Franklin v. Frakes et al

Filing 21

MEMORANDUM AND ORDER that the following claims may proceed to service of process. Plaintiff must identify John Does 1-10 and the OCC "second shift supervisor" during July of 2015 before his claims against them can proceed to service of proc ess. Plaintiff will have 30 days from the date of this Memorandum and Order to take reasonable steps to identify John Does 1-10 and the OCC "second shift supervisor" during July of 2015 and notify the court of their names, after which the c ourt will initiate service of process. Failure to do so will result in dismissal of the following claims without prejudice and without further notice. The following claims may proceed to service of process against these Defendants once identified. Pl aintiff's remaining federal claims against Defendants are dismissed for the reasons set forth in this Memorandum and Order, with the caveat that any individual defendant will be reinstated if later identified as one of the John Does. Plaintiff& #039;s request for a temporary injunction is denied. Plaintiff's request for the appointment of counsel is denied without prejudice to reassertion. The clerk of the court is directed to add Charles Rine, Assistant Warden and to reinstate McClyme nt, Case Manager (previously McClymont, Lieutenant) as defendants in this matter. For service of process on Defendants Fred Britten and Charles Rine in their official capacities, the clerk of the court is directed to complete 2 summons forms and 2 US M-285 forms for Defendants Fred Britten and Charles Rine 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 (Filing No. 19) and a copy of this Memorandum and Order to the Marshals Service. The Marshals Service shall serve Defendants Fred Britten and Charles Rine in their official capacities at the Office of the Nebraska Attorney General,2115 State Capitol, Lincoln, NE 68509. See Federal Rule of Civil Procedure 4(j)(2); Neb. Rev. Stat. § 25-510.02 (Reissue 2016). For service of process on Defendant Fred Britten in his individual capacity, the clerk of the court is directed to complete a summons form and a USM-285 for m for Defendant Fred Britten using the address "Diagnostic and Evaluation Center, 3220 West Van Dorn Street, Lincoln, NE 68522" and forward them together with a copy of the Amended Complaint (Filing No. 19 ) and a copy of this Memorandum a nd Order to the Marshals Service. The Marshals Service shall serve Defendant Fred Britten personally in his individual capacity at the Diagnostic and Evaluation Center, 3220 West Van Dorn Street, Lincoln, NE 68522. Service may also be accomplished by using any of the following methods: residence, certified mail, or designated delivery service. See Federal Rule of Civil Procedure 4(e); Neb. Rev. Stat. § 25-508.01 (Reissue 2016). For service of process on Defendants "Case Manager McClyme nt" and "Unit Administrator Weiss" in their individual capacities, the clerk of the court is directed to complete 2 summons forms and 2 USM-285 forms for Defendants "Case Manager McClyment" and "Unit Administrator Weiss& quot; using the address "Omaha Correctional Center, 2323 Avenue J Street, Omaha, NE 68110" and forward them together with a copy of the Amended Complaint (Filing No. 19 ) and a copy of this Memorandum and Order to the Marshals Service. The Marshals Service shall serve Defendants "Case Manager McClyment" and "Unit Administrator Weiss" personally in their individual capacities at the Omaha Correctional Center, 2323 Avenue J Street, Omaha, NE 68110. Service may also b e accomplished by using any of the following methods: 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 obtain t he last-known addresses for Defendants Charles Rine, Dennis Bakewell, and Diane Sabatka-Rine from the United States Marshals Service for service of process on Defendants Charles Rine, Dennis Bakewell, and Diane Sabatka-Rine in their individual capaci ties. Once such addresses are obtained, the clerk of the court is directed to complete 3 summons forms and 3 USM-285 forms for Defendants Charles Rine, Dennis Bakewell, and Diane Sabatka-Rine using the addresses provided by the Marshals Service and f orward them together with a copy of the Amended Complaint (Filing No. 19 ) and a copy of this Memorandum and Order to the Marshals Service for service of process on Defendants Charles Rine, Dennis Bakewell, and Diane Sabatka-Rine in their individual capacities. Service may be accomplished by 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 United States Marshal shall serve all process in this case without prepayment of fees from Plaintiff. The clerk of the court is directed to file under seal any documents containing the last-known personal addresses for Defendants Charles Rine, Dennis Bakew ell, and Diane Sabatka-Rine. The clerk of the court is directed to set the following pro se case management deadline: June 12, 2017: check if Plaintiff identified individuals in paragraph 2. The clerk of the court is directed to set the following pro se case management deadline: August 9, 2017: check for completion of service of process. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party and as directed)(LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOSHUA G. FRANKLIN, SR.,
Plaintiff,

