LeFever v. Nebraska Department of Correctional Services et al
Filing
33
MEMORANDUM AND ORDER - Plaintiff's motion for status, Filing No. 32 , is granted to the extent he sought the status of his case, which has been provided here. The remainder of the motion seeking a hearing on the motion for status, is denied. Up on review of the Amended Compliant, the Court on its own motion, grants Plaintiff leave to file a second amended complaint. Plaintiff shall have until March 31, 2025, to file his amended complaint. The Clerk of the Court is directed to send Plaintiff the Form Pro Se 14 ("Complaint for Violation of Civil Rights (Prisoner)"). Should Plaintiff require further time to comply with this Memorandum and Order he must move for an extension, in writing, prior to the expiration of the deadline fo r compliance. The Clerk's Office is directed to set pro se case management deadlines in this case using the following text: March 31, 2025: check for second amended complaint. Ordered by Senior Judge John M. Gerrard. (Copy mailed to pro se party)(LKO)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LUKE LEFEVER,
Plaintiff,
8:23CV187
vs.
MEMORANDUM AND ORDER
NEBRASKA DEPARTMENT OF
CORRECTIONAL SERVICES, in their
Official and Individual capacities;
SCOTT FRAKES, in their Official and
Individual capacities; DR. DEOL, in
their Official and Individual capacities;
WARDEN WASAMER, in their Official
and Individual capacities; WARDEN
GABLE, in their Official and
Individual capacities; A.W.
CRUNSHANK, in their Official and
Individual capacities; KEVIN
WILKEN, P.L.I.O, in their Official and
Individual capacities; SARA ALLEN,
D.O.N., in their Official and Individual
capacities; U.M. OLTROGGEE, in
their Official and Individual capacities;
U.M. DOMINO, in their Official and
Individual capacities; C.O. SCHULTS,
in their Official and Individual
capacities; C.O. DE LOS SANTOS, in
their Official and Individual capacities;
STATE OF NEBRASKA, in their
Official and Individual capacities;
DIANE SABATKA-RINE, in their
Official and Individual capacities; ROB
JEFFREYS, in their Official and
Individual capacities; ROBERT A.
MADSEN, in their Official and
Individual capacities; DR. RALITHA
JOHNSON, in their Official and
Individual capacities; TERESA
ROYER, in their Official and
Individual capacities; JANET
ARAUCO, in their Official and
Individual capacities; CHERYL
WILSON, in their Official and
Individual capacities; MICHELLE
WILHIEM, in their Official and
Individual capacities; TAGGARD
BOYD, in their Official and Individual
capacities; MAJOR ILLIC, in their
Official and Individual capacities; A.W.
HURT, in their Official and Individual
capacities; A.W. STEGEMAN, in their
Official and Individual capacities;
SHAWN FREEZE, D.W., in their
Official and Individual capacities;
VCM VAN LENGEN, in their Official
and Individual capacities; CPL.
THOMPSON, in their Official and
Individual capacities; ERIC STAIGER,
in their Official and Individual
capacities; U.A. FRANZEN, in their
Official and Individual capacities;
SGT. DIERKING, in their Official and
Individual capacities; U.M. GRUBER,
in their Official and Individual
capacities; U.M. NEUJAHR, in their
Official and Individual capacities; C.O.
HOLMES, in their Official and
Individual capacities; and
UNKNOWN, in their Official and
Individual capacities;
Defendants.
Plaintiff Luke LeFever (“Plaintiff”), a prisoner proceeding in forma
pauperis, see Filing No. 11, filed a pro se Complaint on May 11, 2023, Filing
2
No. 10, which he later amended, see Filing No. 13 (the “Amended Complaint”).
Also before the Court is Plaintiff’s motion for status hearing. Filing No. 32.
To the extent Plaintiff seeks the status of his case, the Motion for Status
is granted, and the status of the case is contained within this initial review.
To the extent Plaintiff seeks a hearing on the motion for status, the motion is
denied.
An initial review of the Amended Complaint must be conducted by this
Court to determine whether summary dismissal is appropriate under 28 U.S.C.
