Rayes v. Houston et al
MEMORANDUM AND ORDER that plaintiff shall have 30 days from the date of this Memorandum and Order to file an amended complaint. The clerk's office is directed to set a pro se case management deadline in this case using the following text: Janu ary 9, 2015: Check for amended complaint. Plaintiff's requests for extensions of time and to supplement his pleadings (Filing Nos. 11, 19, and 22) are denied as moot. Plaintiff's request for preliminary injunctive relief (Filing No. 18 ) is denied without prejudice. Plaintiff's request that this court hold the clerk of court in contempt (Filing No. 27) is denied. The clerk's office is directed to send to Plaintiff a copy of the docket sheet in this matter. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party with a copy of the docket sheet as directed) (ADB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT HOUSTON, MICHAEL
KENNEY, LARRY WAYNE,
FRANK HOPKINS, DIANE
SABATKA-RINE, SAMUAL SHAW, )
MICHAEL EDISON, and DENNIS
Plaintiff Richard Rayes (“Plaintiff”) filed his Complaint (Filing No. 1) in this
matter on August 27, 2014. Thereafter, he filed numerous motions and pleadings
supplementing the Complaint. (Filing Nos. 11, 17, 18, 19, 20, 21, 22, 24, 25, 27, and
28.) This court has given Plaintiff leave to proceed in forma pauperis in this matter.
(Filing No. 10.) The court now conducts an initial review of the Complaint to determine
whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.
I. SUMMARY OF COMPLAINT
Plaintiff is incarcerated in the Nebraska State Prison in Lincoln, Nebraska.
Plaintiff named eight Defendants in their individual and official capacities in his
Complaint and has asked leave to add numerous other Defendants. Defendants and
proposed Defendants include employees of the Nebraska Department of Correctional
Services (“NDCS”) such as prison directors, wardens, law librarians, unit managers, and
other NDCS employees.
Plaintiff set forth a litany of unrelated allegations in his Complaint and
supplemental pleadings. For example, he complained about conditions of his
confinement, such as the lighting in the control unit, the smell of sewer gas, the noise
from doors closing on the unit, the lack of programming in the prison, and his having to
share a cell. (See generally Filing Nos. 17, 19, 21, and 25.) In addition, he alleged
Defendants, in general, are violating his constitutional rights by:
requiring him to use a wiggle pen (also known as a safety pen) to draft his
forbidding him from keeping hardbound books in the control unit;
requiring him to pay ten cents per page for copies;
forbidding him from purchasing copies of cases, statutes, and
requiring him to place clerks of court and other court officers on his
family/friends list in order to contact them; and
taking his medication away from him in the control unit.
(See generally Filing No. 1.)
As relief in this matter, Plaintiff asked for, among other things, court orders
requiring Defendants to allow him to place court officers on his confidential calling list,
use a fine-point pen in the control unit, keep hardbound books in the control unit, and
access a computer from his cell. In addition, Plaintiff asked the court to order
Defendants to install computers in the cells, retrofit the doors in the prison so they are
quieter, ban instruments in the prison, and ban the dog training program. (See generally
Filing Nos. 17, 19, 21, and 25.)
II. APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine whether
summary dismissal is appropriate. See 28 U.S.C. § 1915(e)(2). The court must dismiss
a complaint or any portion thereof 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).
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”
for failing to state a claim upon which relief can be granted. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (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.”). Regardless of whether a plaintiff is represented or is appearing pro se, the
plaintiff’s complaint must allege specific facts sufficient to state a claim. See Martin v.
Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). However, a pro se plaintiff’s allegations
must be construed liberally. Burke v. North Dakota Dep’t of Corr. & Rehab., 294 F.3d
1043, 1043-44 (8th Cir. 2002) (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.
III. DISCUSSION OF CLAIMS
Plaintiff may not use this one lawsuit as a forum to challenge every condition of
confinement that causes him grief. On the court’s own motion, Plaintiff will be provided
with an opportunity to file an amended complaint that sets forth only clearly related
claims that stem from the same basic event or occurrence. Plaintiff should keep the
following discussion in mind when drafting his amended complaint.
Rules of Pleading
Plaintiff named eight individuals as Defendants and has asked for leave to add
numerous others. Most of these individuals are never mentioned within Plaintiff’s
factual allegations. Rather, their names are strewn throughout the hundreds of pages of
pleadings and documents Plaintiff has filed in this matter. Apparently, Plaintiff expects
the court and Defendants to sort through his numerous filings to determine what
allegations, if any, relate to each Defendant. The court will not undertake such a task.
“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)). Here, Plaintiff’s allegations do not give Defendants fair
notice of the claims against them. In order to ensure a just and fair resolution of this
matter, Plaintiff should be mindful to explain in his amended complaint what each
defendant did to him, when the defendant did it, and how the defendant’s actions harmed
Rules of Joinder
Federal Rule of Civil Procedure 20 states that multiple defendants may be joined
in the same action only if “any right to relief is asserted against them jointly, severally,
or in the alternative with respect to or arising out of the same transaction, occurrence,
or series of transactions or occurrences.” Fed. R. Civ. P. 20(a)(2)(A) (emphasis added).
In addition, there must be a “question of law or fact common to all defendants” in the
action. Fed. R. Civ. P. 20(a)(2)(B). Under Federal Rule of Civil Procedure 21, the
proper remedy for improper joinder of parties is for the court to “drop a party” or “sever
any claim against the party.” Fed. R. Civ. P. 21. The court may do so “[o]n motion or
on its own.” Id.