8:16CV470

vs.
SCOTT FRAKES, Director, In his
Individual and Official Capacity;
DIANE SABATKA-RINE, Deputy
Director, In her Individual and Official
Capacity; FRED BRITTEN, Warden, In
his Individual and Official Capacity;
BRAD HANSEN, Warden, In his
Individual and Official Capacity; et al.;

MEMORANDUM
AND ORDER

Defendants.
Plaintiff filed a Complaint on October 17, 2016. (Filing No. 1.) He has been
given leave to proceed in forma pauperis. (Filing No. 7.) 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. 9.) The court now
conducts review of Plaintiff’s Amended Complaint (Filing No. 19).
I. BACKGROUND
This case is essentially a continuation of Franklin v. Kenney, et al.,
4:14CV3243 (D. Neb. 2014). In Franklin, the American Civil Liberties Union
Foundation - Nebraska filed suit on behalf of Plaintiff against several prison
officials for multiple assaults Plaintiff suffered from members of the Peckerwoods
prison gang while confined at the Nebraska State Penitentiary (“NSP’). (Filing
Nos. 1, 28, 4:14CV3243.) Plaintiff alleged that the defendants committed both
federal constitutional and state law violations. (Id.) In response, the defendants

filed a summary judgment motion arguing that Plaintiff failed to (1) comply with
the Nebraska State Tort Claims Act and (2) exhaust his administrative remedies
pursuant to the Prison Litigation Reform Act. (Filing Nos. 41, 42, 4:14CV3243.)
Plaintiff subsequently filed a motion to dismiss the case without prejudice. (Filing
No. 48, 4:14CV3243.) The court granted Plaintiff’s motion to dismiss and denied
the defendants’ summary judgment motion as moot. (Filing No. 49, 4:14CV3243.)
II. SUMMARY OF AMENDED COMPLAINT
Plaintiff is a prisoner currently confined at the Diagnostic Evaluation Center
(“DEC”)1 in Lincoln, Nebraska. He names in his Complaint multiple defendants
including the previous and current directors of the Nebraska Department of
Correctional Services (“NDCS”) as well as wardens, deputy wardens, unit
administrators, unit managers, case managers, and unidentified John Does
employed at various correctional facilities within NDCS. (Filing No. 19 at
CM/ECF pp. 2-15.) Plaintiff sues Michael L. Kenney and Mario Peart solely in
their individual capacities, and the rest of Defendants in their official and
individual capacities. (Id.)
Assaults
In October of 2012, Anthony Stranghoener (“Stranghoener”), another inmate
and a member of the Peckerwoods prison gang, assaulted Plaintiff at the Sarpy
County Jail. (Filing No. 19 at CM/ECF p. 19.) Plaintiff suffered a broken jaw, an
orbital fracture, and a detached retina from the assault. (Id.) On November 20,
2012, Franklin was transferred to DEC. (Id. at CM/ECF p. 20.) Plaintiff alleges
1

See
Nebraska
Inmate
Population
inmatesearch.ne.gov/Corrections (May 11, 2017).

2

locator

at

http://dcs-

that he alerted DEC Assistant Warden Rine2 (“Rine”), DEC Warden Dennis
Bakewell (“Bakewell”), and John Does 1-43 about the assault and his fear of the
Peckerwoods. (Id. at CM/ECF pp. 20-21.) He alleges that he was assured by staff
at DEC that he and Stranghoener would be placed on “central monitoring” in order
to keep Stranghoener away from Plaintiff. (Id. at CM/ECF p. 21.) Central
monitoring, according to Plaintiff, is “the internal inmate tracking system that
NDCS uses to identify which inmates may be assigned to which facilities based on
the nature of their crime and any known conflicts with other inmates.” (Id.)
In February of 2013, Plaintiff was transferred to NSP, where he was
assaulted again by Stranghoener and other members of the Peckerwoods in April
of 2013. (Id. at CM/ECF pp. 21-22.) Plaintiff returned to DEC in May of 2013, due
to his parole revocation, where he expressed his fear of the Peckerwoods to Rine
and DEC Warden Fred Britten (“Britten”)4. (Id. at CM/ECF pp. 22-23.) Plaintiff
alleges that he advised them that he feared being transferred to NSP or to the
Tecumseh State Correctional Institution (“TSCI”) because of Stranghoener and the
Peckerwoods presence at those facilities. (Id.) Plaintiff asserts that Britten
responded, “You will not be classified at NSP or TSCI.” (Id. at CM/ECF p. 23.)
However, Plaintiff was transferred to NSP on December 31, 2013, where he was
assaulted nine days later by a member of the Peckerwoods, Jason Warrington. (Id.)
Plaintiff suffered a head injury and cervical strain from the assault. (Id.) Plaintiff
was treated at the medical clinic at DEC, where he again expressed his fears to
2

