Collins v. Frakes et al
Filing
22
MEMORANDUM AND ORDER that the Plaintiff's Motion to Amend Complaint (filing no. 17 ) is granted to the extent that the court will consider the additional allegations in the Motion to Amend Complaint and the documents attached as supplemental to Plaintiff's Complaint (filing no. 1 ).Plaintiff shall have until March 8, 2019, to file an amended complaint in accordance with this Memorandum and Order. Failure to file an amended complaint within the time specified by the court will resul t in the court dismissing this case without further notice to Plaintiff.Plaintiff is ordered not to file any document aside from the amended complaint without first obtaining leave of the court.Defendants Johnson, Rodriguez, Pelowski, Martinez, Reisd orff, and Morse are dismissed from this action without prejudice. The clerk's office is directed to remove these Defendants from this action.The clerk's office is directed to update the Docket Sheet to reflect that the correct name of " ;Nebraska Correctional Department Services" is "Nebraska Department of Correctional Services." The clerk's office is directed to update the Docket Sheet to reflect that Defendant Madsen's job title is "Deputy Director o f Nebraska Department of Correctional Services," not Warden of Nebraska State Penitentiary.The clerk's office is directed to update the Docket Sheet to reflect that the correct spelling of "Penitentory" is "Penitentiary."The clerk of the court is directed to set a pro se case management deadline using the following text: March 8, 2019: check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(LAC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SEAN COLLINS,
Plaintiff,
vs.
SCOTT FRAKES, Director Nebraska
Correctional Department Services Individual and Official Capacity;
ROBERT MADSEN, Warden (Nebraska
State Penitentory) - Individual and
Official Capacity; M. MARTINEZ,
Mental Health Practitioner (Nebraska
State Penitentory) - Individual and
Official Capacity; J. CONROY, Unit 4
Manager (Nebraska State Penitentory) Individual and Official Capacity; M.
JOHNSON, Case Manager (H66 PC)
Housing Unit 4 in Protect Custody Individual and Official Capacity; D.
PELOWSKI, Case Manager (Housing
Unit 6 Protective Custody) - Individual
and Official Capacity; M.
RODRIGUEZ, Case Worker (Housing
Unit 4 Protective Custody) - Individual
and Official Capacity; C. MORSE,
Corporal (D Gallery assigned rotation
for Protective Custody) - Individual and
Official Capacity; and M. REISDORFF,
Sergeant (Assigned in Housing Unit 4) Individual and Official Capacity;
Defendants.
8:18CV270
MEMORANDUM
AND ORDER
Plaintiff, a prisoner in the custody of the Nebraska Department of Correctional
Services (“NDCS”), filed a Complaint on June 15, 2018.* (Filing No. 1.) He has been
given leave to proceed in forma pauperis. (Filing No. 6.) 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. 17.)1
I. SUMMARY OF COMPLAINT
Plaintiff is a prisoner at Tecumseh State Correctional Institution. He was
previously confined at the Nebraska State Penitentiary (“NSP”). Plaintiff filed this
Complaint against Scott Frakes, Director of NDCS; Robert Madsen, Warden of
NSP; M. Martinez, Mental Health Practitioner at NSP; J. Conroy, Unit 4 Manager
at NSP; M. Johnson, Case Manager (H66 PC) Housing Unit 4 Protective Custody;
D. Pelowski, Case Manager (Housing Unit 6 Protective Custody); M. Rodriguez,
Case Worker (Housing Unit 4 Protective Custody); C. Morse, Corporal (D Gallery
assigned rotation for Protective Custody); and M. Reisdorff, Sergeant (Assigned in
Housing Unit 4). (Filing No. 1 at CM/ECF pp. 2-3, 8.) Plaintiff sues Defendants in
both their individual and official capacities. (Id.) Plaintiff claims that he has been
subjected to gross negligence, cruel and unusual punishment, unconstitutional
conditions of confinement, breach of confidentiality, and fraud as a prisoner in
protective custody at NSP. (Id. at CM/ECF p. 3.)
