Winters v. Baker et al

Filing 10

MEMORANDUM AND ORDER -The Plaintiff's 7 MOTION for Authorization 9 and MOTION for Copies are denied. Plaintiff shall have until November 12, 2013, to amend his complaint and clearly state a claim upon which relief may be granted in accordance with this Memorandum and Order. If plaintiff fails to file an amended complaint, this matter will be dismissed without further notice. Plaintiff shall keep the Court informed of his current address at all times while this case is pendin g. Failure to do so may result in dismissal without further notice. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 11/12/2013: Check for amended complaint on November 12, 2013.) Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BEAUFORD WILMER WINTERS,
Plaintiff,
v.
BAKER, Sgt. (of the Tecumseh
State Correctional
Institution), BALLUE, Cpl,
SANFORD, Cpl., and HERREA, &
Cpl. (of the Tecumseh Stat
Correctional Institution),
Defendants.

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4:13CV3135

MEMORANDUM AND ORDER

Plaintiff filed his complaint in this matter on July
22, 2013 (Filing No. 1).

Also pending is plaintiff’s motion for

authorization (Filing No. 7) and motion for copies (Filing No.
9).

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 July 22, 2013, against

four Tecumseh State Correctional Institution (“TSCI”) employees
(Filing No. 1).

Plaintiff does not specify whether he sues these

employees in their official or individual capacities.

(Id.)

Plaintiff is currently confined at TSCI in Tecumseh, Nebraska.
(Id. at CM/ECF pp. 1-2; see also Docket Sheet.)

Liberally construed, plaintiff’s claims stem from a use
of force that occurred after Defendant “Baker” and plaintiff had
a dispute about whether plaintiff could control the light in his
cell (Filing No. 1 at CM/ECF p. 38).

During lunch, plaintiff

extended his hand through his cell hatch and Baker refused to
provide plaintiff with a “meal tray.”

(Id. at CM/ECF p. 5.)

Plaintiff stated he would not remove his arm from the hatch until
Baker returned control of plaintiff’s cell light to plaintiff.
(Id. at CM/ECF p. 5, 38-39.)

Baker finished serving lunch to

other inmates then returned to plaintiff’s cell with three other
TSCI staff members; plaintiff’s arm was still extended through
the hatch.

(Id.)

Defendants twisted his arm and used “chemical

agents” on plaintiff without proper “authorization” or
“observation.”

(Id.)

As a result of the use of force, plaintiff

sustained “moderate elbow damage.”

(Id.)

Plaintiff seeks monetary damages in the amount of
$150,000.00.

(Id. at CM/ECF p. 6.)

Plaintiff also seeks

injunctive relief in the form of a court order that protects him
from Baker or that directs TSCI to terminate Baker.
II.

(Id.)

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
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whether summary dismissal is appropriate.
1915(e) and 1915A.

See 28 U.S.C. §§

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.
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).

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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 which seek equitable relief from state employee defendants
acting in their official capacity.
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.

See, e.g., Johnson v.

Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (stating
that “in order to sue a public official in his or her individual
capacity, a plaintiff must expressly and unambiguously state so
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in the pleadings, otherwise, it will be assumed that the
defendant is sued only in his or her official capacity.”).

In

addition, a claim against an individual, in her 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. . . . Therefore, the appellants in
this case will collectively be referred to as the City.”)
(quotations omitted).

Accord Eagle v. Morgan, 88 F.3d 620, 629

n.5 (8th Cir. 1996) (“‘[A]n official-capacity suit is, in all
respects other than name, to be treated as a suit against the
entity.’”) (quoting Kentucky v. Graham, 473 U.S. 159, 165
(1985)).

Thus, damage claims against individual state employees

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

Murphy v. State of Ark., 127 F.3d 750, 754

(8th Cir. 1997).
Here, plaintiff sues four individual state employees
but does not specify the capacity in which she sues these
individuals (Filing No. 1).

Thus, the Court will assume that

plaintiff sues defendants in their official capacities only.

As

set forth above, the Eleventh Amendment bars Plaintiff’s claims
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for monetary damages against employees of a state sued in their
official capacities.

Consequently, plaintiff’s claims for

monetary damages against defendants must be dismissed.
B.

Eighth Amendment
Liberally construed, plaintiff alleges that defendants

used excessive force in violation of the Eighth Amendment.

(Id.)

