Chae v. Rodriguez et al
Filing
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MEMORANDUM AND ORDER - Plaintiff's claims for monetary relief against Defendants in their official capacities are dismissed, as are his Fourteenth Amendment due process claims. Plaintiff's Motion for the Appointment of Counsel (Filing No. 4 ) is denied without prejudice to reassertion. In light of the foregoing, Plaintiffs Motion for Status (Filing No. 7 ) is granted to the extent it is consistent with this Memorandum and Order. In light of the foregoing, Plaintiffs Motion for Pra ecipe for Summons (Filing No. 8 ) is denied. Plaintiffs Complaint fails to state a claim upon which relief may be granted and, therefore, this matter may not proceed to service of process at this time. Plaintiff shall have 30 days from the date of this Memorandum and Order to file an amended complaint that clearly states an equal-protection claim upon which relief may be granted against Defendants, in accordance with this Memorandum and Order. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 10/18/2013: Check for amended complaint), Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party)(MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BONG H. CHAE,
Plaintiff,
v.
PAUL RODRIGUEZ, STEPHANIE
BRUHN, CAMERON S. WHITE,
BARBARA LEWIEN, MIKE
KENNY, and ROBERT P.
HOUSTON,
Defendants.
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8:13CV166
MEMORANDUM
AND ORDER
Plaintiff filed his Complaint in this matter on May 28, 2013. (Filing No. 1.)
Plaintiff is a prisoner who has been granted leave to proceed in forma pauperis.
(Filing No. 6.) The court now conducts an initial review of Plaintiff’s claims to
determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and
1915A.
I.
SUMMARY OF COMPLAINT
Plaintiff filed his Complaint against six Nebraska Department of Correctional
Services (“the department”) employees, including Paul Rodriguez (“Rodriguez”),
Stephanie Bruhn (“Bruhn”), Cameron White (“White”), Barbara Lewien (“Lewien”),
Mike Kenny (“Kenny”), and Robert Houston (“Houston”). (Filing No. 1 at CM/ECF
pp. 1-2.) Plaintiff has sued Rodriguez, Bruhn, and Kenny in their individual and
official capacities, and has sued Lewien in her individual capacity. (Id.) Plaintiff did
not specify whether he was suing Houston in his official or individual capacity.
Therefore, the court assumes that he is sued in his official capacity only. See 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.”).
Condensed and summarized, Plaintiff’s Complaint relates entirely to the
department’s recommendation that he undergo sex offender treatment prior to his next
parole hearing. More specifically, Plaintiff alleges that the department required that
Plaintiff undergo screening by the Clinical Sex Offender Review Team and the
Clinical Violent Offender Review Team, despite Plaintiff not having been convicted
of a sexual offense. (Filing No. 1 at CM/ECF p. 3.) The ultimate recommendation
from one or both of these teams was that Plaintiff undergo sex offender treatment. (Id.
at CM/ECF p. 4.) In addition, the Nebraska Parole Board has deferred parole, and
recommended that Plaintiff participate in appropriate mental health treatment. (Id. at
CM/ECF p. 3.) Plaintiff has submitted grievances to each of the Defendants
complaining about the recommendation that he undergo sex offender treatment,
despite not having been convicted of a sexual offense, and they have each denied or
ignored his grievances.
Liberally construed, Plaintiff alleges that forcing him to participate in mental
health programming as a condition of receiving parole deprives him of a liberty
interest in violation of the Fourteenth Amendment and violates his rights to equal
protection under the law. (Id. at CM/ECF p. 8.) Plaintiff requests relief in the form
of a declaratory judgment, compensatory and punitive damages, and an injunction
requiring Defendant Houston to “stop the illegal practice of Mental Health and clear
[him] to be eligible for parole.” (Id. at CM/ECF p. 9.)
II.
APPLICABLE 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
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U.S.C. §§ 1915(e) and 1915A. 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); 28 U.S.C. § 1915A.
Therefore, where pro se plaintiffs do not set forth enough factual allegations to
“nudge[] their claims across the line from conceivable to plausible, 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) (overruling Conley v.
Gibson, 355 U.S. 41 (1967), and setting new standard for failure to state a claim upon
which relief may be granted). 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).
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
A.
Sovereign Immunity
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. See, e.g., Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th
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Cir. 1995); Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446-47 (8th Cir.