Plaintiff alleges that from March 19, 2018 through May 18, 2018, he was
“emotionally and mentally abused, violated, and neglected on a daily basis” as a
prisoner in protective custody at NSP.2 (Id. at CM/ECF p. 4.) He further claims that
he has “suffered through a series of traumatizing events on a daily basis for nearly
three months, ever since needing and requesting protective custody.” (Id. at CM/ECF
*
Due to technical issues caused by the length of the footnotes in this
Memorandum and Order, endnotes are used instead of footnotes.
2
p. 5.) He complains that he filed several emergency grievances, “grievances of [a]
sensitive nature,” and “informal step one grievances,” ninety-percent of which “did
not get returned or logged correctly.” (Id. at CM/ECF p. 4.) Plaintiff asserts that he
has “attempted on several occasions to speak with mental health” and has been
“deprived privacy and confidentiality” at NSP, and that he “wrote grievances on the
matter that still have not been returned.” (Id. at CM/ECF p. 5.) Plaintiff states:
I am completely traumatized and unsure how to properly express it. I
feel I can’t trust authority now. The abuse and neglect I was put through
was catastrophic especially after telling authority I was nearly stabbed
and raped and needed protective custody. They neglected my
investigation for 8 weeks. I didn’t receive hot foods. I received possible
poisoned pudding (which was grieved). I had no safe access to medical
so if I were to be physically injured I could die. No clean clothes when
I showered. Unable to clean cell. Cell door was unsecured randomly
multiple times a day sometimes.
(Id. at CM/ECF p. 12.)
As a result of the alleged abuse and neglect, Plaintiff claims he is “emotionally
and mentally scarred” and “broken” and suffering from post-traumatic stress
disorder. (Id. at CM/ECF pp. 5, 13.) He alleges that he has been “deprived of even
being seen by mental health to discuss issues to attempt coping strategies or
grieving” but, in any event, he does “not think it would be safe to trust them and to
confide in them.” (Id. at CM/ECF pp. 5, 13.) As relief, Plaintiff seeks $100,000 from
each Defendant for the “corruption,” “neglect,” “abuse,” and “constant” civil rights
violations “[he has] endured.” (Id. at CM/ECF p. 5.)
II. SUMMARY OF MOTION TO AMEND COMPLAINT
Pursuant to NECivR 15.1(b), Plaintiff’s Motion to Amend Complaint (filing
No. 17) is granted to the extent that the court will consider the additional allegations
3
in the Motion to Amend Complaint and the documents attached as supplemental to
Plaintiff’s Complaint (filing no. 1).
In the supplement (filing no. 17), Plaintiff seeks to: (1) dismiss Defendants
Johnson, Rodriguez, Pelowski, Martinez, Reisdorff, and Morse from the case “due
to insufficient evidence”; (2) name NDCS as an additional Defendant; and (3) update
Defendant Madsen’s job title from NSP Warden to “Deputy Director of NDCS.”
The court, therefore, will dismiss Defendants Johnson, Rodriguez, Pelowski,
Martinez, Reisdorff, and Morse from this action without prejudice.3 The court will
direct the clerk’s office to remove those Defendants from this action and update
Madsen’s job title from NSP Warden to “Deputy Director of Nebraska Department
of Correctional Services.”4
The supplement focuses solely on NDCS’s grievance procedure—namely, the
improper processing and handling of prisoner grievances, which, he claims, violates
the First Amendment and Nebraska law. Plaintiff alleges that the “current
[grievance] process NDCS has established is easily manipulated, abused, and
completely unsecure for inmates to depend on officials being properly trained and
honest with this process inmates are entitled to under the law.” (Id. at CM/ECF p.
1.) He argues that NDCS interferes with and hinders the processing of prison
grievances. (Id. at CM/ECF pp. 2-3.) Plaintiff states that “grievances are being piled
up before getting answered, and officials are not obeying time limits.” (Id. at
CM/ECF p. 2.) In sum, Plaintiff alleges:
Grievances are the only way inmates have as a resource to express any
concerns, wrongdoings, and mistreatment to facilitate a problem. But .
