Newman v. Myers

Filing 10

MEMORANDUM AND ORDER-The Clerk of the court is directed to re-open this matter. Plaintiff's Complaint (filing no. 1 ) is dismissed without prejudice. This matter is dismissed without prejudice for failure to state a claim upon which relief may be granted in accordance with 28 U.S.C. § 1915(e)(2). A separate judgment will be entered in accordance with this Memorandum and Order. The Clerk of the court is directed to place the "28USC1915(g)_STR" flag on this matter. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party) (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TERRELL E. NEWMAN,
Plaintiff,
v.
MIKE MYERS, Director of Douglas
County Correction,
Defendant.

)
)
)
)
)
)
)
)
)
)

4:13CV3097

MEMORANDUM
AND ORDER

On July 19, 2013, the court dismissed this matter and entered Judgment against
Plaintiff because he failed to pay the court’s initial partial filing fee by the court’s
July 5, 2013, deadline. (Filing Nos. 7 and 8.) However, Plaintiff did indeed make a
payment of $100.00 on July 5, 2013, and that payment was not docketed due to an
administrative error. On July 26, 2013, the court updated its records to show that
Plaintiff paid the initial partial filing fee. (See Docket Sheet.) In light of this
administrative error, and on its own motion, the court re-opens this matter and 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 May 7, 2013, against Mike Myers, “Director
of Douglas County of Correction.” (Filing No. 1 at CM/ECF pp. 1-3.) Plaintiff is
currently confined in the Douglas County Department of Corrections in Omaha,
Nebraska. (Id. at CM/ECF pp. 1, 13.)
Condensed and summarized, Plaintiff alleges that on April 15, 2013, he was
placed in administrative confinement for allegedly making inappropriate comments
to a staff nurse. (Id. at CM/ECF p. 3.) Plaintiff states that staff had him confused

with a different inmate and wrote the report incorrectly. (Id.) On April 19, 2013, the
Douglas County Department of Corrections Disciplinary Hearing Committee found
Plaintiff guilty of “lewd conduct” and sanctioned him with 30 days of “Disciplinary
Isolation.” (Id. at CM/ECF pp. 7-12.) On May 7, 2013, Plaintiff filed this matter
asking the court for “immediate release from” administrative confinement to general
population. (Id. at CM/ECF p. 3.)
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
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).

2

III.

DISCUSSION OF CLAIMS

Liberally construed, Plaintiff alleges Defendants deprived him of the right to
be a part of the general prison population without adequate due process. The Due
Process Clause by itself does not accord a prisoner a liberty interest in remaining in
the general population. Lekas v. Briley, 405 F.3d 602, 607 (7th Cir. 2005). Rather,
prison officials must receive “wide-ranging deference in the adoption and execution
of policies and practices that in their judgment are needed to preserve internal order
and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520,
547 (1979).
Accordingly, the Eighth Circuit has held that an inmate “does not have a
constitutional right to a particular prison job or classification.” Sanders v. Norris,
153 Fed. App’x 403, 404 (8th Cir. 2005); Hartsfield v. Dep’t of Corr., 107 Fed.
App’x 695, 696 (8th Cir. 2004) (unpublished per curiam decision) (stating that inmate
has “no liberty interest in a particular classification”). Thus, “[a]n inmate who makes
a due process challenge to his segregated confinement must make a threshold
showing that the deprivation of which he complains imposed an atypical and
significant hardship.” Portley-El v. Brill, 288 F.3d 1063, 1065 (8th Cir. 2002)
(internal quotations omitted); Sandin v. Conner, 515 U.S. 472, 484 (1995).
Moreover, the Eighth Circuit has consistently held that “administrative and
disciplinary segregation are not atypical and significant hardships[.]” Portley-El, 288
F.3d at 1065; Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003) (“We have
consistently held that a demotion to segregation, even without cause, is not itself an
atypical and significant hardship.”).
Here, Plaintiff does not allege anything about his conditions of his confinement
or that his confinement is imposing “an atypical and significant hardship.” Thus,
Plaintiff has not alleged sufficient facts to meet the threshold requirement to
3

challenge his segregation status under the Due Process Clause and his claims are
dismissed for failure to state a claim upon which relief may be granted.
IT IS THEREFORE ORDERED that:
1.

The Clerk of the court is directed to re-open this matter.

2.

Plaintiff’s Complaint (filing no. 1) is dismissed without prejudice.

3.
This matter is dismissed without prejudice for failure to state a claim
upon which relief may be granted in accordance with 28 U.S.C. § 1915(e)(2).
4
A separate judgment will be entered in accordance with this
Memorandum and Order.
5.
The Clerk of the court is directed to place the “28USC1915(g)_STR”
flag on this matter.
DATED this 31st day of July, 2013.
BY THE COURT:
s/ John M. Gerrard
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.
4