The court assumes that, based upon his prior suit, Plaintiff alerted Charles
Rine, assistant warden at DEC, not Diane Sabatka-Rine, former warden at NSP and
current deputy director of NDCS.
3

Plaintiff states that John Does 1-4 are case managers, shift sergeants, and
other employees who processed his inmate interview requests during that time.
(Filing No. 19 at CM/ECF p. 5.)
4

According to Plaintiff, Britten replaced Bakewell as DEC Warden in
approximately April of 2013. (Id. at CM/ECF p. 2.)
3

Rine, Britten, and John Does 1-4. (Id. at CM/ECF pp. 23-24.) On May 14, 2014,
Plaintiff was assaulted again upon his return to NSP. (Id. at CM/ECF p. 24.)
Plaintiff alleges that the inmate populations of DEC and NSP were
overcrowded by specific percentages during this period of time. (Id. at CM/ECF
pp. 21-24.) He asserts that Bakewell/Britten, Rine, and/or John Does 1-4 failed to
notify NSP of his central monitoring “and/or Warden Sabatka-Rine and/or Does 58 to take the appropriate actions to ensure Plaintiff’s safety.” (Id. at CM/ECF pp.
21-22, 23.) Plaintiff alleges that he notified Sabatka-Rine, upon his transfer to NSP
in February of 2013, of his central monitoring and about his safety concerns. (Id. at
CM/ECF p. 8.)
On July 15, 2015, Plaintiff was transferred to the Omaha Correctional Center
(“OCC”). (Id. at CM/ECF p. 25.) Plaintiff alleges that he expressed his concerns
and fears of being placed in general population with members of the Peckerwoods
to “the second shift supervisor,” Case Manager McClyment, and Unit
Administrator Weiss. (Id. at CM/ECF pp. 25-26.) However, on July 17, 2015,
Plaintiff was placed in general population at OCC. (Id. at CM/ECF p. 25.) On
August 21, 2015, Plaintiff was assaulted by a member of the Peckerwoods. (Id.)
Sexual Assault
In October of 2015, Plaintiff was transferred to the Lincoln Correctional
Center (“LCC”), where he was placed in the protective custody housing unit. (Id.
at CM/ECF p. 27.) Plaintiff alleges that he was placed in a cell with a four-time
convicted sex offender, who sexually assaulted Plaintiff on October 28, 2015. (Id.)
Plaintiff, thereafter, was forced to return to the protective housing unit at LCC
despite his refusal. (Id. at CM/ECF pp. 27-28.) He claims other inmates extorted
him after they found out about the sexual assault and that staff failed to place those
inmates on central monitoring. (Id. at CM/ECF pp. 27, 29.) Plaintiff alleges that he
4

inquired why he had to return to the unit where he feared for his safety, and Deputy
Warden Heckman informed him “that is the way it works. We do not have enough
RHU beds to house everyone that fears for their safety. We will work with you to
separate you from those you fear on A-Unit.” (Id. at CM/ECF pp. 27-28.)
Medical
Plaintiff alleges that he experiences vision and memory issues, pain, and
emotional distress and nightmares from the assaults. (Id. at CM/ECF pp. 24, 37)
He also physically suffers from neck pain and migraines. (Id. at CM/ECF p. 29.)
On December 4, 2015, at his request, “medical” restarted propranolol and Excedrin
for Plaintiff. (Id. at CM/ECF p. 28.) On December 15, 2015, Plaintiff asked
medical to see a doctor because of neck pain and because his migraines were
causing dizziness and “blackouts.” (Id.) Medical responded “sick call to be
scheduled.” (Id.) On December 22, 2015, Plaintiff sent another request to medical
because of his “neck problems” and his worsening migraines. (Id.) Medical
responded that he was on the schedule. (Id.) Because he had yet to be seen,
Plaintiff sent another request on January 1, 2016. (Id.) Medical staff responded,
“scheduled,” on January 28, 2016. (Id.) On February 26, 2016, an MRI or CAT
scan was performed on Plaintiff’s head and, as of that date, doctors were waiting to
review it. (Id. at CM/ECF p. 29.)
Plaintiff claims that, on April 6, 2016, he was rescheduled for a sick call at
LCC due to staff shortage.5 (Id. at CM/ECF p. 31.) According to Plaintiff, he had
serious medical problems that he needed to see medical staff about that day,
5

