Epp et al v. Frakes et al

Filing 18

MEMORANDUM AND ORDER that the clerk of the court is directed to (a) open a new case file which lists Dukhan Mumin as the sole plaintiff, (b) copy all docket entries from the present file into the new case file, (c) file this Memorandum and Order in both cases, and (d) terminate Dukhan Mumin as a party in the present case. On the court's own motion, the court will give each Plaintiff 30 days in whichto file an amended complaint that states a claim on which relief may be granted.Failure to file an amended complaint within 30 days will result in the court dismissingthe case without further notice to Plaintiff. The clerk of the court is directed to set the following pro se case managementdeadline in each case: April 6, 2017: check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WILLIAM EPP, and
DUKHAN MUMIN,
Plaintiffs,
v.
SCOTT FRAKES, et al.,
Defendants.

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4:16CV3176

MEMORANDUM
AND ORDER

Plaintiffs, William Epp and Dukhan Mumin, filed their Complaint (Filing No.
1) on November 14, 2016, and subsequently were each granted leave to proceed in
forma pauperis (Filing Nos. 10, 11). On January 9, 2017, Plaintiff Mumin filed a
Supplemental Complaint (Filing No. 12). The court now conducts an initial review of
Plaintiffs’ Complaint and Plaintiff Mumin’s Supplemental Complaint to determine
whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.
I. SUMMARY OF COMPLAINTS
Plaintiffs are inmates at the Tecumseh State Correctional Center (“TSCI”).
Defendants, who are sued in their individual and official capacities,1 include:
1.
Scott Frakes, director of corrections;
2.
Daniel E. Bryan Jr., a judge in Johnson County, Nebraska;
3.
Tim McLaughlin, a food service supervisor at the Hall County Law
Enforcement Center (“HCLEC”);
4.
Caseworker Russ, a state representative of the Nebraska Department of
Correctional Services (“NDCS”);
5.
Todd Bahensky, director of HCLEC;
6.
Jack Zitterkopf, Hall County Attorney;
1

Official titles or positions listed are as alleged in Plaintiffs’ Complaint.

7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.

Tim McLaughlin, Food Service Director at HCLEC;
Scott Busboom, associate warden at TSCI;
Shaun Sherman, unit administrator at TSCI;
Diane Sabatka-Rine, deputy director for NDCS;
William Rothwell, deputy director for NDCS;
April Bulling-June, associate warden at TSCI;
Brad Hansen, warden at TSCI;
Keith Broadfoot, unit manager at TSCI;
Michele Capps, deputy warden at TSCI;
Brian Gage, warden at TSCI;
Frank Hopkins, deputy director for NDCS;
Michael Kenney, director of NDCS;
Doug Peterson, Attorney General;
Amie Larson, assistant attorney general;
Jeffre Cheuvront, a judge for Lancaster County, Nebraska;
Valorie Benedixen, Clerk of the Hall County District Court; and
Case Manager Shultz, a case manager at TSCI.

Plaintiffs also sue the Nebraska Department of Correctional Services, Hall
County, and Lancaster County. In addition, they have named the State of Nebraska,
Pete Ricketts, Steena Beltz, Chuck Glen (or Glenn), Joe Kelly, and Robin Spindler as
Defendants, but have not identified any of them as parties to the suit in the body of the
Complaint (Filing No. 1 at CM/ECF pp. 2-4). Allegations of the Complaint also
mention a “Defendant Young,” who is not named in the caption or otherwise
identified as a party.
Plaintiffs allege eighteen claims in their Complaint, only five of which pertain
to both of them. Claims affecting both Plaintiffs include allegations that:
1.

There is inadequate ventilation in cells at TSCI (Filing No. 1, ¶¶ 80-81);

2.

Water TSCI is contaminated with high concentrations of chlorine and
fluoride (Filing No. 1, ¶¶ 132-138);

3.

Years were added to Plaintiffs’ sentences, which had been mistakenly
calculated under habitual criminal statutes (Filing No. 1, ¶¶ 139-149);
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4.

NDCS regulations which do not allow inmates to receive free stamps for
mailing service copies of legal documents are unconstitutional (Filing
No. 1, ¶¶ 150-154); and

5.

NDCS regulations which do not allow prisoners charged with a rule
infraction to call witnesses, including the reporting employee, at a
hearing are unconstitutional (Filing No. 1, ¶¶ 182-185).

Two claims in the Complaint are alleged solely by Plaintiff Epp, who contends that:
1.

He has contracted with NDCS to receive a Buddhist religious diet but
has been suspended from the program on four occasions for missing
meals and has not been allowed to purchase food from outside vendors
(Filing No. 1, ¶¶ 32-56); and

2.

