Clark v. Nebraska Department of Correction's et al

Filing 11

MEMORANDUM AND ORDER - Defendant Nebraska Department of Correctional Services is dismissed from this action as not subject to suit under 42 U.S.C. § 1983. Plaintiff's claim for money damages against Defendants Baum, Granholm, Frakes, and Ri cketts in their official capacities is dismissed as barred by the Eleventh Amendment. Plaintiff's claim based on the Defendants' miscalculation of his goodtime credits is dismissed for failure to state a claim upon which relief can be grant ed. On or before May 18, 2018, Plaintiff may file an amended complaint to assert his conditions-of-confinement claims against Defendants Baum, Granholm, Frakes, and Ricketts in their individual capacities, in the absence of which this case shall be d ismissed without further notice to Plaintiff. If Plaintiff chooses to file an amended complaint, the court will conduct further review of Plaintiff's claims pursuant to 28 U.S.C. § 1915(e) and 1915A in the normal course of business. The Clerk of Court shall set a pro se case-management deadline as follows: May 18, 2018amended complaint due. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JEROME M. CLARK,

)
)
Plaintiff,
)
)
v.
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)
NEBRASKA DEPARTMENT OF
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CORRECTION’S, MICKIE BAUM, )
Record’s Administrator, VAL
)
GRANHOLM, Records, SCOTT
)
FRAKES, Prison Director, and PETE )
RICKETES, Govenor,
)
)
Defendants.
)
)

8:17CV447

MEMORANDUM
AND ORDER

Plaintiff Jerome Clark, a pro se litigant now incarcerated at the Lincoln
Correctional Center (“LCC”), filed this 42 U.S.C. § 1983 action in which he
complains about a hodgepodge of issues ranging from the restoration of good time to
conditions of confinement. The court has granted Plaintiff permission to proceed in
forma pauperis, and the court now conducts an initial review of the Complaint (Filing
No. 1) to determine whether summary dismissal is appropriate under 28 U.S.C.
§§ 1915(e) and 1915A.
I. SUMMARY OF COMPLAINT
Plaintiff brings this § 1983 action against the Nebraska Department of
Correctional Services (“NDCS”), state employees Mickie Baum and Val Granholm
who deal with “records,” NDCS Director Frakes, and Nebraska Governor Ricketts in
their official capacities only. Plaintiff broadly challenges “dead time not being sent,
jail time credit being in error, miscellaneous detainer’s and good time restoration

miscalculation’s,” as well as “staff assault’s, k2 drug abuse, on going overcrowding,
alienation, extortion, stealing and fighting.” (Filing No. 1 at CM/ECF p. 3.)
Plaintiff refers to “3 years of undocumented dead time it’s not stated on my
time sentence inquiry sheet in a mix of miscalculated time sentence errors from jail
time credit good time and error of sentence structure.” (Filing No. 1 at CM/ECF p. 7.)
He also complains about “being stampeded by people,” inmates who “steal fight and
alienate you so they can extort money from each other,” guards who are “bring’n in
k2 at the nebraska state penitentiary,” and being “over run with petty thieves” who
have assaulted two of his cell mates for debts related to k2. (Filing No. 1 at CM/ECF
p. 5.)
Attached to Plaintiff’s Complaint are documents indicating that 335 days of
good time were restored to him on June 8, 2017, based on Plaintiff’s “Factor Rating
Score,” “Sentence Structure,” and “medical, security or assignment needs.” The
documents also show that Plaintiff’s June 16, 2017, “classification appeal” requesting
more good time was denied. (Filing No. 1 at CM/ECF pp. 16-17.)
While Plaintiff’s prayer for relief is not entirely clear, it appears he requests to
be released, to confer with a lawyer after his release about money damages, and to
“see a doctor to have me highly and heavily medicated after being incarcerated in
nebraska.” (Filing No. 1 at CM/ECF p. 5.)
II. LEGAL 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

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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
Plaintiff sues the NDCS and Defendants Baum, Granholm, Frakes, and Ricketts
in their official capacities only.

