Neff v. Department of Health & Human Services et al

Filing 8

MEMORANDUM AND ORDER- Plaintiff will have 30 days in which to file an amended complaint that states a claim upon which relief can be granted. Failure to file an amended complaint in accordance with this Memorandum and Order will result in dismissal of this action without further notice. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 6/20/2016: check for amended complaint). Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JEREMY L. NEFF,
Plaintiff,
v.
DEPARTMENT OF HEALTH &
HUMAN SERVICES; DENNIS
CONNOLLY; CINDY DYKEMAN;
and SANAT ROY,
Defendants.

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4:16CV3068

MEMORANDUM
AND ORDER

Plaintiff, Jeremy Neff, filed this case on April 27, 2016. He has been granted
leave to proceed in forma pauperis. The court now conducts an initial review of Neff’s
complaint to determine whether summary dismissal is appropriate under 28 U.S.C. §
1915(e)(2).
I. SUMMARY OF COMPLAINT
Neff alleges he is a civilly committed detainee at the Lincoln Regional Center
(“LRC”) who has not been allowed to participate in work therapy because of a
disability, the nature of which is not described in the complaint. Neff claims he has
been deprived of his rights under the Eighth and Fourteenth Amendments, and he
seeks both damages and injunctive relief. Named as defendants are the Nebraska
Department of Health and Human Services and three persons associated with LRC:
Dennis Connolly, whom Neff identifies as “a medical doctor”; Cindy Dykeman,
whom Neff identifies as “the program director”; and Sanat Roy, whom Neff identifies
as “the program psychologist.” Connolly, Dykeman, and Roy are sued in both their
individual and official capacities.

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
‘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).
III. ANALYSIS
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). Neff claims violations of the Eighth and Fourteenth
Amendments, and alleges the defendants acted under color of state law.

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A section 1983 action cannot be brought against the Nebraska Department of
Health and Human Services. See Will v. Michigan Dep’t of State Police, 491 U.S. 58,
64 & 70 (1989) (a state and its agencies are not “persons” within the meaning of
section 1983); see also Quern v. Jordan, 440 U.S. 332, 345 (1979) (section 1983 does
not abrogate a state’s Eleventh Amendment immunity). Nor can Connolly, Dykeman,
and Roy be sued in their official capacities for damages, because such a suit is no
different from a suit against the state itself. See Will, 491 U.S. at 70-71. However,
these individuals may be sued personally for damages under section 1983, see Hafer
v. Melo, 502 U.S. 21, 23 (1991) (state officials sued in their individual capacities are
“persons” for purposes of section 1983), and may be sued in their official capacities
for prospective injunctive relief, see Will, 491 U.S. at 71 n. 10 (state officials sued in
their official capacities for injunctive relief are “persons” under section 1983 because
official capacity actions for prospective relief are not treated as actions against the
state). It must next be considered whether any actionable claims for relief are stated
against Connolly, Dykeman, and Roy, either in their individual or official capacities.
“Under the Fourteenth Amendment, civilly-committed persons, like ‘pretrial
detainees[,] are entitled to at least as great protection as that afforded convicted
prisoners under the Eighth Amendment.’” Beaulieu v. Ludeman, 690 F.3d 1017, 1045
(8th Cir. 2012) (quoting Crow v. Montgomery, 403 F.3d 598, 601 (8th Cir. 2005)).”To
prevail on an Eighth Amendment claim, an inmate must show both an objective
element, that the deprivation was sufficiently serious, and a subjective element, that
the defendant acted with a sufficiently culpable state of mind.” Jackson v. Everett,
140 F.3d 1149, 1151 (8th Cir. 1998).
The objective element of an Eighth Amendment claim requires a deprivation
which, viewed objectively, is sufficiently “serious,” that is, “the prison official’s act
or omission must result in the denial of ‘the minimal civilized measure of life’s
necessities;’ or the prison official must incarcerate the inmate under conditions
‘posing a substantial risk of serious harm.’” Simmons v. Cook, 154 F.3d 805, 807 (8th
Cir. 1998). The subjective element of an Eighth Amendment claim requires that an
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official act with deliberate indifference to inmate health or safety. Deliberate
indifference means that the official both was aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also draw
the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference
is akin to criminal recklessness, which demands more than negligent misconduct.
Olson v. Bloomberg, 339 F.3d 730, 736 (8th Cir. 2003). Neff’s pleading fails to show
the existence of either element.
Although Neff alleges in conclusory fashion that he has been denied due
process and subjected to cruel and unusual punishment, it is apparent from the facts
alleged in the complaint that Neff is actually claiming he has been discriminated
against because of his disability. The applicable constitutional provision is the Equal
Protection Clause of the Fourteenth Amendment.
“A class-of-one claim [under the Equal Protection Clause] is stated when a
plaintiff alleges that a defendant intentionally treated [him] differently from others
who are similarly situated and that no rational basis existed for the difference in
treatment.” Mathers v. Wright, 636 F.3d 396, 399 (8th Cir. 2011). While Neff
indicates he has been treated differently because of his disability and does not enjoy
“the same privileges as all other patients here at the Lincoln Regional Center that
qualify for work therapy positions, that can be done without limitations” (Filing No.
1 at CM/ECF pp. 4-5), he does not describe what intentional actions were taken by
each defendant, nor does he allege that the difference in treatment was irrational.
Because of these pleading deficiencies, no actionable Fourteenth Amendment claim
is stated.
Disability discrimination is also prohibited by federal statute. Title II of the
Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., “prohibits
qualified individuals with disabilities from being excluded from participation in or the
benefits of the services, programs, or activities of a public entity.” Randolph v.