Plaintiff also makes a general allegation that on August 24, 2015, he asked
to have his medications refilled, and the nurse supervisor responded that he was
scheduled and that “it takes 2-3 weeks to see a provider at this time.” (Filing No.
19 at CM/ECF p. 26.) He also generally alleges that on March 31, 2016, he
requested for a second time that his albuterol inhaler be refilled because it had not
been refilled upon his first request two weeks earlier. (Id. at CM/ECF p. 30.)
5

including neck pain and severe migraines. (Id.) LCC Unit Manager Tan denied
Plaintiff’s subsequent “emergency” grievance, finding that Plaintiff was not in
immediate danger of being “subjected to substantial risk of personal injury or
serious irreparable harm.” (Id.) Plaintiff states that was not the only time that he
and other inmates were rescheduled to see medical due to staff shortage. (Id.)
In an apparent effort to rectify the exhaustion requirement from Case No.
4:14CV3243, Plaintiff alleges that he presented all of his complaints through the
grievance procedure. (Id. at CM/ECF p. 17.) His allegations are replete with his
“requests” and grievances to prison officials about the foregoing issues. (Id. at
CM/ECF pp. 19-31.) Condensed and summarized, Plaintiff alleges that Defendants
violated his rights through the following: failure to protect; failure to train;
deliberate indifference to serious medical needs; retaliation; and on several state
law grounds. (Id. at CM/ECF pp. 33-45.) He seeks the following from the court:
temporary and permanent injunctive relief, declaratory relief, compensatory and
punitive damages, and “injunctive relief issued in the order of releasing inmates
eligible to be released from prison, to reduce overcrowding, and all such further
relief as the court may deem just and proper.” (Id. at CM/ECF p. 47.)
II. APPLICABLE STANDARDS OF 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).

6

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
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
7

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 sues multiple state employees for monetary damages. The Eleventh
Amendment bars his claims against them in their official capacities and those
claims must be dismissed.
B. Moot Claims
Plaintiff is currently confined at DEC. Several of Defendants no longer work
for NDCS and, if they do, they are not employed at DEC. Plaintiff’s claims for
injunctive and declaratory relief against those individuals are moot. See Glick v.
Henderson, 855 F.2d 536, 540-41 (8th Cir. 1988) (injunctive relief impossible
against doctor no longer employed at the prison); Martin v. Sargent, 780 F.2d
1334, 1337 (8th Cir. 1985) (inmate’s claims for declaratory and injunctive relief
moot when he was transferred to another facility). Accordingly, Plaintiff’s claims
for declaratory and injunctive relief must be dismissed as moot against all
Defendants excluding current NDCS Director Scott Frakes6, current DEC Warden

6

See Randolph v. Rodgers, 253 F.3d 342, 346 (8th Cir. 2001) (relocated
prisoner’s claim could proceed against director of state department of corrections
because director had authority over all facilities, and injunction against director
would have effect no matter where in the state correctional system prisoner was
located).
8

Fred Britten, DEC Assistant Warden Charles Rine7, and DEC employees John
Does 1-4.
C. Section 1983 Claims8
1. Failure to Protect
Plaintiff asserts Eighth Amendment failure-to-protect claims based upon the
multiple assaults that he suffered at NSP and OCC from members of the
Peckerwoods and upon the sexual assault that he suffered at LCC from his
cellmate.
The Eighth Amendment imposes a duty on prison officials “‘to protect
prisoners from violence at the hands of other prisoners.’” Prater v. Dahm, 89 F.3d
538, 541 (8th Cir. 1996) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)).
A prison official is deliberately indifferent if he “knows of and disregards” a
substantial risk of serious harm to an inmate. Farmer, 511 U.S. at 837. There is
both an objective component and a subjective component to a claim of deliberate
indifference: (1) whether a substantial risk to the inmate’s safety existed, and (2)
whether the officer had knowledge of the substantial risk to the inmate’s safety but
nevertheless disregarded it. Reynolds v. Dormire, 636 F.3d 976, 979 (8th Cir.
2011) (citing Davis v. Oregon Cnty., Mo., 607 F.3d 543, 548 (8th Cir.2010)). The
subjective component requires that the official was both aware of facts from which
the inference could be drawn that a substantial risk of serious harm existed, and he
7

