Pieper v. Nebraska Department of Corrections et al

Filing 69

ORDER that the defendants' Motion to Dismiss Second Amended Complaint (Filing No. 64 ) for failure to state a claim is granted in part and denied in part. Plaintiff John W. Pieper's claims against defendants Cathy Sheair, Rick Hargreaves, Paula Sparks, Brandy Logston, Kerri Paulson, Mary Bruyette, and Matt Heckman are dismissed without prejudice. The motion is denied in all other respects. The remaining defendants in this case shall answer or otherwise respond to the Second Amended Complaint within fourteen days after the date of this order. Ordered by Judge Robert F. Rossiter, Jr. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN W. PIEPER,
Plaintiff,
v.

4:18CV3018
ORDER

DIANE J. SABATKA-RINE, Warden at
the Nebraska State Penitentiary, in her
individual capacity; MARIO PEART,
former L.C.C Warden, in his individual
capacity; CATHY SHEAIR, Deputy
Warden, in her individual capacity; RICK
HARGREAVES, former L.C.C. Unit
Administrator, in his individual capacity;
MATT TRACY, Unit Administrator at the
Nebraska State Penitentiary, in his
individual capacity; PAULA SPARKS,
former Captain at L.C.C, in her individual
capacity; SALVADOR CRUZ, L.C.C Unit
Manager, in his individual capacity;
AMANDA CHADWICK, L.C.C. Unit
Manager, in her individual capacity;
WAYNE CHANDLER, Behavior Health
Programs Manager, L.C.C. Mental Health,
in his individual capacity; DR.
ELIZABETH GEIGER, Psy.D., Clinical
Psychologist Supervisor, N.S.P., in her
individual capacity; BRANDY LOGSTON,
V.R.P. Clinical Program Manager at
Tecumseh State Prison, in her individual
capacity; KERRI PAULSON, Licensed
Mental Health Practitioner, in her
individual capacity; MARY BRUYETTE,
Intel-Secretary, in her individual capacity;
and MATT HECKMAN, former Deputy
Warden, in his individual capacity;
Defendants.

Plaintiff John W. Pieper (“Pieper”) is an inmate incarcerated at the Lincoln
Correctional Center (“LCC”) in the Nebraska Department of Correctional Services
(“department”).

Defendants Diane J. Sabatka-Rine (“Sabatka-Rine”), Mario Peart

(“Peart”), Cathy Sheair (“Sheair”), Rick Hargreaves (“Hargreaves”), Paula Sparks
(“Sparks”),

Amanda Chadwick (“Chadwick”), Wayne Chandler (“Chandler”),

Dr. Elizabeth Geiger (“Geiger”), Brandy Logston (“Logston”), Kerri Paulson (“Paulson”),
Mary Bruyette (“Bruyette”), and Matt Heckman (“Heckman” and collectively,
“defendants”) all worked for the department at the relevant time. On July 31, 2018, Pieper
filed a Second Amended Complaint (Filing No. 57) in this case seeking monetary relief
from each of the defendants in their individual capacities under 42 U.S.C. § 1983 for
alleged violations of his constitutional rights under the First, Fifth, Eighth and Fourteenth
Amendments to the United States Constitution during his incarceration.
Now pending before the Court is the defendants’ Motion to Dismiss Second
Amended Complaint (Filing No. 64) pursuant to Federal Rule of Civil Procedure 12(b)(6)
for failing to state a claim upon which relief can be granted. 1 The defendants further argue
they are entitled to qualified immunity. Pieper opposes dismissing any defendant. For the
reasons stated below, the motion is granted in part and denied in part.
I.

BACKGROUND 2
Pieper is serving state time for an assault conviction. He is currently assigned to the

LCC. While in prison, Pieper joined the Peckerwood prison gang. Pieper eventually left
the gang to the chagrin of the other members, some of whom threatened him. Pieper
notified prison officials of the threats, including Sparks, who was then a Captain at the
Defendants Matt Tracy (“Tracy”) and Salvador Cruz (“Cruz”) did not join the
motion to dismiss.
2
The Court has presented “the facts as asserted in [the Second Amended Complaint]
and in the light most favorable to” Pieper. Key Med. Supply, Inc. v. Burwell, 764 F.3d 955,
959 (8th Cir. 2014).
1

