Emilio v. Nebraska Department of Correctional Services et al

Filing 24

MEMORANDUM AND ORDER - Plaintiff's Motions to Appoint Counsel (filing nos. 7 and 14 ), Motion for Summons (filing no. 11 ), Motion for Return of Original Documents (filing no. 12 ) and Second Motion for Leave to Proceed IFP (filing no. 19 ) are denied. To obtain service of process on Defendants, Plaintiff must complete and return the summons forms which the Clerk of the court will provide. The Clerk of the court shall send FOUR (4) summons forms and FOUR (4) 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 cour t. In the absence of the forms, service of process cannot occur. The Clerk of the Court is directed to set a pro se case management deadline in this case with the following text: "December 13, 2013: Check for completion of service of summons." Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party with 4 summonses and USM 285 forms)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PAVON EMILIO,
Plaintiff,
v.
NEBRASKA DEPARTMENT OF
CORRECTIONAL SERVICES,
ROBERT P. HOUSTON, Director,
and FRED BRITTEN, Warden,
Defendants.

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4:13CV3073

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on April 3, 2013. (Filing No. 1.)
Plaintiff has previously been given leave to proceed in forma pauperis. (Filing No.
10.) Also pending are Plaintiff’s Motions to Appoint Counsel (filing nos. 7 and 14),
Motion for Summons (filing no. 11), Motion for Return of Original Documents (filing
no. 12) and Second Motion for Leave to Proceed IFP (filing no. 19). 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 April 3, 2013, against the Nebraska Department
of Correctional Services (“NDCS”), NDCS Director Robert P. Houston (“Houston”),
and NDCS Warden Fred Britten (“Britten”). (Filing No. 1 at CM/ECF pp. 1-2.)
Plaintiff sues each of the individual Defendants in both their individual and official
capacities. (Id. at CM/ECF p. 7.) Plaintiff is currently confined at the Tecumseh State
Correctional Institution (“TSCI”) in Tecumseh, Nebraska. (Id. at CM/ECF p. 2; see
also Docket Sheet.)

Condensed and summarized, Plaintiff alleges that from 2007 to 2009, he was
exposed to secondhand smoke in his cell. (Filing No. 1 at CM/ECF p. 4.) This second
hand smoke was produced by inmates smoking pouch tobacco and “other unknown
substances.” (Id.) As a direct result of his exposure, Plaintiff began suffering from
asthma in 2010. (Id. at CM/ECF p. 5.) Since 2010, Plaintiff has continued to be
exposed to second hand smoke, which causes Plaintiff to experience a “burning
sensation” in his “chest and lungs,” asthma attacks, headaches and coughing. (Id.)
Plaintiff states TSCI’s “no smoking” rules are not enforced and are routinely ignored.
(Id. at CM/ECF p. 6.) In addition, Plaintiff has been denied medical attention, despite
his requests for help, when experiencing asthma attacks. (Id.)
Plaintiff seeks $100,000.00 in compensatory damages and $75,000.00 in
punitive damages against each Defendant. (Id. at CM/ECF p. 7.) He also asks for a
declaration that Defendants violated the Constitution. (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
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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
Cir. 1995); Dover Elevator Co. v. Ark. 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 NDCS and two state employees in both their individual and
official capacities. (Filing No. 1 at CM/ECF pp. 1, 7.) As set forth above, the
Eleventh Amendment bars claims for damages by private parties against a state, state
instrumentalities and employees of a state sued in their official capacities.
Consequently, Plaintiff’s monetary damages claims against NDCS, and the individual
Defendants in their official capacities, are barred by the Eleventh Amendment.
However, the Eleventh Amendment does not bar Plaintiff’s claims for declaratory
relief against the individual Defendants in their official capacities or Plaintiff’s
monetary claims against the individual Defendants in their individual capacities.
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B.

