Rayes v. Houston et al

Filing 35

MEMORANDUM AND ORDER that plaintiff's claims against Frank Hopkins, Diane Sabatka-Rine, Michael Edison, and Dennis Bakewell are dismissed without prejudice. This action may proceed to service of process as to Plaintiff's claims agai nst Robert Houston, Michael Kenney, Larry Wayne, Samuel Shaw, Lannette Griffin-Mack, and Holly Rohde, in their individual and official capacities. The clerk of the court is directed to send to Plaintiff a copy of the Complaint and Amended Complai nt, a copy of this Memorandum and Order, and 12 summons forms and 12 USM 285 Forms for service on Houston, Kenney, Wayne, Shaw, Griffin-Mack, and Rohde in their individual and official capacities. Upon receipt of the completed forms, the clerk of t he court will sign the summons forms and forward them to the Marshal for service on Defendants, together with copies of the Complaint and Amended Complaint. In the event Plaintiff asks the United States Marshal to serve process, the clerk of the c ourt will make copies of the Complaint and Amended Complaint for service on Defendants. The clerk of the court is directed to set the following pro se case management deadline: August 5, 2015: check for completion of service. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party with forms as directed) (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RICHARD RAYES,

)
)
Plaintiff,
)
)
v.
)
)
ROBERT HOUSTON, MICHAEL
)
KENNEY, LARRY WAYNE,
)
FRANK HOPKINS, DIANE
)
SABATKA-RINE, SAMUAL SHAW, )
MICHAEL EDISON, and DENNIS
)
BAKEWELL,
)
)
Defendants.
)

4:14CV3177

MEMORANDUM
AND ORDER

Plaintiff filed a Complaint (Filing No. 1) on August 27, 2014, and an Amended
Complaint (Filing No. 33) on January 15, 2015. The court considers Plaintiff’s
Amended Complaint as supplemental to his Complaint. See NECivR 15.1(b) (stating
the court may consider an amended pleading as supplemental to the original pleading
in pro se cases).
Plaintiff is proceeding in forma pauperis in this matter. The court now conducts
an initial review of Plaintiff’s Complaint and Amended Complaint to determine whether
summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.
I. BACKGROUND
Plaintiff is currently incarcerated at the Nebraska State Prison (“NSP”) in
Lincoln, Nebraska. In this action he sues numerous current and former employees of
the Nebraska Department of Correctional Services (“NDCS”), and he challenges the
constitutionality of various prison regulations under 42 U.S.C. § 1983 and state law.

Plaintiff filed his original Complaint (Filing No. 1) 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.) On December 9, 2014, the
court conducted a preliminary review of Plaintiff’s pleadings (Filing No. 30), and noted
Plaintiff had set forth a litany of unrelated allegations in his Complaint and
supplemental pleadings. The court ordered Plaintiff to file an amended complaint that
set forth only clearly related claims that stemmed from the same basic events or
occurrences.
Plaintiff filed his Amended Complaint (Filing No. 33) on January 15, 2015. In
Plaintiff’s Amended Complaint, he “retract[ed]” the numerous supplemental motions
and pleadings (see Filing No. 33 at CM/ECF p. 10), and elected to prosecute the action
against the individuals named in the original Complaint (Robert Houston, Michael
Kenney, Larry Wayne, Frank Hopkins, Diane Sabatka-Rine, Samual Shaw, Michael
Edison, and Dennis Bakewell), and also two additional individuals (Holly Rohde and
Lannette Griffin-Mack) (see id. at CM/ECF p. 11).
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,
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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
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
Plaintiff challenges the constitutionality of various prison regulations at the NSP.
According to Plaintiff, these regulations are impeding his ability to access the courts.
Plaintiff generally alleged current and former prison directors are responsible for
creating the regulations at issue, including Robert Houston and Michael Kenney, and
others (discussed below) are responsible for enforcing the regulations. (See Filing No.
1 at CM/ECF p. 2.)
In Lewis v. Casey, 518 U.S. 343, 351 (1996), quoting Bounds v. Smith, 430 U.S.
817, 825 (1977), the Supreme Court confirmed that inmates have a constitutional right
of access to the courts that obligates prison officials to provide some means, such as a
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prison law library or a legal assistance program, “for ensuring ‘a reasonably adequate
opportunity to present claimed violations of fundamental constitutional rights to the
courts.’” The “right to meaningful access to the courts ensures that prison officials may
not erect unreasonable barriers to prevent prisoners from pursuing or defending all types
of legal matters.” Schrier v. Halford, 60 F.3d 1309, 1313 (8th Cir. 1995). However,
prisons may impose some “barriers” that impair the right of access to the courts when
the reason for doing so is reasonably related to legitimate penological interests. Lewis,
518 U.S. at 361.
While “prisoners have a constitutional right of access to the courts,” Bounds, 430
U.S. at 821, the right is only violated if the prisoner has suffered an “actual injury” by
way of an official action that hindered his or her pursuit of a “nonfrivolous” or
“arguable” underlying legal claim. Lewis, 518 U.S. at 353 & 353 n. 3. “To prove
actual injury, [Plaintiff] must ‘demonstrate that a nonfrivolous legal claim had been
frustrated or was being impeded.’” Hartsfield v. Nichols, 511 F.3d 826, 832 (8th Cir.
2008) (citation omitted).
Five regulations appear to be at issue here. It appears from Plaintiff’s allegations
that these regulations apply to all prisoners incarcerated at the NSP, but the court will
only discuss the regulations as they pertain to him. First, Plaintiff complains he is not
allowed to keep hardbound books in the control unit. (Filing No. 1 at CM/ECF p. 3.)
Specifically, he is denied access to his Black’s Law Dictionary, English Dictionary, and
a legal journal in which he keeps “case cites.” (Id.)
Second, he is not allowed to purchase or possess carbon paper, which limits his
ability to produce copies of legal pleadings. (Id.) Plaintiff claims the purpose of the
ban is so that prison officials “can bleed [inmates] at ten cents a page for copies [they]
need to petition the Courts.” (Id.)

