Martin v. Frakes et al

Filing 10

MEMORANDUM AND ORDER that Martin's claims against Defendants in their official capacities are dismissed as barred by the Eleventh Amendment. Martin's Eighth Amendment claims may proceed to service of process against Scott Frakes, Adam C ropp, Brian Gage, Chelsea Guiffre, and Paul Tompkins in their individual capacities. For service of process on Defendant Scott Frakes in his individual capacity, the clerk of the court is directed to complete a summons form and a USM-285 form for Defendant Frakes using the address "Lincoln Regional Center, 801 West Prospector Place, Lincoln, NE 68522," and forward them together with a copy of the Complaint and a copy of this Memorandum and Order to the Marshals Service. The Marsh als Service shall serve Defendant Frakes personally in his individual capacity at the Lincoln Regional Center, 801 West Prospector Place, Lincoln, NE 68522. Service may also be accomplished by using any of the following methods: residence, certifie d 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 Defendant Adam Cropp in his individual capacity, the clerk of the court is directed to compl ete a summons form and a USM-285 form for Defendant Cropp using the address "Tecumseh State Correctional Institution, 2725 N. HWY 50, Tecumseh, NE 68450," and forward them together with a copy of the Complaint and a copy of this Memoran dum and Order to the Marshals Service. The Marshals Service shall serve Defendant Cropp personally in his individual capacity at the Tecumseh State Correctional Institution, 2725 N. HWY 50, Tecumseh, NE 68450. Service may also be accomplished by u sing 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 Defendant Brian Gage in his individu al capacity, the clerk of the court is directed to complete a summons form and a USM-285 form for Defendant Gage using the address at sealed Filing No. 28 in Case No. 4:17CV3047 and forward them together with a copy of the Complaint and a copy of this Memorandum and Order to the Marshals Service. The Marshals Service shall serve Defendant Gage personally in his individual capacity at the address provided by the clerk of the court. Service may also be accomplished by using any of the follo wing 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 Defendant Chelsea Guiffre in her individual capacity, the clerk of the court is directed to complete a summons form and a USM-285 form for Defendant Guiffre using the address at sealed Filing No. 30 in Case No. 4:17CV3047 and forward them together with a copy of the Complaint and a copy of this Memorand um and Order to the Marshals Service. The Marshals Service shall serve Defendant Guiffre personally in her individual capacity at the address provided by the clerk of the court. Service may also be accomplished by using any of the following method s: 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 Defendant Paul Tompkins in his individual capacity, the clerk of the court is directed to complete a summons form and a USM-285 form for Defendant Tompkins using the address "Lincoln Correctional Center, 3216 W Van Dorn St., Lincoln, NE 68522," and forward them together with a copy of the Complaint and a copy of this Memorandum and Order to the Marshals Service. The Marshals Service shall serve Defendant Tompkins personally in his individual capacity at the Lincoln Correctional Center, 3216 W Van Dorn St., Lincoln, NE 68522. Service may also be a ccomplished 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 United States Marshal shall serve all proce ss in this case without prepayment of fees from Plaintiff. The clerk of the court is directed to file under seal any document containing the last-known personal addresses for Defendants Guiffre and Gage. The clerk of the court is directed to set the following pro se case management deadline: December 26, 2017: check for completion of service of process. 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
CARL A. MARTIN,
Plaintiff,

8:17CV253

vs.
SCOTT FRAKES, Official Capacity,
Individual Capacity; ADAM CROP,
Official Capacity, Individual Capacity;
BRIAN GAGE, Official Capacity,
Individual Capacity; CHELSEA
GUFFRIE, Official Capacity, Individual
Capacity; and PAUL TOMPKINS,
Official Capacity, Individual Capacity;

