Wabashaw v. Kenny et al

Filing 11

MEMORANDUM AND ORDER - Wabashaw's federal-law claims are dismissed with prejudice for failure to state a claim upon which relief may be granted. See 28 U.S.C. §§ 1915(e) and 1915A. Any remaining state-law claims are dismissed without prejudice. A separate judgment will be entered in accordance with this order. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ELROY L. WABASHAW,
Plaintiff,
v.
BRIAN GAGE, et al.,
Defendants.

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4:14CV3213

MEMORANDUM
AND ORDER

This matter is before the court on review of Plaintiff Elroy Wabashaw’s
(“Wabashaw”) Amended Complaint (Filing No. 10). For the reasons discussed below,
the court will dismiss Wabashaw’s federal-law claims with prejudice and his state-law
claims without prejudice.
I. BACKGROUND
The court conducted a pre-service screening of Wabashaw’s Complaint (Filing
No. 1) and Supplement (Filing No. 8) on February 18, 2015. (See Filing No. 9.) The
court determined Wabashaw had alleged retaliation claims and Eighth Amendment
failure-to-protect and deliberate-indifference claims against the defendants, but that
the allegations failed to state a claim upon which relief may be granted. On the
court’s own motion, the court gave Wabashaw 30 days in which to file an amended
complaint.
Wabashaw filed his Amended Complaint (Filing No. 10) on March 18, 2015.
His allegations were similar to those raised in his Complaint and Supplement, but he
provided additional facts for the courts review. He alleged that on March 16, 2014,
he filed a grievance with prison officials complaining about the general treatment of
prisoners housed in the special management unit. (Id. at CM/ECF pp. 5, 10.) Months
later, on June 4, 2014, an inmate from a different housing unit bypassed “two secured

doors, a control room officer, [and] pod caseworkers undetected” and assaulted
Wabashaw. (Id. at CM/ECF p. 5.) Wabashaw alleged Defendant Horn was in charge
of controlling the pod doors at the time of the assault, and Defendants Stranberg and
Zweig “were in charge of unit pod floor operations” at the time of the assault. (Id. at
CM/ECF p. 6.) Wabashaw alleged he suffered from the following clearly-observable
injuries: “fractured hand; broken left front tooth; light concussion; deep bruise to leftside of face; lower jaw; [and] chemical burns.” (Id.) Wabashaw alleged he waited
nine days to receive “adequate medical attention.” (Id.)
Finally, Wabashaw alleged that on July 18, 2014, prison officials (specifically,
Defendants Capps and Halley) forced him into protective custody against his will.
(Id.) At the time he filed his Amended Complaint, Wabashaw remained in protective
custody. He alleged prison officials offered him “no credible documents” to support
their decision to place him in protective custody. (Id.)
II. APPLICABLE 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

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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
A.

Retaliation Claims

The first question the court will consider is whether Wabashaw alleged a
retaliation claim against one or more defendants upon which relief may be granted.
To establish a § 1983 claim for retaliation in violation of the First Amendment, a
plaintiff must allege:
(1) that it engaged in a protected activity, (2) that the defendants
responded with adverse action that would chill a person of ordinary
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firmness from continuing in the activity, and (3) that the adverse action
was motivated at least in part by the exercise of the protected activity.
L.L. Nelson Enterprise Inc. v. Cnty. of St. Louis, Mo., 673 F.3d 799, 807-8 (8th Cir.
2012) (internal quotation marks omitted).
Wabashaw alleged Defendants Capps and Halley “retaliated against” him by
taking steps to place him in protective custody against his will. Although not alleged
in the Amended Complaint, Wabashaw allegations in his Supplement suggest that the
retaliation was in response to Wabashaw’s grievance concerning the treatment of
inmates in the special management unit. (Filing No. 8 at CM/ECF pp. 3-4.)
Wabashaw did not allege any facts that would allow the court to draw the
reasonable inference that any defendant responded to Wabashaw’s filing of a
grievance in March of 2014 by placing him in protective custody in July of 2014.
Accordingly, the court finds Wabashaw has failed to state a retaliation claim upon
which relief may be granted against Capps and Halley for their actions in placing him
in protective custody. Separately, to the extent Wabashaw complains he is being held
in protective custody against his will, he has not alleged facts suggesting he suffered
the kind of “atypical and significant” hardship that would trigger the protection of the
Due Process Clause See Sanders v. Norris, 153 Fed. Appx. 403, 404 (8th Cir. 2005);
Hartsfield v. Dep’t of Corr., 107 Fed. Appx. 695, 696 (8th Cir. 2004) (unpublished per
curiam decision) (stating that inmates have “no liberty interest in a particular
classification”). In addition, his allegations reflect he was notified of the prison’s
decision to place him in protective custody and he was given the opportunity to appeal
the decision. See Griggs v. Norris, 297 Fed App’x 553, 555 (8th Cir. 2008)
(concluding due process requirements met where inmate was given notice of his
classification placement, reasons for his placement, and an opportunity to appeal the
decision).
B.

