Sexton v. Wayne et al

Filing 10

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Plaintiff shall have 30 days from the date of this Memorandum and Order to file an amended complaint in accordance with this Memorandum and Order. This matter will be dismissed without prejudice and without further notice if Plaintiff fails to file an amended complaint in accordance with this Memorandum and Order. The clerk's office is directed to set a pro se case management deadline in this matter: January 13, 2014. Plaintiff's Motion to Amend Complaint (Filing No. #9 ) is granted. The clerk's office is directed to update the court's records to reflect that Defendants are those individuals listed in Plaintiff's Motion to Amend Complaint. Plaintiff shall keep the court informed of her current address at all times while this case is pending. Failure to do so may result in dismissal without further notice. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LISA K. SEXTON, Women
incarcerated before or after 9/15/13,
Plaintiff,
v.
LARRY WAYNE, et al.,
Defendants.

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4:13CV3171

MEMORANDUM
AND ORDER

Plaintiff filed her Complaint in this matter on September 25, 2013. (Filing No.
1.) Plaintiff is a prisoner who has been granted leave to proceed in forma pauperis.
(Filing No. 6.) The court now conducts an initial review of Plaintiff’s claims to
determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and
1915A.
I.

SUMMARY OF COMPLAINT

Plaintiff filed her Complaint on behalf of herself and women incarcerated
“before or after 9/15/13.” (Filing No. 1 at CM/ECF p. 1.) Plaintiff named the
following Defendants in her Complaint: the Department of Corrections, Robert
Houston, Larry Wayne, Mark Wiese, Frank Hopkins, Dr. White, Mark Wellage,
Denise Skrobecki, Tim Siemek, Sam Shaw, and Robin Spindler. (Id. at CM/ECF p.
1.) However, on October 22, 2013, Plaintiff asked for leave to amend her Complaint
to name only the following individuals as Defendants: Michael Kenney, Larry
Wayne, Frank Hopkins, Randy Kohl, Carmine White, Mark Wellage, Sam Shaw,
Mark Wiese, Denise Skrobecki, Tim Siemek, and Robin Spindler. (Filing No. 9 at
CM/ECF p. 1.) Upon careful review of Plaintiff’s Motion to Amend, the court will
grant Plaintiff’s Motion and direct the clerk’s office to update the court’s records to
reflect that Defendants are those individuals listed in Plaintiff’s Motion to Amend

Complaint. (See id. at CM/ECF p. 1.) Because Plaintiff did not specify whether these
Defendants are being sued in their official or individual capacities, the court presumes
they are being sued in their official capacities only. See Johnson v. Outboard Marine
Corp., 172 F.3d 531, 535 (8th Cir. 1999) (reiterating that when a plaintiff fails to
“expressly and unambiguously” state that a public official is sued in his or her
individual capacity, the court “assume[s] that the defendant is sued only in his or her
official capacity”).
Liberally construed, Plaintiff generally alleges in her Complaint that women
incarcerated “before or after 9/15/13” at the Nebraska Center for Women in York,
Nebraska, are denied relevant vocational training and programming equal to that
received by male prisoners in other state correctional facilities. (Filing No. 1 at
CM/ECF pp. 5-6.) Plaintiff also alleges, in very general terms, that women are only
allowed access to the law library for one hour per day, that they are only allowed to
access the gym when the recreation coordinator is available, that they are
overcrowded, and that medical staff do not diagnose them “in a timely matter.” (Id.
at CM/ECF pp. 6-7.) As relief, Plaintiff asks this court to order that “women get the
same privileges as the men” in other correctional facilities operated by the State of
Nebraska. (Id. at CM/ECF p. 9.)
The court notes that Plaintiff’s Complaint is silent as to the involvement of any
of the Defendants in the alleged constitutional violations. In addition, the court notes
that Plaintiff attached 45 pages of documents, including newspaper articles and
grievance forms, to her Complaint, but did not incorporate by reference any document
attached to the Complaint. (See id. at CM/ECF pp. 11-56.)
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
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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.
Therefore, where pro se plaintiffs do not set forth enough factual allegations
to “nudge[] their claims across the line from conceivable to plausible, 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) (overruling Conley v.
Gibson, 355 U.S. 41 (1967), and setting new standard for failure to state a claim upon
which relief may be granted). 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).
Liberally construed, Plaintiff here alleges federal constitutional claims. To
state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights
protected by the United States Constitution or created by federal statute and also must
show that the alleged deprivation was caused by conduct of a person acting under
color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997
F.2d 494, 495 (8th Cir. 1993).
III.

