Sather v. Kenney et al

Filing 19

MEMORANDUM AND ORDER - Sather must file an amended complaint within 30 days that states a claim upon which relief can be granted. Failure to do so will result in the court dismissing this case for failure to state a claim. The clerk's office is directed to set a pro se case management deadline in this case using the following text: May 18, 2015: Check for amended complaint. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL PATRICK SATHER,
Plaintiff,
v.
MICHAEL L. KENNEY,
Defendant.

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8:14CV350

MEMORANDUM
AND ORDER

Plaintiff Michael Patrick Sather (“Plaintiff” or “Sather”) filed his Complaint
(Filing No. 1) on November 10, 2014. This court has given Sather leave to proceed
in forma pauperis. (Filing No. 18.) The court now conducts an initial review of his
Complaint to determine whether summary dismissal is appropriate under 28 U.S.C.
§ 1915(e)(2).
I. SUMMARY OF COMPLAINT
Sather was incarcerated at the Omaha Correctional Center when he filed his
Complaint. He has since been paroled, and is now residing at a mission in Omaha,
Nebraska. (See Filing No. 8.)
Sather sued Michael Kenney, a prison director for the Nebraska Department of
Correctional Services, pursuant to 42 U.S.C. § 1983 for violations of his First, Eighth,
and Fourteenth Amendment rights. (Filing No. 1 at CM/ECF pp. 3-4.) Sather also
alleged state law claims in his Complaint. (Id. at CM/ECF pp. 7-9.)
Sather filed three supplements to his Complaint. (See Filing Nos. 9, 12, and
14.) The court has reviewed the supplements and has considered them in its
discussion of Sather’s claims. However, the court notes that much of Filing Number

14 (see Filing No. 14 at CM/ECF pp. 3-13) does not relate to Sather’s claims in this
case.
Condensed and summarized, Sather alleged in his Complaint that he waited 86
days to be seen by a mental health provider while incarcerated at the Omaha
Correctional Center. Once he was finally visited by a mental health provider, the
provider prescribed Klonopin after only a 15-minute consultation. (Filing No. 1 at
CM/ECF p. 7.) Sather also alleged that, on two occasions, his anti-depressant was
“not available to him because [the medication was] not ordered by the medical staff.”
(Id.)
Sather alleged that officers did not allow him to access a toilet on four separate
occasions, once while he was incarcerated at the Omaha Correctional Center and three
times while he was incarcerated at the Diagnostic and Evaluation Center. (Id. at
CM/ECF p. 8.) As a result, Sather “soiled himself” on all four occasions because “he
is incontinent and cannot control his bowel movements normally.” (Id.)
Finally, Sather alleged prison officials opened his legal mail without his
permission and outside of his presence on more than one occasion. (Id. at CM/ECF
p. 9.)
Sather set forth that Kenney “indirectly” participated in causing his injuries.
(Id. at CM/ECF p. 2.) In a later-filed pleading, Sather also alleged he received a letter
from Kenney on December 22, 2014, which Sather “construed as an alleged threat that
if [Sather] were to follow through with this suit, his parole would or could be in
jeopardy.” (Filing No. 14 at CM/ECF p. 2.) Sather did not describe the contents of
the letter or why he believed it to be a threat.
For relief, Sather requests damages in the amount of $2,000,000. (Filing No.
1 at CM/ECF p. 5.) He also asks for changes to the “standard of care” within the
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Nebraska Department of Correctional Services. (Id.) Finally, he asks that criminal
charges be brought against “the administration in question.” (Filing No. 12 at
CM/ECF p. 1.)
II. 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). The court must
dismiss a complaint or any portion of it 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).
Pro se plaintiffs must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (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.”).
“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds
for a claim, and a general indication of the type of litigation involved.’” Topchian v.
JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v.
Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must
be liberally construed, and pro se litigants are held to a lesser pleading standard than
other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and 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
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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
For the most part, Sather’s claims are conclusory and unsupported by any
factual detail. The only individual named as a defendant in the case is Kenney. The
only specific allegation made about Kenney’s conduct is that he sent a letter to Sather,
which Sather “construed as an alleged threat that if Mr. Sather were to follow through
with this suit, his parole would or could be in jeopardy.” (See Filing No. 14 at
CM/ECF p. 2 (emphasis added).) The court cannot infer a constitutional violation
from this bare allegation.
Separately, in a § 1983 case, an official “is only liable for his . . . own
misconduct” and is not “accountable for the misdeeds of [his] agents” under a theory
such as respondeat superior or supervisor liability. Iqbal, 556 U.S. at 677. Sather
does not contend that Kenney had any personal involvement in the alleged violations
of his First, Eighth, and Fourteenth Amendment rights.
As for Sather’s request that criminal charges be brought against Kenney
(see Filing No. 12 at CM/ECF p. 1), this court cannot compel a criminal prosecution
against Kenney. See Ray v. Dep’t of Justice, 508 F.Supp. 724, 725 (E.D. Mo. 1981)
(“It is well settled that initiation of federal criminal prosecution is a discretionary
decision within the Executive Branch not subject to judicial compulsion.”) (collecting
cases).
As pled, Sather’s allegations fail to state a claim upon which relief can be
granted. On the court’s own motion, the court will provide Sather 30 days in which
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to file an amended complaint. The court will dismiss this case for failure to state a
claim if Sather does not file an amended complaint.
IT IS THEREFORE ORDERED that:
1.
Sather must file an amended complaint within 30 days that states a claim
upon which relief can be granted. Failure to do so will result in the court dismissing
this case for failure to state a claim.
2.
The clerk’s office is directed to set a pro se case management deadline
in this case using the following text: May 18, 2015: Check for amended complaint.
DATED this 17th day of April, 2015.
BY THE COURT:
s/ John M. Gerrard
United States District Judge

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