1995). Any award of retroactive monetary relief payable by the state, including for
back pay or damages, is proscribed by the Eleventh Amendment absent a waiver of
immunity by the state or an override of immunity by Congress. See, e.g., Dover
Elevator Co., 64 F.3d at 444; Nevels v. Hanlon, 656 F.2d 372, 377-78 (8th Cir. 1981).
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.
Here, Plaintiff seeks monetary relief against state employees in their official and
individual capacities. (Filing No. 1 at CM/ECF pp. 1-2.) As set forth above, Plaintiff
may not sue a state employee in his or her official capacity for monetary relief absent
a waiver of immunity by the state or an override of immunity by Congress. The
record before the court does not show that Nebraska waived, or Congress overrode,
sovereign immunity in this matter. Accordingly, Plaintiff’s claims for monetary relief
against Defendants in their official capacities must be dismissed.
B.
Fourteenth Amendment Due Process Claims
Liberally construed, Plaintiff alleges Defendants have denied him due process
of law in violation of the Fourteenth Amendment. “[T]he Fourteenth Amendment’s
Due Process Clause protects persons against deprivations of life, liberty, or property;
and those who seek to invoke its procedural protection must establish that one of these
interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Thus, Plaintiff
must demonstrate that he has been deprived of a liberty interest in order to
successfully claim that his Fourteenth Amendment right to due process has been
violated. Persechini v. Callaway, 651 F.3d 802, 806 (8th Cir. 2011) (citing Sandin
v. Conner, 515 U.S. 472 (1995)). A liberty interest can arise out of the Due Process
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Clause itself or be state-created. Id. (citing Ky. Dep’t of Corr. v. Thompson, 490 U.S.
454, 460 (1989)) (quotations omitted).
A liberty interest arises under the Due Process Clause when the consequences
of the state’s actions are “stigmatizing” and “qualitatively different from the
punishment characteristically suffered by a person convicted of crime.” Sandin v.
Conner, 515 U.S. 472, 479 n.4 (1995) (citing Vitek v. Jones, 445 U.S. 480, 493-94
(1980)). However, an inmate does not have a constitutionally-protected liberty
interest in parole. Adams v. Agniel, 405 F.3d 643, 645 (8th Cir. 2005) (citing
Greenholtz v. Inmates of Neb. Penal & Corr., 442 U.S. 1, 7 (1979)). Further, an
inmate has no liberty interest in the possibility of parole if the action was within the
original sentence imposed. As set forth in Persechini:
[T]here is no protected liberty interest, for example, in the sentence
reduction that may be granted upon completing a Bureau of Prisons drug
treatment program, Giannini v. Fed. Bureau of Prisons, 405 Fed. Appx.
96, 97 (8th Cir. 2010) (unpublished); or in halfway-house placement
after completing a drug-treatment program, Staszak v. Romine, 2000 WL
862836, at *1 (8th Cir. June 29, 2000) (unpublished); or in remaining in
a work release program, Callender v. Sioux City Residential Treatment
Facility, 88 F.3d 666, 668 (8th Cir. 1996); or in participating in a drug
treatment program to qualify for early release, Koch v. Moore, 1995 WL
141733, at *1 (8th Cir. April 4, 1995) (unpublished); or in remaining in
a discretionary “shock incarceration program,” Klos v. Haskell, 48 F.3d
81, 88 (2d Cir. 1995); or in participating in Missouri’s sex offender
treatment program, Jones v. Moore, 996 F.2d 943, 945 (8th Cir. 1993).
Persechini, 651 F.3d at 807. Put simply, “[t]he general rule” is that “the Due Process
Clause standing alone confers no liberty interest in freedom from state action taken
within the sentence imposed.” Id. at 808.
Moreover, a state-created liberty interest arises when a statute or regulation
imposes an “atypical or significant hardship on the inmate in relation to the ordinary
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incidents of prison life.” Sandin, 515 U.S. at 483-84; see also Wilkinson, 545 U.S. at
223; Wolff v. McDonnell, 418 U.S. 539 (1974). A state-created liberty interest also
arises when a state’s actions will inevitably affect the duration of the sentence.
Sandin, 515 U.S. at 487. In Nebraska, taking advantage of self-improvement
opportunities, such as completion of mental health treatment, is only one among a
multitude of factors that the Nebraska Board of Parole considers in determining if a
prisoner should be paroled. Neb. Rev. Stat. § 83-1,114(2). Failure to complete a
personalized program plan, which may include sex offender treatment as a
requirement, may be considered by the Nebraska Board of Parole as a factor in their
decision, but denial of parole on those grounds is not mandatory. Neb. Rev. Stat.
