Mack v. Ricketts et al
Filing
19
MEMORANDUM AND ORDER - Plaintiff's Motion for Appointment of Counsel (filing no. 3 ), Motion for Summons (filing no. 4 ), Motion to Amend Complaint (filing no. 15 ), and Motion for Preliminary Injunction and Temporary Restraining Order (filin g no. 16 ) are denied. Plaintiff has until October 26, 2018, to file an amended complaint which states a plausible equal protection claim against Defendants Dr. Melvin, Dr. Bruhn, T. Jackson, Rodriqiez, Simonsen, Jackson (MHPII), and Doe (MHP II). 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. If Plaintiff chooses to file an amended complaint, the court will conduct further revi ew of Plaintiff's claims pursuant to 28 U.S.C. § 1915(e) and 1915A in the normal course of business. All other remaining claims are dismissed without prejudice and without leave to amend. Plaintiff may not allege any additional claims in th is action. The clerk of the court is directed to set a pro se case management deadline using the following text: October 26, 2018: check for amended complaint. The clerk of the court is directed to send to Plaintiff a blank civil complaint form. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party with blank complaint) (LKO)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
NATHANIAL GERALD SERRELL
MACK,
8:17CV495
Plaintiff,
vs.
PETE RICKETTS, Nebraska State
Governor (officially and Individually);
DAVID HEINAMEN, Former Governor
(Officially and Individually); SCOTT
FRAKES, N.D.C.S. Director (Officially
and Individually); MICHEL KENNEY,
Former N.D.C.S. Director (Officially
and Individually); ROBERT P.
HOUSTON, Former N.D.C.S. Director
(Officially and Individually); MICHAEL
ROTHWELL, N.D.C.S. Deputy Director
Division of Programs and Community
Services (Officially and Individually);
DIANE SABATKA-RINE, Deputy
Director of Opperations (Officially and
Individually); ROSALYN COTTON,
Nebraska State Parole Board Chair
(Officially and Individually); REX
RICHARDS, Nebraska State Parole
Board Vice Chair Person (Officially and
Individually); MARIO PURT, Lincoln
Correctional Center Warden (Officially
and Individually); ROBERT MADSON,
Nebraska State Penitentiary Warden
(Officially and Individually); RICHARD
CRUICKSHANK, Nebraska State
Penitentiary Warden (Officially and
Individually); JASON HURT, Nebraska
State Penitentiary Associate Warden and
Former Lincoln Correctional Center
MEMORANDUM
AND ORDER
Unit Adminatrator (Officially and
Individually); DAVID HARDGRAVES,
Lincoln Correctional Center Unit
Adminastrator and former Housing Unit
Bravo Unit Manager (officially and
Individually); DR. JEFF MELVIN,
PH.D. N.D.C.S. Behavioral Health
Assistant Administrator for Sex
Offender Services and C-Sort (Clinical
Sex Offender Review Team) Chair
Person (Officially and Individually);
DR. STEPHANIE BRUHN, N.D.C.S.
Behavioral Health Assistant
Administrator for Sex Offender Services
and C-Sort Team Chair Person
(Officially and Individually); WAYNE
CHANDLIER, N.D.C.S. Behavioral
Health Assistant Administrator for
Mental Health Services (Officially and
Individually); TAMMY JACKSON,
LIMHP N.D.C.S. Mental Health
practioner Clinical Sex Offender
Programs Manager and C-Sort Vice
Chair Person (Officially and
Individually); PAUL RODRIQIEZ,
LIMHP N.D.C.S. Clinical Sex Offender
Programs Manager and C-Sort Team
Vice Chair Person (Officially and
Individually); JANE DOE I, Former
Nebraska State Penitentiary Mental
Health Practioner II (Officially and
Individually); HEATHER JACKSON,
Nebraska State Penitentiary Mental
Health Practioner II (Officially and
Individually); JERAMY SIMONSEN,
Nebraska State Penitentiary Mental
Health Practioner II and former Acting
Clinical Sex Offender Programs
2
Manager and C-Sort Vice Chair Person
(Officially and Individually); and TOM
PFEIFER, Nebraska State Penitentiary
Librarian (Officially and Individually) et
al.;
Defendants.
Plaintiff, a prisoner in the custody of the Nebraska Department of
Correctional Services (“NDCS”), brings this 42 U.S.C. § 1983 action in which he
generally complains about the NDCS’ failure to timely screen him for and provide
mental health programming prior to his parole eligibility date. He has been given
leave to proceed in forma pauperis. (Filing No. 9.) The court now conducts an
initial review of Plaintiff’s Complaint (filing no. 1) to determine whether summary
dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A. As part of its
initial review, the court will also consider Plaintiff’s Motion to Amend Complaint.
(Filing No. 15.)
