Shepard v. State of Nebraska et al

Filing 6

MEMORANDUM AND ORDER that the case is dismissed without prejudice.The court will enter judgment by a separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GEORGE SHEPARD,
Plaintiff,
v.
STATE OF NEBRASKA,
NEBRASKA DEPARTMENT OF
CORRECTIONAL SERVICES,
HAROLD CLARKE, ROBERT
HOUSTON, MIKE KENNEY, and
SCOTT FRAKES, in their official
and individual capacities,
Defendants.

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4:16CV3038

MEMORANDUM
AND ORDER

Plaintiff, George Shepard (“Shepard”), filed this case on March 17, 2016.
He has been granted leave to proceed in forma pauperis. The court now conducts an
initial review of Shepard’s complaint to determine whether summary dismissal is
appropriate under 28 U.S.C. §§ 1915(e)(2).
I. SUMMARY OF COMPLAINT
Shepard alleges that on July 11, 1990, he was sentenced to a term of 41 to 50
years imprisonment in the Nebraska Department of Corrections for first degree sexual
assault on a child and manufacturing child pornography; that the sentencing court
made a finding that Shepard was not a mentally disordered sex offender, or that even
if he were, he was not treatable1; that on July 20, 1990, Shepard entered the Diagnostic
1

“Prior to 1992, Nebraska defined a ‘mentally disordered sex offender’ as ‘any person who
has a mental disorder and who, because of the mental disorder, has been determined to be disposed
to repeated commission of sexual offenses which are likely to cause substantial injury to the health
of others.’ If an offender met this definition at the time of sentencing and it was determined that the

and Evaluation Center; that in October 1990, Shepard was transferred to the Lincoln
Correctional Center (“LCC”), where he was sexually assaulted; that after informing
staff of the assault, Shepard was placed in protective custody for 60 days, during
which time he was in “locked down” 23 hours a day and harassed by staff; that in
January 1991, Shepard was transferred back to LCC Unit A; that 6 months later,
Shepard was transferred to LCC Unit C, where a cell mate sexually harassed him
daily; that Shepard asked to be moved, but nothing was done for 6-9 months, during
which time he was sexually assaulted by the cell mate; that Shepard was also
physically assaulted several times over the next 2 years before being transferred to the
Nebraska State Penitentiary (“NSP”) in April 1994; that while at NSP, Shepard was
placed in solitary confinement for 9 months for possessing a weapon that another
inmate later admitted had been planted; that after being released from solitary
confinement, Shepard was transferred to Unit 8A, where he was robbed; that in
January 2002, Shepard was transferred to the Tecumseh State Correctional Institution,
where he was placed in cell with a mentally ill person who tried to commit suicide;
that in February 2004, Shepard was moved to the Omaha Correctional Center
(“OCC”), where he shared cells with several mentally persons and was sexually
harassed, assaulted in 2006, and robbed in 2015; that a psychologist who evaluated
Shepard in April 2015 concluded that Shepard is a dangerous sex offender,2 with a
diagnosis of pedophilia and personality disorders, and recommended that he receive
inpatient treatment after being released from incarceration; and that after Shepard was

disorder was treatable, the offender was immediately committed to a regional center for treatment
before serving a sentence of incarceration. After receiving the maximum benefit of treatment, the
offender was returned for further disposition by the sentencing court, with credit given for time spent
in treatment.” In re Interest of D.H., 797 N.W.2d 263, 269-70 (Neb. 2011) (footnotes omitted).
2

As used in Nebraska’s Sex Offender Commitment Act, a “dangerous sex offender” is “(a)
a person who suffers from a mental illness which makes the person likely to engage in repeat acts
of sexual violence, who has been convicted of one or more sex offenses, and who is substantially
unable to control his or her criminal behavior or (b) a person with a personality disorder which
makes the person likely to engage in repeat acts of sexual violence, who has been convicted of two
or more sex offenses, and who is substantially unable to control his or her criminal behavior.” Neb.
Rev. Stat. § 83–174.01(1).

