OF COMPLAINT

Plaintiff is incarcerated at the Nebraska State
Penitentiary (“NSP”) (Filing No. 1 at CM/ECF p. 1).

He filed his

pro se complaint against Robert Houston (“Houston”), Diane
Sabatka-Rine (“Sabatka-Rine”), Joanne Hilgert (“Hilgert”), Mel
Soyh (“Soyh”), and “C.S.I. Director.”

(Id. at CM/ECF pp. 1-2.)

Plaintiff alleges that Houston is the Director of the Department
of Correctional Services, and Sabatka-Rine is Warden of the NSP.
(Id. at CM/ECF p. 1.)

Plaintiff alleges that Hilgert and Soyh

are supervisors for Tek Industries, a corporation operating
within the NSP.

(Id. at CM/ECF p. 2.)

Plaintiff, a black male, alleges that he was employed
by Tek Industries.

Plaintiff was working on February 6, 2010.

While in the restroom on this date, he discovered a blue cylinder
on the floor that had a white substance in it.
6.)

(Id. at CM/ECF p.

As he was “smell[ing]” the cylinder, a corrections officer

walked into the restroom, after which plaintiff quickly tried to
wash out the cylinder.
plaintiff of

(Id.)

The corrections officer accused

“snorting a white powder substance.”

CM/ECF p. 30.)

Thereafter, the Institutional Discipline

Committee found plaintiff guilty of drug abuse.
p. 8.)

(Id. at

(Id. at CM/ECF

Plaintiff alleges that Hilgert and Soyh terminated him

from his employment with Tek Industries for reasons of “Drug
Abuse.”

(Id. at CM/ECF p. 7.)
Plaintiff alleges that in May 2011, the disciplinary

committee at NSP found a white inmate guilty of possessing
contraband.

(Id. at CM/ECF p. 9.)

Tek Industries, under the

direction of defendant “C.S.I. Director,” allowed this white
inmate to return to work “like nothing ever happened.”
CM/ECF p. 10.)

(Id. at

Plaintiff alleges that upon learning about the

“favorable treatment” this white inmate received, plaintiff filed
grievances with NSP officials alleging discrimination.
CM/ECF pp. 10-22.)

(Id. at

Plaintiff alleges that his grievances were
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denied because they were not timely filed, and that Houston and
Sabatka-Rine did not take his grievances “seriously.”

(Id.)

Liberally construed, plaintiff alleges that his rights
to equal protection have been violated, and that he suffered
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e-2 and e-3(a) (“Title
VII”).
As relief, plaintiff seeks $450,000.00, and also for
the Court to “help the plaintiff to prevent others from being
discriminated against by [Tek Industries].”
CM/ECF p. 14.)

(Filing No. 1 at

Plaintiff also asks that the Court “help

[plaintiff] change the Department of Correctional Service rules”
that require an inmate to file a grievance within three days from
the date an incident occurs.
II.

(Id.)

APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW

The Court is required to review in forma pauperis
complaints to determine whether summary dismissal is appropriate.
See 28 U.S.C. § 1915(e)(2).

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).

A pro se plaintiff must set forth enough factual
allegations to “nudge[] their claims across the line from

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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.
Cir. 1985).

See Martin v. Sargent, 780 F.2d 1334, 1337 (8th

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).
Liberally construed, plaintiff here alleges federal
constitutional claims.

To state a claim under 42 U.S.C. § 1983,

a plaintiff must allege a violation of rights protected by the
United States Constitution or created by federal statute and also
must show that the alleged deprivation was caused by conduct of a
person acting under color of state law.

West v. Atkins, 487 U.S.

42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.
1993).

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III.
A.

DISCUSSION OF CLAIMS

Claims for Monetary Relief Against Houston and Sabatka-Rine
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. 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., id.; 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 which seek
equitable relief from state employee defendants acting in their
official capacity.
Plaintiff has named two state employees as defendants
in this matter, Houston and Sabatka-Rine.

Plaintiff did not

specify whether he is suing Houston and Sabatka-Rine in their
official or individual capacities.

Where a plaintiff does not

specify the capacity in which a defendant is sued, it is presumed
that a defendant is sued in his official capacity only.
e.g., Johnson v. Outboard Marine Corp., 172 F.3d 531, 535
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See,

(8th Cir. 1999) (“This court has held that, in order to sue a
public official in his or her individual capacity, a plaintiff
must expressly and unambiguously state so in the pleadings,
otherwise, it will be assumed that the defendant is sued only in
his or her official capacity.”).