I. SUMMARY OF COMPLAINT
Plaintiff has been in the custody of NDCS since 2006 and was incarcerated
at the Nebraska State Penitentiary (“NSP”) at the time he filed this action but has
since been transferred to the Lincoln Correctional Center (“LCC”). Plaintiff named
twenty-three Defendants in their individual and official capacities in the caption of
his Complaint. Liberally construed, Plaintiff named an additional eleven
Defendants in the body of his Complaint1 but did not specify in what capacity these
eleven Defendants are sued. Defendants include the current and former governors
of the State of Nebraska, members of the Nebraska State Board of Parole, and past
1
See Miller v. Hedrick, 140 Fed. App’x 640, 641 (8th Cir. 2005) (citing Rice v. Hamilton
Air Force Base Commissary, 720 F.2d 1082, 1085 (9th Cir. 1983) (“[A] party may be properly in
a case if the allegations in the body of the complaint make it plain that the party is intended as a
defendant.”)).
3
and current employees of the NDCS such as prison directors, wardens, unit
managers, mental health practitioners, law librarians, and other NDCS employees.2
2
The twenty-three Defendants named in the caption in their official and individual
capacity are:
•
•
•
•
•
•
•
•
•
•
•
•
Nebraska Governor Pete Ricketts and former Governor Dave Heineman;
NDCS Director Scott Frakes and former NDCS Directors Mike Kenney and Robert P.
Houston;
Deputy NDCS Directors Michael Rothwell and Diane Sabatka-Rine;
Nebraska Board of Parole Chairperson Rosalyn Cotton and Vice Chairperson Rex Richards,
Mario Purt, Warden of the LCC; Robert Madsen, Warden of the NSP; and Richard
Cruickshank, former Warden of the NSP;
Jason Hurt, Associate Warden of the NSP and former Unit Administrator of the LCC;
David Hardgraves, Unit Administrator of the LCC and former Unit Manager of LCC
Housing Unit Bravo;
Dr. Jeff Melvin, Ph.D., Assistant Behavioral Health Administrator for Sex Offender Services
for NDCS and Committee Chairperson for the Clinical Sex Offender Review Team (“CSort”), and Dr. Stephanie Bruhn, Ph.D., who formerly held Dr. Melvin’s positions;
Wayne Chandlier, Assistant Behavioral Health Administrator for Mental Health Services at
the LCC;
Tammy Jackson, Clinical Sex Offender Program Manager and C-Sort Team Vice
Chairperson assigned to the LCC; Paul Rodriqiez, former Clinical Sex Offender Program
Manager and C-Sort Team Vice Chairperson assigned to the Omaha Correctional Center; and
Jeramy Simonsen, former acting Clinical Sex Offender Program Manager and C-Sort Team
Member assigned to the NSP;
Heather Jackson, Mental Health Practitioner II and C-Sort Team Member, and Jane Doe,
former Mental Health Practitioner II and C-Sort Team Member; and
Tom Pfeifer, the NSP Librarian.
The eleven Defendants named in the body of the Complaint are:
•
•
David Scow, an LCC Unit Manager (filing no. 1 at CM/ECF p. 11, ¶ 47);
LCC Bravo Unit Case Managers John Divis, Brandon Tan, Windy Millier, John Doe I, and
John Doe II (id. at CM/ECF p. 12, ¶ 49);
• NSP Case Managers John Doe III and John Doe IV (id. at CM/ECF p. 39, ¶ 136);
• Dr. Randy Kohl, Ph.D., former NDCS Medical Director (id. at CM/ECF p. 16, ¶ 68);
• Scott Marshall, Unit Manager of NSP Housing Unit 7 (id. at CM/ECF pp. 33–34, ¶ 122); and
• Machell Capps, Deputy Warden of the NSP (id. at CM/ECF pp. 34–35, ¶ 125).
4
Plaintiff alleges he was evaluated by mental health staff upon entry into
NDCS custody and it was determined that he complete, among other things, “IHelp (Inpa[t]ient Health[y] Lives Program for Sex Offenders).” (Filing No. 1 at
CM/ECF p. 9, ¶¶ 34–36.) Plaintiff was told that he would have to be evaluated and
screened by the Clinical Sex Offender Review Team (“C-Sort”) before being able
to begin his sex offender programming. Thereafter, Plaintiff completed the Mental
Health Program at LCC in approximately September 2012 and requested to be
moved to Housing Unit “Eco” at LCC which offered the sex offender
programming Plaintiff was required to complete. (Id. at CM/ECF pp. 10–11, ¶¶
43–45.) Plaintiff’s request was denied by the C-Sort team and Defendant Wayne
Chandlier, Assistant Behavioral Health Administrator for Mental Health Services
at LCC, because Plaintiff’s “Parole Eligibility Date and . . . Tent[a]tive Release
Date were to[o] far[] away.” (Id. at CM/ECF p. 11, ¶ 45.) Plaintiff spent the next
four years in Housing Unit Bravo, a general population unit at LCC, during which
he continued to inquire about his need for sex offender programming. (Id. at
CM/ECF pp. 11–12, ¶¶ 47–48.)
Plaintiff alleges that inmates are supposed to be screened for programming
by the appropriate review team, such as C-Sort, two years before their parole
eligibility dates. Plaintiff alleges he was eligible for parole on April 21, 2017, but
was not screened by C-Sort until April 11, 2016. (Id. at CM/ECF pp. 13, 16, ¶¶ 55,
66.) It was recommended that Plaintiff participate in the Biblio-Therapy Healthy
Lives Program (“B-Help”), and Plaintiff accepted his recommended programming
on or about April 20, 2016. (Id. at CM/ECF p. 17, ¶ 70.) Plaintiff was transferred
from LCC to NSP to start the B-Help program on or about May 5, 2016.