§ 83-1,107(1)(b).
Here, Plaintiff takes issue with the recommendation that he participate in mental
health treatment, specifically sex offender treatment, because “he was not convicted
of any sexual offense.”1 (Filing No. 1 at CM/ECF p. 1.) Plaintiff asserts that his
chance at parole is affected by this recommendation, and he asks the court to order
“[D]efendant Houston to stop the illegal practice of Mental Health and clear plaintiff
to be eligible for parole.” (Id. at CM/ECF p. 9.) However, as set forth above, there
is no liberty interest in parole, or even the possibility of parole, arising from the Due
Process Clause itself. Defendants have recommended that Plaintiff participate in
1
The court notes that Plaintiff filed a Petition for Writ of Habeas Corpus in this
court in which he challenged his 2007 conviction for false imprisonment in the first
degree and second degree arson. (See Case No. 8:09CV416, Filing No. 43 at
CM/ECF p. 3.) The state court records filed in Plaintiff’s habeas corpus action reflect
that, while Plaintiff was not convicted of a sexual offense in 2007, he was originally
charged with false imprisonment in the first degree, terroristic threats, first degree
sexual assault, and two counts of arson in the first degree. (See opinion by the
Nebraska Court of Appeals dated September 17, 2009, at Case No. 8:09CV416, Filing
No. 8-13 at CM/ECF p. 1.) Pursuant to a plea agreement, Plaintiff pled no contest to
false imprisonment in the first degree and arson in the second degree, and the
remaining charges were dismissed. (Id. at CM/ECF p. 2.)
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mental health programming. There is no indication that these actions were outside of
the sentence originally imposed upon Plaintiff, or that there has been an increase in
Plaintiff’s original sentence as a result of the recommendation that Plaintiff participate
in sex offender treatment. Therefore, the Due Process Clause itself does not afford
Plaintiff any protection.
Also, Plaintiff cannot demonstrate that he has a state-created liberty interest in
parole. He cannot show that he has suffered an atypical or significant hardship as a
result of the recommendation that he participate in mental health programming. For
example, he has not been transferred to a markedly more restrictive facility or had a
previously-granted right revoked. His only potential hardship is that he may not be
paroled if he refuses to participate in sex offender treatment, and such a possibility is
neither atypical or significant in regular prison life. That is, Plaintiff may simply be
required to serve out the remainder of his sentence under the same conditions as other
prisoners.
Importantly, Plaintiff also cannot demonstrate that failure to participate in
mental health programming will necessarily impact the duration of his sentence.
There is no guarantee that Plaintiff will complete the programming, nor does
completion of programming mandate Plaintiff’s parole under Nebraska law.
Additionally, the Nebraska Board of Parole has the discretionary power to examine
numerous other factors in determining whether or not parole will be granted.
Moreover, to the extent that Plaintiff argues that the department cannot legally
recommend sex offender treatment to an individual who is not convicted of a sexual
offense, the court notes that the Nebraska statutes clearly state that programming may
include “[a]ny other program deemed necessary and appropriate by the department.”
Neb. Rev. Stat. § 83-1, 107(1)(a)(v). In short, Plaintiff does not have a liberty interest
in being granted access to the mental health programming of his choosing, regardless
of its potential impact on his chance at parole. Therefore, Plaintiff’s claim must be
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dismissed for failure to state a claim upon which relief can be granted.
C.
Fourteenth Amendment State Procedural Claims
While it is unclear, Plaintiff may also allege that Defendants violated his due
process rights because Defendants failed to comply with state procedures. (Filing No.
1 at CM/ECF pp. 6-7.) However, a federal court will not inquire into whether “state
officers follow state law.” Kennedy v. Blankenship, 100 F.3d 640, 643 (8th Cir. 1996)
(“[The plaintiff’s] only argument is that the state failed to follow its own procedural
rules and thus failed to afford him the due process of law mandated by the
Constitution. But, as we have stated above, the Due Process Clause does not
federalize state-law procedural requirements.”). Because the court has already
determined that Plaintiff has no liberty interest in being free from a recommendation
that he receive sex offender treatment or in receiving the mental health programming
of his choosing, this court will not examine whether Defendants complied with state
procedures when they recommended a specific type of mental health programming.