A claim against an individual

in his official capacity is, in reality, a claim against the
entity that employs the official.

See Parrish v. Luckie, 963

F.2d 201, 203 n.1 (8th Cir. 1992) (“Suits against persons in
their official capacity are just another method of filing suit
against the entity.

A plaintiff seeking damages in an official-

capacity suit is seeking a judgment against the entity.”)
(internal citations omitted)).

Thus, damages claims against

individual state employees acting in their official capacities
are also barred by the Eleventh Amendment.

Murphy v. State of

Arkansas, 127 F.3d 750, 754 (8th Cir. 1997).

For these reasons,

plaintiff’s claims for monetary relief against Houston and
Sabatka-Rine will be dismissed.
B.

Claims for Injunctive Relief Against Houston and Sabatka-

Rine
Plaintiff alleges that Houston and Sabatka-Rine did not
take his complaints “seriously.”
11.)

(Filing No. 1 at CM/ECF pp. 10-

As set forth above, plaintiff filed grievances with prison

officials alleging that he had been subjected to discrimination
when he was removed from his work assignment.
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(Id. at CM/ECF

pp.19-26.)

These grievances were filed two years after Plaintiff

was terminated from his work assignment.

(Id.)

Plaintiff

alleges that his grievances were denied by prison officials
because they were not timely filed.

(Id. at CM/ECF pp. 10-11;

see also id. at CM/ECF pp. 16-17.)
Plaintiff’s allegations that Houston and Sabatka-Rine
did not take his grievances “seriously,” do not set forth any
specific actions taken by defendants that violate any
constitutional right or support a claim under 42 U.S.C. § 1983.
Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997).

Plaintiff

does not allege that Houston or Sabatka-Rine deprived him of a
right secured by the Constitution or laws of the United States or
that the alleged deprivation was committed under “color of state
law.”

West, 487 U.S. at 48; Buckley, 997 F.2d at 495.
On the Court’s own motion, plaintiff shall have 30 days

from the date of this Memorandum and Order to file an amended
complaint that sufficiently alleges claims against Houston and
Sabatka-Rine upon which relief may be granted.

Plaintiff should

be mindful to explain what each defendant did to him, when the
defendant did it, how the defendants’ actions harmed him, and
what specific legal right Plaintiff believes defendants violated.

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C.

Employment Discrimination Claims Against Hilgert and Soyh
1.

Exhaustion
Prior to filing a suit in federal court under Title

VII, a plaintiff is required to exhaust his administrative
remedies by first seeking relief through the Equal Employment
Opportunity Commission (“EEOC”) or the Nebraska Equal Opportunity
Commission (“NEOC”).

The EEOC/NEOC will then investigate the

charge and determine whether to file suit on behalf of the
charging party or make a determination of no reasonable cause.
If the EEOC/NEOC determines that there is no reasonable cause,
the agency will then issue the charging party a right-to-sue
notice.

42 U.S.C. § 2000e-5(f)(1); see also Hanenburg v.

Principal Mut. Life Ins. Co., 118 F.3d 570 (8th Cir. 1997).

The

charging party has 90 days from the receipt of the right-to-sue
notice to file a civil complaint based on his charge.
§ 2000e-5(f)(1).

42 U.S.C.

The civil complaint may only encompass issues

that are reasonably related to the substance of charges timely
brought before the EEOC/NEOC.

Williams v. Little Rock Mun. Water

Works, 21 F.3d 218, 222 (8th Cir. 1994).
Here, plaintiff has not attached a right-to-sue letter
from the EEOC/NEOC.

Thus, it is unclear whether plaintiff has

exhausted his administrative remedies.

On the Court’s own

motion, plaintiff will have 30 days in which to file a copy of
his EEOC/NEOC charge and his right-to-sue notice with the Court.
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In the alternative, plaintiff may file an amended complaint that
sets forth specific facts showing that plaintiff filed a charge
of discrimination, he received a right-to-sue notice, and he
filed suit within 90 days from the receipt of the right-to-sue
notice.

If plaintiff fails to comply with the Court’s orders,

his complaint will be dismissed without prejudice for failure to
state a claim upon which relief may be granted.
2.

Defendants Not Employers Within Meaning of Title VII
As pled, plaintiff cannot maintain his Title VII claims

against Hilgert or Soyh.