. . this paper grievance procedure NDCS has is easily abused and
neglected by officials. For example, changed dates, not following time
limits, attaching little memos instead of answering, or letting
grievances pile up, and even simply discarding grievances into the
trash. Something needs to be changed. At least if grievances could be
filed at the kiosk, dates and times could be digitally recorded and no
accidentally lost grievances could happen. It would be more difficult
4
for officials to manipulate and abuse [the grievance procedure] if there
was an electronic grievance system. Since there is NOT, 90% of the
wrongdoing is swept under the rug. Or grievances are without merit for
civil actions in the courts due to the “exhaustion rule” from officials’
manipulations and negligence actions.
(Id. (emphasis in original).)
Plaintiff claims that he has suffered “reparable injury” and “personal injury,”
and he seeks: (1) a judgment that he has “properly attempted to exhaust the grievance
process”; (2) a judgment “overrul[ing] grievance bodies’ procedural rulings”
because the “officials” are “obviously incapable” of “obey[ing] the process”; (3) an
order directing NDCS to change “from the current paper grievance process to an
electronic grievance process done on kiosks or . . . tablets to prevent any further
negligent, manipulative, or deprived acts to inmates in the future”; and (4) money
damages, expenses, and court costs in the amount of $1,102,000 from Defendants in
their individual capacities. (Id. at CM/ECF pp. 2, 4.)
III. APPLICABLE 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
5
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).
IV. DISCUSSION
Based on the Complaint and the supplement, the court understands that
Plaintiff wishes to proceed against NDCS, Frakes (the Director of NDCS), Madsen
(the Deputy Director of NDCS/former Warden of NSP), and Conroy (an NSP unit
manager) in their official and individual capacities. The first issue is whether
Defendants are immune from suit under the Eleventh Amendment.
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
6
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.,
Egerdahl, 72 F.3d at 619; Dover Elevator Co., 64 F.3d at 446-47; Nevels v. Hanlon,
656 F.2d 372, 377-78 (8th Cir. 1981). Moreover, a suit may be brought under § 1983
only against a “person” who acted under color of state law. A state is not a “person”
as that term is used in 42 U.S.C. § 1983, and is not suable under the statute. Hilton
v. S. Carolina Pub. Rys. Comm’n, 502 U.S. 197, 200-01 (1991). Accordingly, § 1983
does not create a cause of action against NDCS, and the Eleventh Amendment bars
Plaintiff’s requests for monetary damages against the remaining Defendants (Frakes,
Madsen, and Conroy) in their official capacities. These claims for relief shall be
dismissed.
Sovereign immunity, however, does not bar damages claims against Frakes,
Madsen, and Conroy acting in their individual capacities, nor does it bar claims
brought pursuant to 42 U.S.C. §1983 that seek prospective injunctive relief from
these Defendants acting in their official capacity. Verizon Md. Inc. v. Pub. Serv.
Comm’n of Md., 535 U.S. 635, 645 (2002) (“In determining whether the doctrine of
Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only
conduct a straightforward inquiry into whether [the] complaint alleges an ongoing
violation of federal law and seeks relief properly characterized as prospective.”
(internal quotation and citation omitted)); Gibson v. Arkansas Dep’t of Corr., 265
F.3d 718, 720-21 (8th Cir. 2001).
Therefore, the only remaining Defendants in this action are Frakes, Madsen,
and Conroy. The allegations in the Complaint and supplement pertaining to these
Defendants are as follows:
Conroy, as an NSP unit manager, did not address Plaintiff’s “concerns
properly.” Plaintiff claims that “grievances disappeared, were not logged and
numbered correctly”; that “blue step one grievances weren’t handed into the warden
7
or designee”; and that Conroy “didn’t respond to numerous kites addressed to him,”
“[d]idn’t take proper actions in [Plaintiff’s] investigation,” and “lost grievances.”
(Filing No. 1 at CM/ECF pp. 9, 11.)
Madsen “failed to document . . . serious risk and events,” after Plaintiff wrote
“countless interview requests” and filed step one and emergency grievances. (Filing
No. 1 at CM/ECF pp. 9, 11.) In the supplement, Plaintiff asserts that Madsen, as
Deputy Director of NDCS, is now allowed to answer step two grievance appeals,
and therefore, there is a conflict of interest “since this Complaint is mostly on the
improper filing of the grievance procedures.” (Filing No. 17 at CM/ECF p. 1.)