§§ 1915(e) and 1915A. For the reasons set forth below, this Court finds that
summary dismissal of portions of the Amended Complaint are appropriate for
lack of proper joinder under Federal Rule of Civil Procedure 20(a). However,
in lieu of dismissal of the improperly joined claims and parties, this Court shall
grant Plaintiff leave to file a second amended complaint in accordance with the
terms of this Memorandum and Order.
I. SUMMARY OF COMPLAINT
Plaintiff, in his Amended Complaint brought pursuant to 42 U.S.C. §
1983, alleges claims covering a period between April of 2021 and June of 2023,
stemming from incidents occurring while Plaintiff was housed at Tecumseh
State Correctional Institution (“TSCI”), the Reception and Treatment Center
(“RTC”), and the Nebraska State Penitentiary (“NSP”). Plaintiff sues at least
33 defendants in their individual and official capacities and alleges United
States Constitutional violations as well as denials of rights under the
Americans with Disabilities Act (“ADA”), the Rehabilitation Act (“RA”), the
State Tort Claim Act (“STCA”), and the Nebraska State Constitution. Filing
No. 13 at 1.
As an initial matter, it appears that Plaintiff suffers from multiple
disabilities that predate the allegations in the Amended Complaint. These
3
injuries include the loss of all fingers, the loss of his right leg, and a
reconstructed left ankle, resulting in Plaintiff’s limited mobility and the need
for assistance to address many daily tasks. Specifically, Plaintiff alleges that
in 2019 he suffered extreme frostbite to his left ankle and nearly lost his left
foot because of extensive damage to his ankle. Id. at 10. He further submits
that he suffers from poor circulation due to doctors removing a vein from below
his left knee to his waist to try to save his right leg in 2018, which ended up
being amputated. Id. And that due to the length of time he spends sitting
down he suffers from sores and blistering on his leg and buttocks. As such,
many of Plaintiff claims relate to his prior disabilities, the necessary medical
treatment for those disabilities, and accommodations he needs for daily living.
Due to the length of the allegations in the Amended Complaint, the
number of defendants, and the overlapping of some of the claims, the Court
provides the following summary of defendants, claims, injuries, and relief
sought before moving onto its initial review.
A. The Defendants
In his Amended Complaint Plaintiff names the following defendants:
1. TSCI employees:
Sara Allen (“Allen”) as a Director of Nursing,
Wasamer and Gable as Wardens, Crunshank as an Associate Warden,
Kevin Wilken (“Wilken”) as a Prison Litigation and Information
Officer, Oltroggee and Domino as Unit Managers, Schults and De Los
Santos as Corrections Officers, and unknown Doe TSCI staff
members.
2. RTC employees: Dr. Johnson (“Johnson”) as a doctor at the RTC,
Stegeman as an Associate Warden, Shawn Freese (“Freese”) as a
Deputy Warden, Janet Arauco (“Arauco”) as a former “SNF Director,”
Cheryl Wilson (“Wilson”) as the current Director of SNF, Van Lengen
4
as a staff member, Cpl. Thompson (“Thompson”), as a property control
officer, Eric Staiger (“Staiger”) as a Warden Designee, Franzen as a
Unit Administrator, Neujahr as a Unit Manager, Holmes as a
Corrections Officer, and unknown Doe RTC staff members.
3. NSP employees: Michelle Wilhiem (“Wilhiem”) as Warden, Major Illic
(“Illic”) as an “operational Major,” Hurt as an Associate Warden, Sgt.
Dierking (“Dierking”) as Mailroom staff, Gruber as a Unit Manager,
and unknown Doe NSP staff members.
4. Nebraska Department of Correctional Services (“NDCS”) employees:
Scott Frakes (“Frakes”) and Diane Sabatka-Rine (“Sabatka-Rine”) as
former NDCS Directors, Rob Jeffreys (“Jeffreys”) as the current
NDCS Director, Robert A. Madsen (“Madsen”) as an NDCS Director
Designee, Dr. Deol (“Deol”) as a former NDCS Medical Director,
Teresa Royer (“Royer”) as a Director of Nursing at NDCS Central, and
unknown Doe employees of NDCS.
5. The State of Nebraska and NDCS.
Id. at 1–3.
