King v. Houston et al

Filing 15

MEMORANDUM OPINION - For these reasons, and for the reasons set forth in the Court's Memorandum and Order dated August 26, 2013, this matter will be dismissed. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(TCL )

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, and C.S.I.
)
DIRECTOR,
)
)
Defendants.
)
______________________________)

4:13CV3061

MEMORANDUM OPINION

This matter is before the Court on its own motion.

For

the reasons set forth below, the Court will dismiss this matter
because plaintiff’s complaint and amended complaint fail to state
a claim upon which relief may be granted.
I.

BACKGROUND
Plaintiff filed this matter against Robert Houston

(“Houston”), Diane Sabatka-Rine (“Sabatka-Rine”), Joanne Hilgert
(“Hilgert”), Mel Soyh (“Soyh”), and “C.S.I. Director.”
No. 1 at CM/ECF pp. 1-2.)

(Filing

Plaintiff alleged employment

discrimination claims against Hilgert and Soyh, as supervisors
operating a private firm within the Nebraska State Penitentiary,
plaintiff’s place of confinement.

Plaintiff also alleged that he

complained about the employment discrimination to prison

officials Houston and Sabatka-Rine who “did not take his
complaints seriously.”

(Id. at CM/ECF pp. 6-22.)

On August 26, 2013, the Court conducted an initial
review of plaintiff’s complaint (Filing No. 13).

It determined

that plaintiff had failed to allege that he had exhausted his
administrative remedies prior to filing his employment
discrimination action.

(Id. at CM/ECF pp. 8-9.)

In addition, it

determined that plaintiff’s allegations that prison officials did
not take his complaints and grievances “seriously” did not set
forth any action by defendants that violated any constitutional
right.

(Id. at CM/ECF p. 7.)

Plaintiff was given 30 days in

which to file an amended complaint that stated a claim upon which
relief may be granted against defendants.

Plaintiff filed an

amended complaint on October 1, 2013 (Filing No. 14).
II.

DISCUSSION OF AMENDED COMPLAINT
A.

Employment Discrimination Claims
Plaintiff explicitly states in his amended complaint

that “he did not exhaust his administrative remedies by first
seeking relief through the Equal Employment Opportunity
Commission (‘EEOC’) or the Nebraska Equal Opportunity Commission
(‘NEOC’).”

(Id. at CM/ECF p. 15.)

Plaintiff does not explain

his failure to seek relief through the EEOC or the NEOC.

As the

Court explained in its Memorandum and Order dated August 26,
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2013, prior to filing an employment discrimination suit in
federal court under Title VII, a plaintiff is required to exhaust
his administrative remedies by first seeking relief through the
EEOC or the NEOC.

42 U.S.C. § 2000e-5(f)(1).

See Al-Zubaidy v.

TEK Industries, Inc., 406 F.3d 1030 (8th Cir. 2005) (analyzing
discriminatory discharge claims asserted by inmate who worked for
private firm operating within state penitentiary under Title
VII).

Here, plaintiff did not exhaust his administrative

remedies prior to seeking relief in this Court.
Moreover, Title VII prohibits an employer from
discharging an individual “because of such individual’s race,
color, religion, sex, or national origin.”
2(a)(1).

42 U.S.C. § 2000e-

Plaintiff alleges that he is a black male and he was

terminated from his employment, but he does not allege any facts
showing that his employment was terminated because he is a black
male.

For these reasons, plaintiff has failed to state an

employment discrimination claim upon which relief may be granted.
B.

Claims About Prison Grievances
Plaintiff alleges in his amended complaint that Houston

and Sabatka-Rine’s failure to take his grievances and complaints
about the employment discrimination “seriously” violated prison
policies and constituted “cruel and unusual punishment.”
No. 1 at CM/ECF pp. 9-13.)

(Filing

However, any failure to respond to
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plaintiff’s grievances does not state a substantive
constitutional claim.

See Lomholt v. Holder, 287 F.3d 683, 684

(8th Cir. 2002) (finding that the denial of grievances does not
state a substantive constitutional claim).

Moreover, plaintiff

alleges that he filed grievances with defendants alleging
employment discrimination two years after he was terminated from
the work assignment.

Defendants’ failure to take corrective

action two years after plaintiff was terminated does not
plausibly constitute deliberate indifference to or tacit
authorization of any alleged violative practice or constitutional
violation.

For these reasons, and for the reasons set forth in

the Court’s Memorandum and Order dated August 26, 2013, this
matter will be dismissed.

A separate order will be entered in

accordance with this memorandum opinion.
DATED this 28th day of October, 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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