Johnson v. Frakes et al

Filing 7

MEMORANDUM AND ORDER - Plaintiff shall have 30 days in which to file an amended complaint that sets forth cognizable claims for relief. Failure to file an amended complaint within the time specified by the court will result in dismissal of this case without further notice. Plaintiff is again warned that if his amended complaint sets forth unrelatedclaims, and the court decides severance of the claims is appropriate, Plaintiff will be required to prosecute unrelated claims in separate actions and he will be required to pay a separate filing fee for each separate action.***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 9/5/2016:Check for amended complaint) Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRANDON R. JOHNSON,
Plaintiff,
V.
SCOTT FRAKES, Director, and his
individual capacity, DIANE SABATKARINE, Deputy Director, and her
individual capacity, MARIO PEART,
Warden, and his individual capacity,
HARGREAVES, Unite Administrator,
and his individual capacity, KARA
SIMPSON, Unit Administrator, and her
individual capacity, and JOHN DOES-115, and their individual capacities,
Defendants.

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8:16CV155

MEMORANDUM AND ORDER

This matter is before the court on initial review of Plaintiff Brandon Johnson’s
Complaint.

(Filing No. 1.)

For the reasons that follow, the court finds Plaintiff’s

pleadings do not state any claims on which relief may be granted. However, the court
will allow Plaintiff to file an amended complaint.
I. SUMMARY OF COMPLAINT
Plaintiff is currently incarcerated at the Lincoln Correctional Center in Lincoln,
Nebraska.

Plaintiff instituted this action on April 11, 2016, naming the following

defendants: (1) Nebraska Department of Corrections Director Scott Frakes; (2) Nebraska
Department of Corrections Deputy Director Diane Sabatka-Rine; (3)Warden of Lincoln
Correctional Center

Mario Peart; (4) Nebraska Department of Corrections Unit

Administrator Hargreaves; (5) Nebraska Department of Corrections Unit Manager Kara
Simpson; and (6) John Does employed at Lincoln Correctional Center. (Filing No. 1.)

Plaintiff sets forth several unrelated allegations in his Complaint.
First, Plaintiff alleges that in 2001, while he was incarcerated at the Diagnostics
and Evaluation Center, he was diagnosed with “HEP C.” Recently, he became aware of
a cure for HEP C are requested treatment. His request was denied. Defendant Peart
informed Plaintiff that he would be reevaluated for treatment in November, 2016.
Second, Plaintiff alleges that in 2005, he was attacked by a prison group known as
the “Sorenos.”

Plaintiff maintains that between 2005 and 2008 he was continually

targeted, threatened, and attacked by the group. Plaintiff asserts that he has told prison
staff that he feared for his safety, but that they did not take action to protect him.
Finally, Plaintiff claims that mail addressed to the court was handled improperly
by prison staff.
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 plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”).
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“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); Buck ley v . Barlow, 997 F.2d 494, 495 (8th Cir.
1993).
III. DISCUSSION
1.

Rules of Joinder

Federal Rule of Civil Procedure 20 states that multiple defendants may be joined
in the same action only if “any right to relief is asserted against them jointly, severally,
or in the alternative with respect to or arising out of the same transaction, occurrence,
or series of transactions or occurrences.” Fed. R. Civ. P. 20(a)(2)(A) (emphasis added).
In addition, there must be a “question of law or fact common to all defendants” in the
action.

Fed. R. Civ. P. 20(a)(2)(B).

Under Federal Rule of Civil Procedure 21, the

proper remedy for improper joinder of parties is for the court to “drop a party” or “sever
any claim against a party.” Fed. R. Civ. P. 21 . The court may do so “[o]n motion or on
its own.” Id.
Plaintiff’s claims arise out of unrelated events.
Therefore, Plaintiff will be
required to file an amended complaint that sets forth only related claims that stem from
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the same basic event or occurrence. Plaintiff is warned that upon screening the amended
complaint, the court will consider whether unrelated claims should be severed.

If

Plaintiff’s amended complaint sets forth unrelated claims, and the court decides
severance is appropriate, Plaintiff will be required to prosecute unrelated claims
in separate actions and he will be required to pay a se parate filing fee for each
separate action.
Plaintiff is further advised that, as presently set forth, the allegations in Plaintiff’s
Complaint fail to state cognizable claims for relief.