“It is well established that a malicious and sadistic use of
force by a prison official against a prisoner, done with the
intent to injure and causing actual injury, is enough to
establish a violation of the Eighth Amendment’s cruel and unusual
punishment clause.”

Williams v. Jackson, 600 F.3d 1007, 1012

(8th Cir. 2010) (internal quotations omitted).

However, “‘not .

. . every malevolent touch by a prison guard gives rise to a
federal cause of action,’ a de minimis application of force will
not give result in a constitutional violation.”

Id. (quoting

Hudson v. McMillan, 503 U.S. 1, 9 (1992)); see also Wilkins v.
Gaddy, 130 S. Ct. 1177-78 (2010) (“An inmate who complains of a
push or shove that causes no discernable injury almost certainly
fails to state a valid excessive force claim.” (internal
quotation marks omitted)).

Where the force applied is excessive,

however, a constitutional claim may survive summary dismissal
even if the resulting injury is de minimis.
at 1180.
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Wilkins, 130 S. Ct.

Here, plaintiff alleges that defendants twisted his arm
and used “chemical agents” on him without proper “authorization”
or “observation.”

(Filing No. 1 at CM/ECF pp. 5-6, 38-39.)

Plaintiff also alleges he sustained “moderate elbow damage” as a
result of the use of force.

(Id.)

However, plaintiff does not

allege that the use of force was malicious or sadistic, nor does
he allege that it was done with the intent to injure.

(Id.)

Indeed, plaintiff alleges he was in a “conflict” with Baker and
that he refused to remove his arm from the cell hatch.

(Id.) see

also Thomas v. Northern, 382 Fed. App’x 538, 2010 WL 2595163, at
*1 (8th Cir. 2010) (concluding one-time use of pepper spray where
inmate was refusing orders to stop behavior deemed to present a
security risk did not violate the Eighth Amendment).

In light of

the facts alleged, the Court cannot reasonably infer that
Defendants’ actions amounted to a violation of his Eighth
Amendment rights.
However, on the Court’s own motion, plaintiff shall
have 30 days to file an amended complaint that states an Eighth
Amendment excessive force claim upon which relief may be granted.
Plaintiff should be mindful to explain whether Defendants’ use of
force was malicious and sadistic, whether it was done with intent
to cause injury, and whether his refusal to put his arm back in
his cell did not warrant Defendants’ use of force.
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If plaintiff

fails to file an amended complaint in accordance with this
Memorandum and Order, his Eighth Amendment excessive force claim
will be dismissed without prejudice and without further notice.
C.

State Law Claims
Liberally construed, plaintiff may also have claims

against Defendants for violations of state law.

Pending

amendment of the complaint as set forth in this Memorandum and
Order, the Court makes no finding regarding its jurisdiction over
any potential state law claims.
IV.

PENDING MOTIONS
A.

Motion for Authorization
Plaintiff has filed a motion for authorization, which

the Court liberally construes as a motion for discovery (Filing
No. 7).

In his motion, plaintiff asks the Court to “authorize

him” to request discovery-related items from Defendants.

(Id.)

However, the Court has not yet permitted discovery in this
matter.

Accordingly, plaintiff’s motion for authorization,

liberally construed as a motion for discovery, will be denied.
B.

Motion for Copies
Plaintiff has filed a motion for copies (Filing No. 9).

In the motion, plaintiff informs the Court that he would like to
be present during court proceedings and that he would like copies
of documents concerning his case.
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(Id.)

However, 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.

Moreover, no hearings have been scheduled in this

matter, so plaintiff’s request to be physically present will be
denied without prejudice.

Accordingly,

IT IS ORDERED:
1.

Plaintiff’s motion for authorization (Filing No.

7), liberally construed as a motion for discovery, and
plaintiff’s motion for copies (Filing No. 9) are denied.
2.

Plaintiff shall have until November 12, 2013, to

amend his complaint and clearly state a claim upon which relief
may be granted in accordance with this Memorandum and Order.

If

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

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3.

In the event that plaintiff files an amended

complaint, plaintiff shall restate the allegations of the current
Complaint (Filing No. 1), and any new allegations.

Failure to

consolidate all claims into one document may result in the
abandonment of claims.
4.

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

case management deadline in this case using the following text:
Check for amended complaint on November 12, 2013.
5.

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 without further notice.
DATED this 15th 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
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sites. Likewise, the Court has no agreements with any of these
third parties or their Web sites. The Court accepts no
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of the Court.
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