MEMORANDUM
AND ORDER

Defendants.
Plaintiff Carl A. Martin (“Martin”) filed a Complaint on July 13, 2017.
(Filing No. 1.) He has been given leave to proceed in forma pauperis. (Filing No.
7.) On August 17, 2017, he paid the initial partial filing fee. (See Docket Sheet.)
The court now conducts an initial review of Martin’s Complaint to determine
whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.
I. SUMMARY OF COMPLAINT
Martin is a prisoner confined at the Tecumseh State Correctional Institution.
He brings this action against five employees of the Nebraska Department of
Correctional Services: Scott Frakes, Adam Crop, Brian Gage, Chelsea Guffrie, and
Paul Tompkins in their official and individual capacities1. Martin’s “Statement of
Claim” is as follows:
1

Scott Frakes is the Director of the Nebraska Department of Correctional
Services and Brian Gage was the Warden of the Tecumseh State Correctional

The defendants infringed and deprived the complainant his right to
safe and human conditions of confinement because during a [g]eneral
population inmate [r]iot on May 10th 2015 when assaults and fires
[were] being started by these general population inmates. He was a
protective custody inmate safe and secure in his unit; and these
defendants placed his unit cell doors and yard doors on group access
with [g]eneral population unit cell doors and yard doors together and
allowing the [g]eneral population inmates to prey upon my persons
and commi[t] fires, threats, and unit damage to property – resulting
[in] heavy toxic smoke for 7 hours without correcting the error when
they had reasonable time to correct the breach of safety. Under the 8th
[A]mendment to the United States Constitution.
(Filing No. 1 at CM/ECF pp. 4-5.) Martin asserts that he suffered assault, exposure
to toxic smoke, smoke inhalation, emotional distress and mental anguish, and
exacerbated psychological harm because of the incident. (Id. at CM/ECF p. 5.) He
seeks $5,000,000 in damages. (Id. at CM/ECF p. 6.)
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).

Institution during May of 2015. Hereinafter, the court will refer to the remaining
defendants as Cropp, Guiffre, and Tompkins, because that is the correct spelling of
their last names. See Guerry v. Frakes, Consolidated Case Nos. 8:15CV323 (D.
Neb.); 4:17CV3047 (D. Neb.).
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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, Martin 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
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.
Martin sues 4 state employees and seeks only monetary relief against them.
The Eleventh Amendment bars his claims against them in their official capacities.
Accordingly, Martin’s claims against Defendants in their official capacities will be
dismissed.
B. Individual Capacity Claims
Martin’s constitutional claims are based on alleged violations of his Eighth
Amendment rights.
The Eighth Amendment to the United States Constitution proscribes
the infliction of “cruel and unusual punishments.” The Supreme Court
counsels that this amendment imposes upon prison officials the duty
to “provide humane conditions of confinement.” That duty, among
other things, requires those officials to take reasonable measures to
“protect prisoners from violence at the hands of other prisoners.” The
Eighth Amendment imposes this duty because being subjected to
violent assaults is not “part of the penalty that criminal offenders pay
for their offenses.”
In order to prevail on an Eighth Amendment failure-to-protect claim,
[an inmate] must make two showings. First, [the inmate] must
demonstrate that [he or she is] “incarcerated under conditions posing a
substantial risk of serious harm.” The second requirement concerns
the state of mind of the prison official who is being sued. It mandates
that the [inmate] show that the official “knows of and disregards an
excessive risk to inmate health or safety; the official must both be
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aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and [the official] must also
draw the inference.” This subjective requirement is necessary because
“only the unnecessary and wanton infliction of pain implicates the
Eighth Amendment.”
Jensen v. Clarke, 73 F.3d 808, 810 (8th Cir. 1996) (citing Farmer v. Brennan, 511
U.S. 825 (1994)) (other citations omitted).
At this stage in the proceedings, the court finds Martin has stated plausible
claims for relief against Defendants. The court can infer from Martin’s allegations
that Cropp, Guiffre, and Tompkins worked in the protective custody unit on the
date of the prison riot and were responsible for the unit cell and yard doors,
allowing rioting general population inmates access to protective custody inmates
such as Martin. Further, the court infers that Frakes and Gage, as prison director
and warden, were responsible for the safety and security of the prison on the date
of the riot. The court also infers from Martin’s allegations that they waited seven
hours to come to his assistance in the face of fires and rioting prisoners. His
allegations are sufficient to state plausible claims for relief at this juncture of the
case.
IT IS THEREFORE ORDERED that:
1.
Martin’s claims against Defendants in their official capacities are
dismissed as barred by the Eleventh Amendment.
2.
Martin’s Eighth Amendment claims may proceed to service of process
against Scott Frakes, Adam Cropp, Brian Gage, Chelsea Guiffre, and Paul
Tompkins in their individual capacities.
3.
For service of process on Defendant Scott Frakes in his individual
capacity, the clerk of the court is directed to complete a summons form and a
USM-285 form for Defendant Frakes using the address “Lincoln Regional Center,
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801 West Prospector Place, Lincoln, NE 68522,” and forward them together with a
copy of the Complaint and a copy of this Memorandum and Order to the Marshals
Service. The Marshals Service shall serve Defendant Frakes personally in his
individual capacity at the Lincoln Regional Center, 801 West Prospector
Place, 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).2
4.
For service of process on Defendant Adam Cropp in his individual
capacity, the clerk of the court is directed to complete a summons form and a
USM-285 form for Defendant Cropp using the address “Tecumseh State
Correctional Institution, 2725 N. HWY 50, Tecumseh, NE 68450,” and forward
them together with a copy of the Complaint and a copy of this Memorandum and
Order to the Marshals Service. The Marshals Service shall serve Defendant
Cropp personally in his individual capacity at the Tecumseh State
Correctional Institution, 2725 N. HWY 50, Tecumseh, NE 68450. 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).

