Abram v. Day
MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: On the court's own motion, Abram shall have 30 days to file an amended complaint that states a claim upon which relief can be granted. Failure to file an amended complaint will result in di smissal of this action 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: March 27, 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,
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 Day as a defendant in this matter. Abram set forth the following allegations in
his Complaint: “On 10/25/13 at 1700 HRS Cpl Day called me a porch monkey. I feel
Cpl. Day was unprofessional, out of line, and rude. . . .” (Filing No. 1 at CM/ECF p. 4.)
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
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
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 Day in his official capacity, the Eleventh Amendment bars his claims for
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. See Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.
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.”)
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 fail 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. Failure to
sufficiently amend his Complaint will result in dismissal of this action for failure to state
IT IS THEREFORE ORDERED that:
On the court’s own motion, Abram shall have 30 days to file an amended
complaint that states a claim upon which relief can be granted. Failure to file an
amended complaint will result in dismissal of this action 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: March 27, 2015: Check for amended complaint.
DATED this 2nd day of March, 2015.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge
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