Plaintiff generally alleges that he complied with the B-Help program
requirements and that his June 9, 2016 “midway Completion Report”
recommended that Plaintiff complete the program and then go on to Work Release
and receive a parole hearing in April 2017. (Id. at CM/ECF pp. 19–20, ¶ 80.)
5
However, Plaintiff later received an unsatisfactory completion of the B-Help
program after Defendant Heather Jackson, a Mental Health Practitioner II at the
NSP (hereinafter “Jackson (MHPII)”), and the C-Sort team3 received kites from
other inmates reporting alleged negative comments made by Plaintiff outside of the
B-Help group sessions and after Jackson (MHPII) and Defendant Jane Doe, also a
Mental Health Practitioner II at NSP (hereinafter “Doe (MHPII)”), spoke with
Plaintiff about their concerns that he did not disclose certain “red flag” unhealthy
sexual behaviors or that he identifies as a “transgender wom[a]n” and “lived what
most of society would call a homosexual life style” during his March 17, 2016
screening interview. (Id. at CM/ECF pp. 21–27, ¶¶ 87–104.) Specifically,
Defendant Dr. Stephanie Bruhn, the Assistant Behavioral Health Administrator for
Sex Offender Services, informed Plaintiff on July 22, 2016, that he received an
“Unsatisfactory Completion” of his programming due to his “assessment during
the last couple of weeks of group, and the concerns with [his] Coping Skills,
Assessment of Devi[a]nt thoughts and actions with Blood Letting, Defendant
Jackson[’s] (MHPII) and Defendant Doe[’s] (MHPII) talk with [him] . . . , Inmates
Writing kites on [him] making alleged statements, and other assessments made
during group.” (Id. at CM/ECF pp. 28–30, ¶¶ 108–109, 112.) Dr. Bruhn then
informed Plaintiff that he had been assessed to complete I-Help, which at that time
was a twenty-four to thirty-six month program offered at LCC.4 (Id. at CM/ECF
pp. 30–31, ¶ 112.)
Plaintiff filed a grievance on Dr. Bruhn, Jackson (MHPII), and Doe (MHPII)
addressing his concerns with C-Sort’s evaluation of his completion of the B-Help
programming, stating:
3
According to the Complaint’s allegations, the members of the C-Sort team include
Defendants Dr. Melvin, Dr. Bruhn, Tammy Jackson, Paul Rodriqiez, Jeramy Simonsen, Jackson
(MHPII), and Jane Doe.
4
Subsequently, on September 7, 2017, the I-Help program was changed to a more
intensive Inpatient Program that takes twelve to fifteen months to complete. (Filing No. 1 at
CM/ECF p. 33, ¶ 119.)
6
I was unjustly persecuted for my sexual orientation and that they were
prejudiced in giving me my unsatisfactory completion. That the
assessment for my unsatisfactory completion was due to my sexual
orientation and a First Amendment violation, and inmates writing
“kites” on me alleging that I made negative statements while on the
unit . . . . I also . . . should have been assessed to complete O-Help
first, and that based on my approximate June Sixteenth midway
completion assessment, I should have received at least an adequate
completion.
(Id. at CM/ECF p. 33, ¶ 120 (spelling, punctuation, and capitalization corrected).)
As a result of Plaintiff’s grievance, C-Sort changed his outcome to “withdrawn”
from treatment and re-affirmed their recommendation that Plaintiff participate in IHelp. (Id. at CM/ECF p. 35, ¶ 126.) Plaintiff alleges he “was eligible for parole
April [21, 2017], and because C-Sort fail[ed] to screen [him] in a timely manner,
and their reevaluation that [he] complete I-Help, [he] was unable to complete [his]
programming before [he] was eligible for early release ‘parole.’” (Id. at CM/ECF
pp. 38–39, ¶ 134 (spelling, punctuation, and capitalization corrected).)
Liberally construed, Plaintiff alleges claims of deliberate indifference to his
medical needs, cruel and unusual punishment, denial of his freedom of speech, and
denial of equal protection and due process against Defendants Dr. Melvin, Dr.
Bruhn, Tammy Jackson (hereinafter “T. Jackson”), Paul Rodriqiez, Jeramy
Simonsen, Jackson (MHPII), and Doe (MHPII). (Id. at CM/ECF pp. 46–47, ¶ 154.)
Plaintiff alleges these same claims plus two additional claims of unlawful search
and seizure and denial of his “freedom of religious activity” against Defendants
Governor Pete Ricketts, former Governor David Heineman, and eleven current and
former NDCS officials—Scott Frakes, Mike Kenney, Robert P. Houston, Dr.
