Pieper v. Nebraska Department of Corrections et al

Filing 10

MEMORANDUM AND ORDER - Plaintiff's motion for issuance of summonses (Filing No. 9 ) is denied without prejudice. All claims alleged against the Nebraska Department of Corrections and other Defendants, who are deemed to be sued in their official capacities only, are dismissed without prejudice. The court will not enter judgment at this time, but instead will give Plaintiff 30 days in which to file an Amended Complaint that states a claim on which relief may be granted. Failure to file an Am ended Complaint within 30 days will result in the court dismissing this case without further notice to Plaintiff. The clerk of the court is directed to set the following pro se case management deadline: May 4, 2018: check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN W. PIEPER,
Plaintiff,
v.
NEBRASKA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

4:18CV3018

MEMORANDUM
AND ORDER

Plaintiff, John W. Pieper, proceeding pro se, filed his Complaint (Filing No. 1)
on February 7, 2018, and subsequently was granted leave to proceed in forma pauperis
(Filing No. 6). The court now conducts an initial review of the Complaint to determine
whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.
I. Summary of Complaint
Pieper currently is incarcerated at the Lincoln Correctional Center (“LCC”). He
seeks to recover damages for physical injuries and mental anguish he sustained as a
result of being attacked by two inmates at the Nebraska State Penitentiary (“NSP”) on
September 22, 2016. Pieper had been transferred from LCC to NSP on that date to
participate in a Violence Reduction Program (“VRP”) preparatory to seeking parole.
He was attacked by two members of the Peckerwood prison gang within minutes of
his arrival. Pieper alleges corrections officials had been aware for at least two years
that he would be placed in danger if transferred to NSP, but they still transferred him
and failed to take any precautions.
Named as defendants are the Nebraska Department of Corrections and fourteen
of its officials: (1) Diane J. Sabatka-Rine, Deputy Director of Institutions; (2) Mario
Peart, Former LCC Warden; (3) Cathy Sheair, Deputy Warden; (4) Paula Sparks,

Former Captain at LCC; (5) Cpl. M. Bruyette, Intel-Secretary; (6) Matt Tracy, Unit
Administrator at NSP; (7) Rick Hardgreaves, Former LCC Unit Administrator; (8)
Salvador Cruz, LCC Unit Manager; (9) Amanda Chadwick, LCC. Unit Manager; (10)
Wayne Chandler, Behavior Health Programs Manager, LCC Mental Health; (11) Kerri
Paulsen, Licensed Mental Health Practitioner; (12) Dr. Elizabeth Geiger, Psy.D.
Clinical Psychologist Supervisor, NSP; (13) Brandi Logston, VRP Clinical Program
Manager at Tecumseh State Prison; and (14) Matt Heckman, Former Deputy Warden.
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
-2-

other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations
omitted).
Liberally construing Pieper’s complaint, he is suing Defendants for damages
under 42 U.S.C. § 1983. To state a claim under that section, 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 of Claims
The Eighth Amendment imposes a duty on prison officials “to protect prisoners
from violence at the hands of other prisoners.” Prater v. Dahm, 89 F.3d 538, 541 (8th
Cir. 1996) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)). A prison official
is deliberately indifferent if he “knows of and disregards” a substantial risk of serious
harm to an inmate. Farmer, 511 U.S. at 837. There is both an objective component
and a subjective component to a claim of deliberate indifference: (1) whether a
substantial risk to the inmate’s safety existed, and (2) whether the officer had
knowledge of the substantial risk to the inmate’s safety but nevertheless disregarded
it. Reynolds v. Dormire, 636 F.3d 976, 979 (8th Cir. 2011). Deliberate indifference
includes something more than negligence but less than actual intent to harm; it
requires proof of a reckless disregard of the known risk. Id. A prison official may be
held liable under the Eighth Amendment if he or she knows that an inmate faces a
substantial risk of serious harm and disregards that risk by failing to take reasonable
measures to abate it.” Coleman v. Rahija, 114 F.3d 778, 785 (8th Cir.1997).
In other words, to state a claim upon which relief may be granted, Pieper “must
allege that the defendants knew he was at risk of being attacked and explain how the
defendants’ response to this threat of attack was unreasonable.” Deas v. Kohl, No.
8:15CV35, 2015 WL 4601523, at *5 (D. Neb. July 29, 2015). “[H]e must allege facts
-3-

