Abram v. Wagner et al

Filing 14

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Plaintiff's Complaint and Amended Complaint are dismissed without prejudice. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EDDIE E. ABRAM,
Plaintiff,
v.
WAGNER, Sgt., MCKILLIP, Cpl.,
and NEBRASKA DEPT. OF
CORRECTIONAL SERVICES,
Defendants.

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4:14CV3106

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff Eddie Abram’s Amended Complaint
(Filing No. 13). On November 5, 2014, the court conducted an initial review of
Plaintiff’s Complaint (Filing No. 1). The court summarized Plaintiff’s allegations as
follows:
Abram alleged that on October 11, 2013, Sergeant Wagner allowed
Corporal McKillip to serve inmates their food when it should have been
Sergeant Wagner serving the food. Abram alleged this was “out of line
and very unprofessional,” and done in an attempt to intimidate Abram
in retaliation for the grievances he filed against Sergeant Wagner and
Corporal McKillip.
(Filing No. 12 at CM/ECF p. 1.) The court determined Plaintiff’s allegations did not
state a viable retaliation claim against Wagner or McKillip. See L.L. Nelson
Enterprise Inc. v. Cnty. of St. Louis, Mo., 673 F.3d 799, 807-8 (8th Cir. 2012) (“To
establish a § 1983 claim for retaliation in violation of the First Amendment, a plaintiff
must allege (1) that it engaged in a protected activity, (2) that the defendants
responded with adverse action that would chill a person of ordinary firmness from
continuing in the activity, and (3) that the adverse action was motivated at least in
part by the exercise of the protected activity.”) (internal quotation marks omitted).

On the court’s own motion, Plaintiff was given 30 days in which to file an amended
complaint that stated a plausible claim for relief.
Plaintiff filed his Amended Complaint (Filing No. 13) on December 8, 2014.
Plaintiff reasserted the allegations set forth in the original Complaint, and added that
Defendants were aware Plaintiff suffers from intermittent explosive disorder and they
should have known “the change in food servers would anger [him].” (Id. at CM/ECF
p. 9.) Once again, Plaintiff failed to allege facts that would allow the court to draw
the reasonable inference that Defendants responded to Plaintiff’s filing of grievances
with an adverse action. The court fails to see how the change in food servers would
deter a person of ordinary firmness from filing grievances. Accordingly, the court
will dismiss Plaintiff’s retaliation claims against Defendants.
Plaintiff also seeks an injunction against the Nebraska Department of
Correctional Services in his Amended Complaint. He seeks an order preventing the
department from:
keeping seriously mentally ill inmates, as defined in the DSM-5 who
have been diagnosed as such, in segregation on a continual basis for
more than 180 days, except in cases where there is a strong likelihood,
as supported by evidence, the inmate will seriously injure or kill another
inmate and/or staff member and/or escape from the institution.
(Id. at CM/ECF p. 12.) Plaintiff alleges he “spent a good portion of his sentence in
segregation” when he was housed at the Tecumseh State Correctional Institution
(“TSCI”), and that his condition has improved since leaving TSCI. Plaintiff alleges
no other facts concerning his time spent in segregation such as how long he was
housed there or the conditions of his segregation.
Plaintiff’s request for injunctive relief is unrelated to his claims for relief in his
Complaint and Amended Complaint. That is, the court does not construe Plaintiff’s
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Complaint or Amended Complaint to be an action alleging unconstitutional
conditions of confinement. Moreover, Plaintiff is no longer incarcerated at TSCI in
the segregation unit and, as a pro se litigant, he may not represent the interests of
other parties. Accordingly, Plaintiff’s request for injunctive relief is denied.
IT IS THEREFORE ORDERED that: Plaintiff’s Complaint and Amended
Complaint are dismissed without prejudice. A separate judgment will be entered in
accordance with this Memorandum and Order.
DATED this 17th day of February, 2015.
BY THE COURT:

s/ Joseph F. Bataillon
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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