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A. Sovereign Immunity
Plaintiff’s claims for monetary relief against the NDCS and Defendants Baum,
Granholm, Frakes, and Ricketts in their official capacities are barred by Eleventh
Amendment sovereign immunity. Further, Plaintiff cannot sue the state or state
officials in their official capacities for money damages under § 1983 because such
suits are really suits against the state, and the state is not a “person” who can be sued
under § 1983. Kruger v. Nebraska, 820 F.3d 295, 301 (8th Cir. 2016); Zajrael v.
Harmon, 677 F.3d 353, 355 (8th Cir. 2012) (per curiam) (section 1983 provides no
cause of action against agents of the state acting in their official capacities; sovereign
immunity bars claim against state-agency employees for monetary damages under
federal act); Monroe v. Arkansas State Univ., 495 F.3d 591, 594 (8th Cir. 2007)
(Eleventh Amendment bars claims against state and its agencies for any kind of relief;
Eleventh Amendment bars claims for money against state officials in their official
capacities).
B. Errors in Calculating Good Time
Plaintiff attached to his Complaint a copy of a local newspaper article
recounting the NDCS’s miscalculation of mandatory minimum sentences of some
1,200 state prisoners. (Filing No. 1 at CM/ECF pp. 12-13.) Presumably as a result of
these errors—including the miscalculation of “dead time,” “jail time credit,”
“detainers,” and “good time restoration”—Plaintiff asks the court to “grant me my
release date now.” (Filing No. 1 at CM/ECF p. 6.)
“[H]abeas corpus is the exclusive remedy for a state prisoner who challenges
the fact or duration of his confinement and seeks immediate or speedier release, even
though such a claim may come within the literal terms of § 1983.” Heck v. Humphrey,
512 U.S. 477, 481 (1994). Thus, Plaintiff’s claim for release should have been brought
by an action for a writ of habeas corpus under 28 U.S.C. § 2254, not under 42 U.S.C.
§ 1983. See, e.g., Carter v. Bickhaus, 142 F. App’x 937, 938 (8th Cir. 2005)
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(unpublished) (requested relief of release is unavailable under 42 U.S.C. § 1983, “but
is properly sought in a habeas corpus petition after exhaustion of state remedies”);
Siers v. Daugaard, No. CIV. 14-4034, 2014 WL 2593011, at *2 (D.S.D. June 10,
2014) (“because [plaintiff] is challenging the fact of his confinement and seeks to be
released from prison, he has failed to state a claim upon which relief may be granted
pursuant to § 1983. His sole remedy is a writ of habeas corpus.”).
To the extent Plaintiff demands types of relief other than release based on a
claim that the Defendants’ alleged miscalculations deprived him of due process,
Plaintiff has failed to state a claim upon which relief can be granted because Plaintiff
does not have a constitutional right to conditional release or “good time credits.” See
Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7
(1979) (“There is no constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid sentence.”); Dace v. Mickelson,
816 F.2d 1277, 1280-81 (8th Cir. 1987); Andrews v. Huckabee, No. 2:07CV00010,
2007 WL 641532, at *2 (E.D. Ark. Feb. 27, 2007) (“Section 1983 specifically requires
that a violation of a federally-protected right be alleged and demonstrated. . . .
[P]laintiff has not demonstrated a denial of a federally-protected right, given the fact
that there is no constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid sentence).
This is not a case covered by Wolff v. McDonnell, 418 U.S. 539 (1974) (though
the Constitution does not guarantee good-time credit for satisfactory behavior while
in prison and though the due process clause does not require a hearing in every
conceivable case of government impairment of private interest, where state created
right to good-time and recognized that its deprivation was a sanction authorized for
major misconduct, prisoner's interest therein was sufficiently embraced within
Fourteenth Amendment "liberty" to entitle him to those minimum procedures
appropriate under the circumstances and required by the due process clause to insure
that the state-created right was not arbitrarily abrogated). Here the Plaintiff
specifically asserts that he challenged the calculation of good time, he was accorded
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some but not all the relief he was requesting, that he appealed the decision and the
decision was affirmed. Thus, the Plaintiff appears to have been afforded all the
process he was due.
Accordingly, Plaintiff’s claim based on the Defendants’ miscalculation of his
good-time credits is dismissed for failure to state a claim upon which relief can be
granted.
C. Other Claims
While all of Plaintiff’s claims, as currently drafted, must be dismissed, Plaintiff
may elect to amend his Complaint to assert his conditions-of-confinement claims
against Defendants Baum, Granholm, Frakes, and Ricketts in their individual
capacities. However, such claims will not be sufficient if Plaintiff presents those
claims as he does now—that is, in serial fashion with no supporting factual context:
“staff assault’s, k2 drug abuse, on going overcrowding, alienation, extortion, stealing
and fighting” (Filing No. 1 at CM/ECF p. 3) and “being stampeded by people,”
inmates who “steal fight and alienate you so they can extort money from each other,”
guards who are “bring’n in k2 at the nebraska state penitentiary,” and being “over run
with petty thieves” who have assaulted two of his cell mates for debts related to k2.
(Filing No. 1 at CM/ECF p. 5.)
It is true that complaints filed by pro se litigants are held to less stringent
standards than those applied to formal pleadings drafted by lawyers; however, even
pro se litigants must comply with the Federal Rules of Civil Procedure. Federal Rule
of Civil Procedure 8 requires that every complaint contain “a short and plain statement
of the claim showing that the pleader is entitled to relief” and that “[e]ach allegation
. . . be simple, concise, and direct.” Fed. R. Civ. P. 8(a)(2), (d)(1). A complaint must
state enough to “‘give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting

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Twombly, 550 U.S. at 555). Plaintiff’s Complaint fails to meet this minimal pleading
standard.
On the court’s own motion, Plaintiff shall have 30 days from the date of this
Memorandum and Order to file an amended complaint that sufficiently describes his
claims against Defendants in their individual capacities only. Plaintiff should be
mindful to clearly explain what Defendants did to him, when Defendants did it, how
Defendants’ actions harmed him, and what specific legal rights Plaintiff believes
Defendants violated. If Plaintiff fails to file an amended complaint in accordance with
this Memorandum and Order, his claims against Defendants will be dismissed without
prejudice and without further notice. The court reserves the right to conduct further
review of Plaintiff’s claims pursuant to 28 U.S.C. § 1915(e) and 1915A after he
addresses the matters set forth in this Memorandum and Order.
Accordingly,
IT IS ORDERED:
1.
Defendant Nebraska Department of Correctional Services is dismissed
from this action as not subject to suit under 42 U.S.C. § 1983.
2.
Plaintiff’s claim for money damages against Defendants Baum,
Granholm, Frakes, and Ricketts in their official capacities is dismissed as barred by
the Eleventh Amendment.
3.
Plaintiff’s claim based on the Defendants’ miscalculation of his goodtime credits is dismissed for failure to state a claim upon which relief can be granted.
4.
On or before May 18, 2018, Plaintiff may file an amended complaint to
assert his conditions-of-confinement claims against Defendants Baum, Granholm,
Frakes, and Ricketts in their individual capacities, in the absence of which this case
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shall be dismissed without further notice to Plaintiff. If Plaintiff chooses to file an
amended complaint, the court will conduct further review of Plaintiff’s claims
pursuant to 28 U.S.C. § 1915(e) and 1915A in the normal course of business.
5.
The Clerk of Court shall set a pro se case-management deadline as
follows: May 18, 2018—amended complaint due.
DATED this 17th day of April, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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