Abram v. Bequette

Filing 12

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: On the court's own motion, Plaintiff shall have 30 days to file an amended complaint that seeks relief from a defendant who is not immune from such relief and that states a claim upon w hich relief can be granted. The clerk's office is directed to set a pro se case management deadline in this case using the following text: April 6, 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.
BEQUETTE, Sgt.,
Defendant.

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4:14CV3121

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 Sergeant Bequette as a defendant in this matter. Abram set forth the following
allegations in his Complaint:
On 10/21/13 I would like to know why chemical agents were used when
they know they was not supposed to use chemical agents due to me
having asthma. Also these staff know I am a asthma patient.
....

I was sprayed with OC Spray and it states in my medical chart that I am
not suppose to be sprayed due to me being asthmatic. I also could not breathe.
(Filing No. 1 at CM/ECF pp. 4, 5.) 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

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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
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
A.

Sovereign Immunity

Section 1983 claims may be brought against a defendant in her official or
individual capacity (or both). Individual-capacity claims seek to hold a state official
personally liable for her actions, while “the real party in interest in an official-capacity
suit is the governmental entity and not the named official.” Baker v. Chisolm, 501 F.3d
920, 925 (8th Cir. 2007) (quoting Hafer v. Melo, 502 U.S. 21, 25 (1991)).
Plaintiff seeks only monetary relief from Bequette and he did not specify
whether she is being sued in her official or individual capacity; though his allegations
suggest she is being sued in her official capacity only. (See Filing No. 1 at CM/ECF
p. 3 (“I believe Sgt. Bequette was acting for the government when she sprayed me
knowing I was an asthmatic.”).) When a complaint is unclear or silent as to how a
defendant is being sued, courts must interpret the complaint as raising official-capacity
claims only. See Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir. 1995).

Because Plaintiff’s Complaint does not clearly provide notice that Bequette is
being sued in her individual capacity, the court assumes Plaintiff has sued her in her
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official capacity only. Thus, the Nebraska Department of Corrections, not Bequette,
is the real party in interest. The Eleventh Amendment bars actions for damages against
a state or state agency in federal court. See id.; Dover Elevator Co. v. Arkansas State
Univ., 64 F.3d 442, 446-47 (8th Cir. 1995). Thus, Plaintiff seeks relief from a
defendant who is immune from such relief.
B.

Eighth Amendment

Liberally construed, Plaintiff raised an Eighth Amendment excessive force claim
in his Complaint. The Eighth Amendment forbids the wanton and unnecessary
infliction of pain upon prisoners. In an Eighth Amendment excessive-force case, “the
core judicial inquiry is ‘whether force was applied in a good-faith effort to maintain
or restore discipline, or maliciously and sadistically to cause harm.’” Santiago v. Blair,
707 F.3d 984, 990 (8th Cir. 2013) (quoting Hudson v. McMillian, 503 U.S. 1, 7
(1992)). “Whether the force used was reasonable is ‘judged from the perspective of a
reasonable officer on the scene’ and in light of the particular circumstances.” Story v.
Norwood, 659 F.3d 680, 686 (8th Cir. 2011) (quoting Graham v. Connor, 490 U.S.
386, 396-97 (1989)).
Plaintiff did not describe any events preceding or following the use of chemical
agents. Thus, the court is not able to fully analyze the need for an application of force,
the amount of force used, or the threat that Bequette may have reasonably perceived.
In addition, Plaintiff did not allege the use of chemical agents caused anything more
than temporary pain and discomfort. See Peterson v. Kopp, 754 F.3d 594, 601 (8th
Cir. 2014) (“And here, Peterson has not presented evidence that the pepper spray
caused more than temporary pain and discomfort; though a close case, we do not think
this constitutes more than de minimis injury.”); see also Jones v. Shields, 207 F.3d 491,
495 (8th Cir. 2000) (finding, in the Eighth Amendment context, pepper spray injuries

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de minimis when the effects “cleared within 45 minutes” and “a medical examination
the day after the incident revealed no lingering effects”).
On the court’s own motion, the court will provide Abram 30 days in which to
file an amended complaint that seeks relief from a defendant who is not immune from
such relief and that states a claim upon which relief can be granted. Plaintiff should
be mindful to describe the events preceding and following the use of chemical agents
in his amended complaint so as to assist the court in evaluating his Eighth Amendment
claim. Failure to file an amended complaint will result in this matter being dismissed
without further notice to him.
IT IS THEREFORE ORDERED that:
1.
On the court’s own motion, Plaintiff shall have 30 days to file an amended
complaint that seeks relief from a defendant who is not immune from such relief and
that states a claim upon which relief can be granted.
2.
The clerk’s office is directed to set a pro se case management deadline in
this case using the following text: April 6, 2015: Check for amended complaint.
DATED this 9th day of March, 2015.
BY THE COURT:

s/ Joseph F. Bataillon
Senior United States District Judge
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