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discharged from OCC on May 4, 2015, having completed serving his sentence, he was
involuntarily committed to the Norfolk Regional Center, where he is currently being
held (Filing No. 1 at CM/ECF pp. 1-5).
Named as Defendants are the State of Nebraska, the Nebraska Department of
Correctional Services (“DCS”), and the current and three former Directors of the
DCS, who are sued in their official and individual capacities. Shepard “claims that he
has been injured by the Defendants, due to their deliberate indifference by failing to
maintain a safe environment for purposes of rehabilitation; that the Defendants
derelict[ion] of duties violated [his] constitutional and civil rights of cruel and unusual
punishment in how [he] was treated and the environment where he was forced to
survive in by the Defendants caused [his] mental illness” (id. at CM/ECF p. 5). He
seeks to recover money damages from the individual defendants and to require the
Department of Corrections and the State of Nebraska to pay for his treatment at the
Norfolk Regional Center (id. at CM/ECF pp. 5-6).
II. 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). 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).
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
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‘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).
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. ANALYSIS
Liberally construed, Shepard’s complaint alleges an Eighth Amendment claim
for defendants’ failure to protect his safety during incarceration. Such a claim is
comprised of two elements. First, Shepard “must show that he [was] incarcerated
under conditions posing a substantial risk of serious harm.” Farmer v. Brennan, 511
U.S. 825, 834 (1994). Second, Shepard must establish that the defendant prison
officials recklessly disregarded that risk. Jackson v. Everett, 140 F.3d 1149, 1151 (8th
Cir. 1998). In other words, the prison official must have been deliberately indifferent
to Shepard’s safety. Farmer, 511 U.S. at 834.
No facts are alleged to show that any of the defendant DCS Directors had any
knowledge concerning the conditions about which Shepard complains. “Deliberate
indifference requires a showing that the official knew the risk existed, but disregarded
it.” Spruce v. Sargent, 149 F.3d 783, 785 (8th Cir. 1998). “[A] general responsibility
for supervising the operations of a prison is insufficient to establish the personal
involvement required to support liability.” Camberos v. Branstad, 73 F.3d 174, 176
(8th Cir. 1995).
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Also, Shepard is complaining about a series of unrelated injuries that allegedly
occurred over a period of 25 years at four different correctional facilities. Although
the statute of limitations is affirmative defense, a district court may properly dismiss
an in forma pauperis complaint before service when it is apparent from face of
complaint that statute of limitations has run.” Myers v. Vogal, 960 F.2d 750, 751 (8th
Cir.1992).
The statute of limitations for 42 U.S.C. § 1983 actions is governed by the
limitations period for personal injury cases in the state in which the cause of action
arose. Wallace v. Kato, 549 U .S. 384, 387 (2007). In Nebraska, § 1983 actions are
limited by a four-year statute of limitations. See Montin v. Estate of Johnson, 636 F.3d
409, 412-13 (8th Cir. 2011); Neb. Rev. Stat. § 25-207. Although state law establishes
the statute of limitations for § 1983 actions, federal law controls on the issue of when
the statute of limitations begins to run. Wallace, 549 U.S. at 388; Montin, 636 F.3d at
413. The standard rule is that accrual occurs when the plaintiff has a complete and
present cause of action, that is, when the plaintiff can file suit and obtain relief.
Wallace, 549 U.S. at 388. Under that rule, the tort cause of action accrues, and the
statute of limitations commences to run, when the plaintiff knew or should have
known of the injury that forms the basis of the claim. Id. at 391.
Accrual can be delayed under the “continuing violations” theory, see Montin,
636 F.3d at 416, but the doctrine applies only to claims “composed of a series of
separate acts that collectively constitute one unlawful practice.” Gonzalez v. Hasty,
802 F.3d 212, 220 (2d Cir. 2015) (alteration and internal quotation marks omitted).
“To assert a continuing violation for statute of limitations purposes, the plaintiff must
‘allege both the existence of an ongoing policy of deliberate indifference to his or her
serious medical needs [or safety] and some non-time-barred acts taken in the
furtherance of that policy.’” Shomo v. City of New York, 579 F.3d 176, 182 (2d Cir.
2009) (quoting Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999)
(alteration omitted)). Shepard’s pleading does not meet this standard.

