Kosiski v. Frakes et al

Filing 14

MEMORANDUM AND ORDER - Plaintiff's retaliation claim against Defendant Paul Rodriguez in his official and individual capacities may proceed to service of process. All other claims against all other Defendants are dismissed for failure to state a claim. Defendant Paul Rodriguez shall be served in his official capacity at the office of the Nebraska Attorney General. See Federal Rule of Civil Procedure 4(j)(2); Neb. Rev. Stat. § 25-510.02 (Reissue 2016). The clerk of the court is directed to complete a summons form and a USM-285 form for Defendant Paul Rodriguez using the address "Office of the Nebraska Attorney General, 2115 State Capitol, Lincoln, NE 68509," and forward them together with a copy of the Amended Complaint a nd a copy of this Memorandum and Order to the Marshals Service for service of process on Defendant in his official capacity. Defendant Paul Rodriguez shall be served in his individual capacity at the Omaha Correctional Center, 2323 Avenue J Street, O maha, NE 68110 using any of the following methods: personal, residence, certified mail, or designated delivery service. See Federal Rule of Civil Procedure 4(e); Neb. Rev. Stat. § 25-508.01 (Reissue 2016). The clerk of the court is directed to c omplete a summons form and a USM-285 form for Defendant Paul Rodriguez using the address "Omaha Correctional Center, 2323 Avenue J Street, Omaha, NE 68110," and forward them together with a copy of the Amended Complaint and a copy of this M emorandum and Order to the Marshals Service for service of process on Defendant in his individual capacity. The clerk's office shall set a pro se case management deadline using the following text: February 25, 2017: check for completion of service of process. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EDWARD KOSISKI,
Plaintiff,

8:16CV345

vs.
SCOTT R. FRAKES, BARBARA
LEWEIN, AND PAUL RODRIGUEZ,

MEMORANDUM
AND ORDER

Defendants.
Plaintiff filed his Complaint on July 13, 2016. (Filing No. 1.) Plaintiff was
given leave to proceed in forma pauperis. (Filing No. 11.) On October 11, 2016,
the court ordered Plaintiff to file an amended complaint because his Complaint
failed to comply with Rule 8 of the Federal Rules of Civil Procedure. (Filing No.
12.) The court advised Plaintiff that his amended pleading will supersede, rather
than supplement, his Complaint. (Id.) On November 9, 2016, Plaintiff filed an
Amended Complaint. (Filing No. 13.) Now, the court conducts review of
Plaintiff’s Amended Complaint.
I. SUMMARY OF AMENDED COMPLAINT
Plaintiff was convicted of attempted first degree sexual assault of a child.
(Filing No. 13 at CM/ECF p. 3.) He is incarcerated with the Nebraska Department
of Correctional Services (“NDCS”) at the Omaha Correctional Center (“OCC”).
(Id. at CM/ECF p. 2.) Plaintiff has named as Defendants three individuals
employed with NDCS: Director Scott R. Frakes (“Frakes”), Warden Barbara
Lewien (“Lewien”), and Paul Rodriguez (“Rodriguez”). (Id.) All Defendants are
sued in their individual and official capacities. (Id. at CM/ECF p. 3.)

