Abram v. Rempel
Filing
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MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: On the court's own motion, Abram shall have 30 days from the date of this Memorandum and Order to file an amended complaint that seeks relief from a defendant who is not immune from such rel ief and that states a claim upon which relief can be granted. Failure to sufficiently amend his Complaint will result in dismissal of this action as frivolous and for failure to state a claim. The clerk's office is directed to set a pro se case management deadline in this case using the following text: February 23, 2015: Check for amended complaint. 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.
REMPEL, Cpl,
Defendant.
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4:14CV3115
MEMORANDUM
AND ORDER
This matter represents one of 18 cases filed by Plaintiff Eddie Abram on May 22,
2014, concerning prison conditions at Tecumseh State Correctional Institution (“TSCI”)
in Tecumseh, Nebraska. This court has given Abram leave to proceed in forma
pauperis in this matter. (Filing No. 8.) The court now conducts an initial review of
Abram’s Complaint (Filing No. 1) to determine whether summary dismissal is
appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.
I. SUMMARY OF COMPLAINT
Abram is incarcerated at the Lincoln Correctional Center in Lincoln, Nebraska.
However, he was incarcerated at TSCI when he filed this action. He named TSCI guard
Corporal Rempel as a defendant in this matter. Abram set forth the following
allegations in his Complaint: “On 12/1/13 Cpl. Rempel said I was a homosexual and
said I was gay. . . I never have been gay or a homosexual . . . I feel Cpl Remple was out
of line, very unprofessional and rude.” (Filing No. 1 at CM/ECF p. 4.) Abram alleged
his “legal theory is when a guard calls a[n] inmate a homosexual or say he is gay he is
stepping out the realm of his job because he is trying to label people.” (Id. at CM/ECF
p. 5.) Abram alleged he did not receive a physical injury as a result of this incident.
(Id.)
As relief, Abram seeks money damages in the amount of $10,000. (Id. at
CM/ECF p. 6.)
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 of
it 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(b).
Pro se plaintiffs must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed.” 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.”).
“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds
for a claim, and a general indication of the type of litigation involved.’” Topchian v.
JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v.
Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must
be liberally construed, and pro se litigants are held to a lesser pleading standard than
other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and 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
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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
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. Arkansas 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., id.; 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 that seek equitable relief from state employee defendants
acting in their official capacity.
Abram has sued a state employee and seeks only monetary relief. To the extent
he seeks to sue Rempel in his official capacity, the Eleventh Amendment bars claims
for damages by private parties against employees of a state sued in their official
capacities.
In addition, Abram has not stated a constitutional claim upon which relief may
be granted. Verbal harassment, absent physical injury, is not a constitutional violation
cognizable under Section 1983.1 See Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.
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The undersigned judge does not construe Abram’s Complaint to allege that
Rempel’s statements were meant to incite or invite inmates to inflict physical harm on
Abram. See Shye v. Melton, No. 2:13-0113, 2014 WL 6873154, *7 (M.D.Tenn. Dec.
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1986) (per curiam); see also Franks v. Fridley, No. 13-0561-WS-N, 2014 WL 3540574,
at *5 (S.D. Al. July 17, 2014) (“Inappropriate, derogatory, demeaning, profane,
threatening or abusive comments made by a correctional official to an inmate, no matter
how repugnant or unprofessional, do not rise to the level of a constitutional violation.”)
(collecting cases).
In addition, conditions of confinement constitute cruel and unusual punishment
only where those conditions result in a serious deprivation of “the minimal civilized
measure of life’s necessities” under contemporary standards of decency. Rhodes v.
Chapman, 452 U.S. 337, 347 (1981). To prevail on a conditions of confinement claim,
a plaintiff must show: (1) that the prison conditions pose a substantial risk of harm; and
(2) that the prison official was deliberately indifferent to that risk. Farmer v. Brennan,
511 U.S. 825, 834 (1994). Abram has made no such allegations here.
As pled, Abram’s allegations are frivolous and his Complaint fails to state a
claim upon which relief can be granted. On the court’s own motion, the court will
provide Abram 30 days in which to file an amended complaint that states a claim upon
which relief can be granted against Defendant. Failure to sufficiently amend his
Complaint will result in dismissal of this action as frivolous and for failure to state a
claim.
IT IS THEREFORE ORDERED that:
1.
On the court’s own motion, Abram shall have 30 days from the date of this
Memorandum and Order to file an amended complaint that seeks relief from a
3, 2014) (“Although violence among the prison population is an unfortunate reality and
not all violence suffered by an inmate at the hands of other inmates is traceable to
culpable conduct by prison officials or staff, intentional conduct by a prison staff
member that incites or invites inmates to inflict physical harm upon another inmate
violates constitutional standards.”) (internal citations omitted). To the extent Abram
intended to assert such a claim, he must so clearly specify in an amended complaint.
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defendant who is not immune from such relief and that states a claim upon which relief
can be granted. Failure to sufficiently amend his Complaint will result in dismissal of
this action as frivolous and for failure to state a claim.
2.
The clerk’s office is directed to set a pro se case management deadline in
this case using the following text: February 23, 2015: Check for amended complaint.
DATED this 22nd day of January, 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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