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In any event, Shepard’s claim that the defendants have caused him to become
mentally ill is not plausible. The mere fact that Shepard was not adjudicated as a
treatable mentally disordered sex offender in 1990 does not establish that his
involuntary commitment to the Norfolk Regional Center in 2015 resulted from the
conditions of his confinement in prison. For one thing, “Nebraska’s former MDSO
[mentally disordered sex offender] statutes and its current SOCA [Sex Offender
commitment Act] statutes provide for assessment of an offender’s mental health and
risk of recidivism at different times and for different purposes.” In re Interest of D.H.,
797 N.W.2d at 271. “Although the SOCA has several aims, ... its primary purpose is
to protect the public from sex offenders who continue to pose a threat” after
completing their sentences. D.I. v. Gibson, 867 N.W.2d 284, 289 (Neb. 2015) (internal
quotation marks and footnote omitted).
The psychologist who evaluated Shepard in 1990 concluded that Shepard had
mental disorders but would not benefit from treatment prior to incarceration because,
despite his two convictions for sexual assault on a child, he denied being sexually
attracted to children. The report of the psychological evaluation stated:
Current diagnoses offered for George L. Shepard include
Antisocial Personality Disorder (301.70) and Narcissistic Personality
Disorder (301.81). Mr. Shepard has a long standing history of
irresponsible and antisocial behavior.... In combination, these two
personality disorders result in a very exploitive and often dangerous
characterlogical style.
Even though this is Mr. Shepard’s second conviction for sexual
assault of a child, he continues to deny fantasies or sexual attraction to
children. This would make any type of treatment in this case near to
impossible. It may well have been in this case that his primary
motivation was monitory [sic], e.g. to sell the child pornography, which
would be consistent with his personality disorders.

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I do not find George L. Shepard to be a mentally disordered sex
offender who would benefit from available treatment in Nebraska for sex
offenders.
(Filing No. 1 at CM/ECF p. 11).
By comparison, the psychologist who evaluated Shepard in 2015 concluded
that, in addition to having personality disorders, Shepard is a pedophile who is at risk
to reoffend and therefore presents a danger to the community. The report of the
psychological evaluation stated:
... [Shepard] meets the DSM-IV criteria for an Axis I diagnosis of
Pedophilia, Sexually Attracted to Females, Non-Exclusive Type and an
Axis II diagnosis of Personality Disorder, NOS with Antisocial and
Narcissistic Traits.... The diagnosis of Pedophilia is associated with
increased risk to commit acts of sexual violence; which is underscored
in this case by Mr. Shepard’s history of repeated contact with the legal
system for sexual assault convictions and allegations. His diagnosis of
Personality Disorder, NOS with Antisocial and Narcissistic Traits makes
him more likely to commit further acts of sexual violence ....
Findings of the actuarial measures of which Mr. Shepard was rated
suggest he is at moderate risk to reoffend.... It is further noted Mr.
Shepard poses a substantial risk of harm to minor females in the event
that he were to reoffend.
...
It is my clinical opinion that George L. Shepard is in need of sex
offense specific treatment in order to gain insight into his sexually
assaultive behavior and acquire the knowledge and skills to mitigate his
risk to sexually reoffend. It is further my opinion that he is in need of
treatment in an inpatient setting based on both his treatment needs and
the safety needs of the community. An inpatient commitment to Health
[and] Human Services is recommended.
(Filing No. 1 at CM/ECF p. 16).
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In short, Shepard’s mental disorders cannot reasonably be attributed to prison
conditions. By all indications, he was already a dangerous sex offender when he was
sentenced to prison in 1990.
IV. CONCLUSION
Shepard’s complaint fails to state a claim upon which relief can be granted. He
will not be allowed to file an amended complaint because the court has concluded that
to do so would be futile.
IT IS THEREFORE ORDERED that the case is dismissed without prejudice.
The court will enter judgment by a separate document.
DATED this 3rd day of May, 2016.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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