Sexton et al v. Kenney et al

Filing 96

MEMORANDUM AND ORDER that Plaintiff shall have 30 days from the date of this Memorandum and Order to file an amended complaint in accordance with this Memorandum and Order. The clerk's office is directed to set a pro se case management deadline in this matter: January 16, 2015. Plaintiff's request for class certification is denied. Plaintiff shall keep the Court informed of her current address at all times while this case is pending. Failure to do so may result in dismissal of this case without further notice. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LISA K. SEXTON,

)
)
Plaintiff,
)
)
v.
)
)
MICHAEL KENNEY, et al.,
)
)
Defendants.
)
______________________________)

8:14CV164

MEMORANDUM AND ORDER

This action was filed by 24 prisoner plaintiffs on May
27, 2014 (Filing No. 1).

All but one plaintiff has asked to be

dismissed from this action.

The only remaining plaintiff, Lisa

Sexton, has been granted leave to proceed in forma pauperis
(Filing No. 70).

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 and 23 other prisoners incarcerated at the

Nebraska Center for Women in York, Nebraska, sued 12 employees of
the Nebraska Department of Correctional Services (“NDCS”),
including wardens, assistant wardens, program directors, and unit
managers.

No specific allegations are made with respect to any

defendant in the complaint.

Rather, all individuals are referred

to collectively as “Defendants.”

The complaint alleges Defendants systematically
discriminate against females incarcerated by the NDCS.

Since

2013, women have not been allowed to participate in the work
ethic camp (Filing No. 1 at CM/ECF p. 7).

In addition, “women

are required to complete programs such as intensive outpatient
therapy but are banned due to their sex and therefore are not
given ‘points’ for programming, which is then used to deny the
same women participation in community custody.”

(Id. at CM/ECF

p. 8.)
The complaint sets forth the following statement for
relief:
Order the defendants and the
Nebraska Department of Correctional
Services to offer WEC (work ethic
camp) to women as they did until
2013 in a separate place (if they
claim security issues by a shared
site) and order them to stop using
“overrides” to ignore their own
classification system in the
systematic refusal of community
custody for women.
(Id. at CM/ECF p. 8.)
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.
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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 (1957), 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
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must show that the alleged deprivation was caused by conduct of a
person acting under color of state law.
42, 48 (1988);

West v. Atkins, 487 U.S.

Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.

1993).
III. DISCUSSION OF CLAIMS
The complaint, as it pertains to plaintiff, is
deficient in three respects.

First, it is unclear from the

allegations whether the complaint asserts plaintiff’s legal
rights or interests.

Pro se litigants may not represent the

interests of other parties.

Litschewski v. Dooley, No. 11-4105-

RAL, 2012 WL 3023249, at *1 n. 1 (D.S.D. July 24, 2012), aff’d,
502 Fed. Appx. 630 (8th Cir. 2013).

Moreover, in order for a

plaintiff to proceed with her claims, she must have standing.

As

a general rule, to establish standing a plaintiff must assert her
legal rights or interests and not “the legal rights or interests
of third parties.”

Warth v. Seldin, 422 U.S. 490, 498-99 (1975).

Here, plaintiff alleges that women at the Nebraska Center for
Women are being subjected to unconstitutional conditions.
However, she does not allege that she, rather than other
prisoners, is being subjected to unconstitutional conditions.
For example, plaintiff does not allege in the body of the
complaint that she sought, but was denied, participation in the
work ethic program or that she was denied community custody based
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on the classification “overrides” referenced in the complaint.
Plaintiff must assert her own legal rights and interests, and not
the legal rights and interests of third parties.
Second, while plaintiff names 12 individuals as
defendants in this matter, she makes no allegations against any
of them in the body of her complaint.

For example, she does not

allege that any of them are personally involved in the alleged
constitutional violations or that any of them are responsible for
the policy decisions referenced in the complaint.

Federal Rule

of Civil Procedure 8 requires that every complaint contain “a
short and plain statement of the claim showing that the pleader
is entitled to relief” and that “each allegation . . . be simple,
concise, and direct.”

Fed. R. Civ. P. 8(a)(2), (d)(1).

A

complaint must state enough to “‘give the defendant fair notice
of what the . . . claim is and the grounds upon which it rests.’”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

See Krych v. Hvass,

83 Fed.Appx. 854, 855 (8th Cir. 2003) (holding court properly
dismissed claims against defendants where pro se complaint was
silent as to the defendants except for their names appearing in
the caption).

Here, plaintiff has failed to state a claim upon

which relief can be granted against any named defendant.

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Third, plaintiff seeks only injunctive relief against
Defendants acting in their official capacities, but fails to
state an injunctive-relief claim against any defendant because
she did not attribute any alleged ongoing misconduct to any
specific defendant.

See Nix v. Norman, 879 F.2d 429, 433 (8th

Cir. 1989) (“To establish liability in an official-capacity suit
under section 1983, a plaintiff must show either that the
official named in the suit took an action pursuant to an
unconstitutional governmental policy or custom . . . or that he
or she possessed final authority over the subject matter at issue
and used that authority in an unconstitutional manner.”)
On the Court’s own motion, plaintiff will have 30 days
from the date of this Memorandum and Order to file an amended
complaint that asserts her legal rights or interests and not the
legal rights or interests of third parties, and that sets forth a
short and plain statement of the claims against each defendant.
Plaintiff should be mindful to explain what each defendant did or
is doing to deprive her of her constitutional rights, and what
specific legal rights plaintiff believes that particular
defendant has violated.

If plaintiff fails to file an amended

complaint in accordance with this Memorandum and Order, this
matter will be dismissed without prejudice and without further
notice.
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IV.

REQUEST FOR CLASS CERTIFICATION
The complaint includes a request for class

certification.

Under Federal Rule of Civil Procedure 23(a)(4), a

class representative must “fairly and adequately protect the
interests of the class.”

A litigant may bring his own claims to

federal court without counsel, but not the claims of others.

See

28 U.S.C. § 1654; see also 7A Wright, Miller & Kane, Federal
Practice and Procedure: Civil 3d § 1769.1 (“class representatives
cannot appear pro se.”).

For these reasons, plaintiff’s request

for class certification will be denied.
IT IS ORDERED:
1.

Plaintiff shall have 30 days from the date of this

Memorandum and Order to file an amended complaint in accordance
with this Memorandum and Order.

This matter will be dismissed

without prejudice and without further notice if plaintiff fails
to file an amended complaint in accordance with this Memorandum
and Order.
2.

The clerk’s office is directed to set a pro se

case management deadline in this matter: January 16, 2015.
3.

Plaintiff’s request for class certification is

4.

Plaintiff shall keep the Court informed of her

denied.

current address at all times while this case is pending.
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Failure

to do so may result in dismissal of this case without further
notice.
DATED this 16th day of December, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

* 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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