B. The Claims
Plaintiff alleges the following claims while housed at TSCI beginning in
June of 2021 through May of 2022:
1. Access to courts:
a. Missed court appearance: Plaintiff alleges that he had a
prescheduled telephonic hearing in his civil case on April 5,
2021, at 3:00 p.m. and that defendant Wilken was responsible
for Plaintiff’s attendance but failed to take him to the area
where his hearing was taking place, resulting in Plaintiff
5
missing the hearing and the court dismissing his case. Id. at 4,
11.
b. Reduced library access: Plaintiff alleges that beginning on July
29, 2021, through August 15, 2021, his library access was
reduced to only one hour and that he lost access to a legal aid
that he deems necessary due to his extensive disabilities. Id. at
5.
c. Failure to mail legal mail: On October 4, 2021, Plaintiff alleges
that he handed a clearly marked piece of Legal Mail to
defendant Schults, who told Plaintiff his Legal Mail would be
placed in the mail that day with the 6:00 p.m. count, but on the
morning of October 5, 2021, Plaintiff saw his letter still sitting
on the counter unmailed. Id. at 6–7. Plaintiff contends that as
result of his appeal not being placed into the prison mail system
on October 4, Plaintiff’s appeal was dismissed as untimely. Id.
at 7.
2. First Amendment
a. Retaliation:
i. On August 31, 2021, in response to Plaintiff’s exercising
his right to utilize the grievance process, defendant
Crunshank informed Plaintiff his classification was being
changed
from
general
population
to
protective
management without a hearing or any process, resulting
in a loss of his extra 8-hours weekly law library disability
accommodation and access to a legal aid. Id. at 5–6.
ii. Plaintiff alleges that Allen refused to provide him an
assistant to help with daily showering which he asserts
6
are needed due to his disabilities and that her actions
were in retaliation for his filing of other grievances
including grievances against Allen. Id. at 13.
iii. Plaintiff alleges that in retaliation for his actions against
Allen (including the filing of grievances), he was
transferred to NSP. Id.
iv. Plaintiff alleges that, in the process of his transfer out of
TSCI, his television set was broken in retaliation for his
having filed grievances while housed there. Id. at 14.
b. Freedom of speech and access to print media: On October 4,
2021, Plaintiff was notified by defendant De Los Santos that a
legal book Plaintiff ordered titled “Prisoner Self-Help Litigation
Manual” (the “Book”) was not being allowed into the institution
due to NDCS's “Book Policy #113.23,” and that it had to be
donated to the institutional library or be destroyed. Id. at 7.
Plaintiff alleges this claim against NDCS, Frakes, Madsen,
Wasamer, Crunshank, and “Unknown policy writers.” Id. at 8.
3. Prison Grievance Procedures:
a. Plaintiff alleges that he was never provided a copy of an initial
grievance even though he requested copies from defendant
Oltrogge numerous times from December of 2021 through April
of 2022, resulting in his inability to exhaust his grievance. Id.
at 7.
He further alleges defendant Gables’ office knew of
Plaintiff’s attempts to obtain a copy of his initial grievance as
early as December 9, 2021, but did nothing about it. Id.
b. Plaintiff alleges that he filed two grievances (one relating to
Schults failing to mail his legal mail and the other relating to
7
the NDCS Book Policy), but that both were lost by the
institution. Id. at 8. On November 28, 2021, Plaintiff filed a
"Sensitive" grievance directly to Frakes, complaining of the loss
of his informal grievances by prison staff, the lack of access to
the courts due to his reclassification, and informing Frakes that
the TSCI staff were doing nothing to address the issues. Id.
4. Destruction of property:
a. Plaintiff alleges that as a result of the unconstitutional "Book
Policy #113.23” his Book was withheld from him and destroyed.
b. Plaintiff alleges that his television set was destroyed when he
was transferred between institutions. When Plaintiff filed a
grievance about his broken television he was told to file a tort
claim, which he did, but his claim was subsequently denied. Id.
at 14.
5. Eighth Amendment deliberate indifference to medical needs:
a. Plaintiff alleges defendant Allen failed to adequately address
his swelling and joint pain after changing cells to a different bed
on December 1, 2021.
b. On March 15, 2022, defendant Allen informed Plaintiff that he
could only receive his “required ADA assistance in the shower”
on Monday, Wednesday, Friday with no exceptions. Id. at 11.