Randy Kohl, Michael Rothwell, Diane Sabatka-Rine, Mario Purt, Robert Madsen,
Richard Cruickshank, Machell Capps, and Jason Hurt. (Id. at CM/ECF p. 48, ¶¶
7
157–158.) In addition to the foregoing, Plaintiff included the following unrelated
allegations in his Complaint:
• Plaintiff was denied access to the law library and the courts by Defendant
Tom Pfeifer, the NSP Law Librarian (id. at CM/ECF p. 47, ¶¶ 155–156),
• Defendant Dr. Melvin’s involvement in Plaintiff’s mental health and sex
offender treatment “violates HIPPA Law” because Dr. Melvin was hired by
Plaintiff’s mother to testify on behalf of Plaintiff in his criminal conviction
(id. at CM/ECF p. 49, ¶ 160), and
• the “Gate Pay of Inmates” is unconstitutional, inadequate, and constitutes
cruel and unusual punishment (id. at CM/ECF p. 52, ¶ 169).
As relief, Plaintiff seeks declaratory and injunctive relief, including declarations
that the Defendants have violated his constitutional rights and court orders
requiring the Defendants to take specific actions with respect to Plaintiff’s
treatment, programming, and placement on work release and parole. In addition,
Plaintiff seeks compensatory damages of $1000 for each day after April 21, 2015,
punitive damages of $200,000 against Defendants Dr. Melvin, Dr. Bruhn, T.
Jackson, Rodriqiez, Simonsen, Jackson (MHPII), and Doe (MHPII), and punitive
damages of $100,000 against each remaining Defendant.
II. SUMMARY OF MOTION TO AMEND COMPLAINT
In his Motion to Amend Complaint (filing no. 15), Plaintiff seeks to add
claims against the following seven additional defendants in their individual and
official capacities: C. Bottor, Barbara Lewien, Chris Connelly, Unit Manager
Larson, Lieutenant Bolli, Sergeant Connett, and Corporal N. Cordero. Plaintiff
alleges these Defendants engaged in sexual discrimination against him and violated
his constitutional rights to due process, access to the courts, freedom of speech,
and to be free from cruel and unusual punishment. These alleged rights violations
8
stem from an incident that occurred on October 18, 2017, in which Corporal N.
Cordero allegedly found Plaintiff engaged in sexual activity with another inmate,
and the ensuing misconduct proceedings against Plaintiff.
III. 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 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).
9
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).
IV. DISCUSSION
A. Rules of Joinder
Federal Rule of Civil Procedure 20 states that multiple defendants may be
joined in the same action only if “any right to relief is asserted against them jointly,
severally, or in the alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or occurrences.” Fed. R. Civ. P.
20(a)(2)(A) (emphasis added). In addition, there must be a “question of law or fact
common to all defendants” in the action. Fed. R. Civ. P. 20(a)(2)(B). Under
Federal Rule of Civil Procedure 21, the proper remedy for improper joinder of
parties is for the court to “drop a party” or “sever any claim against a party.” Fed.
R. Civ. P. 21. The court may do so “[o]n motion or on its own.” Id.
Here, Plaintiff has sued thirty-four Defendants in his Complaint and seeks to
add seven more Defendants. As outlined above, the core of the Complaint’s
allegations address Plaintiff’s claims regarding his delay in being screened for and
receiving sex offender programming prior to his parole eligibility date. However,
Plaintiff’s claims that (1) he was denied access to the prison law library and courts
by Defendant Pfeifer, (2) Dr. Melvin’s involvement in his treatment “violates
HIPPA Law”, and (3) the “Gate Pay of Inmates” is unconstitutional are based on
unrelated events and do not involve a question of law or fact common to all the
10
Defendants. Accordingly, the court will sever these claims from the Complaint as
the claims are not properly joined against the Defendants named in this action and
will drop Tom Pfeifer as a Defendant to this action as the only claim asserted
against him (denial of access to the courts) does not involve a question of law or
fact common to all the Defendants.
Additionally, the court will deny Plaintiff’s Motion to Amend Complaint
(filing no. 15) based on the rules of joinder. None of the seven proposed
Defendants are properly joined with the Defendants named in the Complaint
because the claims asserted in the Motion to Amend Complaint are based on events
wholly separate and unrelated to the events and occurrences forming the basis of
the Complaint. If Plaintiff wishes to pursue the claims identified in his Motion to
Amend Complaint or any of the three unrelated, severed claims identified above,
then Plaintiff will be required to prosecute these unrelated claims in separate
actions and he will be required to pay a separate filing fee for each separate
action.
The court will now focus its analysis on Plaintiff’s remaining claims related
to his programming and parole.
B. Sovereign Immunity
Plaintiff has sued the Defendants named in the caption in their official and
individual capacities for declaratory, injunctive, and monetary relief. Plaintiff did
not specify the capacity in which the other eleven Defendants are sued so the court
“assume[s] that [each] defendant is sued only in his or her official capacity.”
Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). Thus, the
first question the court must address is to what extent, if any, the Eleventh
Amendment bars Plaintiff’s claims.
11
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,
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). Thus, the
Eleventh Amendment bars Plaintiff’s claim for damages against all the Defendants
in their official capacities.
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. Because Plaintiff seeks both equitable relief as well as
damages from Defendants in their individual capacities, the court will review the
Complaint to determine if Plaintiff has set forth sufficient allegations to proceed
against any of the Defendants on any of his claims.
