Deas v. Kenney et al

Filing 8

MEMORANDUM AND ORDER - Plaintiff must file an amended complaint within 30 days in accordance with this order. This case will be dismissed without prejudice and without further notice if Plaintiff fails to file an amended complaint. Plaintiff' s request for class certification is denied. The clerk of the court is directed to send to plaintiff a civil complaint form. To avoid confusion, any document Plaintiff sends to the clerk of the court for filing in this case must clearly display the case number. The clerk of the court is directed to set a pro se case management deadline in this matter: May 27, 2015. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party with civil complaint form)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT DEAS,

)
)
)
v.
)
)
MICHAEL L. KENNEY, RANDY KOHL, )
CAMERON S. WHITE, MARK
)
WEILAGE, RICHARD THOMAS,
)
BRIAN GAGE, KIETH BROADFOOT,
)
RYAN HOLLEY, and KEVIN
)
BERGSTROM,
)
)
Defendants.
)

8:15CV35

Plaintiff,

MEMORANDUM
AND ORDER

This action was filed by Robert Deas, a pro se litigant incarcerated at the Tecumseh
State Prison (“TSP”) in Tecumseh, Nebraska. He filed his Complaint (Filing No. 1) on
January 26, 2015. The court granted him leave to proceed in forma pauperis in this action.
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 sues nine prison officials and claims to bring this suit “on behalf of the
inmates of the Tecumseh Department of Corrections in protective custody Unit 2c.” (Filing
No. 1 at CM/ECF p. 1.) Condensed and summarized, Plaintiff alleged “protective custody
inmates cannot receive thier [sic] mandated mental health and substance abuse treatment
unless they sign out to General population” where their safety is at risk. (Filing No. 1 at
CM/ECF p. 4.) For relief, Plaintiff asks that Defendants be held responsible in their
personal capacities, and that they be ordered to pay $30 million in monetary damages. (Id.
at CM/ECF p. 7.) He also asks that they be ordered to provide mental health treatment and
substance abuse treatment to protective custody-inmates. (Id. at CM/ECF p. 7.)

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 U.S.C. §§ 1915(e) and
1915A. 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); 28 U.S.C. § 1915A(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 by the
2

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
Plaintiff claims to bring this action “on behalf of the inmates of the Tecumseh
Department of Corrections in protective Custody Unit 2c.” (Filing No. 1 at CM/ECF p. 1.)
However, as a pro se litigant, Plaintiff 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 Plaintiff to proceed
with his claims, he must have standing. As a general rule, to establish standing, a plaintiff
must assert his 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 alleged inmates in protective custody at the TSP are unable to
participate in mental health programming and substance abuse treatment. (Filing No. 1 at
CM/ECF p. 3.) He did not explain in his Complaint how his own legal rights or interests are
implicated. The court can infer from the documents attached to Plaintiff’s Complaint that
he was, at some point, in protective custody and he grieved issues relating to his access
to mental health programming to prison officials. However, the court will not undertake the
task of guessing what allegations or claims Plaintiff means to assert against each of the
nine individuals named as Defendants based solely on the materials attached to his
Complaint. See Fed. R. Civ. P. 8(a)(2), (d)(1) (requiring that every complaint contain “a

3

short and plain statement of the claim showing that the pleader is entitled to relief” and that
“each allegation . . . be simple, concise, and direct.”).
On the court’s own motion, Plaintiff will have 30 days to file an amended complaint
that asserts his 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 him of
his constitutional rights, and what specific legal rights Plaintiff believes that defendant
violated. The court will direct the clerk of the court to send to Plaintiff a blank civil complaint
form, which Plaintiff may utilize to draft his amended complaint. To avoid confusion, any
document Plaintiff sends to the clerk of the court for filing in this case must clearly display
the case number. If Plaintiff fails to file an amended complaint in accordance with this
order, this matter will be dismissed without prejudice and without further notice.
IV. REQUEST FOR CLASS CERTIFICATION
Plaintiff seeks 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 (citing cases for rule that class representatives cannot appear
pro se). For these reasons, Plaintiff’s request for class certification is denied.

IT IS THEREFORE ORDERED that:

4

1.

Plaintiff must file an amended complaint within 30 days in accordance with
this order. This case will be dismissed without prejudice and without further
notice if Plaintiff fails to file an amended complaint.

2.

Plaintiff’s request for class certification is denied.

3.

The clerk of the court is directed to send to plaintiff a civil complaint form. To
avoid confusion, any document Plaintiff sends to the clerk of the court for
filing in this case must clearly display the case number.

4.

The clerk of the court is directed to set a pro se case management deadline
in this matter: May 27, 2015.

DATED this 24th day of April, 2015.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

5