Fitzgerald v. Nebraska Department of Correctional Services et al

Filing 13

MEMORANDUM AND ORDER - Plaintiff shall file an amended complaint by September 22, 2016, that states a claim upon which relief may be granted. Failure to file an amended complaint within the time specified by the court will result in the court dismi ssing this case without further notice to Plaintiff. The clerk of the court is directed to set a pro se case management deadline using the following text: September 22, 2016 check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAMON E. FITZGERALD,
Plaintiff,
V.
NEBRASKA DEPARTMENT OF
CORRECTIONAL SERVICES,
SCOTT FRAKES, FRANK
HOPKINS, DIANE SABATKA-RINE,
RICHARD CRUICKSHANK, APRIL
JUNE-BULLINGS, JILL KUBICEK,
ROBERT MADSEN, JASON HURT,
BRANDON NOORDHOEK,
MATTHEW TRACY, sued in their
official and individual capacities, and
WILLIAM HENDRICKS, sued in his
individual capacity,
Defendants.

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8:16CV101

MEMORANDUM AND ORDER

Plaintiff, who is currently incarcerated at Tecumseh State Prison,1 filed his
Complaint on March 2, 2016. (Filing No. 1.) Plaintiff was given leave to proceed in
forma pauperis. (Filing No. 6.) Therefore, at this time, the court will conduct an
initial review of Plaintiff’s claims to determine whether summary dismissal is
appropriate under 28 U.S.C. § 1915(e)(2).

At all times relevant to Plaintiff’s Complaint, he was incarcerated at the
Nebraska State Penitentiary.
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I. SUMMARY OF COMPLAINT
Plaintiff names the Nebraska Department of Correctional Services (“NDCS”)
and several NDCS officials as defendants. The NDCS officials are named in their
official and individual capacities. Plaintiff seeks declaratory, injunctive, and monetary
relief.
Plaintiff’s Complaint seemingly sets forth four claims. First, Plaintiff maintains
that his Eighth Amendment rights were violated due to poor living conditions at
Nebraska State Penitentiary (“NSP”). Second, Plaintiff contends that his right to
privacy was violated by female guards’ and other inmates’ observation of him in the
shower. Third, Plaintiff asserts that his equal protection rights were violated because
he was treated differently from inmates housed in other prison facilities. Finally,
Plaintiff contends that he was denied access to the courts because the prison library
lacked adequate materials and he was forced to mail correspondence by regular, as
opposed to inter-office, mail.
II. 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
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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 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).
III. DISCUSSION
1.

Claims Against the Nebraska Department of Corrections, Official
Capacity Claims, and Request for Injunctive Relief

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). Any award of retroactive monetary relief payable by the state, including for
back pay or damages, is proscribed by the Eleventh Amendment absent a waiver of
immunity by the state or an override of immunity by Congress. See, e.g., id.; Nevels
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v. Hanlon, 656 F.2d 372, 377-78 (8th Cir. 1981). Sovereign immunity does not,
however, bar damages claims against state officials acting in their personal capacities,
nor does it bar claims brought pursuant to 42 U.S.C. §1983 that seek equitable relief
from state employee defendants acting in their official capacity.
Here, Plaintiff seeks monetary damages against the Nebraska Department of
Corrections. This claim is barred by the Eleventh Amendment. Likewise, Plaintiff’s
claims for monetary relief against the employee defendants in their official capacities
are precluded.
Plaintiff also seeks injunctive relief against the individual defendants in their
official capacities. Although this type of claim is generally permissible under the
Eleventh Amendment, it fails under the circumstances presented here. At all times
relevant to the Complaint, Plaintiff was housed in the “Control Unit” at NSP.
However, Plaintiff now resides at Tecumseh State Prison. Therefore, to the extent
Plaintiff seeks injunctive relief to improve the living conditions at NSP, his claims are
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”).
2.

Conditions of Confinement

The Eighth Amendment requires that prison officials “provide humane
conditions of confinement,” specifically, “prison officials must ensure that inmates
receive adequate food, clothing, shelter, and medical care, and must take reasonable
measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825,
832 (1994) (quotation omitted). In order to establish an Eighth Amendment violation
regarding conditions of confinement, an inmate must establish: (1) that he is
incarcerated under conditions posing a substantial risk of serious harm, and (2) the
defendants actually knew of, but disregarded, or were deliberately indifferent to, the

