Castor v. Frakes et al

Filing 11

MEMORANDUM AND ORDER - This case is dismissed with prejudice for failure to state a claim. A separate judgment will be entered. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WILMA LEE CASTOR,
Plaintiff,

4:17CV3065

vs.
SCOTT FRAKES, MICHAEL
ROTHWELL, KONDA YOUNG,
DENISE DAVIDSON, KAYLA VAN
DAAM, and LISA STANTON,

MEMORANDUM
AND ORDER

Defendants.
Plaintiff filed a Complaint on June 5, 2017. (Filing No. 1.) She has been
given leave to proceed in forma pauperis. (Filing No. 8.) The court now conducts
an initial review of Plaintiff’s Complaint to determine whether summary dismissal
is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.
I. SUMMARY OF COMPLAINT
Plaintiff is a prisoner confined at the Nebraska Correctional Center for
Women in York, Nebraska. She names several Nebraska Department of
Correctional Services (“NDCS”) employees as Defendants in this action.
Plaintiff took her property to be “sent out, donated, and/or destroyed” prior
to her anticipated transfer to a correctional facility in Oregon. (See Filing No. 1 at
CM/ECF pp. 1-9.) After further review, NDCS declined Plaintiff’s request for
transfer. (Id. at CM/ECF p. 10.) The Office of Risk Management and the State
Claims Board subsequently denied Plaintiff’s claims for reimbursement. (Id. at
CM/ECF pp. 11-16.) Plaintiff’s attachments show she knew that she could file a
lawsuit in the district court of the appropriate county if she disagreed with the

decision of the State Claims Board. (Id. at CM/ECF pp. 15-16.) Now, in this
action, Plaintiff seeks reimbursement for her lost personal property and “related
expenses” associated with her cancelled transfer. (Id. at CM/ECF p. 7.) She further
alleges that she suffered emotional and mental stress from this experience. (Id. at
CM/ECF p. 6.)
II. APPLICABLE STANDARDS OF 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 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).
2

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
Liberally construed, Plaintiff alleges NDCS employees violated her due
process rights under the Fourteenth Amendment when they lost her property. 1
However, if a state provides adequate remedies to compensate individuals for
wrongful property loss, there is no absence of due process. See Hudson v. Palmer,
468 U.S. 517, 533 (1984) (intentional and negligent deprivations of property not
actionable under section 1983 if suitable state remedy); Parratt v. Taylor, 451 U.S.
527, 542 (1981). There is no constitutional violation here, because the Nebraska
State Tort Claims Act provides adequate post-deprivation remedies to compensate
individuals for personal property loss. See Neb. Rev. Stat. § 81-8,209 et seq. It
appears that Plaintiff did not avail herself of the full remedies under the State Tort
Claims Act. Accordingly,
IT IS THEREFORE ORDERED that:
1.

This case is dismissed with prejudice for failure to state a claim.

2.

A separate judgment will be entered.

1

Any compensatory damages that Plaintiff seeks for emotional distress or
mental anguish are foreclosed by the Prison Litigation Reform Act because she did
not suffer any physical injury. See 42 U.S.C. § 1997e(e) ; Royal v. Kautzky, 375
F.3d 720, 723 (8th Cir. 2004) (“[W]e read section 1997e(e) as limiting recovery for
mental or emotional injury in all federal actions brought by prisoners.”).
3

Dated this 10th day of August, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

4