C. Lack of Personal Involvement
Of the thirty-four Defendants named by Plaintiff, Plaintiff does not allege
that the following thirteen Defendants violated any of his constitutional rights—
Cotton, Richards, Hardgraves, Chandlier, Scow, Divis, Tan, Millier, Marshall, and
John Does I, II, III, and IV. (See Filing No. 1 at CM/ECF pp. 46–48, ¶¶ 154–158
(identifying legal claims).) Additionally, there are no factual allegations in the
Complaint to suggest that any of these thirteen Defendants’ conduct violated
Plaintiff’s constitutional rights. At most, the few allegations in which these
Defendants are mentioned merely provide context and background information for
Plaintiff’s claims. Because Plaintiff failed to allege that these thirteen Defendants
12
were personally involved in violating his constitutional rights, his Complaint fails
to state a claim upon which relief may be granted against them. See Topchian v.
JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (“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.” (internal quotation marks
omitted)).
Plaintiff also fails to allege any personal involvement in the alleged
misconduct against Plaintiff by Defendants Ricketts, Heineman, Frakes, Kenney,
Houston, Rothwell, Sabatka-Rine, Madsen, Cruickshank, and Hurt. Moreover, to
the extent Plaintiff alleges these Defendants are liable based on their past or
present responsibility for the overall operation of the NDCS prison system, his
claims fail because respondeat superior is not a basis for liability under 42 U.S.C. §
1983. 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). Accordingly, Plaintiff has
failed to state a claim for relief against Defendants Ricketts, Heineman, Frakes,
Kenney, Houston, Rothwell, Sabatka-Rine, Madsen, Cruickshank, and Hurt.
With respect to Defendants Kohl and Capps, Plaintiff may only seek
injunctive relief against these two Defendants as they are sued in their official
capacity only. However, Plaintiff fails to state an injunctive-relief claim against
Kohl or Capps because he did not attribute any alleged ongoing misconduct to
either Defendant.5 See Nix v. Norman, 879 F.2d 429, 433 (8th Cir. 1989) (“To
5
The court notes that the only specific acts alleged to have been committed by these
Defendants involve responding to Plaintiff’s grievances. (See Filing No. 1 at CM/ECF pp. 16–
17, 34–36, ¶¶ 68–69, 125–126, 128–129.) To the extent Plaintiff is attempting to base Kohl’s and
Capps’ liability on their failure to investigate or adequately respond to his grievances, he fails to
state a claim for relief under § 1983. See Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993)
(holding that inmates have no “liberty interest” in the processing of their grievances, such as
13
establish liability in an official-capacity suit under section 1983, a plaintiff must
show either that the official named in the suit took an action pursuant to an
unconstitutional governmental policy or custom . . . or that he or she possessed
final authority over the subject matter at issue and used that authority in an
unconstitutional manner.”) Moreover, Plaintiff’s move from the NSP to the LCC
moots his claim for injunctive relief against Capps, the Deputy Warden of NSP, as
she is not capable of providing such relief now that Plaintiff has changed
institutions. Randolph v. Rodgers, 253 F.3d 342, 345 (8th Cir. 2001) (when actions
required by injunction would be impossible for correctional-center defendants to
execute because plaintiff was moved to another institution, plaintiff’s claims for
injunctive relief against defendants were moot); Beck v. Mo. State High Sch.
Activities Ass’n, 18 F.3d 604, 605 (8th Cir. 1994) (per curiam) (noting that a case is
moot when circumstances change to such a degree that “a federal court can no
longer grant effective relief”); Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir.
1985) (concluding that claim for injunctive relief against warden was moot because
prisoner was transferred to another prison).
Thus, the court will address Plaintiff’s claims relating to his programming
and parole only with respect to the remaining Defendants—Purt, Dr. Melvin, Dr.
Bruhn, T. Jackson, Rodriqiez, Simonsen, Jackson (MHPII), and Doe (MHPII)
(hereinafter “the Defendants”).
D. Substantive Claims
Liberally construed, Plaintiff alleges retaliation, deliberate indifference, due
process, and equal protection claims under the First, Eighth, and Fourteenth
Amendments. For the following reasons, the court concludes Plaintiff has failed to
state a plausible claim for relief under any of these constitutional provisions but
would support § 1983 claim for prison officials’ failure to pick up inmate’s completed grievance
forms or investigate inmate’s grievances).
14
will give Plaintiff leave to file an amended complaint with respect to his equal
protection claim.
1. First Amendment
Liberally construed, Plaintiff alleges the Defendants retaliated against him
for speaking about his Bondage, Dominance, Sadism, and Masochism (“BDSM”)
and Blood Letting tendencies in B-Help group and on the unit by giving him an
unsatisfactory completion of B-Help and recommending I-Help. Plaintiff seeks to
prevent the Defendants from using any of Plaintiff’s statements regarding BDSM
or Blood Letting or alleged statements made by Plaintiff as reported by other
inmates in making any treatment decisions.
