Clausen v. Fox Hall et al
MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Plaintiff shall have 30 days from the date of this Memorandum and Order to file an amended complaint that clearly states a claim against Defendants. If Plaintiff fails to file an amended complain t, 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. In the event that Plaintiff files an amended complaint, Plaintif f 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. The Clerk of the court is directed to set a pro se case management deadl ine in this case using the following text: November 22, 2013: Check for amended complaint. 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. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party)(TCL )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
FOX HALL, HEBBAD, EARLY,
DOUGLAS COUNTY, CITY OF
OMAHA, and OMAHA POLICE,
Plaintiff filed his Complaint in this matter on June 26, 2013. (Filing No. 1.)
Plaintiff is a prisoner who has been granted leave to proceed in forma pauperis.
(Filing No. 8.) 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
SUMMARY OF COMPLAINT
Plaintiff is currently confined at the Douglas County Correctional Center in
Omaha, Nebraska. (Docket Sheet.) Plaintiff filed his Complaint in this matter against
four individuals, the Douglas County Correctional Center, Douglas County, the City
of Omaha, and the Omaha Police Department. Plaintiff does not make any allegations
against any Defendant in the body of the Complaint. (See Filing No. 1 at CM/ECF
Condensed and summarized, Plaintiff alleges that he has been placed in
administrative segregation “without a reason or explanation.” (Id. at CM/ECF p. 1.)
Plaintiff states that being placed in administrative segregation has “caused [him]
duress.” (Id. at CM/ECF p. 2.) As relief, Plaintiff asks “to be released immediately.”
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
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).
DISCUSSION OF CLAIMS
An inmate who makes a due process challenge to his segregated confinement
must make a threshold showing that the deprivation of which he complains imposed
an atypical and significant hardship. Portley-El v. Brill, 288 F.3d 1063, 1065 (8th
Cir. 2002) (internal quotations omitted); Sandin v. Conner, 515 U.S. 472, 484 (1995).
The Eighth Circuit has consistently held that “administrative and disciplinary
segregation are not atypical and significant hardships[.]” Portley-El, 288 F.3d at
1065; Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003) (“We have consistently
held that a demotion to segregation, even without cause, is not itself an atypical and
However, under certain circumstances, prolonged
confinement in administrative segregation can rise to the level of an atypical and
significant hardship. See Williams v. Norris, 277 Fed.Appx. 647, 648 (8th Cir. 2008)
(holding that an inmate’s 12 years in administrative segregation confinement
constituted an atypical and significant hardship); Shoats v. Horn, 213 F.3d 140, 144
(3d Cir. 2000) (holding that inmate’s almost eight years in administrative custody was
“atypical” and he had protected liberty interest); Herron v. Schriro, 11 Fed.Appx.
659, 661-62 (8th Cir. 2001) (unpublished per curiam decision) (affirming district
court’s finding that inmate’s lengthy administrative segregation confinement, more
than 13 years, resulted in atypical hardship in relation to ordinary incidents of prison
life, and defendants could not continue to deprive inmate of general population status
without affording him due process).
Here, Plaintiff alleges that he is confined in administrative segregation, but
fails to allege the duration of his confinement or other facts sufficient to suggest that
his segregation status is atypical and a significant hardship. (Filing No. 1 at CM/ECF
pp. 5-6.) As mentioned above, confinement in administrative segregation, by itself,
is not an atypical and significant hardship. Thus, Plaintiff has not alleged sufficient
facts to meet the threshold requirement to challenge his segregation status under the
Due Process Clause. In addition, Plaintiff names Defendants in the caption of the
Complaint, but makes no allegations against any of them in the body of the
Complaint. A complaint that only lists a defendant’s name in the caption without
alleging that the defendant was personally involved in the alleged misconduct fails
to state a claim against that defendant. See Krych v. Hvass, 83 F. App’x 854, 855 (8th
Cir. 2003) (citing Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974) (holding that
court properly dismissed a pro se complaint where the complaint did not allege that
defendant committed a specific act and the complaint was silent as to defendant
except for his name appearing in caption)).
On the court’s own motion, Plaintiff shall have 30 days in which to amend his
Complaint to clearly state a Due Process claim against Defendants upon which relief
can be granted. Any amended complaint must 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.
IT IS THEREFORE ORDERED that:
Plaintiff shall have 30 days from the date of this Memorandum and Order
to file an amended complaint that clearly states a claim against Defendants. 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.
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.
The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: November 22, 2013: Check for
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
DATED this 22nd day of October, 2013.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge
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