Eighth Amendment Medical

The court liberally construes Plaintiff’s allegations to allege an Eighth
Amendment claim relating to denial of medical treatment. A prisoner-plaintiff
seeking relief for claims relating to his medical care must allege that a defendantprison official was deliberately indifferent to the plaintiff’s serious medical needs.
Estelle v. Gamble, 429 U.S. 97, 105 (1976); Coleman v. Rahija, 114 F.3d 778, 784
(8th Cir. 1997)). Further, a plaintiff must allege that he had objectively serious
medical needs, and that officials actually knew of but deliberately disregarded those
needs. Hartsfield v. Colburn, 491 F.3d 394, 396-97 (8th Cir. 2007); Johnson v.
Hamilton, 452 F.3d 967, 972-73 (8th Cir. 2006). “[S]ociety does not expect that
prisoners will have unqualified access to health care.” Hudson v. McMillian, 503
U.S. 1, 9 (1992). Therefore, “deliberate indifference to medical needs amounts to an
Eighth Amendment violation only if those needs are ‘serious.’” Id. (citing Estelle,
429 U.S. at 103-04).
Here, Plaintiff alleges he has been, and continues to be, exposed to secondhand
smoke which causes him to experience a “burning sensation” in his “chest and lungs,”
asthma attacks, headaches, and coughing. (Filing No. 1 at CM/ECF pp. 6-7.) Plaintiff
states the TSCI’s “no smoking” rules are not enforced and are routinely ignored. (Id.
at CM/ECF p. 6.) In addition, Plaintiff has been denied medical attention, despite his
requests for help, when experiencing asthma attacks. (Id.) Liberally construed,
Plaintiff’s allegations are sufficient to “nudge” his Eighth Amendment medical claim
against Houston and Britten 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 Complaint and is not a determination of the merits of
Plaintiff’s claims or potential defenses thereto.

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IV.

PENDING MOTIONS
A.

Motions to Appoint Counsel

Also pending are Plaintiff’s two Motions to Appoint Counsel. (Filing Nos. 7
and 14.) However, 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 Motions to Appoint Counsel are therefore denied.
B.

Motion for Return of Original Documents

Plaintiff filed a Motion for Return of Original Documents. (Filing No. 12.) In
his Motion, Plaintiff asks the court to send all of his original documents back to him.
(Id.) However, Plaintiff did not follow NECivR 5.1(f)(2) and all original documents
have been destroyed in accordance with that rule. See also Young v. Smalls, No. 092545 DMS (JMA), 2010 WL 731389, at *1 (S.D. Cal. Feb. 26, 2010) (stating the court
cannot return original documents to a party once they are filed as part of the court’s
record). Moreover, Plaintiff does not have the right to receive copies of documents
without payment, even if the court granted him leave to proceed in forma pauperis.
28 U.S.C. § 1915; see also Haymes v. Smith, 73 F.R.D. 572, 574 (W.D.N.Y. 1976)
(“The generally recognized rule is that a court may not authorize the commitment of
federal funds to underwrite the necessary expenditures of an indigent civil litigant’s
action.”) (citing Tyler v. Lark, 472 F.2d 1077 (8th Cir. 1973), other citations omitted).
If Plaintiff requires copies of court documents, he should contact the Clerk of the
court to determine the proper method of requesting and paying for copies. Plaintiff’s
Motion for Return of Original Documents is denied.

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C.

Second Motion for Leave to Proceed IFP

Plaintiff has filed a Second Motion for Leave to Proceed IFP. (Filing No. 19.)
However, Plaintiff has already been permitted leave to proceed IFP. (See Filing No.
10.) Accordingly, Plaintiff’s Second Motion for Leave to Proceed IFP is denied as
moot.
D.

Motion for Summons

Plaintiff has filed a Motion for Summons. (Filing No. 11.) Plaintiff’s Motion
for Summons is denied and he is directed to comply with the court’s instructions
regarding service of process below.
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s Motions to Appoint Counsel (filing nos. 7 and 14), Motion for
Summons (filing no. 11), Motion for Return of Original Documents (filing no. 12) and
Second Motion for Leave to Proceed IFP (filing no. 19) are denied.
2.
Plaintiff’s monetary damages claims against NDCS and Plaintiff’s
monetary damages claims against Houston and Britten in their official capacities are
dismissed with prejudice.
3.
Plaintiff’s claims for declaratory relief against Houston and Britten in
their official capacities, and Plaintiff’s Eighth Amendment claims against Houston and
Britten in their individual capacities, may proceed and service is now warranted as to
those claims only.
4.
To obtain service of process on Defendants, Plaintiff must complete and
return the summons forms which the Clerk of the court will provide. The Clerk of the
court shall send FOUR (4) summons forms and FOUR (4) USM-285 forms (for
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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.
5.
Upon receipt of the completed forms, the Clerk of the court will sign the
summons form, to be forwarded with a copy of the Complaint to the U.S. Marshal for
service of process. The Marshal shall serve the summons and 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 Complaint, and Plaintiff does not need to do so.
6.
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.
7.
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-one (21)
days after receipt of the summons to answer or otherwise respond to a complaint.
8.
The Clerk of the Court is directed to set a pro se case management
deadline in this case with the following text: “December 13, 2013: Check for
completion of service of summons.”
9.
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.

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DATED this 16th day of August, 2013.
BY THE COURT:
s/Richard G. Kopf
Senior 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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