2

LCC, and Sabatka-Rine, who was then the Warden at the Nebraska State Penitentiary
(“NSP”).
Beginning May 9, 2007, Pieper’s department classification file indicated prison staff
should “contact Central Monitoring office Central manager Coordinator prior to
transferring Pieper.” As of October 9, 2012, his classification file noted staff should
separate him by institution from Peckerwood gang members based on the perceived threat
to his safety.
At LCC, Pieper was on “administration confinement” and segregation for almost
four-and-a-half years in large part to protect him from other inmates. Even so, on
January 7, 2011, two other inmates assaulted Pieper with weapons. Pieper was taken to
the hospital to treat his injuries. While in segregation for that assault, Pieper completed
several inmate-request forms describing his safety concerns.
Although the Peckerwood gang has a strong presence at the department’s other
institutions, the threat at LCC—due in part to Pieper’s efforts—is comparatively low. The
gang would send members to LCC to attempt to harm Pieper, but Pieper would persuade
them to leave him alone and better themselves instead.
In 2014, the department’s “clinical violent offenders program committee
recommended” that Pieper participate in a “violence reduction program” (“VRP”)—the
most stringent violence-prevention class the department offered. Pieper understood that
his participation in the VRP would require transferring him to the NSP—the only
department facility which offered the VRP at that time.
Concerned for his safety, Pieper repeatedly tried in person and by letter to persuade
department officials to allow him to take another class, such as Anger Management, that
would not require his transfer to the NSP. Pieper believed the VRP recommendation was
unnecessary and arbitrary. Many other inmates convicted of more violent crimes than
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Pieper have received recommendations for Anger Management or other less-stringent
programs.
Pieper repeatedly told Paulson, his Mental Health Practitioner at the time, and Cruz,
his Unit Manager, about his safety concerns to no avail. Paulson told Pieper she would
convey his concerns to Logston, the Violent Offenders Program Clinical Program Manager
at Tecumseh State Prison; Geiger, the Clinical Psychologist Supervisor at the NSP; and
Chandler, the Behavior Health Programs Manager at the LCC; and even speak on his behalf
at a Clinical Violent Offender Review Team (“CVORT”) meeting.
Between March 2014 and August 2015, Pieper also wrote several inmate interview
request forms to Paulson and Chandler. In request forms dated May 12, 2014, and June 10,
2014, Pieper explained to Chandler why he should not be transferred to NSP and expressed
his desire to participate in an alternative program at LCC. Chandler consistently responded
that the VRP recommendation would not change. On June 27, 2014, Paulson likewise
advised Pieper that the CVORT had reviewed and addressed his concerns and still
recommended his participation in the VRP. No one ever called Pieper down to Mental
Health to discuss his concerns.
Pieper also communicated his safety concerns to officials at the NSP. In response
to a letter from Pieper, Geiger advised him that the department took his concerns seriously
but “based on clinically assessed level of risk and need, the CVORT has determined that
the VRP is the most appropriate treatment recommendation” for Pieper at that time. As for
Pieper’s safety, Geiger assured “we will continue to take all central monitoring concerns
into consideration in order to determine the most appropriate way to address risk factors.”
On October 27, 2014, Pieper wrote a letter to Sabatka-Rine. She too told Pieper the
department took his safety concerns seriously and would review his situation to determine
if any action was needed but assured him “your situation is not unique and that we have
successfully managed situations similar to yours on prior occasions in an effort to
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ensure . . . the opportunity to participate in recommended programming.” Copies of that
response were placed in Pieper’s file and sent to Geiger; Peart, the Warden at LCC; and
Tracy, the Unit Administrator at NSP. According to Pieper, Tracy and Rick Hargreaves,
the Unit Administrator at LCC, were aware of his safety concerns if transferred to NSP.
On February 11, 2016, Chadwick, Unit Manager at LCC and Pieper’s case manager,
completed an institutional progress report for Pieper that noted that the CVORT
recommended Pieper complete the VRP at NSP, but that he was not allowed to transfer to
NSP due to central monitoring issues. Chadwick joked with Pieper about the impending
transfer, telling him he would have to start over if transferred but refusing to explain to
Pieper what she meant. The day Pieper was transferred, Chadwick smirked at him and said
“goodluck!” as he left. Though Chadwick knew the transfer should not happen, she did
not stop it.
In August 2016, one month before Pieper’s transfer, an inmate named Steven
Goodwin (“Goodwin”) arrived at the LCC from the NSP. An ex-Peckerwood gang
member like Pieper, Goodwin told Pieper that gang members at the NSP were waiting for
Pieper to arrive for the VRP program so two inmates could “take him out.” Pieper
immediately relayed the information to Cruz, who told Pieper he would handle it.
As of September 1, 2016, Pieper’s classification indicated he should “Remain 1X at
LCC.” Because of the department’s repeated denials of his requests to remain at LCC and
complete alternative programming, Pieper decided he had to accept the impending transfer
to the NSP and complete the VRP, so he could become eligible for parole.
On September 22, 2016, Pieper was transferred to the NSP. 3 Tracy failed to arrange
for Pieper’s safety, and he was placed in general population. Within a minute after Pieper
Pieper alleges Sheair, the Deputy Warden at LCC; Chadwick; Sparks; and Cruz
actually executed the transfer.
3

