Muhammad v. Tecumseh State Corrections et al

Filing 15

MEMORANDUM AND ORDER - This matter may proceed to service of process as to the plaintiff's Eighth Amendment claim against Scott Busboom in his individual capacity. The clerk of the court is directed to send to the plaintiff (a) a copy of the S econd Amended Complaint, (b) a copy of this Memorandum and Order, (c) a Summons Form, and (d) a USM 285 Form for service on Scoot Busboom in his individual capacity. If requested to do so in this matter, the United States Marshal will serve all pro cess in this case without prepayment of fees from the plaintiff. (See attached Notice Regarding Service.) ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 9/28/2016: check for completion of service of process.) Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party as directed)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
IMAN MUHAMMAD,
Plaintiff,
v.
SCOTT BUSBOOM,
Defendant.

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4:15CV3136

MEMORANDUM
AND ORDER

On April 29, 2016, the court entered an order in which the plaintiff, Iman
Muhammed, formerly known as Daryle M. Duncan, was directed to file a second
amended complaint that states a claim for relief against the defendant, Scott Busboom,
in his individual capacity (Filing No.13). A second amended complaint was received
and docketed by the clerk of the court on May 12, 2016 (Filing No. 14).
The second amended complaint will be considered as supplemental to, rather
than as superseding, the plaintiff’s first amended complaint (Filing No. 12). See
NECivR 15.1. The first amended complaint will also be considered as supplemental
to the original complaint (Filing No. 1), except that all claims alleged against the
Tecumseh State Correctional Institution (“TSCI”), TSCI’s Medical Department, or
Scott Busboom in his official capacity as Associate Warden at TSCI, are deemed to
have been withdrawn by the plaintiff with the filing of the first amended complaint.
I. SUMMARY OF SECOND AMENDED COMPLAINT
The plaintiff alleges that while incarcerated at TSCI, he was sexually harassed
and assaulted by two female staff members for a period of two years, as a result of
which he requires mental health counseling and medication. The plaintiff indicates he
did not report the acts because of intimidation, but alleges the defendant was aware

that these staff members had engaged in inappropriate contact with other inmates and
had not intervened.
II. 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. 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 other parties.” Id. at 849.
III. DISCUSSION
An Eighth Amendment claim for failure to protect is comprised of two
elements. First, an “inmate must show that he is incarcerated under conditions posing
a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1994).
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Second, the inmate must establish that the defendant prison official recklessly
disregarded that risk. Jackson v. Everett, 140 F.3d 1149, 1151 (8th Cir. 1998). In other
words, the prison official must be deliberately indifferent to an inmate’s safety.
Farmer, 511 U.S. at 834.
“[B]ecause the sexual harassment or abuse of an inmate by a corrections officer
can never serve a legitimate penological purpose and may well result in severe
physical and psychological harm, such abuse can, in certain circumstances, constitute
the ‘unnecessary and wanton infliction of pain’ forbidden by the Eighth Amendment.”
Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997) (internal quotation and citations
omitted). “To prevail on a constitutional claim of sexual harassment, an inmate must
therefore prove, as an objective matter, that the alleged abuse or harassment caused
‘pain’ and, as a subjective matter, that the officer in question acted with a sufficiently
culpable state of mind. Id. “[W]elcome and voluntary sexual interactions, no matter
how inappropriate, cannot as matter of law constitute ‘pain’ as contemplated by the
Eighth Amendment. Id. at 1339 (holding that prisoner who entered into consensual
relationship with guard had not established the existence of the objective component
of a cause of action under the Eighth Amendment).
The plaintiff was directed to file a second amended complaint because he had
failed to allege any facts to show that his sexual contact with the two female TSCI
staff members caused him “pain” as contemplated by the Eighth Amendment.
Liberally construed, the second amended complaint cures this pleading deficiency and
states a claim upon which relief can be granted against the defendant Scott Busboom
in his individual capacity.
IT IS THEREFORE ORDERED that:
1.
This matter may proceed to service of process as to the plaintiff’s Eighth
Amendment claim against Scott Busboom in his individual capacity.

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2.
The clerk of the court is directed to send to the plaintiff (a) a copy of
the Second Amended Complaint, (b) a copy of this Memorandum and Order, (c) a
Summons Form, and (d) a USM 285 Form for service on Scoot Busboom in his
individual capacity. (See attached Notice Regarding Service.)
Federal Rule of Civil Procedure 4(m) requires service of the complaint on a
defendant within 90 days of filing the complaint. However, the 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. (See this court’s General Order No. 2015-06.)
3.
If requested to do so in this matter, the United States Marshal will serve
all process in this case without prepayment of fees from the plaintiff. In making such
a request, the plaintiff must complete the USM 285 Form to be submitted to the clerk
of the court with the completed Summons Form. 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 Form and forward it to the United States Marshal
for service on the defendant, together with a copy of the Second Amended Complaint.
4.
The clerk of the court is directed to set the following pro se case
management deadline: September 28, 2016: check for completion of service of
process.
DATED this 31st day of May, 2016.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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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).
In this case, Rule 4(e) means copies of the summons and complaint must be served on
the defendants individually.
You may ask the United States Marshal to serve process, as described in the court’s
order, because you are proceeding in forma pauperis.

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