Guerry v. Frakes et al

Filing 33

MEMORANDUM AND ORDER - Defendants' Motion to Dismiss (Filing No. 24 ) is granted, in part, as follows: (a) Plaintiff's claims against the Nebraska Department of Corrections Agency are dismissed in their entirety; (b) Plaintiff's s tate law claims against the prison officials in their official capacities are dismissed without prejudice to reassertion in state court; (c) Plaintiff's state law claims against the prison officials in their individual capacities are dismissed with prejudice; (d) Plaintiff's Eighth Amendment claims against the prison officials in their official capacities are dismissed with prejudice; and (e) Plaintiff's claims for declaratory and injunctive relief against all Defendants are dis missed. Plaintiff's "Objection to Dismiss" (Filing No. 29 ) and "Objection to Defendants' Motion" (Filing No. 31 ) are denied as moot. Plaintiff's Eighth Amendment claims for monetary relief against Defendants Fr akes, Gage, Guiffe, and Thompson in their individual capacities may proceed. These Defendants shall answer Plaintiff's Complaint within fourteen days of this order. Thereafter, a progression order will be entered in this case. The clerk of court is directed to set a pro se case management deadline in this case using the following text: September 30, 2016: check for answer and issue progression order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRIAN FRANK GUERRY,
Plaintiff,
v.
SCOTT FRAKES, BRIAN GAGE,
KEITH BROADFOOT, R HOLLY,
GUIFFE, THOMPSON, and
NEBRASKA DEPARTMENT OF
CORRECTIONS AGENCY,
Defendants.

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8:15CV323

MEMORANDUM
AND ORDER

This matter is before the court on Defendants’ Motion to Dismiss. (Filing No.
24.) For the reasons discussed below, Defendants’ Motion will be granted, in part.
I. BACKGROUND
Plaintiff brought this case against the “Nebraska Department of Corrections
Agency” (“Department”), as well as several prison officials for alleged violations of
his constitutional rights. In his Complaint, Plaintiff also alleges state-law negligence
claims against the prison-official defendants. The prison officials are sued in their
official and individual capacities.
Plaintiff alleges he resided in the protective custody unit of the Tecumseh State
Correctional Institution (“TSCI”) on May 10, 2015. Plaintiff claims he resided in the
protective custody unit because he is a sex offender and fears violence at the hands of
gangs within general population.
At approximately 4:00 p.m. on this date, Plaintiff began to suffer from smoke
inhalation. He called officers in the unit’s “control bubble” for help. At this time, the
control bubble was staffed by three jail officials, including Defendants Guiffe and

Thompson. Plaintiff alleged Guiffe and Thompson remotely opened some cell doors
in the unit, but not others. Plaintiff’s cell door was among those opened. (Filing No.
1 at CM/ECF p. 4.)
Plaintiff exited his cell and called out for help, but Guiffe and Thompson were
no longer in the control bubble. (Filing No. 1 at CM/ECF p. 4.) He proceeded to go
to the “small yard,” where prison staff had instructed protective-custody inmates to go
during a fire, but the door to the small yard was locked.
Instead, Guiffe and
Thompson had unlocked the door to the “Bigger fence in area yard,” which allowed
general-population inmates to enter the unit. (Filing No. 1 at CM/ECF p. 5.) For the
next nine or so hours, general population inmates entered the protective-custody unit,
harassed protective-custody inmates, and started fires. During this time, Plaintiff and
ten other inmates locked themselves into a cell. Plaintiff alleged he suffered
approximately 10 hours of smoke inhalation. (Filing No. 1 at CM/ECF pp. 6-7.) Law
enforcement arrived at approximately 2:00 a.m. the following morning and provided
assistance. (Filing No. 1 at CM/ECF p. 7.)
Plaintiff alleges prison staff immediately returned him to his cell, and did not
treat him for smoke inhalation. Following the prison riot, Plaintiff “ask[ed] for days
to be seen by medical,” but he was advised there would be no inmate movement.
Finally, on June 3, 2015, Plaintiff received medical attention. (Filing No. 1 at
CM/ECF p. 7.)
Plaintiff complains he suffered various injuries as a result of the prison riot. He
alleges his injuries were a result of Frakes and Gage’s negligence, deliberate
indifference, and failure to train Guiffe and Thompson. In addition, he alleges Guiffe
and Thompson were deliberately indifferent to a known risk of serious harm when they
abandoned their post in the control bubble during the riot. Plaintiff seeks declaratory,
injunctive, and monetary relief in this matter. (Filing No. 1 at CM/ECF pp. 13-16.)

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On February 22, 2016, the court conducted an initial review of the Complaint
pursuant to 28 U.S.C. §§ 1915(e) and 1915A. (Filing No. 13.) The court concluded
that Plaintiff had stated plausible Eighth Amendment failure-to-protect claims against
Guiffre, Thompson, Frakes, and Gage. The court allowed those claims and Plaintiff’s
state law negligence claims to proceed to service of process on these Defendants in
their individual and official capacities.
II. DISCUSSION
Defendants have moved to dismiss this case pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. A complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face in order to survive
a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially
plausible when a plaintiff pleads facts that allow the court “to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. Pro se
complaints “must be liberally construed, and pro se litigants are held to a lesser
pleading standard than other parties.” Topchian v. JPMorgan Chase Bank, N.A., 760
F.3d 843, 849 (8th Cir. 2014) (internal quotation marks and citations omitted).
To state a claim under § 1983, Plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the
alleged deprivation was committed by a person acting under the color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988). Plaintiff alleges that Defendants violated his
Eighth Amendment rights by failing to protect him during a prison riot.
1.