Plaintiff alleges that Defendants, despite his repeated requests, denied him
structured programming prior to his first parole eligibility date in violation of due
process and state law. (Id. at CM/ECF pp. 3-5, 10.) He admits that he eventually
received a recommendation from the Clinical Sex Offender Review Team
(“CSORT”) to participate in the Outpatient Healthy Lives Program (“oHeLP”). (Id.
at CM/ECF pp. 3, 5.) Plaintiff began treatment through oHeLP at OCC in January
2016. (Id. at CM/ECF p. 6.)
Plaintiff alleges that, upon completing the first phase of oHeLP, he requested
a progress evaluation from Dr. Kirk A.B. Newring, a former employee of NDCS,
because his program facilitators denied his request. (Id.) In a report dated March
15, 2016, Dr. Newring opined that Plaintiff is “not in need of further sexual offense
behavior specific treatment, though he is recommended for a Continuing
Care/Aftercare level of service.” (Id. at CM/ECF p. 24.) Plaintiff states that one of
his facilitators told him on April 6, 2016, that he was “doing well” and that the
facilitators would “see what we can do to get you moved up to Phase II.” (Id. at
CM/ECF p. 7.)
In a letter dated April 28, 2016, Rodriguez advised Plaintiff that CSORT
reviewed his treatment progress on April 20, 2016, and determined that Plaintiff
would be placed on probation. (Id. at CM/ECF pp. 7, 25.) Plaintiff alleges that
Rodriguez is the Sex Offender Services Clinical Program Manager and the CSORT
Chairperson. (Id. at CM/ECF pp. 2-3.) Plaintiff’s probation began April 28, 2016,
and remained in effect for approximately sixty days. (Id. at CM/ECF p. 26.)
Plaintiff alleges that Rodriguez placed him on probation without procedural due
process. (Id. at CM/ECF pp. 8, 11.)
Plaintiff contends that he told “Mental Health at OCC” on July 18, 2016,
that he was contemplating a lawsuit. (Id. at CM/ECF p. 7.) In a letter dated July 22,
2016, Rodriguez informed Plaintiff that CSORT determined on June 17, 2016, that
his treatment outcome was “Unsatisfactory Progression and Termination.” (Id. at
CM/ECF p. 27.) Plaintiff states that he “made every effort to comply with the
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expectations and directives given him during his participation in oHeLP, including
during probation, to the best of his ability.” (Id. at CM/ECF p. 7.) He alleges that
Defendants terminated his programming without procedural due process. (Id. at
CM/ECF pp. 8, 11.) Plaintiff claims that Rodriguez terminated him in retaliation
for his possible lawsuit and for his favorable evaluation from Dr. Newring after
facilitators denied his request. (Id. at CM/ECF pp. 8-9, 11.) He maintains that
Rodriguez backdated his termination date from oHeLP to June 17, 2016, a date
prior to filing his Amended Complaint. (Id. at CM/ECF p. 11.)
Plaintiff alleges that he has been denied parole and transfer to “Community
custody” because of his termination from oHeLP and because of his “program
needs.” (Id. at CM/ECF pp. 9-10.) He also claims that he has been denied transfer
and “a favorable recommendation” for parole because he is a sex offender. (Id. at
CM/ECF p. 10.) Plaintiff alleges that, despite their lack of treatment, other
similarly-situated inmates have received transfers to “Community custody” and
been granted parole after favorable recommendations from CSORT. (Id. at
CM/ECF p. 10.) He states that a sex offender was granted parole in August after
refusing all treatment recommended by CSORT. (Id.)
Plaintiff seeks a declaratory judgment, injunctive relief, and monetary
damages. (Id. at CM/ECF pp. 1, 12-14.)
II. APPLICABLE 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).

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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 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 OF CLAIMS
A.

Sovereign Immunity

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,
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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.
Here, Plaintiff seeks monetary damages against state employees in their
official and individual capacities. (Filing No. 13 at CM/ECF pp. 1, 13.) Plaintiff’s
claims for monetary relief against Defendants in their official capacities are barred
by the Eleventh Amendment.
B.