Failure to Protect
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The second question the court will consider is whether Wabashaw sufficiently
alleged an Eighth Amendment failure-to-protect claim in his Amended Complaint.
The Eighth Amendment imposes a duty on prison officials “‘to protect prisoners from
violence at the hands of other prisoners.’” Prater v. Dahm, 89 F.3d 538, 541 (8th Cir.
1996) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)). However, not “every
injury suffered by one prisoner at the hands of another” translates “into constitutional
liability for prison officials.” Id. Rather, “[t]he duty to protect requires only that
prison officials take reasonable measures to abate substantial risks of serious harm,
of which the officials are aware.” Id. (internal quotation marks omitted) (emphasis
added). Therefore, a constitutional violation exists only if two factors are established:
(1) “an objectively serious deprivation,” and (2) “a subjectively culpable state of
mind” on the part of prison officials. Id.
Wabashaw alleged in the Amended Complaint that an inmate from a different
housing unit bypassed “two secured doors, a control room officer, [and] pod
caseworkers undetected” and assaulted Wabashaw. (Filing No. 10 at CM/ECF p. 5.)
Wabashaw alleged Defendant Horn was in charge of controlling the pod doors at the
time of the assault, and Defendants Stranberg and Zweig “were in charge of unit pod
floor operations” at the time of the assault. (Id. at CM/ECF p. 6.) Wabashaw
generally alleged conditions of overcrowding within the prison led to his assailant’s
ability to bypass doors to assault Wabashaw.
Wabashaw’s allegations are insufficient to state a claim against Stranberg,
Zweig, and Horn because there are no facts from which an inference could be made
that they knew of, and responded unreasonably to, a substantial risk of serious harm
from another inmate. Essentially, Wabashaw alleged only that these individuals were
in charge at the relevant time, not that they knew of, but disregarded, an excessive risk
to him. In addition, Wabashaw’s conclusory allegations of overcrowding are too
vague and general to support a conclusion that overcrowding at the TSP led to his
assault.
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C.

Deliberate Indifference

The final question the court will consider is whether Wabashaw sufficiently
alleged an Eighth Amendment deliberate-indifference claim in his Amended
Complaint. A prison official’s deliberate indifference to a prisoner’s serious medical
needs constitutes cruel and unusual punishment in violation of the Eighth
Amendment. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). A plaintiff must show
“prison officials actually knew of but deliberately disregarded” the prisoner’s
objectively serious medical needs. Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th
Cir.1997). To state a claim of inadequate medical treatment for purposes of § 1983,
“‘a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs.’” Alberson v. Norris, 458 F.3d 762, 765 (8th
Cir. 2006) (quoting Estelle, 429 U.S. at 106)). “The plaintiff ‘must show more than
negligence, more even than gross negligence, and mere disagreement with treatment
decisions does not rise to the level of a constitutional violation.’” Id. (quoting Estate
of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir.1995)).
Wabashaw alleged he suffered the following clearly-observable injuries as
result of the assault: “fractured hand; broken left front tooth; light concussion; deep
bruise to left-side of face; lower jaw; [and] chemical burns.” (Filing No. 10 at
CM/ECF p. 6.) He alleged Defendants Tremain, Theimann, and Lanlez ignored his
“obvious physical injuries.” (Id. at CM/ECF p. 8.) He also alleged he waited nine
days to receive “adequate medical attention.” (Id. at CM/ECF p. 6.)
Wabashaw did not set forth facts from which the inference could be made that
Tremain, Theimann, and Lanlez knew Plaintiff had serious injuries and they failed to
seek medical attention. Wabashaw did not, for example, allege he informed Tremain,
Theimann, and Lanlez that he was in pain and needed medial attention. In addition,
he did not allege facts suggesting his injuries were so obviously serious that a
layperson would easily recognize the need for immediate medical attention. See Jones
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v. Minn. Dep’t of Corr., 512 F.3d 478, 481-83 (8th Cir. 2008) (objectively serious
medical need either is something diagnosed by physician as requiring treatment, or is
so obvious that layperson would easily recognize need for doctor attention; injury is
considered obvious where prisoner exhibited physical symptoms relating to known
medical issues or complaints of pain; prison official’s knowledge may be inferred by
circumstantial evidence or fact that risk was obvious). Moreover, Wabashaw did not
allege that he requested medical attention and his request was denied. Rather, he
alleged that he did not receive what he considered to be “adequate medical attention”
(emphasis added) until nine days following the assault. These allegations are
insufficient to state an Eighth Amendment claim upon which relief may be granted.
D.

State-Law Claims

The court declines to exercise supplemental jurisdiction over any remaining
state-law claims because it will dismiss all claims over which it has original
jurisdiction. See 28 U.S.C. § 1367(c)(3).
IT IS THEREFORE ORDERED that:
1.
Wabashaw’s federal-law claims are dismissed with prejudice for failure
to state a claim upon which relief may be granted. See 28 U.S.C. §§ 1915(e) and
1915A. Any remaining state-law claims are dismissed without prejudice.
2.

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

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DATED this 3rd day of August, 2015.
BY THE COURT:
s/ John M. Gerrard
United States District Judge

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