As a result of not receiving help in the shower Plaintiff alleges
he is unable to properly wash his back and buttocks resulting
in the development of painful sores due to his having to sit so
much due to his disabilities. Id. at 12.
6. Disability discrimination:
a. ADA and RA violations
8
i. Plaintiff appears to allege that every claim raised relating
to his disability is also an ADA and/or RA violation.
b. General disability discrimination
i. As of September 1, 2021, Plaintiff alleges his law library
access was reduced by 50% from his access the prior year
and he no longer had access to a legal aide’s assistance.
Id. at 6. Plaintiff alleges he was the only inmate subject
to Crunshank’s library access changes (insinuating but
not alleging that Crunshank was responsible for the
reduction in Plaintiff’s law library access).
7. Respondeat superior:
a. Plaintiff
alleges
he
reported
Wilken’s
actions
to
the
“administration” through the grievance process, but the
administration failed to do anything with no consequences to
anyone except Plaintiff. Id. at 11. As such, it appears he claims
Defendants NDCS, Frakes, and Gable are all responsible via
respondeat superior for Wilken’s actions.
b. Plaintiff alleges Wasamer and Gable, as on-site administrative
authorities at TSCI, were aware of the violations and
deprivations which occurred because they are supposed to
review Step One formal grievances and are therefore liable for
their failure to discipline or take other actions to “curb the
known patterns of abuse, retaliation, disability discrimination,
and deprivations of constitutional rights [which] constituted
deliberate indifference that contributed and . . . encouraged” the
Eighth Amendment claims alleged. Id. at 37.
9
c. Plaintiff alleges that he also informed Frakes that Crunshank
was facilitating the violations relating to Plaintiff’s reduction in
library hours and reclassification out of the general prison
population, and that Wasamer, Gable and Frakes failed to take
action. Id. at 8–9.
d. Plaintiff alleges that defendant Deol is liable for all Eighth
Amendment claims related to medical needs violations
occurring at TSCI (as well as RTC and NSP) because as NDCS
Medical Director he failed to properly manage the medical staff
at each institution. Id. at 37–38.
Plaintiff alleges the following claims while housed at NSP from May
2022 through October 2022:
1. ADA and RA violations/Equal Protection and Due Process violations
a. Plaintiff concludes that from May 26, 2022, through October 27,
2022, he was not given access to the same activities, programs,
and services as the non-disabled in violation of Title II of the
ADA by Frakes, Sabatka-Rine, Madsen, Hurt, Illic, and Gruber.
Id. at 16.
b. Plaintiff alleges that defendant Hurt was supposed to facilitate
ADA needs at NSP, but he provided Plaintiff no help. Id. at 17.
c. Plaintiff alleges he is denied assistance putting up his hair and
with other activities of daily living that he requires due to his
disabilities due to defendant Wilson telling nursing staff not to
help him. Id. at 35–36.
2. First Amendment Retaliation: Plaintiff alleges that defendants
NDCS, Frakes, Madsen, Wilhiem, Illic, Hurt, and Gruber retaliated
against him for exercising his First Amendment rights to file
10
grievances by depriving Plaintiff of the same access to the phone
tablets as the rest of NSP general population inmates who are mostly
non-disabled. Id. at 15. Specifically, he alleges he was not provided
a phone tablet for the first 30 days after his arrival at NSP. Plaintiff
filed multiple grievances regarding his missing phone tablet, but he
was told it was lost and that NSP was unable to disconnect the wifi
from his prior tablet and connect it to a new one. Id.
3. Placement in restrictive housing: Plaintiff submits that defendants
the State of Nebraska, NDCS, Frakes, Sabatka-Rine, Madsen,
Wilhiem, Hurt, and Gruber did not provide him a “dayroom” where
he was housed and they refused to allow Plaintiff access to the yard
for more than one hour a day, amounting to Plaintiff being placed in
restrictive housing. Id. at 17.