To prevail on a § 1983 claim for retaliation in violation of the First
Amendment, a plaintiff must demonstrate (1) that he engaged in a protected
activity; (2) that the government official took adverse action against him that
would chill a person of ordinary firmness from continuing in the activity; and (3)
that the adverse action was motivated at least in part by the exercise of the
protected activity. Peterson v. Kopp, 754 F.3d 594, 602 (8th Cir. 2014). “The
retaliatory conduct itself need not be a constitutional violation; the violation is
acting in retaliation for ‘the exercise of a constitutionally protected right.’” Spencer
v. Jackson Cnty., 738 F.3d 907, 911 (8th Cir. 2013) (quoting Cody v. Weber, 256
F.3d 764, 771 (8th Cir.2001)).
Plaintiff’s speech in the B-Help group sessions and to other inmates on the
unit about group topics does not constitute a protected activity for purposes of a
First Amendment retaliation claim. Cf. Seenyur v. Coolidge, No. CV 14-4250
(WMW/BRT), 2016 WL 7971295, at *7 (D. Minn. July 21, 2016), report and
recommendation adopted, No. 14-CV-4250 (WMW/BRT), 2016 WL 4467887 (D.
Minn. Aug. 22, 2016), aff'd sub nom. Johnson v. Coolidge, 692 F. App'x 320 (8th
15
Cir. 2017) (“Because participation in a sex offender treatment program bears a
rational relation to a legitimate penological objective, [the prisoner plaintiff] was
not engaged in activity protected by the First Amendment when he allegedly chose
not to speak during the group feedback exercise.” (internal quotation omitted)).
Moreover, the Defendants’ use of Plaintiff’s statements in group therapy and to
other inmates on the unit in making treatment decisions does not violate Plaintiff’s
First Amendment rights as his free speech rights are limited by the NDCS prison
officials’ legitimate interest in Plaintiff’s treatment and rehabilitation. See id. (“[A]
prison inmate, by virtue of his lawful incarceration, retains only ‘those First
Amendment rights that are not inconsistent with his status as a prisoner or with the
legitimate penological objectives of the corrections system,’ Pell v. Procunier, 417
U.S. 817, 822 (1974). Correctional systems have a vital interest in rehabilitating
convicted sex offenders through clinical programs . . . .”). Plaintiff, thus, fails to
state a plausible claim for relief under the First Amendment.
2. Eighth Amendment
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). A plaintiff claiming deliberate
indifference must show an objectively serious medical need that the “defendant
actually knew of, but deliberately disregarded.” McRaven v. Sanders, 577 F.3d
974, 980 (8th Cir. 2009) (internal quotation marks omitted). An objectively serious
medical need is one “diagnosed by a physician as requiring treatment, or is so
obvious that even a layperson would easily recognize the necessity for a doctor’s
attention.” Jones v. Minnesota Dep’t of Corr., 512 F.3d 478, 481 (8th Cir. 2008)
(internal quotation marks omitted). Deliberate disregard requires “more than
negligence, more even than gross negligence, but less than “purposefully causing
or knowingly bringing about a substantial risk of serious harm to the inmate.”
Thompson v. King, 730 F.3d 742, 747 (8th Cir. 2013) (internal quotation marks and
16
citation omitted). Thus, to be liable for deliberate indifference, a defendant “must
both be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.” Farmer v.
Brennan, 511 U.S. 825, 837 (1994).
Here, Plaintiff has alleged no facts suggesting Defendants were deliberately
indifferent to an objectively serious medical need. Liberally assuming Plaintiff’s
need for sex offender programming is an objectively serious medical need, the
Complaint’s allegations establish that Plaintiff has been assessed for and received
some sex offender programming. Plaintiff merely is disappointed with the delay in
being screened and initiation of treatment. No facts alleged suggest that Plaintiff
faced a serious risk of harm from the delay in the initiation of his programming.
See Gordon ex rel. Gordon v. Frank, 454 F.3d 858, 862 (8th Cir. 2006)
(“Intentional delay in providing medical treatment shows deliberate disregard if a
reasonable person would know that the inmate requires medical attention or the
actions of the officers are so dangerous that a knowledge of the risk may be
presumed.”). Rather, the only “harm” alleged is Plaintiff’s inability to complete his
programming prior to his parole eligibility date. These allegations do not establish
an Eighth Amendment violation, and Plaintiff’s deliberate indifference claim must
be dismissed.
3. Due Process
“The 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.
17
472, 487 (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)).
A liberty interest arises under the Due Process Clause when the
consequences of the state’s actions are “stigmatizing” and “qualitatively different
from the punishment characteristically suffered by a person convicted of crime.”
Sandin v. Conner, 515 U.S. 472, 479 n.4 (1995) (citing Vitek v. Jones, 445 U.S.
480, 493–94 (1980)). An inmate does not have a constitutionally-protected liberty
interest in the possibility of parole. Adams v. Agniel, 405 F.3d 643, 645 (8th Cir.
2005) (citing Greenholtz v. Inmates of Neb. Penal & Corr., 442 U.S. 1, 9–11
(1979)). Further, an inmate has no liberty interest in the possibility of parole if the
action was within the original sentence imposed. As set forth in Persechini:
[T]here is no protected liberty interest, for example, in the sentence
reduction that may be granted upon completing a Bureau of Prisons
drug treatment program, Giannini v. Fed. Bureau of Prisons, 405 Fed.