The court is unaware whether Rine is still employed at DEC, but out of an
abundance of caution, includes him here.
8

The court understands Plaintiff’s allegations of overcrowding and
inadequate staffing to be encompassed within the claims below. That is,
Defendants’ deliberate indifference resulted from overcrowding and inadequate
staffing issues.
9

must also draw the inference. Id. Deliberate indifference includes something more
than negligence but less than actual intent to harm; it requires proof of a reckless
disregard of the known risk. Id.
With regard to the assaults from members of the Peckerwoods, Plaintiff has
set forth sufficient allegations to state plausible failure-to-protect claims against
former DEC Warden Dennis Bakewell, current DEC Warden Fred Britten, DEC
Assistant Warden Charles Rine, DEC employees John Does 1-4, former NSP
Warden Diane Sabatka-Rine, NSP employees John Does 5-8, OCC “second shift
supervisor” during July of 2015, OCC Case Manager McClyment, and OCC Unit
Administrator Weiss. Liberally construed, Plaintiff’s allegations suggest that these
are the individuals who knew the Peckerwoods posed a continued threat to
Plaintiff, and yet, failed to separate and protect him from those individuals, albeit
through central monitoring or some other course of action. The court cautions
Plaintiff that this is only a preliminary determination based on his allegations, and
is not a determination of the merits of his claims or potential defenses thereto.
With respect to the sexual assault from Plaintiff’s cellmate, the court first
questions whether this claim is even properly joined in this action. Nevertheless,
the court finds that Plaintiff’s allegations are insufficient. While Plaintiff’s former
cellmate may be a four-time convicted sex offender, Plaintiff does not allege that
anyone actually knew that Plaintiff’s cellmate posed a substantial risk of harm to
Plaintiff. Without more, Plaintiff’s allegations are insufficient. See similarly, Webb
v. Lawrence Cty, 144 F.3d 1131, 1135 (8th Cir. 1998) (plaintiff sexually assaulted
by cellmate, a known sex offender; no evidence that defendants were deliberately
indifferent to plaintiff’s safety because defendants did not actually know that
cellmate posed a substantial risk of harm to plaintiff). For the sake of
completeness, so too are Plaintiff’s allegations insufficient that other inmates
“extorted” him after learning of the sexual assault, particularly considering Deputy

10

Warden Heckman’s response that they would work with Plaintiff to separate him
from those he feared. Plaintiff makes no allegations of incidents thereafter.
2. Deliberate Indifference to Serious Medical Needs
Plaintiff asserts Eighth Amendment claims of deliberate indifference to his
serious medical needs against unidentified medical staff. The court infers that these
unidentified individuals are John Does 9-10, employees at LCC and/or TSCI. (See
Filing No. 19 at CM/ECF p. 5.)
The Eighth Amendment’s prohibition on cruel and unusual punishment
protects prisoners from deliberate indifference to serious medical needs. Gregoire
v. Class, 236 F.3d 413, 417 (8th Cir. 2000). Plaintiff must demonstrate that (1) he
suffered from objectively serious medical needs, and (2) the defendants knew of,
but deliberately disregarded, those needs. See Jolly v. Knudsen, 205 F.3d 1094,
1096 (8th Cir. 2000) (quoting Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th
Cir.1997)). A serious medical need is “one that has been diagnosed by a physician
as requiring treatment, or one that is so obvious that even a layperson would easily
recognize the necessity for a doctor’s attention.” Santiago v. Blair, 707 F.3d 984,
990 (8th Cir. 2013) (internal citations omitted).
Liberally construed, Plaintiff asserts that medical staff delayed treatment for
his neck pain and migraines. On December 4, 2015, restarted propranolol9 and
Excedrin for Plaintiff. However, Plaintiff requested to see a doctor for more than a
month thereafter because of his worsening symptoms, namely dizziness and
“blackouts” due to migraines. The court infers from Plaintiff’s allegations that his
continued symptoms resulted in the MRI or CAT scan performed on his head on
February 26, 2016. These allegations suggest that “medical,” or John Does 9-10,
9