4. Eighth Amendment deliberate indifference to medical needs: As a
result of being confined excessively to his cell by unnamed defendants,
Plaintiff alleges the constant sitting caused pressure sores on his
buttocks and perineum area that swell, bleed, and cause him constant
pain. Id.
5. Access to courts: Plaintiff alleges that a new copier was installed at
NSP on September 11, 2022, that was for "Legal Mail Only", but that
it appeared to have an ethernet box attached which Plaintiff contends
could be for making copies of attorney-client privileged documents.
Id. at 18.
Plaintiff alleges the following claims while housed at RTC from October
2022 through June 2023, which is the last month in which the claims stated in
the Amended Complaint occur:
11
1. First Amendment retaliation: Beginning on October 27, 2022, when
Plaintiff was transferred from NSP to the RTC he alleges he was
“immediately subjected to the same disability discrimination and
retaliation” relating to access to shower assistance as he had been at
TSCI. Id.
2. Prison grievance procedure: Plaintiff alleges that Arauco, Royer, and
Neujahr failed to comply with prison rules and grievance procedures
even after he filed grievances regarding his lack of showering
assistance, which resulted in Sabatka-Rine and the Central Office
stating that Plaintiff should be allowed the same amount of showers
as general population inmates. Id. at 20.
3. Failure to comply with prison policy:
Plaintiff contends that
defendants Thompson and Neujahr falsely claimed that he possessed
excessive property that required it to be ''blue binned" down to an
acceptable amount. Id. at 28. He alleges he was later told that his
property was not over the acceptable limits, but it was not returned
in a timely manner and was taken “in retaliation.” Id.
4. Eighth Amendment:
a. Conditions of confinement
i. Plaintiff alleges that unnamed RTC staff placed a camera
and a light that remained on 24 hours a day in his cell,
which caused him difficulty sleeping and anxiety.1 Id. at
22. Plaintiff concludes that the State of Nebraska, NDCS,
Sabatka-Rine, Jeffreys, Madsen, Deol, Johnson, Royer,
Arauco, Wilson, Boyd, Stegeman, Freeze, Staiger,
1 Plaintiff admits that the camera was covered from March 23, 2023, until May 3, 2023. Filing
No. 13 at 23.
12
Neujahr, and other unknown Doe Defendant RTC staff
are aware of the light and camera and are responsible for
“tak[ing] the plaintiff[’]s PTSD and us[ing] it as
retaliation.” Id. at 22.
b. Deliberate indifference to medical needs:
i. Plaintiff alleges defendant Johnson threatened to
withhold his necessary medications after learning of a
January 14, 2023, misconduct report written by an
unnamed staff member falsely accusing Plaintiff of not
opening his mouth after taking night medications. Id. at
24.
ii. Plaintiff alleges that Arauco, Holmes, and an unknown
correctional officer intentionally left him sitting on the
toilet for over 30 minutes before Plaintiff hopped on one
leg over to the door to see them laughing and ignoring the
help buzzer. Id. at 26.
iii. Plaintiff alleges that on November 29 and 30, 2023, he
was intentionally left in his wheelchair having to sit on
painful sores and having to wait for “excessively long
period of time” while waiting to receive his ADA help to
use the restroom. Id.
iv. Plaintiff alleges that he was denied access to a fan by
unnamed prison employees at an undisclosed time, which
he submits he needs to regulate his body temperature due
to his medical conditions. Id. at 29.
c. Conspiracy to commit multiple Eighth Amendment violations:
Plaintiff alleges that defendants Royer, Arauco, Wilson, and
13
Neujahr colluded and conspired to “deprive or attack plaintiff
to make his already very hardship filled life even more
hardshipped,” by denying access to his property including his
wheelchair pad which caused the sores on his buttocks to swell
and bleed. Id. In response Plaintiff alleges he used a pad from
one of the recliners in the gallery which he alleges prompted
Royer, Arauco, Wilson, and Neujahr to make a rule that
recliners could not be used outside of an inmates’ cell. Filing
No. 13 at 30. Plaintiff alleges that Neujahr told him that Royer
and Arauco talked about Plaintiff’s use of the recliner pads
specifically and that they wanted it stopped. Id. at 30.