A brief explanation for this finding

is set forth below.
2.

Official Capacity Claims

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 v. Hanlon, 656 F.2d
372, 377-78 (8th Cir. 1981). Sovereign immunity does not 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.
Plaintiff has sued Nebraska state employees seeking monetary relief.

To the

extent Plaintiff seeks to sue the employees in their official capacities, the Eleventh
Amendment bars his claims.

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3.

Deliberate Indifference to Medical Needs

Plaintiff alleges that Defendants violated his Eighth Amendment rights by not
providing him the drug “Harvoni” to treat his “HEP C.” (Filing No. 1 at CM/ECF p. 5.)
To establish a § 1983 claim for deprivation of medical care, Plaintiff must demonstrate
that he suffered objectively serious medical needs, and that officials actually knew of but
deliberately disregarded those needs. Johnson v. Hamilton, 452 F.3d 967, 972-73 (8th
Cir. 2006).

“Deliberate indifference is equivalent to criminal-law recklessness, which

is more blameworthy than negligence, yet less blameworthy than purposefully causing
or knowingly bringing about a substantial risk of serious harm to the inmate.” Schaub v.
VonWald, 638 F.3d 905, 914-15 (8th Cir. 2011) (citation omitted).
Assuming that Plaintiff’s “HEP C” is a serious medical need, Plaintiff has not
alleged that Defendants were deliberately indifferent to this need.

To the contrary,

Defendant Peart was responsive to Plaintiff’s requests for treatment and told Plaintiff
he would be reevaluated for HEP C treatment at a later time.

Moreover, Defendants’

failure to provide Plaintiff with Harvoni, his requested course of treatment, does not
constitute an Eighth Amendment violation. See Long v. Nix, 86 F.3d 761, 765 (8th Cir.
1996) (“Prison officials do not violate the Eighth Amendment when, in the exercise of
their professional judgment, they refuse to implement a prisoner’s requested course of
treatment”).
4.

Failure to Protect

Liberally construed, Plaintiff maintains that prison officials failed to protect him
from harm in violation of the Eighth Amendment.

In order to succeed on an Eighth

Amendment failure-to-protect claim, a plaintiff must show: (1) he is incarcerated under
conditions posing a substantial risk of serious harm and (2) the official knew of and
disregarded an excessive risk to the inmate’s health or safety.
County, 144 F.3d 1131, 1135 (8th Cir. 1998).

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Webb v. Lawrence

Plaintiff has failed to allege that prison officials disregarded an excessive risk to
his safety.

From the allegations in the Complaint, it appears that Defendants were

responsive to Plaintiff’s safety concerns and took steps to protect Plaintiff from harm.
5.

Access to the Courts

Plaintiff also complains that his constitutional right of access to the courts was
violated. 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. 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. In fact, Plaintiff
admits he was able to file a petition for habeas corpus in this court.
6.

Claims Against Defendant Diane Sabatka-Rine

Plaintiff has not indicated how Defendant Sabatka-Rine was personally involved
in the events described in his Complaint. Rather, Sabatka-Rine’s name only appears in
the caption of the Complaint.

A complaint that only lists a defendant’s name in the

caption without alleging that the defendant was personally involved in the alleged
misconduct fails to state a claim against that defendant. See Krych v. Hvass, 83 F. App’x
854, 855 (8th Cir. 2003) (citing Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974)
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(holding that court properly dismissed a pro se complaint where the complaint did not
allege that defendant committed a specific act and the complaint was silent as to
defendant except for his name appearing in caption)).

Therefore, Plaintiff has failed to

state a claim against Sabatka-Rine.
IT IS THEREFORE ORDERED:
1.

Plaintiff shall have 30 days in which to file an amended complaint that sets
forth cognizable claims for relief.

Failure to file an amended complaint

within the time specified by the court will result in dismissal of this case
without further notice.
2.

Plaintiff is again warned that if his amended complaint sets forth unrelated
claims, and the court decides severance of the claims is appropriate,
Plaintiff will be required to prosecute unrelated claims in separate actions
and he will be required to pay a s e parate filing fee for each separate
action.

3.

The clerk’s office is directed to set a pro se case management deadline in
this case using the following text: September 5, 2016: Check for amended
complaint.

DATED this 4th day of August, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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