demonstrating how each of the defendant’s actions rose to the level of ‘deliberate
indifference’ to his health and safety.” Id. The general responsibility for supervising
the operation of a facility is not sufficient to establish personal liability. Beaulieu v.
Ludeman, 690 F.3d 1017, 1030 (8th Cir. 2012).
The Eleventh Amendment bars claims for damages by private parties against
a state, state instrumentalities and an employee of a state sued in the employee’s
official capacity. Thomas v. Alder, No. 4:11CV3149, 2011 WL 5975903, at *2 (D.
Neb. Nov. 29, 2011) (citing Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th
Cir. 1995); Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446-47 (8th Cir.
1995)). Sovereign immunity does not bar damages claims against state officials acting
in their individual capacities, nor does it bar claims brought pursuant to 42 U.S.C.
§ 1983 which seek equitable relief from state employee defendants acting in their
official capacity. Id.
The Nebraska Department of Corrections therefore must be dismissed as a
Defendant. See, e.g., Phillips v. Nebraska, No. 8:17CV299, 2017 WL 5195209, at *3
(D. Neb. Nov. 9, 2017) (dismissing Nebraska Department of Corrections from action
as not being subject to suit under 42 U.S.C. § 1983). Because Pieper does not specify
whether he is suing the other Defendants in their official or individual capacities, this
court presumes they are sued in their official capacities only and also not subject to
suit for damages in a § 1983 action. See Dortch v. City of Omaha Police Dep’t, No.
8:17CV377, 2017 WL 4990531, at *1 (D. Neb. Oct. 30, 2017) (citing Johnson v.
Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (“This court has held that,
in order to sue a public official in his or her individual capacity, a plaintiff must
expressly and unambiguously state so in the pleadings, otherwise, it will be assumed
that the defendant is sued only in his or her official capacity.”)); Baker v. Chisom, 501
F.3d 920, 924 (8th Cir. 2007) (requiring an “express statement” that a defendant is
sued in his or her individual capacity is consistent with Rule 8(a)(2) of the Federal
Rules of Civil Procedure, which provides that a complaint must contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.”).
-4-

Although Pieper’s Complaint will be dismissed because all named Defendants
are immune from suit in federal court under the Eleventh Amendment, the court on
its own motion will give Pieper an opportunity to file an Amended Complaint that
states a claim upon which relief may be granted against one or more Defendants. In
general, Pieper’s Complaint, with its attachments, indicates there was a substantial
risk to his safety at NSP and it sets out facts showing that most of the officials named
as Defendants possessed at least some knowledge of that risk. The Complaint and
attachments also establish that Pieper was, in fact, seriously injured as a result of the
beating at NSP. However, the Complaint lacks facts showing how each Defendant
recklessly disregarded what he or she knew about the risk Pieper would face if he
were transferred to NSP.
Pieper has also filed a motion for issuance of summonses (Filing No. 9). That
motion will be denied without prejudice. If Pieper files an Amended Complaint, and
if the court determines upon initial review that the Amended Complaint states a claim
upon which relief may be granted, the court will then authorize and provide for service
of process.
IV. Conclusion
Pieper cannot sue the Nebraska Department of Corrections or its employees in
their official capacities for damages under 42 U.S.C. § 1983. On its own motion, the
court will give Pieper 30 days in which to file an Amended Complaint that states a
claim upon which relief may be granted.
IT IS THEREFORE ORDERED:
1.

Plaintiff’s motion for issuance of summonses (Filing No. 9) is denied
without prejudice.

-5-

2.

All claims alleged against the Nebraska Department of Corrections and
other Defendants, who are deemed to be sued in their official capacities
only, are dismissed without prejudice.

3.

The court will not enter judgment at this time, but instead will give
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 this case
without further notice to Plaintiff.

4.

The clerk of the court is directed to set the following pro se case
management deadline: May 4, 2018: check for amended complaint.

DATED this 4th day of April, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

-6-