Filhiol v. Frakes et al

Filing 18

MEMORANDUM AND ORDER that the Plaintiff shall file an amended complaint by April 9, 2017, 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 di smissing 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: April 9, 2017, check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHARLES A. FILHIOL,
Plaintiff,

8:16CV460

vs.
SCOTT FRAKES, NDocs Director;
ANY UNKNOWN NDOCS
EMPLOYEES INVOLVED IN MY
CLASSIFICATION PROCESS AT
NDOCS, ANY AND ALL UNKNOWN
MEDICAL STAFF AWARE OF MY
CURRENT MEDICAL CONDITIONS
WHO WORK FOR OR ARE
CONTRACTED THROUGH THE
NDOCS, and ANY AND ALL
UNKNOWN HALL COUNTY
NEBRASKA CORRECTIONS STAFF
AND MEDICAL STAFF AND
ADMINISTRATORS INVOLVED IN
THIS CLAIM,

MEMORANDUM
AND ORDER

Defendants.
Plaintiff filed his Complaint on October 11, 2016. (Filing No. 1.) He has
been given leave to proceed in forma pauperis. (Filing No. 6.) Plaintiff filed a
Supplement to his Complaint. (Filing No. 17.) The court now conducts an initial
review of Plaintiff’s Complaint and Supplement to determine whether summary
dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I. SUMMARY OF COMPLAINT
At the time of his Complaint, Plaintiff was a prisoner at the Diagnostic and
Evaluation Center (“D&E”) in Lincoln, Nebraska. (Filing No. 1 at CM/ECF p. 3.)

He is now a prisoner at a facility in McCook, Nebraska. (Filing No. 15.) Plaintiff
identifies no individual defendants in his Complaint other than Scott Frakes,
Director of the Nebraska Department of Correctional Services (“NDCS”). (Filing
No. 1 at CM/ECF pp. 3-4, 6.)
Plaintiff asserts that a NDCS case manager classified him to the “county
program” despite staff at D&E being aware of his chronic, severe asthma. (Id. at
pp. 5-6.) Plaintiff alleges that he was subsequently placed at the Hall County Jail
where another inmate assaulted him on September 3, 2016. (Id. at CM/ECF p. 6.)
Plaintiff claims that he suffered severe burns to his body and asthma attacks from
the assault. (Id.) He admits that Hall County Jail took him to the emergency room
that same day. (Id.) He alleges, however, that he was not provided his inhaler and
that he was placed in segregation from September 3rd to September 7th without
additional treatment. (Id.) Plaintiff states that Hall County Jail did not contact
NDCS about the assault until September 7th. (Id.) He states that NDCS took him to
a burn hospital, where he was treated from September 8th until September 13th.
(Id.) Plaintiff claims that he had several asthma attacks at Hall County Jail, and he
was not allowed to carry his inhaler on him. (Filing No. 17 at CM/ECF p. 2.)
Plaintiff seeks monetary damages against unknown NDCS and Hall County
Jail employees. (Filing No. 1 at CM/ECF p. 6.) He seeks damages against Frakes
for “instituting and carr[y]ing out” an “illegal policy” of placing “convicted and
state committed prisoners” into county jails due to overcrowding. (Id.) Plaintiff
also would like microwaves banned from the prison facility and inmates denied
access to cleaning chemicals. (Filing No. 17 at CM/ECF p. 1.)
II. APPLICABLE STANDARDS OF REVIEW 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
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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 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
The court understands that Plaintiff asserts Eighth Amendment claims of
deliberate indifference to his serious medical needs. However, Plaintiff’s claims
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primarily fail because he does not identify any personal involvement by any
individual. See Ellis v. Norris, 179 F.3d 1078, 1079 (8th Cir. 1999) (stating that
prisoner must allege defendants’ personal involvement or responsibility for the
constitutional violations to state a § 1983 claim); see also Martin v. Sargent, 780
F.2d 1334, 1337 (8th Cir. 1985) (“Although it is to be liberally construed, a pro se
complaint must contain specific facts supporting its conclusions.”). The court
cannot analyze Plaintiff’s claims without knowing who they are against and each
individual’s personal involvement. His conclusory allegations against Frakes are
insufficient. See 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).
The court will permit Plaintiff to amend his Complaint to state a claim upon
which relief may be granted. Plaintiff is warned that an amended complaint will
supersede, not supplement, his Complaint and Supplement. Plaintiff is also
warned that he 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). Allegations suggesting that
staff acted negligently or refused to follow Plaintiff’s requested course of treatment
are also insufficient to support an Eighth Amendment claim. See Estelle v. Gamble,
429 U.S. 97, 106 (1976) (holding that mere negligence or medical malpractice are
insufficient to rise to a constitutional violation); Bender v. Regier, 385 F.3d 1133,
1137 (8th Cir. 2004) (stating that “an inmate’s mere disagreement with the course
of his medical treatment fails to state a claim of deliberate indifference”).
IT IS THEREFORE ORDERED that:
1.
Plaintiff shall file an amended complaint by April 9, 2017, 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: April 9, 2017, check for amended complaint.
Dated this 10th day of March, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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