DISCUSSION OF CLAIMS

Plaintiff’s Complaint is deficient in three respects. First, Plaintiff purports to
bring this action on behalf of herself and women incarcerated “before or after

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9/15/13.”1 (Filing No. 1 at CM/ECF p. 1.) However, pro se litigants may not
represent the interests of other parties. Litschewski v. Dooley, No. 11-4105-RAL,
2012 WL 3023249, at *1 n. 1 (D.S.D. July 24, 2012), aff’d, 502 Fed.Appx. 630 (8th
Cir. 2013). Moreover, in order for a plaintiff to proceed with her claims, she must
have standing. As a general rule, to establish standing a plaintiff must assert her legal
rights or interests and not “the legal rights or interests of third parties.” Warth v.
Seldin, 422 U.S. 490, 498-99 (1975). Here, Plaintiff alleges that women at the
Nebraska Center for Women are being subjected to unconstitutional conditions.
However, she does not allege that she, rather than other prisoners, is being subjected
to unconstitutional conditions. For example, Plaintiff does not allege in the body of
her Complaint that she sought, but was denied, access to the law library, medical care,
or exercise or that she sought, but was denied, vocational training. Plaintiff must
assert her own legal rights and interests, and not the legal rights and interests of third
parties.
Second, while Plaintiff names 11 individuals as Defendants in this matter, she
makes no allegations against any of them in the body of her Complaint or allege that
any of them are personally involved in the alleged constitutional violations.
(See Filing No. 1 at CM/ECF pp. 1-10.) Federal Rule of Civil Procedure 8 requires
that every complaint contain “a short and plain statement of the claim showing that
the pleader is entitled to relief” and that “each allegation . . . be simple, concise, and
direct.” Fed. R. Civ. P. 8(a)(2), (d)(1). 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

On the second page of Plaintiff’s Complaint, Plaintiff also lists additional
plaintiffs as “women incarcerated on or after 9/15/13” (emphasis added). (Filing No.
1 at CM/ECF p. 2.)
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complaint was silent as to the defendants except for their names appearing in the
caption). Here, Plaintiff has failed to state a claim upon which relief may be granted
against any named Defendant.
Third, Plaintiff seeks only injunctive relief2 against Defendants acting in their
official capacities, but fails to state an injunctive-relief claim against any Defendant
because she did not attribute any alleged ongoing misconduct to any specific
defendant. See Nix v. Norman, 879 F.2d 429, 433 (8th Cir. 1989) (“To establish
liability in an official-capacity suit under section 1983, a plaintiff must show either
that the official named in the suit took an action pursuant to an unconstitutional
governmental policy or custom . . . or that he or she possessed final authority over the
subject matter at issue and used that authority in an unconstitutional manner.”)
On the court’s own motion, Plaintiff will have 30 days from the date of this
Memorandum and Order to file an amended complaint that asserts her legal rights or
interests and not the legal rights or interests of third parties, and that sets forth a short
and plain statement of the claims against each defendant. Plaintiff should be mindful
to explain what each defendant did or is doing to deprive her of her constitutional
rights, and what specific legal rights Plaintiff believes that defendant has violated.
If Plaintiff fails to file an amended complaint in accordance with this Memorandum
and Order, this matter will be dismissed without prejudice and without further notice.
IT IS THEREFORE ORDERED that:
1.
Plaintiff shall have 30 days from the date of this Memorandum and Order
to file an amended complaint in accordance with this Memorandum and Order. This

As set forth above, as relief, Plaintiff asks that women incarcerated at the
Nebraska Center for Women in York, Nebraska, receive the “same privileges” as men
incarcerated at other state correctional facilities. (Filing No. 1 at CM/ECF p. 9.)
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matter will be dismissed without prejudice and without further notice if Plaintiff fails
to file an amended complaint in accordance with this Memorandum and Order.
2.
The clerk’s office is directed to set a pro se case management deadline
in this matter: January 13, 2014.
3.
Plaintiff’s Motion to Amend Complaint (Filing No. 9) is granted. The
clerk’s office is directed to update the court’s records to reflect that Defendants are
those individuals listed in Plaintiff’s Motion to Amend Complaint.
4.
Plaintiff shall keep the court informed of her current address at all times
while this case is pending. Failure to do so may result in dismissal without further
notice.
DATED this 16th day of December, 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.
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