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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). See, e.g., Beyer v. Pulaski County Jail, 589
Fed. Appx. 798 (8th Cir. 2014) (unpublished) (vacating district court order of
dismissal for failure to prosecute and directing district court to order the Marshal to
seek defendant’s last-known contact information where plaintiff contended that the
Jail would have information for defendant’s whereabouts); Graham v. Satkoski, 51
F.3d 710, 713 (7th Cir. 1995) (when court instructs Marshal to serve papers for
prisoner, prisoner need furnish no more than information necessary to identify
defendant; Marshal should be able to ascertain defendant’s current address).
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5.
For service of process on Defendant Brian Gage in his individual
capacity, the clerk of the court is directed to complete a summons form and a
USM-285 form for Defendant Gage using the address at sealed Filing No. 28 in
Case No. 4:17CV3047 and forward them together with a copy of the Complaint
and a copy of this Memorandum and Order to the Marshals Service. The Marshals
Service shall serve Defendant Gage personally in his individual capacity at the
address provided by the clerk of the court. 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. § 25508.01 (Reissue 2016).
6.
For service of process on Defendant Chelsea Guiffre in her individual
capacity, the clerk of the court is directed to complete a summons form and a
USM-285 form for Defendant Guiffre using the address at sealed Filing No. 30 in
Case No. 4:17CV3047 and forward them together with a copy of the Complaint
and a copy of this Memorandum and Order to the Marshals Service. The Marshals
Service shall serve Defendant Guiffre personally in her individual capacity at
the address provided by the clerk of the court. 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).
7.
For service of process on Defendant Paul Tompkins in his individual
capacity, the clerk of the court is directed to complete a summons form and a
USM-285 form for Defendant Tompkins using the address “Lincoln Correctional
Center, 3216 W Van Dorn St., Lincoln, NE 68522,” and forward them together
with a copy of the Complaint and a copy of this Memorandum and Order to the
Marshals Service. The Marshals Service shall serve Defendant Tompkins
personally in his individual capacity at the Lincoln Correctional Center, 3216
W Van Dorn St., Lincoln, NE 68522. Service may also be accomplished by
using any of the following methods: residence, certified mail, or designated

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delivery service. See Federal Rule of Civil Procedure 4(e); Neb. Rev. Stat. § 25508.01 (Reissue 2016).
8.
The United States Marshal shall serve all process in this case without
prepayment of fees from Plaintiff.
9.
The clerk of the court is directed to file under seal any document
containing the last-known personal addresses for Defendants Guiffre and Gage.
10. The clerk of the court is directed to set the following pro se case
management deadline: December 26, 2017: check for completion of service of
process.
Dated this 25th day of September, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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