Frakes, as Director of NDCS, “failed to properly maintain control . . . of
internal management administration and staff in charge of [NSP].” (Filing No. 1 at
CM/ECF pp. 9, 11.) Plaintiff claims that the lack of properly trained correctional
staff resulted in the disregard of “countless faults and failures” regarding protective
custody inmates at NSP. (Filing No. 1 at CM/ECF pp. 9, 11.)
B. Grievance Procedure
As stated above, Plaintiff’s Complaint (filing no. 1) and supplement (filing
no. 17) largely concern allegations that NDCS’s grievance procedures violate the
First Amendment and Nebraska law and that the individual Defendants improperly
handled or processed his grievances.
Although the lack of a meaningful grievance procedure might excuse the need
to exhaust administrative remedies, see Ross v. Blake, 136 S. Ct. 1850, 1855 (2016)
(“A prisoner need not exhaust remedies if they are not ‘available.’”), it does not
provide a cause of action under § 1983. See Merryfield v. Jordan, 431 F. App’x 743,
749 (10th Cir. 2011) (holding that civilly committed sex offender lacked any federal
constitutional right to an adequate grievance procedure); see also Lomholt v. Holder,
287 F.3d 683, 684 (8th Cir. 2002) (holding that allegations regarding actions of
prison officials in handling prisoner’s grievances and regulating access to his
8
attorney were insufficient to state a constitutional claim); Buckley, 997 F.2d at 495
(holding that inmates have no “liberty interest” in the processing of their grievances,
such as would support § 1983 claim for prison official’s failure to pick up his
completed grievance forms); Nelson v. Hjorth, No. 8:18CV88, 2018 WL 2050571,
at **5, 9 (D. Neb. May 2, 2018) (lack of an effective grievance procedure does not
establish a § 1983 cause of action); Dvorak v. Nebraska, No. 8:17CV467, 2018 WL
1400425, at *3 (D. Neb. Mar. 20, 2018) (“To the extent Plaintiff intends to base a §
1983 claim on his allegation that unnamed defendants failed to respond to his
grievances and complaints in a timely fashion, such allegations do not constitute a
violation of Plaintiff’s constitutional rights.”).
Accordingly, Plaintiff’s allegations related to the processing and handling of
grievances fail to state a § 1983 claim.
C. Eighth Amendment Claims
Liberally construed, Plaintiff attempts to allege Eighth Amendment claims
(i.e., conditions of confinement,5 deliberate indifference-serious medical need,6
failure to protect,7 and/or cruel and unusual punishment8). Plaintiff’s allegations are
vague and lacking in specifics, such as dates and persons involved. Indeed, Plaintiff
has not alleged that Frakes, Madsen, and Conroy directly participated in the alleged
unconstitutional violations. See Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir.
1990) (“Liability under § 1983 requires a causal link to, and direct responsibility for,
the deprivation of rights.” (citation omitted)). Even under the most liberal pleading
standards, the Complaint and supplement fail to give the court an idea what acts
Frakes, Madsen, and Conroy are accused of that could result in liability under the
Eighth Amendment. More is needed.
To the extent Plaintiff alleges that Frakes and Madsen are liable under the
Eighth Amendment based on their responsibility for the overall operation of the
NDCS prison system or that Madsen is liable based on his past responsibility as the
Warden of NSP, his claims fail because respondeat superior is not a basis for liability
9
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).
“Supervisors can, however, ‘incur liability . . . for their personal involvement in a
constitutional violation, or when corrective inaction amounts to deliberate
indifference to or tacit authorization of violative practices.’” Langford v. Norris, 614
F.3d 445, 460 (2010) (internal quotations omitted). Plaintiff has made no such
allegations here.
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
Eighth Amendment claims against Defendants Frakes, Madsen, and Conroy.
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.
D. State Law Claims
Liberally construing the Complaint and supplement, Plaintiff may have claims
for violations of state law. Pending amendment, as set forth in this Memorandum
and Order, the court may choose to exercise supplemental jurisdiction over such
claims pursuant to 28 U.S.C. § 1367.