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plaintiff’s health or safety. Beaulieau v. Ludeman, 690 F.3d 1017, 1045 (8th Cir.
2012).
Plaintiff alleges that the living conditions in the NSP Control Unit were unsafe,
unsanitary, and unhealthy. Plaintiff claims that the structural integrity of the NSP’s
Control Unit was compromised and exposed inmates to water and slippery conditions.
Plaintiff maintains that cracks in the building caused an accumulation of mold,
mildew, and bacteria, which could result in inmates developing diseases. Plaintiff
further asserts that the ventilation system was poor and that drinking water was
polluted due to unsanitary conditions. Moreover, Plaintiff complains that the cells in
the NSP Control Unit did not have chairs or tables for inmates.
The court is doubtful that the prison conditions at NSP pose a substantial risk
of serious harm. However, even assuming that the conditions could be classified as
serious, Plaintiff has not successfully alleged that Defendants were deliberately
indifferent to his personal health or safety. See Martin, 780 F.2d at 1337 (8th Cir.
1985) (“A prisoner cannot bring claims on behalf of other prisoners. A prisoner must
allege a personal loss”).
To the contrary, the allegations in the Complaint reveal that Defendants were
more than responsive to the multiple grievances filed by Plaintiff and that Defendants
sought to remedy or address the purported unsatisfactory conditions. For instance,
Plaintiff alleges in his Complaint that in response to one of his grievances, Defendant
Diane Sabatka-Rine responded as follows:
[A]dministrative staff at NSP has previously correctly advised you that
both the Health Department and Fire Marshall regularly conduct
inspections at NSP. Construction/Maintenance personnel confirm that
there have been problems with the Control Unit roof leaking. NSP staff
has notified Maintenance staff of the leaks so they can be repaired. All
cracks were filled and repaired during the past month. NSP staff is
monitoring this issue and will inform Maintenance staff if there are any
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additional cracks. The cracks you describe are normal when a building
settles. There is no indication that the cracks you refer to have
structurally compromised the building. Hard water/corrosion can be
cleaned on a regular basis to prevent build up. Maintenance staff cleaned
all air/ducts vents and filters during October 2015. The dampers have
been adjusted to help compensate for the fluctuation in outside
temperatures experienced this time of year. There is a flat surface at the
foot of your bunk that can be used for a writing surface.
(Filing No. 1 at CM/ECF pp. 5-6.) Plaintiff also admits that Defendant Brandon
Noordhoek informed him that a work order was submitted for repair of the roof.
(Filing No. 1 at CM/ECF p. 4.) In short, the allegations in the Complaint reveal that
Defendants were not deliberately indifferent to Plaintiff’s health or safety.
3.

Equal Protection

Plaintiff asserts that his equal protection rights were violated because the NSP
Control Unit did not have desks and chairs, while inmates in other NDCS facilities
had these items. Plaintiff further complains that he did not have access to the same
legal materials as are available at other prison facilities. Plaintiff’s allegations fail to
state a cognizable equal protection claim.
“The Equal Protection Clause generally requires the government to treat
similarly situated people alike.” Klinger v. Department of Corrections, 31 F.3d 727,
731 (8th Cir. 1994). “Dissimilar treatment of dissimilarly situated persons does not
violate equal protection.” Id. “Thus the first step in an equal protection case is
determining whether the plaintiff has demonstrated that [he] was treated differently
than others who were similarly situated to [him]. Absent a threshold showing that
[he] is similarly situated to those who allegedly receive favorable treatment, the
plaintiff does not have a viable equal protection claim.” Id.

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Here, Plaintiff alleges dissimilar treatment, but does not allege he was subject
to adverse treatment based on some constitutionally impermissible reason. Rather,
Plaintiff simply alleges that he did not have access to the same things as inmates
residing in other prison facilities. “[M]ere differential treatment of similarly situated
inmates, without more, fails to allege a violation of the Equal Protection Clause.”
McKensie v. Alabama Department of Corrections, No. 2:11-CV-97-ID, 2011 WL
1004875, *1 (M.D. Ala. Feb. 24, 2011). Therefore, Plaintiff has failed to state a
viable equal protection claim.
4.

Access to the Courts

Plaintiff claims he was denied access to the courts because (1) the law library
at NSP did not contain certain reference materials or a typewriter and (2) he was
forced to use regular mail, rather than inter-office mail. In Lewis v. Casey, 518 U.S.
343, 351 (1996), quoting Bounds v. Smith, 430 U.S. 817, 825 (1977), the Supreme
Court confirmed that inmates have a constitutional right of access to the courts that
obligates prison officials to provide some means, such as a prison law library or a
legal assistance program, “for ensuring ‘a reasonably adequate opportunity to present
claimed violations of fundamental constitutional rights to the courts.’” The “right of
meaningful access to the courts ensures that prison officials may not erect
unreasonable barriers to prevent prisoners from pursuing or defending all types of
legal matters.” Schrier v. Halford, 60 F.3d 1309, 1313 (8th Cir. 1995).
While “prisoners have a constitutional right of access to the courts,” Bounds,
430 U.S. at 821, the right is only violated if the prisoner has suffered an “actual
injury” by way of an official action that hindered his or her pursuit of a “nonfrivolous”
or “arguable” underlying legal claim. Lewis, 518 U.S. at 353 & 353 n. 3.
Plaintiff has not alleged that any of the prison-officials erected any
unreasonable barrier that prevented him from pursuing or defending a legal matter, or
that he suffered an actual injury. In fact, Plaintiff’s act of filing this lawsuit indicates
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that he had access to writing materials and the courts. In light of these findings, the
court concludes that Plaintiff has failed to allege sufficient facts to state an access to
the courts claim.
5.