Propanolol is a beta blocker used to reduce the frequency of migraine
headaches. Pogue v. Colvin, 2014 WL 5781141, at *8 (W.D. Mo. Nov. 6, 2014).
11

deliberately disregarded Plaintiff’s objectively serious medical needs. The court
cautions Plaintiff that this is only a preliminary determination based on his
allegations, and is not a determination of the merits of his claims or potential
defenses thereto.10
3. Failure to Train
Plaintiff attempts to pursue recovery from several of Defendants based on
their supervisory roles at NDCS and at the correctional facilities within NDCS. A
supervisor may not be held liable under § 1983 for the constitutional violations of a
subordinate on a respondeat superior theory. Tlamka v. Serrell, 244 F.3d 628, 635
(8th Cir. 2001) (citing Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995)). Rather, a
supervisor’s liability arises if:
he directly participates in a constitutional violation or if a failure to
properly supervise and train the offending employee caused a
deprivation of constitutional rights. The plaintiff must demonstrate
that the supervisor was deliberately indifferent to or tacitly authorized
the offending acts. This requires a showing that the supervisor had
notice that the training procedures and supervision were inadequate
and likely to result in a constitutional violation.
10

To be clear, Plaintiff’s allegations that he did not receive timely refills of
medication on two occasions are insufficient to state a claim. These isolated
incidents may rise to the level of negligence, but they do not rise to the level of
deliberate indifference. 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). See e.g., Kenion v. Kiby, 2015 WL 2345653, at *2
(W.D.N.C. May 14, 2015) (citing cases). The same is true for his allegations of
rescheduled sick calls. He alleges only one specific incident. Nor does Plaintiff
allege any harm suffered in either regard. “[D]elay in medical care can only
constitute an Eighth Amendment violation if there has been deliberate indifference
which results in substantial harm.” Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir.
1993) (quotation omitted).
12

Tlamka, 244 F.3d at 635 (quoting Andrews v. Fowler, 98 F.3d 1069, 1078 (8th Cir.
1996)). To state a § 1983 claim, the plaintiff must allege that the defendant was
personally involved in or had direct responsibility for incidents that resulted in
injury. Martin, supra 1338.
The court will allow Plaintiff’s failure-to-train claims to proceed in tandem
with Plaintiff’s failure-to-protect claims against the same Defendants excluding
John Does 1-8, who the court infers have no supervisory role. Plaintiff sets forth
primarily vague and conclusory allegations against the remaining Defendants who
exercise[d] supervisory roles at the correctional facilities, and to the extent he
states anything specific, it is with regard to their responses to his grievances.
Defendants’ denial of Plaintiff’s grievances do not state a substantive
constitutional claim. See Lomholt v. Holder, 287 F.3d 683 (8th Cir. 2002).
Moreover, Plaintiff does not allege any personal involvement by any Defendant in
the underlying incidents who the court has not already allowed his claims to
proceed against.
4. Retaliation
Plaintiff states that Defendants have retaliated against him for filing
grievances and litigation by preventing his access to the courts, failing to transfer
him to a different NDCS facility, and “refusing to provide protection.” (See Filing
No. 19 at CM/ECF pp. 44-45.) These vague, conclusory allegations fail to state a
claim upon which relief may be granted, specifically on whether there is any causal
connection between his First Amendment protected activity of filing grievances
and the adverse actions he alleges he suffered. See Peterson v. Kopp, 754 F.3d 594,
602 (8th Cir. 2014) (setting forth elements for retaliation).11
11

The court also observes that Plaintiff has been confined at nearly every
correctional facility within NDCS in approximately five years. Moreover, “[a]
13

D. State Law Claims
Plaintiff alleges tort claims under state law based upon the same facts and
circumstances as his federal constitutional claims. (See Filing No. 19 at CM/ECF
pp. 37-41.) The court reserves any ruling regarding whether it will exercise
supplemental jurisdiction over these claims.
IV. TEMPORARY INJUNCTION REQUEST
Plaintiff requests a temporary injunction. (See Filing No. 19 at CM/ECF p.
47.) In Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109 (8th Cir. 1981), the
court clarified the factors district courts should consider when determining whether
to grant a motion for preliminary injunctive relief:
(1) the threat of irreparable harm to the movant; (2) the state of
balance between this harm and the injury that granting the injunction
will inflict on other parties litigant; (3) the probability that movant
will succeed on the merits; and (4) the public interest.
Id. at 114. “No single factor in itself is dispositive; rather, each factor must be
considered to determine whether the balance of equities weighs toward granting
the injunction.” United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir.
1998). “At base, the question is whether the balance of equities so favors the