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Rodgers, 170 F.3d 850, 857 (8th Cir.1999).1 To state a prima facie claim under the
ADA, a plaintiff must show: (1) he is a person with a disability as defined by statute;
(2) he is otherwise qualified for the benefit in question; and (3) he was excluded from
the benefit due to discrimination based upon disability. See 42 U.S.C. § 12131 et seq.;
see also Gorman v. Bartch, 152 F.3d 907, 911-12 (8th Cir. 1998).2
A “qualified individual with a disability” is defined as “an individual with a
disability who, with or without reasonable modifications to rules, policies, or
practices, the removal of architectural, communication, or transportation barriers, or
the provision of auxiliary aids and services, meets the essential eligibility
requirements for the receipt of services or the participation in programs or activities
provided by a public entity.” 42 U.S.C. § 12131(2). The ADA defines “disability” as
“(A) a physical or mental impairment that substantially limits one or more major life
activities ... (B) a record of such an impairment; or (C) being regarded as having such
an impairment.” 42 U.S.C. § 12102(1). A physical impairment is “[a]ny physiological
disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or
more body systems, such as neurological, musculoskeletal, special sense organs,
respiratory (including speech organs), cardiovascular, reproductive, digestive,
genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine.” 29 C.F.R.

1

Section 504 of the Rehabilitation Act (“RA”) similarly provides that “[n]o
otherwise qualified individual with a disability ... shall ... be excluded from the
participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance....” 29 U.S.C. § 794(a)
(2000). The enforcement, remedies, and rights are the same under both Title II of the
ADA and § 504 of the Rehabilitation Act. See Hoekstra v. Independent Sch. Dist. No.
283, 103 F.3d 624, 626 (8th Cir.1996).
2

The RA contains the additional requirement that the plaintiff show the
program or activity from which he is excluded receives federal financial assistance.
See Gorman, 152 F.3d at 911; Thomlison v. City of Omaha, 63 F.3d 786, 788 (8th Cir.
1995). Because federal funding is not alleged, Neff’s complaint does not state an
actionable claim for relief under the RA.
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§ 1630.2(h)(1). “[M]ajor life activities include, but are not limited to, caring for
oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing,
lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working,” as well as operations of major bodily functions. See
42 U.S.C. § 12102(2).
Neff alleges he “acquired a partial disability in an accident at the age of 11
years old ... which has had no limitations on [his] performances on working or
otherwise” (Filing No. 1 at CM/ECF p. 2). This allegation does not contain sufficient
facts to show that Neff has a physical impairment that substantially limits one or more
major life activities (or, alternatively, that he as a record of such an impairment or is
regarded as having such an impairment).
But assuming Neff can allege these essential facts, the other two required
elements for stating a prima facie ADA claim appear satisfied. With respect to the
second element, Neff alleges (1) he “has a degree in carpentry,” (2) before being
transferred to the Lincoln Regional Center, he “applied for and without any
complaints or physical limitations was given a patient work therapy position at the
Norfolk Regional Center,” where he “completed and performed the tasks as they were
assigned to him,” (3) his “health was sufficient” when he applied for a work therapy
position at the Lincoln Regional in June 2014, and (4) he was told by Dykeman “that
after recieving [sic] approx 1½ years of therapy that [he] would be accepted onto a
job, to which proved out to being false” (Filing No. 1 at CM/ECF p. 3). With respect
to the third element, Neff alleges he was expressly told by Connolly that “because of
your disability you will not work here” (Filing No. 1 at CM/ECF p. 3).
An aggrieved individual may proceed directly to federal court on a claim under
Title II of the ADA. See Randolph, 253 F.3d at 347. In other words, there is no
requirement that administrative remedies be exhausted before filing suit.