He was not allowed to have prisoners in Lancaster County transferred to
Gage County to testify at his criminal trial (Filing No. 1, ¶¶ 168-181).

Finally, eleven claims in the Complaint are alleged solely by Plaintiff Mumin, who
contends that:
1.

Defendant Benedixen failed to notify him that his petition for a writ of
habeas corpus was denied by the District Court of Hall County, so that
he was unable to appeal the ruling, and Defendants Bahensky, Russ, and
Zitterkopf arranged for him to be transferred from Hall County back to
TSCI so that the writ would not be issued (Filing No. 1, ¶¶ 57-71);

2.

Judge Byran refused to accept his petition for writ of habeas corpus
while he was confined in Johnson County (Filing No. 1, ¶¶ 72-79);

3.

Defendants Beltz, Busboom, Gage, Hansen, Sherman, Sabatka-Rine,
Rothwell, Kenney, Hopkins, Bulling-June, Capps, Broadfoot, and Shultz
have refused to promote him minimum custody status (Filing No. 1, ¶¶
83-99);

4.

He was terminated from a kitchen job by Defendant Busboom for
circulating a petition which complained that certain prisoners preparing
food had contagious diseases and open sores (Filing No. 1, ¶¶ 100-106);
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5.

His right to rehabilitation is being denied because Defendants Frakes and
Ricketts are not using available federal funds (Filing No. 1, ¶¶ 107-110);

6.

“Defendant Young” conspired with Defendants Bahenksy, Russ, and
Zitterkopf to deprive him of his liberty by moving him out of Hall
County and then using that as the basis to deny his petition for writ of
habeas corpus (Filing No. 1, ¶¶ 111-114);

7.

He became sick at the Hall County jail because he did not receive an
adequate nutritional diet and was denied access to an outside exercise
area (Filing No. 1, ¶¶ 115-126);

8.

Defendant Kelly established a policy that indigent criminal defendants
are required to make a preliminary showing of merit on their postconviction motions without aid of counsel (Filing No. 1, ¶¶ 127-131);

9.

A copy of a Nebraska court decision he received in the mail from a
friend was confiscated (Filing No. 1, ¶¶ 155-160).

10.

He was denied promotion to community custody by Defendants
Spindler, Hopkins, and Kenney (Filing No 1., ¶¶ 161-165).

11.

Judge Cheuvront granted Defendant Larson a continuance of Plaintiff’s
habeas corpus hearing in order to properly authenticate documents rather
than granting the writ (Filing No. 1, ¶¶ 186-195).

Plaintiff Mumin alleges several additional claims in his Supplemental
Complaint. as he seeks to recover damages from (1) Joe Kelly, the Lincoln Police (not
named as a defendant), and the Lancaster County Sheriff (not named as a defendant)
for seeking habitual criminal enhancements (a) because of his race or (b) because he
refused to cooperate with them, (2) from a “corporal Underwood” (not named as a
defendant) for retaliating against Mumin for filing grievances, and (3) from Platte
County (not named as a defendant) for his exposure to mold in the showers at the
Platte County Jail. He also makes a claim against the Nebraska Jail Standards Board
(not named as a defendant) for unspecified relief related to his alleged exposure to
mold. (Filing No. 12).
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II. 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).
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).
Liberally construed, Plaintiffs here allege 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