Fourteenth Amendment Due Process Claims

Liberally construed, Plaintiff alleges Defendants have denied him due
process of law in violation of the Fourteenth Amendment. “[T]he Fourteenth
Amendment's Due Process Clause protects persons against deprivations of life,
liberty, or property; and those who seek to invoke its procedural protection must
establish that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209,
221 (2005). Thus, Plaintiff must demonstrate that he has been deprived of a liberty
interest in order to successfully claim that his Fourteenth Amendment right to due
process has been violated. Persechini v. Callaway, 651 F.3d 802, 806 (8th Cir.
2011) (citing Sandin v. Conner, 515 U.S. 472 (1995)). A liberty interest can arise
out of the Due Process Clause itself or be state-created. Id. (citing Ky. Dep‘t of
Corr. v. Thompson, 490 U.S. 454, 460 (1989)) (quotations omitted).
“The general rule” is that “the Due Process Clause standing alone confers no
liberty interest in freedom from state action taken within the sentence imposed.”
Id. at 808 (finding that termination from a drug treatment program that was
mandatory for parole, but discretionary with prison officials, was not outside of the
punishment originally imposed). A state-created liberty interest arises when a
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statute or regulation imposes an “atypical or significant hardship on the inmate in
relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 483–84; see
also Wilkinson, 545 U.S. at 223; Wolff v. McDonnell, 418 U.S. 539 (1974);
Morrissey v. Brewer, 408 U.S. 471 (1972). A state-created liberty interest also
arises when a state's actions will inevitably affect the duration of the sentence.
Sandin, 515 U.S. at 487.
Here, the issue does not appear to be that Plaintiff truly wants structured
programming, namely sex offender treatment. Instead, Plaintiff complains that he
received adverse consequences, namely the denial of parole and the denial of
transfer, because of his termination from the oHeLP treatment program. (See Filing
No. 13 at CM/ECF pp. 12-13.) First, there is no liberty interest in parole, or even
the possibility of parole, arising from the Due Process Clause. See Adams v. Agniel,
405 F.3d 643, 645 (8th Cir. 2005) (citing Greenholtz v. Inmates of Nebraska Penal
& Corrections, 442 U.S. 1, 9–11 (1979)). Second, Plaintiff has no constitutional
right to be housed in any particular prison or to receive a particular classification.
See Olim v. Wakinekona, 461 U.S. 238, 245, (1983); Moody v. Daggett, 429 U.S.
78, 88 n. 9 (1976). Finally, in Nebraska, taking advantage of self-improvement
opportunities is only one among a multitude of factors that the Nebraska Board of
Parole considers in determining if a prisoner should be paroled. Neb. Rev. Stat. §
83–1,114(2) (Reissue 2014). Failure to complete a personalized program plan may
be considered by the Nebraska Board of Parole as a factor in its decision, but
denial of parole on those grounds is not mandatory. Neb. Rev. Stat. § 83–
1,107(1)(b) (Reissue 2014). 1
The adverse consequences of CSORT’s decision to terminate Plaintiff from
oHeLP were insufficient to confer a liberty interest for due process purposes. See
Persechini, supra. Therefore, the court need not consider whether CSORT’s

1

Plaintiff’s due process claim that he was denied structured programming
prior to his first parole eligibility date fails for the same reasons.

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procedures were constitutionally adequate. Id.2 Moreover, a federal court will not
inquire into whether “state officers follow state law.” Kennedy v. Blankenship, 100
F.3d 640, 643 (8th Cir. 1996) (“[The plaintiff’s] only argument is that the state
failed to follow its own procedural rules and thus failed to afford him the due
process of law mandated by the Constitution. But, as we have stated above, the
Due Process Clause does not federalize state-law procedural requirements.”).
Plaintiff's due process claims against Defendants will be dismissed for failure to
state a claim upon which relief can be granted.
C.