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Public officials cannot be sued in their individual capacities under the ADA.
See Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n. 8 (8th Cir.1999) (en banc)
(explaining that Title II provides disabled individuals redress for discrimination by a
“public entity,” which does not include individuals). Neff is also precluded from
bringing a section 1983 suit against Connolly, Dykeman, and Roy in their individual
capacities for alleged violations of Title II of the ADA. See id. at 1012 (explaining
that Title II’s comprehensive remedial scheme bars a § 1983 suit). These defendants
may, however, be sued in their official capacities to obtain prospective injunctive
relief only. See Randolph, 253 F.3d at 348.
Although the United States Court of Appeals for the Eighth Circuit held in
Alsbrook that Title II of the ADA “was not a proper exercise of Congress’s power
under Section 5 of the Fourteenth Amendment,” 184 F.3d at 1010, and therefore did
not abrogate Eleventh Amendment immunity, that holding appears inconsistent with
a claim-by-claim approach that the United States Supreme Court subsequently
adopted in United States v. Georgia, 546 U.S. 151 (2006). See Klingler v. Dir., Dep’t
of Revenue, 455 F.3d 888, 892 (8th Cir. 2006) (panel decision stating “we are no
longer confident that Alsbrook or Bill M.3 can serve as reliable bases for resolving the
plaintiffs’ claims for money damages.”).
Applying Georgia, the question of whether the Nebraska Department of Health
and Human Services can be held liable for damages under Title II of the ADA, or
whether it is immune from suit under the Eleventh Amendment, depends upon a threepart analysis in which court must determine “(1) which aspects of the State’s alleged
3

In Bill M. ex rel. William M. v. Nebraska Dep’t of Health & Human Servs.,
408 F.3d 1096, 1100 (8th Cir. 2005), cert. granted, judgment vacated, and case
remanded, sub nom., United States v. Nebraska Dep't of Health & Human Servs., 547
U.S. 1067 (2006), a panel of the Eighth Circuit concluded that Alsbrook had been
modified by the Supreme Court’s decision in Tennessee v. Lane, 541 U.S. 509 (2004),
to permit a suit against a State under Title II with respect to claims involving denial
of access to the courts, but that Alsbrook otherwise remained good law.
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conduct violated Title II; (2) to what extent such misconduct also violated the
Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did
not violate the Fourteenth Amendment, whether Congress’s purported abrogation of
sovereign immunity as to that class of conduct is nevertheless valid.” 546 U.S. at 159.
It is premature to undertake such an analysis at this time, except to state that Neff’s
complaint does not allege sufficient facts to show that the state agency violated the
Fourteenth Amendment.
IV. CONCLUSION
Neff’s complaint fails to state a claim upon which relief can be granted. On the
courts’ own motion, however, he will be allowed to file an amended complaint to
correct the various pleading deficiencies noted above.
IT IS THEREFORE ORDERED:
1. Plaintiff will have 30 days in which to file an amended complaint that states
a claim upon which relief can be granted.
2. Failure to file an amended complaint in accordance with this Memorandum
and Order will result in dismissal of this action without further notice.
3. The clerk’s office is directed to set a pro se case management deadline using
the following text: June 20, 2016: check for amended complaint.
DATED this 20th day of May, 2016.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge
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