Gonzales v. Sergeant Tallant et al

Filing 7

MEMORANDUM AND ORDER that Plaintiff's Complaint fails to state a claim upon which relief may be granted and is dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2). A separate judgment will be entered in accordance with this Memorandum and Order. The Clerk of the court is directed to place the "28USC1915(g)_STR" flag on this matter. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HECTOR GONZALES,
Plaintiff,
v.
SERGEANT TALLANT,
CORPORAL NIXON, and FRED
BRITTEN,
Defendants.

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8:12CV274

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on August 3, 2012. (Filing No. 1.)
Plaintiff has previously been given 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) and 1915A.
I.

SUMMARY OF COMPLAINT
Plaintiff filed his Complaint on August 3, 2012, against three employees of the

Nebraska Department of Correctional Services, employed at the Tecumseh State
Correctional Institution (“TSCI”). (Filing No. 1 at CM/ECF p. 1.) Plaintiff is
incarcerated at TSCI. (Id.)
Plaintiff’s allegations are voluminous and rambling, totally nearly 150 pages,
and are extremely difficult to decipher. As best as the court can tell, Plaintiff asserts
claims based on his belief that Defendants are contaminating his food and exposing
him to chemicals.

In particular, Plaintiff alleges that, after eating, he often

experiences chest pain, pain in various other internal organs, and painful burns all
over his body. (Id. at CM/ECF pp. 14-99; Filing No. 1-1 at CM/ECF pp. 1-45.)
Plaintiff treats the alleged burns himself by soaking his clothing in water and then
wearing the soaked clothing and by eating “deodorant” and “smear[ing]” it on his

chest.

(Id. at CM/ECF pp. 6, 82-86.)

Plaintiff includes nearly 100 pages of

allegations detailing the food he has consumed since 2010, and the alleged pain he
experienced after eating that food. (Filing No. 1 at CM/ECF pp. 14-99; Filing No. 1-1
at CM/ECF pp. 1-45.) Plaintiff has received extensive medical treatment for his
alleged conditions in the form of psychiatric medication, a bland diet, heartburn and
acid reflux medication, and numerous visits with medical professionals at TSCI.
(Filing No. 1.) Plaintiff seeks damages in the amount of $190,000, and an order
requiring Defendants to stop contaminating his food and poisoning him with
chemicals. (Id. at CM/ECF pp. 8-10.)
II.

APPLICABLE LEGAL 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)(2). The court
must dismiss a complaint or any portion thereof 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).
A pro se plaintiff must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 129 S. Ct.
1937, 1950 (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.”). Regardless of whether a plaintiff is represented
or is appearing pro se, the plaintiff’s complaint must allege specific facts sufficient to
state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). However,
a pro se plaintiff’s allegations must be construed liberally. Burke v. North Dakota
Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations omitted).

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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 OF CLAIMS
The court has carefully reviewed the Complaint. As set forth above, Plaintiff’s

allegations are difficult to decipher. The allegations which the court can decipher do
not nudge Plaintiff’s claims across the line from conceivable to plausible. The court
liberally construes Plaintiff’s Complaint to allege an Eighth Amendment claim related
to Plaintiff’s conditions of confinement. “The Supreme Court has interpreted the
Eighth Amendment’s prohibition against cruel and unusual punishment to include a
right to safe and humane conditions of confinement.” Brown v. Fortner, 518 F.3d
552, 558 (8th Cir. 2008) (citing Farmer v. Brennan, 511 U.S. 825, 847 (1994)). A
prisoner asserting a violation of his Eighth Amendment right must show “deliberate
indifference”or reckless or callous disregard of a known, excessive risk of serious
harm to his health or safety. Tucker v. Evans, 276 F.3d 999, 1001 (8th Cir. 2002).
Moreover, a viable Eighth Amendment claim consists of an objective component and
a subjective component. Jackson v. Everett, 140 F.3d 1149, 1151 (8th Cir. 1998).
“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.” Coleman v. Rahija,
114 F.3d 778, 784 (8th Cir. 1997). “The subjective component of deliberate
indifference requires proof that [a Defendant] actually knew of and recklessly
disregarded a substantial risk of serious harm.” Butler v. Fletcher, 465 F.3d 340, 345
(8th Cir. 2006) (citation omitted).
Here, Plaintiff alleges that he suffers from self-diagnosed chest pain, pain in
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various other internal organs, and painful burns all over his body after eating food that
he believes has been contaminated by Defendants. (Filing No. 1.) Plaintiff treats the
alleged burns himself by soaking his clothing in water and then wearing the soaked
clothing and by eating “deodorant” and “smear[ing]” it on his chest. (Id. at CM/ECF
pp. 6, 82-86.) Even assuming that Plaintiff’s allegations amount to anything more
than nonsensical ramblings, Plaintiff’s own allegations show that Defendants have not
deliberately disregarded his safety. Rather, Plaintiff alleges that he has repeatedly
complained about these issues to Defendants, and Defendants have responded fully
by providing him with extensive medical treatment for his alleged conditions in the
form of psychiatric medication, a bland diet, heartburn and acid reflux medication, and
numerous visits with medical professionals at TSCI. (Id.)1 In light of this, the court
finds that Plaintiff’s allegations do not “nudge” his Eighth Amendment claim across
the line from conceivable to plausible. As such, Plaintiff’s Complaint fails to state a
claim upon which relief may be granted, and the Complaint is dismissed without
prejudice.
IT IS THEREFORE ORDERED that:
1.

Plaintiff’s Complaint fails to state a claim upon which relief may be

granted and is dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2).
2.

A separate judgment will be entered in accordance with this

Memorandum and Order.
3.

The Clerk of the court is directed to place the “28USC1915(g)_STR” flag

on this matter.
DATED this 29 th day of November, 2012.
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Plaintiff does not assert any claim under the Eighth Amendment relating to his
medical care or treatment.
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BY THE COURT:
Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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