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Third, he is not allowed to make or purchase copies of case law, statutory law,
operational memoranda, or administrative regulations without a court order. (Filing No.
1 at CM/ECF p. 4; Filing No. 33 at CM/ECF pp. 2, 6-7, and 9.) Defendant Larry
Wayne, a deputy warden with the NDCS, implemented this regulation, and it has been
enforced by former prison librarian Samuel Shaw and current prison librarian Lannette
Griffin-Mack. (Id. at CM/ECF pp. 6-7.) This policy has impeded Plaintiff’s ability to
litigate claims in Case Number 4:14cv3158. (Id. at CM/ECF p. 2.) In addition, because
of the ban on copies of administrative regulations, Plaintiff is unable to send a copy of
the regulation on the “restoration of good time” to his senator, a step he believes is
necessary to encourage him “to change enacted legislation.” (Filing No. 1 at CM/ECF
p. 4.) Plaintiff also alleged administrative regulations are kept in locked cages in the
law library. Because prisoners are not allowed to photocopy the administrative
regulations, they are often stolen by inmates and therefore not available for review.
(Id.)
Griffin-Mack has extended the ban on copies to include a ban on making copies
of interview request forms and grievances. (Filing No. 33 at CM/ECF p. 7.) This
policy prevented Plaintiff from submitting copies of grievances when he submitted his
Complaint in this case.
Fourth, because he is housed in the control unit, he is not allowed to go to the law
library. (Id. at CM/ECF p. 5.) Instead, he must conduct legal research via a computer
in something he refers to as “the bullpen,” which is an area of the control unit where all
traffic to and from the unit passes. (Filing No. 33 at CM/ECF pp. 4-5.) He is only
allowed very limited access to this legal research computer for one hour per week. (Id.
at CM/ECF pp. 3-5.) In addition, the computer monitor is behind three to four one-inch
thick steel bars, which impairs Plaintiff’s ability to read materials appearing on the
computer screen. (Id. at CM/ECF p. 3.)