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s Motion to Amend Complaint (filing no. 17) is granted to the
extent that the court will consider the additional allegations in the Motion to Amend
10
Complaint and the documents attached as supplemental to Plaintiff’s Complaint
(filing no. 1).
2.
Plaintiff shall have until March 8, 2019, to file an amended complaint
in accordance with this Memorandum and Order. 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.
3.
Plaintiff is ordered not to file any document aside from the amended
complaint without first obtaining leave of the court.
4.
Defendants Johnson, Rodriguez, Pelowski, Martinez, Reisdorff, and
Morse are dismissed from this action without prejudice. The clerk’s office is directed
to remove these Defendants from this action.
5.
The clerk’s office is directed to update the Docket Sheet to reflect that
the correct name of “Nebraska Correctional Department Services” is “Nebraska
Department of Correctional Services.”
6.
The clerk’s office is directed to update the Docket Sheet to reflect that
Defendant Madsen’s job title is “Deputy Director of Nebraska Department of
Correctional Services,” not Warden of Nebraska State Penitentiary.
7.
The clerk’s office is directed to update the Docket Sheet to reflect that
the correct spelling of “Penitentory” is “Penitentiary.”
8.
The clerk of the court is directed to set a pro se case management
deadline using the following text: March 8, 2019: check for amended complaint.
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Dated this 6th day of February, 2019.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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ENDNOTES
1.
Plaintiff filed the certificate of service for the Motion to Amend
Complaint in a supplement filing. (Filing No. 18.)
2.
Spelling, punctuation, and capitalization have been corrected
throughout this Memorandum and Order.
3.
As such, the allegations in the Complaint concerning these Defendants
will not be discussed.
4.
The court will not add NDCS as a Defendant, however, for the reasons
discussed in Section IV(A).
5.
The Eighth Amendment’s prohibition against “cruel and unusual
punishments” requires that prison officials provide humane conditions of
confinement. “Prison officials must ensure that inmates receive adequate food,
clothing, shelter, and medical care, and must ‘take reasonable measures to guarantee
the safety of the inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting
Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). The Constitution “does not
mandate comfortable prisons” or that prisons be “free of discomfort.” Rhodes v.
Chapman, 452 U.S. 337, 349 (1981). A prisoner asserting a conditions of
confinement claim must identify the “deprivation of a single, identifiable human
need such as food, warmth, or exercise,” and “the risk that the prisoner complains of
[must] be so grave that it violates contemporary standards of decency to expose
anyone unwillingly to such a risk.” Helling v. McKinney, 509 U.S. 25, 36 (1993);
Wilson v. Sieter, 501 U.S. 294, 304 (1991). A conditions of confinement claim based
on prison conditions requires a showing of: (1) a deprivation of “minimal civilized
measure of life’s necessities,” and (2) deliberate indifference by prison officials to
those basic needs. Rhodes, 452 U.S. at 347; Wilson, 501 U.S. at 304.
6.
To prevail on a deliberate indifference to a serious medical need claim,
a prisoner must show: (1) he suffered from an objectively serious medical need, and
(2) the defendant knew of the need yet deliberately disregarded it. Jolly v. Knudsen,
205 F.3d 1094, 1096 (8th Cir. 2000). “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.” Schaub v.
VonWald, 638 F.3d 905, 914 (8th Cir. 2011) (internal quotations and citations
omitted).
13
7.
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.”
Jensen v. Clarke, 73 F.3d 808, 810 (8th Cir.1996) (citing Farmer, 511 U.S. 825)
(other citations omitted). The second requirement concerns the state of mind of the
prison official who is being sued. Id. 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 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.”
Id. This subjective requirement is necessary because “only the unnecessary and
wanton infliction of pain implicates the Eighth Amendment.” Id.
8.
To establish a violation of the Eighth Amendment’s cruel and unusual
punishments clause, a prisoner must show that officials were “knowingly and
unreasonably disregarding an objectively intolerable risk of harm” to the prisoners’
health and safety. Farmer, 511 U.S. at 846.
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