5. General disability discrimination
a. Plaintiff alleges he would not be subjected to the camera and
light were he not disabled. Id. at 23.
b. Plaintiff alleges that due to his physical disabilities and
housing he was denied a job or stipend at NSP and RTC from
May 26, 2022, through June 2023. Id. at 29. He alleges that
other inmates who are not disabled have jobs or stipends and
that the denial of both constitutes discrimination. Id.
c. Plaintiff alleges that he lives in restricted housing because of
his disabilities and that Wilson changed the dollar limit for
commissary spending in January 2023 by 50% compared to the
non-disabled general population at the RTC. Id. at 30. And,
Plaintiff submits that Wilson indicated that she wants to have
“all commissary taken away from all inmates” which Plaintiff
alleges only will affect him as he is the only long-term inmate
in the facility. Id. at 20.
14
6. Other general claims
a. On March 9, 2023, Plaintiff alleges the same staff member who
wrote the report regarding Plaintiff allegedly not opening his
mouth after taking medicine also falsely accused him of
masturbating. Plaintiff alleges that he proactively requested
the NDCS Inspector General to save the video of his cell from
March 9, 2023, so that he could prove he was not masturbating,
but the Inspector General responded that Plaintiff could not
have the video. Id. at 25.
b. Plaintiff alleges that an unknown defendant opened his legal
mail outside his presence on or before January 23, 2023,
illegally searching his privileged and protected mail. Id. at 27.
7. ADA and RA violations
a. Plaintiff claims a general failure to provide an assistant to allow
Plaintiff to shower as frequently as general population inmates.
Id. at 20.
Plaintiff brings the following claims against NDCS:
1. Due process violations: Plaintiff alleges that there is an “intended due
process violation” built into the NDCS system through what is called
the "Unit Disciplinary Committee Court.” Id. at 25. Plaintiff submits
there is not any recourse or oversite of the Unit Disciplinary
Committee Court, there is no right to appeal, and whatever NDCS
decides it wants to subject inmates to, it can do so unchecked. Id.
2. Creation of unconstitutional prison policy:
a. Plaintiff alleges a constitutional challenge to NDCS's "Book
Policy #113.23,” which resulted in his Book being withheld from
15
him
and
ultimately
destroyed,
arguing
the
policy
is
unconstitutional. Id. at 7.
b. Plaintiff alleges that on April 18, 2022, NDCS instituted a
policy change “procedure 205.01.01, ‘Inmate Mail’-Copying
Mail,” which requires NDSC staff to open legal mail including
mail from his counsel, make copies, and destroy the originals,
which he argues is unconstitutional and violates Plaintiff’s
attorney-client privilege. Id. at 13.
Finally, Plaintiff includes several pages of general claims alleging that
all defendants with any supervisory capacity, as well as NDCS and the State
of Nebraska, are liable for all violations of prison employees as they failed to
address staff appropriately, discipline appropriately, or fire staff for their
egregious offenses, instead ignoring and/or condoning the multitude of
violations alleged and included in Plaintiff’s grievances. Id. at 37–38.
D. Injuries
Plaintiff alleges that he suffered “physical and emotional” injuries as a
result of the actions of the defendants. Id. at 40. Specifically, although not
entirely clear from the pleadings, it appears Plaintiff suffers from sores which
are painful and possibly bleed due to the amount of time he is required to sit
at the various institutions and because he has been denied access to adequate
showering due to his disabilities. Id. at 17. Plaintiff also alleges he was
subjected to lights and cameras which made it difficult to sleep and increased
his anxiety. Id. at 23.
E. Relief Sought
Plaintiff seeks relief in the form of a declaratory judgment, multiple
injunctions, discontinuation or removal of the Unit Disciplinary Committee,
replacing and redrafting of new prison policies, compensatory and punitive
16
damages, and for this Court to exercise supplemental jurisdiction over
Plaintiff’s state law claims pending in Johnson County. Id. at 38–42.
II. APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The Court is required to review prisoner and in forma pauperis
complaints 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).
III. DISCUSSION
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). As Plaintiff
brings this suit pursuant to 42 U.S.C. § 1983, all of Plaintiff’s claims and relief
sought in the Amended Complaint must be reviewed to determine if this
standard is met.