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Separately, on at least one occasion, a prison guard informed Plaintiff that he
could use the computer only if he agreed to be shackled to the bullpen bars. (Id. at
CM/ECF p. 6.) According to Plaintiff, being shackled while using the computer in the
bullpen is a threat to his safety. Specifically, Plaintiff alleged:
It is easily possible for a guard to open the bullpen to other prisoners and
does happen. I would be stupid and not care of my personal safty to let
myself be shakled hand and foot subjecting myself to a possible beat to
death without being able to defend myself in any mannor because I wanted
to use the Law Library Computer as provided. This is not fair to Risk my
life because I need to research Law to Brief by ideas from suppositions to
case citation facts. Who would “not like” to feel, as a goat tied/staked
awaiting the tigers bite.
(Id. at CM/ECF p. 6.)
Fifth, Plaintiff is not allowed to place clerks of court and other officers of the
court on his “legal outgoing call” list. Rather, policy provides that he must place them
on his “Family/Friends List,” which he can only do if he knows their first and last
names. (Filing No. 1 at CM/ECF p. 5.) According to Plaintiff, this policy is an overt
attempt to obstruct prisoners’ access to the courts. Plaintiff generally alleges this policy
resulted in the dismissal of three civil state court cases. Plaintiff alleged the prison
policy is enforced by Holly Rohde, the inmate calling system administrator. (Filing No.
33 at CM/ECF p. 8.)
In addition to these five regulations, Plaintiff also challenged a regulation that
requires prisoners to use only a “wiggle pen” when housed in the control unit. (See
Filing No. 1 at CM/ECF pp. 2-3.) Plaintiff abandoned his challenge to this regulation
in his Amended Complaint. (See Filing No. 33 at CM/ECF p. 10.)
As set forth above, Plaintiff challenges the constitutionality of various prison
regulations at the NSP in Lincoln, Nebraska. He pled that these regulations are
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impeding his ability to litigate cases, and also impeding his ability to petition his senator
for changes to statutory law. He lodged his allegations against Defendants Houston,
Kenney, Wayne, Shaw, Griffin-Mack, and Rohde.1 At this stage in the proceedings, the
court finds Plaintiff has stated plausible claims for relief against these Defendants in
their official and individual capacities. The court cautions Plaintiff that this is only a
preliminary determination based on the allegations in the Complaint and Amended
Complaint and is not a determination of the merits of the pleadings or any defenses that
may be raised in response to the pleadings.
Plaintiff’s claims against Frank Hopkins, Diane Sabatka-Rine, Michael Edison,
and Dennis Bakewell will be dismissed without prejudice because Plaintiff failed to
allege any specific acts or conduct on their parts. See Krych v. Hvass, 83 Fed.Appx.
854, 855 (8th Cir. 2003) (holding court properly dismissed claims against defendants
where pro se complaint was silent as to the defendants except for their names appearing
in the caption).
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s claims against Frank Hopkins, Diane Sabatka-Rine, Michael
Edison, and Dennis Bakewell are dismissed without prejudice.
2.
This action may proceed to service of process as to Plaintiff’s claims
against Robert Houston, Michael Kenney, Larry Wayne, Samuel Shaw, Lannette
Griffin-Mack, and Holly Rohde, in their individual and official capacities.
3.
The clerk of the court is directed to send to Plaintiff a copy of the
Complaint and Amended Complaint, a copy of this Memorandum and Order, and 12
1

Griffin-Mack and Rohde are not included in the captions of the Complaint or
Amended Complaint. However, it is clear from the text in the Amended Complaint that
he intended to name them as defendants. (See Filing No. 33 at CM/ECF p. 11.)
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summons forms and 12 USM 285 Forms for service on Houston, Kenney, Wayne,
Shaw, Griffin-Mack, and Rohde in their individual and official capacities. (See
attached Notice Regarding Service.)
Federal Rule of Civil Procedure 4(m) requires service of the complaint on a
defendant within 120 days of filing the complaint. However, Plaintiff is granted, on the
court’s own motion, an extension of time until 120 days from the date of this order to
complete service of process.
4.
If requested to do so in this matter, the United States Marshal will serve
all process in this case without prepayment of fees from Plaintiff. In making such a
request, Plaintiff must complete the USM 285 forms and submit them to the clerk of the
court, together with the completed summons forms. Without these documents, the
United States Marshal will not serve process. Upon receipt of the completed forms, the
clerk of the court will sign the summons forms and forward them to the Marshal for
service on Defendants, together with copies of the Complaint and Amended Complaint.
In the event Plaintiff asks the United States Marshal to serve process, the clerk of the
court will make copies of the Complaint and Amended Complaint for service on
Defendants.
5.
The clerk of the court is directed to set the following pro se case
management deadline: August 5, 2015: check for completion of service.
DATED this 14th day of April, 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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Notice Regarding Federal Rule of Civil Procedure 4
Federal Rule of Civil Procedure 4 requires that a defendant be served with the
complaint and a summons. This is to make sure that the party you are suing has notice
of the lawsuit. Federal Rule of Civil Procedure 4(e) governs service of process on an
individual (i.e., your individual capacity claims). Federal Rule of Civil Procedure 4(j)
governs service of process on a state (i.e., your official capacity claims).
In this case, Rule 4(e) and (j) mean copies of the summons and complaint must be
served on: (1) Defendants individually; and also (2) the Nebraska Attorney General’s
Office or the chief executive officer for the State of Nebraska.
You may ask the United States Marshal to serve process, as described in the court’s
order, because you are proceeding in forma pauperis.