Plaintiff alleges that Hilgert and Soy

were his supervisors (Filing No. 1 at CM/ECF p. 2).

Title VII

prohibits employers from engaging in certain unlawful employment
practices because of an individual’s race, color, religion, sex,
or national origin.

In addition, Title VII makes it unlawful for

an “employer to discriminate against any of his employees . . .
because he has opposed any practice made an unlawful employment
practice by this subchapter.”
added).

42 U.S.C. § 2000e-3 (emphasis

However, Title VII does not impose individual liability

on coworkers or supervisors.

Roark v. City of Hazen, 189 F.3d

758, 761 (8th Cir. 1999) (stating individual supervisors may not
be held liable under Title VII); McCann v. New World Pasta Co.,
2010 WL 3834650, *1 (E.D. Mo. Sept. 27, 2010) (holding Title VII
and ADA claims were legally frivolous as to individual defendants

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because chief executive officers, supervisors, and co-employees
cannot be held individually liable under Title VII or ADA).
On its own motion, the Court will permit plaintiff 30
days in which to amend his complaint to either sufficiently
allege that Hilgert and Soyh were his “employer” within the
meaning of Title VII or, in the alternative, plaintiff may amend
his complaint to name a proper defendant.

If plaintiff fails to

file an amended complaint in accordance with this Memorandum and
Order, plaintiff’s complaint will be dismissed without prejudice
for failure to state a claim upon which relief may be granted.
D.

Claims Against “C.S.I. Director”
Plaintiff has named “C.S.I. Director” as a defendant in

this matter (Filing No. 1 at CM/ECF p. 2).

Plaintiff alleges

that C.S.I. Director hired a white inmate who the disciplinary
committee had found guilty of possessing and/or manufacturing
dangerous contraband in 2011.

(Id. at CM/ECF p. 9.)

Plaintiff

alleges that, despite this finding of guilt, the white inmate was
allowed to continue working at Tek Industries.
Even under the most liberal construction, plaintiff has
failed to state a claim upon which relief may be granted against
“C.S.I. Director.”

Plaintiff does not allege that “C.S.I.

Director” had any role in terminating plaintiff’s employment or
otherwise injured him in any way.

Rather he merely alleges that

this defendant allowed a white inmate to continue working after

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he was found guilty of possessing contraband.

As best as the

Court can tell, the crux of plaintiff’s argument is that he was
treated unfairly because this white inmate was allowed to
continue working at Tek Industries after receiving a misconduct
report and plaintiff was not.

However, plaintiff was terminated

from his employment for “Drug Abuse” (see Filing No. 1 at CM/ECF
p. 7), not for possession of contraband.

As plaintiff sets forth

at least twice in his complaint, Tek Industries had a “zero
tolerance” approach to drug use.

(Id. at CM/ECF pp. 13, 36.)

Plaintiff’s claims against “C.S.I. Director” will be dismissed.
IV.

MISCELLANEOUS MOTIONS

Plaintiff has filed a motion seeking information about
the status of his filing fee payments (Filing No. 11).

As of

today’s date, plaintiff has paid $80.33 of the Court’s $350.00
filing fee.

(See Text Entries from May 7, June 12, July 8, and

August 6, 2013.)

Plaintiff has also filed a motion seeking

summonses for service on defendants (Filing No. 12).

However, as

set forth above, plaintiff’s complaint fails to state a claim
upon which relief may be granted against any of the named
defendants.

Accordingly, this case may not proceed to service at

this time.

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IT IS ORDERED:
1.

Plaintiff’s claims for monetary relief against

Houston and Sabatka-Rine and plaintiff’s claims against “C.S.I.
Director” are dismissed without prejudice.
2.

Plaintiff shall have 30 days from the date of this

Memorandum and Order to amend his complaint to state a claim upon
which relief may be granted in accordance with this Memorandum
and Order, and to file a copy of his right-to-sue notice.

If

plaintiff fails to file an amended complaint within 30 days, this
matter will be dismissed without further notice.
3.

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

case management deadline in this case using the following text:
September 26, 2013:

Check for amended complaint and right-to-sue

notice.
4.

Plaintiff’s Motion for Status of Filing Fee

(Filing No. 11) is granted, and plaintiff’s Motion for Status

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(Filing No. 12), which seeks summons forms for service on
defendants, is denied.
DATED this 26th day of August, 2013.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

* 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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