Appx. 96, 97 (8th Cir. 2010) (unpublished); or in halfway-house
placement after completing a drug-treatment program, Staszak v.
Romine, 2000 WL 862836, at *1 (8th Cir. June 29, 2000)
(unpublished); or in remaining in a work release program, Callender
v. Sioux City Residential Treatment Facility, 88 F.3d 666, 668 (8th
Cir. 1996); or in participating in a drug treatment program to qualify
for early release, Koch v. Moore, 1995 WL 141733, at *1 (8th Cir.
April 4, 1995) (unpublished); or in remaining in a discretionary
“shock incarceration program,” Klos v. Haskell, 48 F.3d 81, 88 (2d
Cir. 1995); or in participating in Missouri’s sex offender treatment
program, Jones v. Moore, 996 F.2d 943, 945 (8th Cir. 1993).
Persechini, 651 F.3d at 807. Put simply, “[t]he 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 (internal quotation marks
omitted).
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A state-created liberty interest arises when a statute or regulation imposes an
“atypical and 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). 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. In Nebraska, while the NDCS is required by statute to
provide an inmate “with adequate access or availability to mental health therapy
prior to the first parole eligibility date,” Neb. Rev. Stat. § 83-1,110.01, taking
advantage of self-improvement opportunities, such as completion of mental health
treatment, 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).
Here, Plaintiff complains that C-Sort failed to screen him in a timely manner
for sex offender programming and unfairly determined that he should complete IHelp after his unsuccessful completion of B-Help. As a result, Plaintiff complains
that his chance at parole was affected by his inability to complete his programming
prior to his parole eligibility date. As set forth above, there is no liberty interest in
parole, or even the possibility of parole, arising from the Due Process Clause itself.
There is no indication the Defendants have taken any action outside of the sentence
originally imposed upon Plaintiff, or that there has been an increase in his original
sentence as a result of the Defendants’ actions. Therefore, the Due Process Clause
itself does not afford Plaintiff any protection.
In addition, Plaintiff cannot demonstrate that he has a state-created liberty
interest in parole. He cannot show that he has suffered an atypical or significant
hardship as a result of the delay in completing his recommended sex offender
programing. For example, he does not allege that he has been transferred to a
markedly more restrictive facility while awaiting treatment or had a previously19
granted right revoked. His only potential hardship is that he may not be paroled at
the earliest opportunity, if at all, and such a possibility is neither atypical or
significant in regular prison life. That is, Plaintiff may simply be required to serve
out the remainder of his sentence under the same conditions as other prisoners.
Importantly, Plaintiff also cannot demonstrate that his inability to complete
his sex offender programming will necessarily impact the duration of his sentence.
There is no guarantee that Plaintiff will complete the programming if given the
opportunity, nor does completion of programming mandate Plaintiff’s parole under
Nebraska law. Additionally, the Nebraska Board of Parole has the discretionary
power to examine numerous other factors in determining whether or not parole will
be granted.
In short, Plaintiff does not have a liberty interest in being granted access to
sex offender programming at a time that will allow him to complete it ahead of his
parole eligibility date, regardless of its potential impact on his chance at parole.
Therefore, Plaintiff’s due process claim must be dismissed for failure to state a
claim upon which relief may be granted. Because the only factual allegations
regarding Defendant Mario Purt relate to Plaintiff’s due process claim, (see filing
no. 1 at CM/ECF pp. 15–16, ¶¶ 63–64), Plaintiff has failed to state a claim against
Purt, and he will be dismissed as a defendant.6
4. Equal Protection
“The Equal Protection Clause generally requires the
government to treat similarly situated people alike.” Klinger v. Dep’t
of Corr., 31 F.3d 727, 731 (8th Cir. 1994), citing City of Cleburne v.
6
As the court explained above, to the extent Plaintiff alleges Purt is liable for any
constitutional violations based on his role as a prison supervisor, his claims fail because
respondeat superior is not a basis for liability under 42 U.S.C. § 1983. 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).
20
Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). “Thus, the first
step in an equal protection case is determining whether the plaintiff
has demonstrated that she was treated differently than others who
were similarly situated to her.” Id. “Absent a threshold showing that
she is similarly situated to those who allegedly receive favorable
treatment, the plaintiff does not have a viable equal protection claim.”
Id.
In re Honorable John Dan Kemp, 894 F.3d 900, 909–10 (8th Cir. 2018)
(“‘[d]issimilar treatment of dissimilarly situated persons does not violate equal
protection’”) (quoting Klinger, 31 F.3d at 731). An equal protection violation also
requires “an intent to discriminate.” Id.; see also Henley v. Brown, 686 F.3d 634,
642 (8th Cir. 2012) (“In the absence of any allegations of intentional
discrimination, we therefore concluded the Equal Protection Clause did not provide
a ground for relief for appellant’s section 1983 race discrimination claim.”).
Giving the Complaint its most liberal construction, Plaintiff alleges that the
Defendants violated the Equal Protection Clause’s prohibition against sex-based
discrimination because the decision to give him an unsatisfactory completion of BHelp and recommend I-Help was due to his gender non-conformity and/or sexual
orientation. Plaintiff states that he told Defendants Jackson (MHPII) and Doe
(MHPII) that he identified as transgender and led a homosexual lifestyle and that
this conversation was listed as one of the reasons for his unsatisfactory completion
and I-Help recommendation. Courts have recognized an equal protection “class of
one” claim where a “plaintiff alleges that [he] has been intentionally treated
differently from others similarly situated and that there is no rational basis for the
difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564
(2000).