Retaliation

Plaintiff alleges a retaliation claim against Rodriguez. The law is settled that
as a general matter the First Amendment prohibits government officials from
subjecting an individual to retaliatory actions for speaking out. Peterson v. Kopp,
754 F.3d 594, 602 (8th Cir. 2014) (citing Hartman v. Moore, 547 U.S. 250, 256
(2006)); Bernini v. City of St. Paul, 665 F.3d 997, 1006–07 (8th Cir. 2012); see
Small v. McCrystal, 708 F.3d 997, 1008 (8th Cir. 2013). To establish a First
Amendment retaliation claim under 42 U.S.C. § 1983, the plaintiff must show (1)
he engaged in a protected activity, (2) the government official took adverse action
against him that would chill a person of ordinary firmness from continuing in the
activity, and (3) the adverse action was motivated at least in part by the exercise of
the protected activity. Peterson, 754 F.3d at 602.
Liberally construed, Plaintiff states a plausible retaliation claim against
Rodriguez. Plaintiff claims that Rodriguez terminated him in retaliation for his
possible lawsuit and for his favorable evaluation from Dr. Newring after
facilitators denied his request. (Filing No. 13 at CM/ECF pp. 8-9, 11.) He
maintains that Rodriguez backdated his termination date from oHeLP to June 17,
2016, a date prior to filing his Amended Complaint. (Id. at CM/ECF p. 11.)
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For the same reasons, the court need not consider whether CSORT’s
procedures when it placed Plaintiff on probation were constitutionally adequate.

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Plaintiff’s retaliation claim against Rodriguez in his official and individual
capacities may proceed to service of process.3 The court cautions Plaintiff that that
this is only a preliminary determination based on the allegations of the Complaint.
This is not a determination of the merits of his claims or potential defenses thereto.
D.

Equal Protection

Plaintiff alludes to an equal protection claim against Defendants, specifically
Lewien. (See Filing No. 13 at CM/ECF pp. 9-10.) In order to establish an equal
protection claim, a prisoner must show that he is treated differently from similarlysituated inmates and that the different treatment is based upon either a suspect
classification or a “fundamental right.” Patel v. United States Bureau of Prisons,
515 F.3d 807, 815 (8th Cir. 2008). Plaintiff’s alleged differential treatment is not
based upon a suspect classification or a “fundamental right.” Plaintiff's equal
protection claim against Defendants will be dismissed for failure to state a claim
upon which relief can be granted.
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s retaliation claim against Defendant Paul Rodriguez in his
official and individual capacities may proceed to service of process. All other
claims against all other Defendants are dismissed for failure to state a claim.

3

To the extent that Plaintiff alleges retaliation claims against Frakes and
Lewien, his allegations are insufficient to state a claim upon which relief may be
granted because he does not allege their personal involvement beyond stating their
job title responsibilities. See Ellis v. Norris, 179 F.3d 1078, 1079 (8th Cir. 1999),
(concluding that a complaint was properly dismissed because plaintiff failed to
allege facts supporting any individual defendant's personal involvement or
responsibility for violations); see also Keeper v. King, 130 F.3d 1309, 1314 (8th
Cir. 1997), (finding that general responsibility for supervising operations of prison
is insufficient to establish personal involvement required to support liability).
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2.
Defendant Paul Rodriguez shall be served in his official capacity at
the office of the Nebraska Attorney General. See Federal Rule of Civil Procedure
4(j)(2); Neb. Rev. Stat. § 25-510.02 (Reissue 2016). The clerk of the court is
directed to complete a summons form and a USM-285 form for Defendant Paul
Rodriguez using the address “Office of the Nebraska Attorney General, 2115 State
Capitol, Lincoln, NE 68509,” and forward them together with a copy of the
Amended Complaint and a copy of this Memorandum and Order to the Marshals
Service for service of process on Defendant in his official capacity.
3.
Defendant Paul Rodriguez shall be served in his individual capacity at
the Omaha Correctional Center, 2323 Avenue J Street, Omaha, NE 68110 using
any of the following methods: personal, residence, certified mail, or designated
delivery service. See Federal Rule of Civil Procedure 4(e); Neb. Rev. Stat. § 25508.01 (Reissue 2016). The clerk of the court is directed to complete a summons
form and a USM-285 form for Defendant Paul Rodriguez using the address
“Omaha Correctional Center, 2323 Avenue J Street, Omaha, NE 68110,” and
forward them together with a copy of the Amended Complaint and a copy of this
Memorandum and Order to the Marshals Service for service of process on
Defendant in his individual capacity.
4.
The clerk’s office shall set a pro se case management deadline using
the following text: February 25, 2017: check for completion of service of process.
Dated this 30th day of January, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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