Davis v. Nebraska Department of Correctional Services et al

Filing 22

MEMORANDUM AND ORDER - For the reasons set forth in the court's order dated December 1, 2014 (Filing No. 10 ), Plaintiff's federal-law claims are dismissed with prejudice for failure to state a claim upon which relief may be granted. A ny remaining state-law claims are dismissed without prejudice. A separate judgment will be entered in accordance with this order. In light of the foregoing, Plaintiffs Motion for Appointment of Counsel (Filing No. 19 ) and Motion for Leave to Proc eed in Forma Pauperis (Filing No. 20 )are denied as moot. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party) (MKR, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PERRY D. DAVIS,

)
)
Plaintiff,
)
)
v.
)
)
NEBRASKA DEPARTMENT OF
)
CORRECTIONAL SERVICES,
)
ROBERT HOUSTON, ROBIN
)
SPINDLER, LARRY WAYNE,
)
FRANCIS BRITTEN, BRIAN
)
GAGE, MICHELLE HILLMAN,
)
SHAWN SHERMAN, SCOTT
)
BUSBOOM, JAMES JANSEN,
)
CATHY PETERS, ROBERT
)
NEEDHAM, KNOWN AND
)
UNKNOWN JANE AND JOHN
)
DOE MAILROOM STAFF AND
)
CANTEEN STAFF 1 TO 100,
)
ELOISE KAMPBELL, 1 TO 100
)
SHERIDAN COUNTY NEBRASKA )
OFFICIALS JANE AND JOHN
)
DOE, KNOWN AND UNKNOWN, )
DENNIS KING, JAMIAN J.
)
SIMMONS, FRANK X. HOPKINS, )
KEITH BROADFOOT, and TRACY )
HIGHTOWER-HENNE,
)
)
Defendants.
)

4:14CV3168

MEMORANDUM
AND ORDER

This matter is before the court on its own motion. On December 1, 2014, the
court conducted a pre-service screening of Plaintiff’s Complaint (Filing No. 1) in
accordance with 28 U.S.C. §§ 1915(e) and 1915A. (See Filing No. 10.) After
summarizing Plaintiff’s allegations (id. at CM/ECF pp. 1-3), the court determined that,
with few exceptions, the allegations did not give the defendants fair notice of the

claims against them. (Id. at CM/ECF p. 4.) In addition, the court determined Plaintiff
failed to state access-to-courts claims against the defendants, primarily because he did
not allege he suffered an actual injury as a result of any of the defendants’ actions.
(Id. at CM/ECF pp. 6-7.) Finally, the court determined Plaintiff failed to state a
conspiracy claim against the defendants. (Id. at CM/ECF pp. 7-8.) The court gave
Plaintiff 30 days in which to file an amended complaint. (Id. at CM/ECF p. 9.) The
court made no finding with respect to the validity of Plaintiff’s state-law claims or
whether the court had jurisdiction over them.
After receiving three extensions of time from the court, Plaintiff filed his
Amended Complaint (Filing No. 17) on April 9, 2015. Plaintiff reiterated the
allegations set forth in his original Complaint in his Amended Complaint. Thus, for
the reasons already discussed in the court’s order dated December 1, 2014, the court
finds Plaintiff has failed to state a claim upon which relief may be granted in this
action.
IT IS THEREFORE ORDERED that:
1.
For the reasons set forth in the court’s order dated December 1, 2014
(Filing No. 10), Plaintiff’s federal-law claims are dismissed with prejudice for failure
to state a claim upon which relief may be granted. Any remaining state-law claims
are dismissed without prejudice.
2.

A separate judgment will be entered in accordance with this order.

3.
In light of the foregoing, Plaintiff’s Motion for Appointment of Counsel
(Filing No. 19) and Motion for Leave to Proceed in Forma Pauperis (Filing No. 20)
are denied as moot.

2

DATED this 3rd day of August, 2015.
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.

3