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walked into his housing area, two inmates attacked him from behind. He “suffered
permanent mental and physical injuries,” including a scratched retina, broken nose,
punctured eardrum, partial hearing loss, headaches, and pain in his neck and spine. Pieper
alleges each of the defendants was aware of the risks of transfer and should have intervened
on his behalf to ensure his safety.
After the assault, Pieper was transferred back to the LCC. Not much later, Pieper
learned the department would soon offer the VRP at the LCC. Pieper eventually completed
the VRP program at the LCC.
Pieper filed a grievance with the department, and on July 31, 2018, filed the present
suit under § 1983. Pieper reports that after filing suit, his request for transfer to the workrelease center was denied and additional programming was added to his personalized plan.
Pieper was instead ordered to transfer to the work-ethic camp, which again caused him to
fear for his safety. Pieper protested the transfer and appealed the order. Sabatka-Rine
answered his protest and commented on his personal preference but ignored his safety
concerns.
Pieper refused to go. He received thirty days loss of good time for disobeying the
transfer order, which was upheld on appeal. Later, Pieper was again ordered to transfer to
the NSP. Although he ultimately was not transferred to the NSP because of safety
concerns, Pieper maintains the attempt to transfer him there was retaliatory.
On October 1, 2018, the defendants filed the present motion to dismiss for failure
to state a plausible claim. See Fed. R. Civ. P. 12(b)(6). The defendants also claim qualified
immunity. See Pearson v. Callahan, 555 U.S. 223, 236 (2009); Parrish v. Ball, 594 F.3d
993, 1001 (8th Cir. 2010). Their qualified-immunity argument likewise turns on the
plausibility of Pieper’s claims against them. For his part, Pieper contends the motion
should be denied because, in his view, he “has alleged actual and specific facts to show

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that each of the Defendants had knowledge that there was a substantial risk to [his] safety
but nevertheless disregarded the same.”
II.

DISCUSSION
A.

Standard of Review

Federal Rule of Procedure 8(a)(2) requires “a short and plain statement of the claim
showing that the pleader is entitled to relief.” That standard “does not require ‘detailed
factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 550 (2007)). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570).
“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.” Id. “The court accepts as true all factual allegations, but is ‘not bound to accept
as true a legal conclusion couched as a factual allegation.’” McAdams v. McCord, 584 F.3d
1111, 1113 (8th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). “A pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not
do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “The plausibility standard
is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that
a defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, ‘it stops short of the line between possibility and
plausibility’” and must be dismissed. Id. (quoting Twombly, 550 U.S. at 556-57).
B.

Deliberate Indifference

Pieper alleges the defendants were deliberately indifferent to the substantial risk of
serious bodily harm he faced from other inmates upon transfer to the NSP. As Pieper sees
it, the defendants “disregarded that risk by failing to take reasonable measures to abate it.”

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As the defendants point out, Pieper nominally alleges violations of his First, Fifth,
Eighth, and Fourteenth Amendment rights, but his sole cause of action—for deliberate
indifference—falls squarely within the Eighth Amendment prohibition against “cruel and
unusual punishments.” U.S. Const. amend. VIII; see also Farmer v. Brennan, 511 U.S.
825, 833 (1994). The Eighth Amendment “requires prison officials to ‘take reasonable
measures to guarantee’ inmate safety by protecting them from attacks by other prisoners.”
Young v. Selk, 508 F.3d 868, 871-72 (8th Cir. 2007) (quoting Farmer, 511 U.S. at 832). A
prison official violates a prisoner’s Eighth Amendment rights if they are deliberately
indifferent to the need to protect a prisoner from “a substantial risk of serious harm.”
Farmer, 511 U.S. at 833; accord Berry v. Sherman, 365 F.3d 631, 634 (8th Cir. 2004).
“A prison official is deliberately indifferent if he ‘knows of and disregards’ a
substantial risk of serious harm to an inmate.” Reynolds v. Dormire, 636 F.3d 976, 979
(8th Cir. 2011) (quoting Farmer, 511 U.S. at 837). To prove deliberate indifference, a
prisoner must show both (1) an objective component—that the prisoner faced a substantial
risk of harm—and (2) a subjective component—that the prison official knew of yet
deliberately disregarded that risk. Patterson v. Kelley, 902 F.3d 845, 851 (8th Cir. 2018).
“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.” Reynolds,
636 F.3d at 979 (alteration omitted) (quoting Crow v. Montgomery, 403 F.3d 598, 602 (8th
Cir. 2005)). “[P]rison officials who actually knew of a substantial risk to inmate health or
safety may be found free from liability if they responded reasonably to the risk, even if the
harm ultimately was not averted.” Walls v. Tadman, 762 F.3d 778, 782-83 (8th Cir. 2014)
(quoting Farmer, 511 U.S. at 844).
“Liability under section 1983 requires a causal link to, and direct responsibility for,
the deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990).
Vicarious liability does not apply to § 1983 actions. Iqbal, 556 U.S. at 676. “[E]ach