Therefore, to the extent one exists, Plaintiff’s claim relating to state-law procedures
must be dismissed for failure to state a claim upon which relief can be granted.
D.
Equal Protection Claims
Plaintiff alleges that his right to equal protection under the law has been
violated because he has been “singled out . . . for his national origin or age or any
other [of] his weak positions.” (Filing No. 1 at CM/ECF p. 8.) The Equal Protection
Clause of the Fourteenth Amendment requires the government to treat similarly
situated people alike, a protection that applies to prison inmates. Murphy v. Mo. Dep’t
of Corr., 372 F.3d 979, 984 (8th Cir. 2004). In order to establish an equal protection
claim, a prisoner must show that he was treated differently from similarly-situated
inmates and that the different treatment was based upon either a suspect classification
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or a fundamental right. Weems v. Little Rock Police Dep’t, 453 F.3d 1010, 1016 (8th
Cir. 2006); Weiler v. Purkett, 137 F.3d 1047, 1052 (8th Cir. 1998).
Here, Plaintiff alleges he was treated differently than other inmates because the
department recommended that he undergo a type of treatment imposed on “inmates
who are assessed to be at a relatively higher risk to sexually re-offend,” despite the
fact that he was not convicted of a sexual offense. (Filing No. 1 at CM/ECF p. 8.)
Meanwhile, the department has recommended a less restrictive type of treatment for
individuals who have been convicted of sexual offenses. (Id.)
Plaintiff has not alleged facts suggesting that he is being treated differently than
similarly situated inmates, or that the different treatment was based on a suspect
classification or that it burdened one of his fundamental rights. As such, Plaintiff has
failed to properly allege an equal protection claim against Defendants and his
Complaint fails to state a claim upon which relief may be granted. However, on the
court’s own motion, Plaintiff shall have 30 days in which to amend his Complaint to
clearly state a claim against Defendants upon which relief can be granted. Any
amended complaint shall restate the allegations of Plaintiff’s current Complaint
(Filing No. 1) and any new allegations. Failure to consolidate all claims into one
document may result in the abandonment of claims.
IV.
MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff has filed a Motion to Appoint Counsel (Filing No. 4.) However, the
court cannot routinely appoint counsel in civil cases. In Davis v. Scott, 94 F.3d 444, 447
(8th Cir. 1996), the Eighth Circuit Court of Appeals explained that “[i]ndigent civil
litigants do not have a constitutional or statutory right to appointed counsel. . . . The
trial court has broad discretion to decide whether both the plaintiff and the court will
benefit from the appointment of counsel . . . .” Id. (quotation and citation omitted). No
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such benefit is apparent here. Thus, the request for the appointment of counsel is denied
without prejudice to reassertion.
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s claims for monetary relief against Defendants in their official
capacities are dismissed, as are his Fourteenth Amendment due process claims.
2. Plaintiff shall have 30 days from the date of this Memorandum and Order
to file an amended complaint that clearly states an equal-protection claim upon which
relief may be granted against Defendants, in accordance with this Memorandum and
Order. If Plaintiff fails to file an amended complaint, or the court finds that the
amended complaint is insufficient, this matter will be dismissed without further notice
for failure to state a claim upon which relief may be granted.
3.
In the event that Plaintiff files an amended complaint, Plaintiff shall
restate the allegations of the current Complaint and any new allegations. Failure to
consolidate all claims into one document may result in the abandonment of claims.
4.
The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: October 18, 2013: Check for amended
complaint.
5.
Plaintiff shall keep the court informed of his current address at all times
while this case is pending. Failure to do so may result in dismissal without further
notice.
6.
Plaintiff’s Motion for the Appointment of Counsel (Filing No. 4) is
denied without prejudice to reassertion.
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7.
In light of the foregoing, Plaintiff’s Motion for Status (Filing No. 7) is
granted to the extent it is consistent with this Memorandum and Order.
8.
In light of the foregoing, Plaintiff’s Motion for Praecipe for Summons
(Filing No. 8) is denied. As set forth above, Plaintiff’s Complaint fails to state a claim
upon which relief may be granted and, therefore, this matter may not proceed to
service of process at this time.
DATED this 26th day of September, 2013.
BY THE COURT:
s/ Joseph F. Bataillon
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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