denial of access to the courts without cognizable injury is insufficient to support a
claim under § 1983,” Sabers v. Delano, 100 F.3d 82, 83 (8th Cir. 1996) (per
curiam). Plaintiff has no cognizable injury from any infringement on his access to
the courts because the court now considers his claims.
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movant that justice requires the court to intervene to preserve the status quo until
the merits are determined. . . .” Dataphase, 640 F.2d at 113.
In consideration of, Plaintiff’s current confinement at DEC, at which none of
the incidents transpired; that the last assault from any member of the Peckerwoods
occurred almost two years ago; and that Plaintiff received an MRI or CAT scan of
his head, the court finds that Plaintiff has not satisfied his burden to show the threat
of irreparable harm. Further, if Defendants violated his rights, such harm can be
compensated by money damages. The court sees no reason to “intervene to
preserve the status quo until the merits are determined . . . .” Dataphase, 640 F.2d
at 113. Accordingly, Plaintiff’s request for a temporary injunction is denied.
V. REQUEST FOR COUNSEL
Plaintiff requests the appointment of counsel. (Filing No. 19 at CM/ECF p.
46.) The court cannot routinely appoint counsel in civil cases. In Davis v. Scott, 94
F.3d 444, 447 (8th Cir. 1996), the Eighth Circuit Court of Appeals explained that
“[i]ndigent civil litigants do not have a constitutional or statutory right to appointed
counsel.” Trial courts have “broad discretion to decide whether both the plaintiff
and the court will benefit from the appointment of counsel, taking into account the
factual and legal complexity of the case, the presence or absence of conflicting
testimony, and the plaintiff’s ability to investigate the facts and present his claim.”
Id. Having considered these factors, the request for the appointment of counsel will
be denied without prejudice to reassertion.
IT IS THEREFORE ORDERED that:
1.

The following claims may proceed to service of process:

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a.
Plaintiff’s Eighth Amendment failure-to-protect and failure-totrain claims for injunctive and declaratory relief against Defendants Fred Britten
and Charles Rine in their official and individual capacities.
b.
Plaintiff’s Eighth Amendment failure-to-protect claims for
monetary relief against Defendants Dennis Bakewell, Fred Britten, Charles Rine,
Diane Sabatka-Rine, McClyment, and Weiss in their individual capacities.
c.
Plaintiff’s Eighth Amendment failure-to-train claims for
monetary relief against Defendants Dennis Bakewell, Fred Britten, Charles Rine,
Diane Sabatka-Rine, McClyment, and Weiss in their individual capacities.
2.
Plaintiff must identify John Does 1-10 and the OCC “second shift
supervisor” during July of 2015 before his claims against them can proceed to
service of process. Plaintiff will have 30 days from the date of this
Memorandum and Order to take reasonable steps to identify John Does 1-10
and the OCC “second shift supervisor” during July of 2015 and notify the
court of their names, after which the court will initiate service of process.
Failure to do so will result in dismissal of the following claims without
prejudice and without further notice. The following claims may proceed to
service of process against these Defendants once identified:
a.
Plaintiff’s Eighth Amendment failure-to-protect claims for
injunctive and declaratory relief against John Does 1-4 in their official and
individual capacities.
b.
Plaintiff’s Eighth Amendment failure-to-protect claims for
monetary relief against John Does 1-4, John Does 5-8, and the OCC “second shift
supervisor” during July of 2015 in their individual capacities.

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c.
Plaintiff’s Eighth Amendment failure-to-train claim for
monetary relief against the OCC “second shift supervisor” during July of 2015 in
his/her individual capacity.
d.
Plaintiff’s Eighth Amendment claim for deliberate indifference
to serious medical needs for monetary relief against John Does 9-10 in their
individual capacities.
3.
Plaintiff’s remaining federal claims against Defendants are dismissed
for the reasons set forth in this Memorandum and Order, with the caveat that any
individual defendant will be reinstated if later identified as one of the John Does.
4.

Plaintiff’s request for a temporary injunction is denied.