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law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495
(8th Cir. 1993).
III. DISCUSSION OF CLAIMS
The joinder of claims, parties, and remedies is “strongly encouraged” when
appropriate to further judicial economy and fairness. See United Mine Workers of Am.
v. Gibbs, 383 U.S. 715, 724 (1966). This does not mean, however, that parties should
be given free reign to join multiple plaintiffs and multiple defendants into a single
lawsuit when the claims are unrelated. Gresham v. Smith, No. 1:16-CV-1402, 2017
WL 33567, at *3 (W.D. Mich. Jan. 4, 2017) (prisoners asserting unrelated claims
could not join as plaintiffs in one action).
Rule 20(a)(1) of the Federal Rules of Civil Procedure allows multiple plaintiffs
to join in a single action if (i) they assert claims “with respect to or arising out of the
same transaction, occurrence, or series of transactions or occurrences;” and (ii) “any
question of law or fact common to all plaintiffs will arise in the action.” In construing
Rule 20, the Eighth Circuit has provided a very broad definition for the term
“transaction.” In re Prempro Prod. Liab. Litig., 591 F.3d 613, 622 (8th Cir. 2010).
As stated in Mosley v. General Motors Corp., 497 F.2d 1330 (8th Cir. 1974):
“Transaction” is a word of flexible meaning. It may comprehend
a series of many occurrences, depending not so much upon the
immediateness of their connection as upon their logical relationship.
Accordingly, all “logically related” events entitling a person to
institute a legal action against another generally are regarded as
comprising a transaction or occurrence. The analogous interpretation of
the terms as used in Rule 20 would permit all reasonably related claims
for relief by or against different parties to be tried in a single proceeding.
Absolute identity of all events is unnecessary.
Id. at 1333 (citations omitted); see 7 Charles A. Wright et al., Federal Practice and
Procedure, § 1653, at 415 (3d ed. 2001) (explaining that the transaction/occurrence
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requirement prescribed by Rule 20(a) is not a rigid test and is meant to be “read as
broadly as possible whenever doing so is likely to promote judicial economy.”).
As detailed above, thirteen claims alleged in the Complaint, and all of the
claims alleged in the Supplemental Complaint, are asserted by one Plaintiff only.
These claims therefore do not provide a basis for Plaintiffs’ joinder under Rule
20(a)(1). Although the other five claims allegedly involve both Plaintiffs, it does not
necessarily follow that the same transaction or occurrence is involved in each claim.
For example, while both Plaintiffs claim that NDCS regulations which do not allow
inmates to receive free stamps for mailing service copies of legal documents interfere
with their right of access to the courts, each Plaintiff must make a showing of actual
injury in order to prevail on this type of claim. See Hartsfield v. Nichols, 511 F.3d
826, 831-32 (8th Cir. 2008) (denial of access to courts claim must be supported by
showing actual injury). This makes joinder impractical. See Blood v. Fed. Bureau of
Prisons, 351 F. App’x 604, 607 (3d Cir. 2009) (unpublished) (holding district court
did not abuse its discretion in denying joinder of inmates’ claims that prison officials
disrupted their separate legal proceedings through postal interference because the
alleged constitutional violations arose from separate occurrences and proving actual
injury would necessarily require a separate factual inquiry into each of the plaintiffs’
legal proceedings); Pope v. Miller, No. CIV-07-0284-F, 2007 WL 2427978, at *3
(W.D. Okla. Aug. 21, 2007) (“Allegations of actual injury in support of a denial of
access to the courts claim necessarily vary from plaintiff to plaintiff and do not arise
out of the same transaction or occurrence.”).
Misjoinder of parties is not grounds for dismissal of an action, but “[o]n motion
or on its own, the court may at any time, on just terms, add or drop a party. The court
may also sever any claim against a party.” Fed. R. Civ. P. 21.
The court will sever William Epp’s claims from Dukhan Mumin’s claims by
directing the clerk of the court to (a) open a new case file which lists Dukhan Mumin
as the sole plaintiff, (b) copy all docket entries from the present file into the new case
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file, (c) file this Memorandum and Order in both cases, and (d) terminate Dukhan
Mumin as a party in the present case.
Each Plaintiff will be given 30 days in which to file an amended complaint on
his own behalf, and the court will then review each amended complaint to determine
whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.
Plaintiffs are advised that their amended complaints will supersede, rather than
supplement, both the Complaint and the Supplemental Complaint.
The Complaint and Supplemental Complaint also violate Rule 20(a)(2) by
alleging claims against multiple defendants that do not arise “out of the same
transaction, occurrence, or series of transactions or occurrences” and do not involve
a “question of law or fact common to all defendants.” Fed.R.Civ.P. 20(a). Unrelated
claims involving different defendants belong in different suits. George v. Smith, 507
F.3d 605, 607 (7th Cir. 2007).
When preparing their amended complaints, Plaintiffs therefore will need to
decide which claims to exclude from their respective cases in order to comply with
Rule 20(a)(2). An excluded claim may be brought in new action, but a filing fee will
be assessed for each new action. See In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997)
(The Prison Litigation Reform Act “makes prisoners responsible for their filing fees
the moment the prisoner brings a civil action of files an appeal.”).
IT IS THEREFORE ORDERED:
1. The clerk of the court is directed to (a) open a new case file which lists
Dukhan Mumin as the sole plaintiff, (b) copy all docket entries from the present file
into the new case file, (c) file this Memorandum and Order in both cases, and (d)
terminate Dukhan Mumin as a party in the present case.

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2. On the court's own motion, the court will give each Plaintiff 30 days in which
to file an amended complaint that states a claim on which relief may be granted.
Failure to file an amended complaint within 30 days will result in the court dismissing
the case without further notice to Plaintiff; and
3. The clerk of the court is directed to set the following pro se case management
deadline in each case: April 6, 2017: check for amended complaint.
DATED this 7th day of March, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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