Here, Plaintiff has not alleged sufficient facts to state a plausible equal
protection claim. Plaintiff has not alleged facts suggesting that he was treated
differently from similarly situated people and the Complaint’s allegations suggest a
21
rational basis for the Defendants’ treatment decision based on Plaintiff’s failure to
disclose relevant information during his screening interview. On the court’s own
motion, Plaintiff shall be given leave to amend his Complaint to state an equal
protection claim against Defendants Dr. Melvin, Dr. Bruhn, T. Jackson, Rodriqiez,
Simonsen, Jackson (MHPII), and Doe (MHPII).
V. OTHER PENDING MOTIONS
A. Motion for Appointment of Counsel
With his Complaint, Plaintiff filed a motion seeking the appointment of
counsel. (Filing No. 3.) 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.
B. Motion for Summons
Plaintiff has filed what the court construes as a motion for summons. (Filing
No. 4.) As pled, Plaintiff’s Complaint fails to state a claim upon which relief may
be granted. This matter will not proceed to service unless so ordered by this court
after review of an amended complaint. Accordingly, Plaintiff’s motion for
summons is denied.
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C. Motion for Temporary Restraining Order
Plaintiff filed an “Order to Show Cause for a Preliminary Injunction and
Temporary Restraining Order” which the court construes as a motion for a
preliminary injunction and temporary restraining order. (Filing No. 16.) In the
motion, Plaintiff generally seeks to restrain the Defendants from hindering his
prosecution of this case, harassing or retaliating against him or any inmates who
provide evidence or file grievances in support of Plaintiff’s case, and to require the
Defendants to provide Plaintiff with certain documents and remove Dr. Melvin
from involvement in Plaintiff’s treatment.
The standards set forth by Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d
109 (8th Cir. 1981), apply to Plaintiff’s motion. In Dataphase, the Eighth Circuit
Court of Appeals, sitting en banc, 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 balance between that
harm and the injury that granting the injunction will inflict on the other interested
parties; (3) the probability the movant will succeed on the merits; and (4) whether
the injunction is in the public interest. Id. at 114. Failure to show irreparable harm
alone is a sufficient basis for a court to deny injunctive relief. Gelco Corp. v.
Coniston Partners, 811 F.2d 414, 420 (8th Cir. 1987).
Here, Plaintiff has alleged no facts demonstrating that he faces a threat of
irreparable harm, but rather he only describes the relief he seeks. Accordingly, the
court will deny Plaintiff’s motion for a preliminary injunction and temporary
restraining order.
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VI. CONCLUSION
Plaintiff’s Complaint fails to state plausible claims for relief under the First,
Eighth, and Fourteenth Amendments. With the exception of Plaintiff’s Fourteenth
Amendment equal protection claim, the court concludes that any amendment of
these claims would be futile. However, on its own motion, the court will grant
Plaintiff thirty days to file an amended complaint which states a plausible equal
protection claim against Defendants Dr. Melvin, Dr. Bruhn, T. Jackson, Rodriqiez,
Simonsen, Jackson (MHPII), and Doe (MHPII). Plaintiff’s claims against the
remaining Defendants are dismissed for failure to state a claim upon which relief
may be granted, and Plaintiff’s claims for monetary relief against all Defendants in
their official capacities are dismissed as barred by the Eleventh Amendment.
Plaintiff’s Motion to Amend Complaint (filing no. 15) is denied, and the
three unrelated claims in the Complaint identified by the Court are severed from
this action pursuant to the joinder rules, as is the defendant, Tom Pfeifer. See Fed.
R. Civ. P. 20(a)(2) and 21.
If Plaintiff chooses to file an amended complaint, he should be mindful to
explain in his amended complaint what each defendant did to him, when the
defendant did it, and how the defendant’s actions harmed him. Plaintiff is
encouraged to use the court-approved form to draft his amended complaint, which
the clerk of the court will provide to him. 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.
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IT IS THEREFORE ORDERED that:
1.
Plaintiff’s Motion for Appointment of Counsel (filing no. 3), Motion
for Summons (filing no. 4), Motion to Amend Complaint (filing no. 15), and
Motion for Preliminary Injunction and Temporary Restraining Order (filing no. 16)
are denied.
2.
Plaintiff has until October 26, 2018, to file an amended complaint
which states a plausible equal protection claim against Defendants Dr. Melvin, Dr.
Bruhn, T. Jackson, Rodriqiez, Simonsen, Jackson (MHPII), and Doe (MHPII).
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. 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.
3.
All other remaining claims are dismissed without prejudice and
without leave to amend. Plaintiff may not allege any additional claims in this
action.
4.
The clerk of the court is directed to set a pro se case management
deadline using the following text: October 26, 2018: check for amended
complaint.
5.
The clerk of the court is directed to send to Plaintiff a blank civil
complaint form.
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Dated this 26th day of September, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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