5.
Plaintiff’s request for the appointment of counsel is denied without
prejudice to reassertion.
6.
The clerk of the court is directed to add Charles Rine, Assistant
Warden and to reinstate McClyment, Case Manager (previously McClymont,
Lieutenant) as defendants in this matter.
7.
For service of process on Defendants Fred Britten and Charles Rine in
their official capacities, the clerk of the court is directed to complete 2 summons
forms and 2 USM-285 forms for Defendants Fred Britten and Charles Rine 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
(Filing No. 19) and a copy of this Memorandum and Order to the Marshals
Service. The Marshals Service shall serve Defendants Fred Britten and Charles
Rine in their official capacities at the Office of the Nebraska Attorney General,

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2115 State Capitol, Lincoln, NE 68509. See Federal Rule of Civil Procedure
4(j)(2); Neb. Rev. Stat. § 25-510.02 (Reissue 2016).12
8.
For service of process on Defendant Fred Britten in his individual
capacity, the clerk of the court is directed to complete a summons form and a
USM-285 form for Defendant Fred Britten using the address “Diagnostic and
Evaluation Center, 3220 West Van Dorn Street, Lincoln, NE 68522” and forward
them together with a copy of the Amended Complaint (Filing No. 19) and a copy
of this Memorandum and Order to the Marshals Service. The Marshals Service
shall serve Defendant Fred Britten personally in his individual capacity at the
Diagnostic and Evaluation Center, 3220 West Van Dorn Street, Lincoln, NE
68522. Service may also be accomplished by using any of the following methods:
residence, certified mail, or designated delivery service. See Federal Rule of Civil
Procedure 4(e); Neb. Rev. Stat. § 25-508.01 (Reissue 2016).
9.
For service of process on Defendants “Case Manager McClyment”
and “Unit Administrator Weiss” in their individual capacities, the clerk of the court
is directed to complete 2 summons forms and 2 USM-285 forms for Defendants
“Case Manager McClyment” and “Unit Administrator Weiss” using the address
“Omaha Correctional Center, 2323 Avenue J Street, Omaha, NE 68110” and
forward them together with a copy of the Amended Complaint (Filing No. 19) and
a copy of this Memorandum and Order to the Marshals Service. The Marshals
Service shall serve Defendants “Case Manager McClyment” and “Unit
Administrator Weiss” personally in their individual capacities at the Omaha
Correctional Center, 2323 Avenue J Street, Omaha, NE 68110. Service may also
12

Pro se litigants proceeding in forma pauperis are entitled to rely on service
by the United States Marshals Service. Wright v. First Student, Inc., 710 F.3d 782,
783 (8th Cir. 2013). Pursuant to 28 U.S.C. § 1915(d), in an in forma pauperis case,
“[t]he officers of the court shall issue and serve all process, and perform all duties
in such cases.” See Moore v. Jackson, 123 F.3d 1082, 1085 (8th Cir. 1997)
(language in § 1915(d) is compulsory).
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be accomplished by using any of the following methods: residence, certified mail,
or designated delivery service. See Federal Rule of Civil Procedure 4(e); Neb. Rev.
Stat. § 25-508.01 (Reissue 2016).
10. The clerk of the court is directed to obtain the last-known addresses
for Defendants Charles Rine, Dennis Bakewell, and Diane Sabatka-Rine from the
United States Marshals Service for service of process on Defendants Charles Rine,
Dennis Bakewell, and Diane Sabatka-Rine in their individual capacities. Once
such addresses are obtained, the clerk of the court is directed to complete 3
summons forms and 3 USM-285 forms for Defendants Charles Rine, Dennis
Bakewell, and Diane Sabatka-Rine using the addresses provided by the Marshals
Service and forward them together with a copy of the Amended Complaint (Filing
No. 19) and a copy of this Memorandum and Order to the Marshals Service for
service of process on Defendants Charles Rine, Dennis Bakewell, and Diane
Sabatka-Rine in their individual capacities. Service may be accomplished by 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).
11. The United States Marshal shall serve all process in this case without
prepayment of fees from Plaintiff.
12. The clerk of the court is directed to file under seal any documents
containing the last-known personal addresses for Defendants Charles Rine, Dennis
Bakewell, and Diane Sabatka-Rine.
13. The clerk of the court is directed to set the following pro se case
management deadline: June 12, 2017: check if Plaintiff identified individuals in
paragraph 2.

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14. The clerk of the court is directed to set the following pro se case
management deadline: August 9, 2017: check for completion of service of process.
Dated this 11th day of May, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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