Emilio v. Nebraska Department of Correctional Services et al

Filing 54

MEMORANDUM AND ORDER - Defendants' Motion to Dismiss (Filing No. 47 ) is granted in part and denied in part. Plaintiff's claims against Robert Houston are dismissed without prejudice. The remainder of Defendants' Motion to Dismiss is denied without prejudice to reassertion in a motion for summary judgment. In accordance with Federal Rule of Civil Procedure 12(a)(4)(A), Defendants shall file their answer no later than 14 days from the date of this Memorandum and Order. Following the filing of Defendant's answer, a separate progression order will be entered progressing this matter to final disposition. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (GJG)

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

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4:13CV3073

MEMORANDUM
AND ORDER

This matter is before the court on Defendants’ Motion to Dismiss. (Filing No.
47.) As set forth below, the Motion is denied in part and granted in part.
On August 16, 2013, the court conducted a detailed initial review of Plaintiff’s
claims. (Filing No. 24.) In that Memorandum and Order, the court liberally construed
and analyzed Plaintiff’s claims. In doing so, the court determined that Plaintiff had
set forth enough allegations to “nudge” his Eighth Amendment claims “across the line
from conceivable to plausible,” the same standard used to resolve a motion to dismiss
filed under Federal Rule of Civil Procedure 12(b)(6). See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678
(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.”); Burke v. North Dakota Dep’t of Corr. and Rehab., 294 F.3d
1043, 1043-44 (8th Cir. 2002) (holding that a pro se complaint must be construed
liberally).
Rather than file an answer, Defendants filed their Motion to Dismiss, arguing
that Plaintiff’s Complaint fails to state a claim upon which relief may be granted.
Defendants argue that Plaintiff’s Complaint fails to allege any specific acts or conduct
on the parts of Robert Houston and Fred Britten. Defendants are correct with respect
to Plaintiff’s claims against Robert Houston. When a plaintiff fails to allege specific

acts or conduct on the part of a defendant, and the complaint is silent as to the
defendant except for his name appearing as a defendant, the complaint is properly
dismissed. A complaint must state enough to “‘give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S.
89, 93 (2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
See Krych v. Hvass, 83 Fed.Appx. 854, 855 (8th Cir. 2003) (holding court properly
dismissed claims against defendants where pro se complaint was silent as to the
defendants except for their names appearing in the caption). The court has carefully
reviewed Plaintiff’s filings and finds that they do not raise an Eighth Amendment
claim against Robert Houston. Accordingly, the court will dismiss Plaintiff’s claims
against Robert Houston.
The court finds that Plaintiff’s filings, taken together, adequately raise an
Eighth Amendment claim against Fred Britten. In assessing Plaintiff’s Complaint, the
court must also consider the materials attached to his Complaint and the allegations
raised in his subsequent filings. See Pratt v. Corrections Corp. of Am., 124 Fed.Appx.
465, 466 (8th Cir. 2005) (per curiam); see also Whitson v. Stone Cnty. Jail, 602 F.3d
920, 922 n. 1 (8th Cir. 2010) (explaining that a pro se party’s pleadings must be
liberally construed).
Plaintiff submitted a copy of an interview request form addressed to Britten in
which he advised Britten that he has asthma and at least one officer was not enforcing
the smoking ban in the prison. (See Filing No. 18 at CM/ECF p. 4.) In light of the
liberal pleading standard afforded to pro se litigants, the court finds that Plaintiff has
set forth sufficient facts to nudge his Eighth Amendment claims against Fred Britten
across the line from conceivable to plausible. While Plaintiff’s claims may ultimately
not withstand a motion for summary judgment, they are enough to withstand the
pending Motion to Dismiss.

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IT IS THEREFORE ORDERED that:
1.
Defendants’ Motion to Dismiss (Filing No. 47) is granted in part and
denied in part. Plaintiff’s claims against Robert Houston are dismissed without
prejudice. The remainder of Defendants’ Motion to Dismiss is denied without
prejudice to reassertion in a motion for summary judgment.
2.
In accordance with Federal Rule of Civil Procedure 12(a)(4)(A),
Defendants shall file their answer no later than 14 days from the date of this
Memorandum and Order.
3.
Following the filing of Defendant’s answer, a separate progression order
will be entered progressing this matter to final disposition.
DATED this 6th day of November, 2014.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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