State Law Claims

Plaintiff’s state law claims against the prison officials in their individual
capacities must be dismissed. Plaintiff’s claims are based on conduct by prison
officials during the course and scope of their employment. Therefore, Plaintiff is
limited to asserting state law claims against them in their official capacities under the
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Nebraska State Tort Claims Act, Neb. Rev. Stat. §§ 81-8,209, et seq. See Bohl v.
Buffalo County, 251 Neb. 492, 557 N.W.2d 668 (1997) (holding that if off-duty police
officer was acting within the scope of his employment, the Tort Claims Act would
apply and bar a suit against the officer in his individual capacity). Accordingly, all
state law claims against prison officials in their individual capacities will be dismissed
with prejudice.
Plaintiff’s state law claims against the Department1 and the prison officials in
their official capacities will likewise be dismissed. Although the State of Nebraska is
not a named defendant in this suit, Plaintiff’s state law claims against the Department
and the prison officials in their official capacities are, in reality, against the State of
Nebraska. See Parrish v. Luckie, 963 F.2d 201, 203 n.1 (8th Cir. 1992) (“Suits against
persons in their official capacity are just another method of filing suit against the entity.
A plaintiff seeking damages in an official-capacity suit is seeking a judgment against
the entity”) (internal citations omitted)). Absent consent, 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 Cir. 1995); Dover Elevator Co. v. Arkansas
State Univ., 64 F.3d 442, 446-47 (8th Cir. 1995).
Although the Nebraska Legislature has waived sovereign immunity for certain
kinds of tort against the State of Nebraska and its agencies, this waiver does not extend
to actions maintained in federal court. Miller v. Nebraska Department of Correctional
Services, No. 4:04CV3228, 2005 WL 3072198, at *1 (D. Neb. Nov. 15, 2015).
Therefore, Plaintiff’s state law claims against the Department and prison officials in
their official capacities will be dismissed without prejudice to Plaintiff’s ability to
pursue them in state court.

On initial review, the court did not state that Plaintiff’s claims against the
Department could proceed to service of process. However, the court will still
address Plaintiff’s claims against the Department in this Memorandum and Order.
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2.

Eighth Amendment Claims

Plaintiff’s Eighth Amendment claims against the Department and official
capacity claims will also be dismissed. As noted above, such claims are, in reality,
claims against the State of Nebraska, which are barred by the Eleventh Amendment.
Additionally, Plaintiff’s claims for declaratory and injunctive relief will be
dismissed as moot. Plaintiff’s Complaint alleges unconstitutional conditions at TSCI
and seeks an injunction ordering that Plaintiff be moved to work release for his entire
sentence and that he be permitted to use his car to attend sex offender treatment.
Plaintiff no longer resides at TSCI and is now confined at the Omaha Correctional
Center. Therefore, any request for injunctive or declaratory relief stemming from his
confinement at TSCI is moot. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir.
1985) (“[A] prisoner’s claim for injunctive relief to improve prison conditions is moot
if he or she is no longer subject to those conditions”).
Defendants urge the court to dismiss Plaintiff’s Eighth Amendment claims
against Defendant Frakes in his individual capacity. The court declines to do so at this
time. The court can infer from Plaintiff’s allegations that Frakes, as prison director,
was responsible for the safety and security of the prison on the date of the riot. While
Plaintiff did not specifically allege any personal involvement by Frakes, such is the
nature of his allegations. That is, Frakes was responsible for Plaintiff’s safety and
security on the date in question. Accepting these allegations as true, Plaintiff has
sufficiently stated a claim.
IT IS THEREFORE ORDERED:
1.
follows:
(a)

Defendants’ Motion to Dismiss (Filing No. 24) is granted, in part, as

Plaintiff’s claims against the Nebraska Department of Corrections
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Agency are dismissed in their entirety;
(b)

Plaintiff’s state law claims against the prison officials in their official
capacities are dismissed without prejudice to reassertion in state court;

(c)

Plaintiff’s state law claims against the prison officials in their individual
capacities are dismissed with prejudice;

(d)

Plaintiff’s Eighth Amendment claims against the prison officials in their
official capacities are dismissed with prejudice; and

(e)

Plaintiff’s claims for declaratory and injunctive relief against all
Defendants are dismissed.

2.
Plaintiff’s “Objection to Dismiss” (Filing No. 29) and “Objection to
Defendants’ Motion” (Filing No. 31) are denied as moot.
3.
Plaintiff’s Eighth Amendment claims for monetary relief against
Defendants Frakes, Gage, Guiffe, and Thompson in their individual capacities may
proceed. These Defendants shall answer Plaintiff’s Complaint within fourteen days
of this order. Thereafter, a progression order will be entered in this case.
4.
The clerk of court is directed to set a pro se case management deadline
in this case using the following text: September 30, 2016: check for answer and issue
progression order.
DATED this 15th day of September, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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