Privacy Claim

Plaintiff also complains that the showers in the Control Unit did “not provide
for privacy from direct and constant view of members of the opposite sex” and other
inmates. (Filing No. 1 at CM/ECF p. 9.) He further claims that surveillance cameras
provided a continuous view of the showers. (Id.) Plaintiff asserts that as a result of
this surveillance, he suffered “indignation” and “mental anguish.” (Filing No. 1 at
CM/ECF p. 9.)
Prisoners do not lose all of their constitutional rights upon incarceration. Bell
v. Wolfish, 441 U.S. 520, 545 (1979). Prisoners are to “be accorded those rights not
fundamentally inconsistent with imprisonment itself or incompatible with the
objectives of incarceration.” Hudson v. Palmer, 468 U.S. 517, 523 (1984). Therefore,
when addressing an inmate’s claim of alleged constitutional violations, courts “must
consider whether the constrictions that prison administrators have placed on the
inmate’s rights are justified by legitimate institutional concerns.” Timm v. Gunter,
917 F.2d 1093, 1099 (8th Cir. 1990).
In Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court enunciated four
factors helpful in evaluating whether a regulation is reasonably related to legitimate
penological interests. These factors include (1) whether a valid, rational connection
exists between the regulation and the penological interest offered to justify the
regulation; (2) whether the inmate has an alternative means of protecting the right; (3)
whether accommodation of the right would significantly impact prison resources; and
(4) whether there is an obvious, simple alternative to the challenged regulation. Id.
at 89-90.

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The Eighth Circuit Court of Appeals previously addressed the issue of
prisoners’ right to privacy. In Timm, prisoners at NSP challenged, as violative of their
privacy rights, prison policies that allowed female guards to occasionally view
inmates in the showers. The Eighth Circuit noted that the surveillance techniques did
not involve “constant, intrusive observation.” Id. at 1101. Applying the factors set
out in Turner, the Eighth Circuit concluded that “[w]hatever minimal intrusions on an
inmate’s privacy may result from such surveillance . . . are outweighed by institutional
concerns for safety.” Timm, 917 F.2d at 1102. See also Robinson v. D.A. Boulier, 121
F.3d 713 (8th Cir. 1997) (applying Turner, and finding that “institutional concerns for
security and equal employment opportunities outweigh[ed] whatever minimal
intrusion on [the plaintiff’s] privacy that might result from surveillance [in the
shower] by female officers”).
In this case, Plaintiff alleges that females have a direct and constant, rather than
occasional or minimal, view of the shower area. (Filing No. 1 at CM/ECF p. 9.) This
allegation arguably makes the circumstances in this case distinguishable from those
in Timm. Still, the court is extremely doubtful that this factual difference will
ultimately result in a finding that Plaintiff’s constitutional rights were violated.
Also, Plaintiff has not sufficiently alleged that Defendants personally
participated in the violation of his privacy rights. “Individual liability under § 1983
must be based on personal involvement in the alleged constitutional violation.”
Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009). The only individuals
Plaintiff specifically references in connection with the shower surveillance issue are
Sabatka-Rine, Noordhoek, and June-Bullings. With respect to Sabtaka-Rine and
Noordhoek, Plaintiff only alleges that these defendants did not adequately respond to
his grievances. However, “[a] denial of a grievance, by itself without any connection
to the violation of constitutional rights alleged by plaintiff, does not establish personal
participation under § 1983.” Gallagher, 587 F.3d at 1069. Plaintiff’s only specific
reference to June-Bullings is an allegation that she failed to thoroughly inspect the
NSP Control Unit and inappropriately gave NSP a “successful completion rating in
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light of the manner and conditions under which the plaintiff and inmates must
shower.” (Filing No. 1 at CM/ECF p. 15.) This conclusory allegation is insufficient
to state a claim.
Out of an abundance of caution, the court will granted Plaintiff leave to file an
amended complaint that states a claim upon which relief can be granted. Failure to
file an amended complaint within the time specified by the court will result in the
court dismissing this action without further notice to Plaintiff.
Plaintiff should note, however, that the relief recoverable for any privacy
violation is limited. The Prison Litigation and Reform Act prohibits a prisoner from
receiving compensatory damages for mental or emotional distress if the plaintiff does
not allege a physical injury. See 42 U.S.C. § 1997e(e). Because Plaintiff did not
allege that he suffered a physical injury from the shower surveillance, he cannot
recover compensatory damages. Moreover, as explained above, Plaintiff is precluded
from obtaining injunctive relief, or recovering monetary damages for his official
capacity claims. Therefore, in the unlikely event a constitutional violation is found,
Plaintiff would be limited to recovering nominal and punitive damages against
Defendants in their individual capacities. See Royal v. Kautzky, 375 F.3d 720 (8th Cir.
2004) (finding that nominal, punitive, injunctive, and declaratory relief are still
available under the Prison Litigation Reform Act to a prisoner who does not sustain
a physical injury).
IT IS THEREFORE ORDERED:
1.
Plaintiff shall file an amended complaint by September 22, 2016, that
states a claim upon which relief may be granted. Failure to file an amended complaint
within the time specified by the court will result in the court dismissing this case
without further notice to Plaintiff.

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2.
The clerk of the court is directed to set a pro se case management
deadline using the following text: September 22, 2016 check for amended complaint.
DATED this 22nd day of August, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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