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Government official, his or her title notwithstanding, is only liable for his or her own
misconduct.” Id. at 677. To state a plausible deliberate-indifference claim under § 1983,
a prisoner must plead that each prison-official defendant, through their “own individual
actions, has violated the Constitution.” Id. at 676. “[A] warden’s general responsibility
for supervising the operations of a prison is insufficient to establish personal involvement.”
Reynolds, 636 F.3d at 981 (quoting Ouzts v. Cummins, 825 F.2d 1276, 1277 (8th Cir. 1987)
(per curiam)).
Applying this framework to Pieper’s Second Amended Complaint, the Court finds
Pieper has failed to state a plausible deliberate-indifference claim against Sheair,
Hargreaves, Sparks, Logston, Paulson, Bruyette, and Heckman. As to those defendants,
Pieper simply has not pled sufficient factual content to permit a reasonable inference that
any of them is personally and directly responsible for violating his Eighth Amendment
rights. See, e.g., Farmer, 511 U.S. at 834 (noting a prison official who is responsible for a
prisoner’s safety can only be held liable if that “prison official’s act or omission” causes a
constitutional violation).
Even if the Court infers that those defendants had some responsibility for Pieper’s
safety and even if some of them—like Paulson, Bruyette, and Logston—knew he faced a
substantial risk of harm upon transfer to the NSP, Pieper has not provided sufficient
supporting factual allegations to show that any of those defendants deliberately or
recklessly disregarded that risk or otherwise failed to reasonably respond to his safety
concerns. See Iqbal, 556 U.S. at 683 (explaining an official cannot be held individually
liable where the “complaint does not contain any factual allegations sufficient to plausibly
suggest” the official herself had the requisite culpable state of mind); Farmer, 511 U.S. at
844 (“Whether one puts it in terms of duty or deliberate indifference, prison officials who
act reasonably cannot be found liable under the Cruel and Unusual Punishments Clause.”).

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Pieper maintains the Second Amended Complaint is sufficient because he has
broadly alleged that each defendant (1) was “deliberately indifferent to [his] risk of serious
bodily harm,” (2) “had knowledge that there was a substantial risk to [his] safety but
nevertheless disregarded the same,” and (3) “knew that [he] faced a substantial risk of
serious harm and disregarded that risk by failing to take reasonable measures to abate it.”
But, without more, such blanket allegations, unsupported conclusions, and rote recitations
of the elements do not suffice. Iqbal, 556 U.S. at 678.
With respect to Sabatka-Rine, Peart, Chadwick, Chandler, and Geiger, the Court
finds—though it is close in some cases—that Pieper has, at this stage, alleged sufficient
factual content, taken as true, to nudge his “claims across the line from conceivable to
plausible.” Twombly, 550 U.S. at 570. In light of the foregoing,
IT IS ORDERED:
1.

The defendants’ Motion to Dismiss Second Amended Complaint (Filing No.
64) for failure to state a claim is granted in part and denied in part.

2.

Plaintiff John W. Pieper’s claims against defendants Cathy Sheair, Rick
Hargreaves, Paula Sparks, Brandy Logston, Kerri Paulson, Mary Bruyette,
and Matt Heckman are dismissed without prejudice.

3.

The motion is denied in all other respects.

4.

The remaining defendants in this case shall answer or otherwise respond to
the Second Amended Complaint within fourteen days after the date of this
order.

Dated this 20th day of November 2018.
BY THE COURT:

Robert F. Rossiter, Jr.
United States District Judge

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