Here, allowing this case to proceed against all named Defendants and proposed
Defendants—many of which are sued based on unrelated events—would create a
significant case management problem and unduly prejudice Defendants. Thus, Plaintiff
will be required to file an amended complaint that sets forth only related claims that stem
from the same basic event or occurrence. Plaintiff is warned that upon screening the
amended complaint, the court will consider whether unrelated claims should be severed.
If Plaintiff’s amended complaint sets forth unrelated claims, and the court decides
severance is appropriate, Plaintiff will be required to prosecute unrelated claims in
separate actions and he will be required to pay a separate filing fee for each
IV. PENDING MOTIONS
Motions for Extension and to Supplement Complaint
Plaintiff has filed two motions seeking extensions of time and a motion to
supplement the record. (Filing Nos. 11, 19, and 22.) In light of the court’s order
directing Plaintiff to file an amended complaint, Plaintiff’s motions seeking extensions
of time and to supplement the record will be denied as moot.
Motion for Preliminary Injunction
Plaintiff seeks an order from the court immediately requiring Defendants to (1)
allow prisoners to purchase copies of “all Law”; (2) “cease and desist making the
receiving party of a non-collect telephone call push a button to receive call”; (3) allow
prisoners to contact “Attorneys, Court Officials and Government Public Officials” using
toll-free numbers; and (4) take prisoners housed in the control unit to the law library for
one hour per week. (Filing No. 18 at CM/ECF p. 20.)
The standards set forth in Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109 (8th
Cir. 1981), apply to Plaintiff’s requests for preliminary injunctive relief. In Dataphase,
the court, sitting en banc, clarified the factors district courts should consider when
determining whether to grant a motion for preliminary injunctive relief:
(1) the threat of irreparable harm to the movant; (2) the state of balance
between this harm and the injury that granting the injunction will inflict on
other parties litigant; (3) the probability that movant will succeed on the
merits; and (4) the public interest.
Id. at 113. “No single factor in itself is dispositive; rather, each factor must be
considered to determine whether the balance of equities weighs toward granting the
injunction.” United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir. 1998).
“At base, the question is whether the balance of equities so favors the movant that justice
requires the court to intervene to preserve the status quo until the merits are determined.”
Dataphase, 640 F.2d at 113.
Here, the Dataphase factors do not favor Plaintiff to a degree sufficient to warrant
issuance of preliminary injunctive relief. As set forth above, in order for this case to
proceed, Plaintiff must file an amended complaint. As drafted, the Complaint and the
supplements do not indicate any probability that Plaintiff will succeed on the merits of
his claims. Thus, the court sees no reason to intervene prior to the merits of Plaintiff’s
claims being decided.
Motion to Hold Clerk in Contempt
Plaintiff asks the court to hold the clerk of court in contempt because she failed
to provide him “a copy of the court file.” (Filing No. 27.) Here, the court notes that it
denied Plaintiff’s request for free copies of the court file on November 19, 2014. (See
text-only order at Filing No. 26; see also Filing No. 10 (denying Plaintiff’s request for
the return of his original documents because Plaintiff did not comply with local rules
pertaining to such requests).)
As Plaintiff has already been informed, he does not have the right to receive
copies of documents without payment, even if the court granted him leave to proceed in
forma pauperis. See 28 U.S.C. § 1915(a)(1) (providing that a court may authorize the
commencement of a suit “without prepayment of fees or security therefor”) (emphasis
added); see also Guinn v. Heckler, 43 F.3d 1483 (Table), 1994 WL 702684 (10th Cir.
1994) (“Plaintiff’s principal error, however, is his apparent belief that an order granting
leave to proceed in forma pauperis, without the payment of the ‘fees and costs’
referenced in 28 U.S.C. § 1915(a), includes the right to have free copies of any
documents in the record the indigent party desires. It does not.”).
Although Plaintiff is not entitled to free copies of particular docket entries, the
court will direct the clerk’s office to forward to him a copy of the docket sheet itself to
facilitate his communication with the clerk’s office in requesting copies of particular
IT IS THEREFORE ORDERED that:
Plaintiff shall have 30 days from the date of this Memorandum and Order
to file an amended complaint. As set forth above, Plaintiff’s amended complaint must:
explain what each defendant did to him, when the defendant did it,
and how the defendant’s actions harmed him; and
sets forth only related claims that stem from the same basic event or
In addition, Plaintiff is again warned that if his amended complaint sets forth
unrelated claims, and the court decides severance of the claims is appropriate, Plaintiff
will be required to prosecute unrelated claims in separate actions and he will be
required to pay a separate filing fee for each separate action.
The clerk’s office is directed to set a pro se case management deadline in
this case using the following text: January 9, 2015: Check for amended complaint.
Plaintiff’s requests for extensions of time and to supplement his pleadings
(Filing Nos. 11, 19, and 22) are denied as moot.
Plaintiff’s request for preliminary injunctive relief (Filing No. 18) is denied
Plaintiff’s request that this court hold the clerk of court in contempt (Filing
No. 27) is denied.
The clerk’s office is directed to send to Plaintiff a copy of the docket sheet
in this matter.
DATED this 9th day of December, 2014.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge
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