A. Improper Joinder of Claims and Defendants
Plaintiff alleges claims relating to his confinement at three different
institutions over the course of over two years against a multitude of defendants
who appear related only by their employment as Nebraska prison officials or
employees.
As pleaded, however, many of the claims alleged and the
defendants named in Plaintiff’s Amended Complaint appear to be improperly
joined as not all of Plaintiff’s claims have the factual or temporal continuity
17
required to allow him to proceed against all of the named defendants in the
same action.2
Federal Rule of Civil Procedure 20(a)(2) imposes two specific conditions
to join defendants in one action: (1) a right to relief is asserted against them
jointly or severally relating to, or arising out of the same transaction or
occurrence, and (2) that any question of law or fact common to all defendants
will arise in the action. Fed. R. Civ. P. 20(a)(2). For purposes of Rule 20, the
word “transaction” has been described as “a word of flexible meaning,”
comprehending “a series of many occurrences, depending not so much upon the
immediateness of their connection as upon their logical relationship.” Patrick
Collins, Inc. v. John Does 1-21, 282 F.R.D. 161, 167 (E.D. Mich. 2012), report
and recommendation adopted, 286 F.R.D. 319 (E.D. Mich. 2012) (quoting
Mosley v. General Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974) (internal
quotations omitted) (citing Moore v. New York Cotton Exchange, 270 U.S. 593
(1926)). Therefore, Rule 20 permits any reasonably related claims for relief
against different parties to be tried in a single proceeding. Id. (emphasis
added) (citing Mosley, 497 F.2d at 1333); see also Perry v. Erdos, No. 1:22-CV178, 2023 WL 2781585, at *2 (S.D. Ohio Apr. 5, 2023), report and
recommendation adopted, No. 1:22-CV-178, 2023 WL 6370421 (S.D. Ohio Sept.
30, 2023) (explaining that Rule 20(a)(2) means that a plaintiff cannot combine
unrelated claims against different defendants into a single lawsuit).
Ultimately, while joinder of claims, parties, and remedies are encouraged
under the Federal Rules of Civil Procedure, permissive joinder is not applicable
in all cases. Mosely v. General Motors Corp., 497 F.2d 1330, 1333 (8th Cir.
1974).
2 While all claims against the same defendant may generally be raised in the same case, the
claims against different defendants must meet the transaction or occurrence test.
pleaded, there is no apparent connection between many of the defendants.
18
As
Because the same rules apply to prisoners as to free persons, if a
complaint filed by a free person would be rejected under Rule 20(a)(2), so must
it be when filed by a prisoner. See George v. Smith, 507 F.3d 605, 607 (7th Cir.
2007)). However, in the prison context, application of Rule 20(a)(2) must also
be considered alongside of the Prison Litigation Reform Act (the “PLRA”),
which “limits to 3 the number of frivolous suits or appeals that any prisoner
may file without prepayment of the required fees.” Perry, 2023 WL 2781585,
at *2 (quoting Smith, 507 F.3d at 606) (internal quotations omitted).
Courts have held that permitting improper joinder in a prisoner civil
rights action undermines the purpose of PLRA’s three strikes provision, which
was enacted to reduce the large number of frivolous prisoner lawsuits that
were being filed in the federal courts. Id. (citing Riley v. Kurtz, 361 F.3d 906,
917 (6th Cir. 2004); Brown v. Blaine, 185 F. App’x 166, 168–69 (3d Cir. 2006)
(explaining that allowing an inmate to assert unrelated claims against new
defendants based on actions taken after the filing of his original complaint
would have defeated the purpose of the three strikes provision of PLRA)).
Therefore, allowing a prisoner-plaintiff to improperly join claims and
defendants in a single action not only violates Rule 20(a) but would also permit
him to “circumvent the PLRA’s filing fee provisions and allow him to avoid
having to incur a ‘strike’ for purposes of [ ] § 1915(g), should any of his claims
turn out to be frivolous.” Green v. Callahan, No. 2:14-CV-11453, 2014 WL
1652335, at *3 (E.D. Mich. Apr. 23, 2014).
For these reasons courts are
obligated to reject mis-joined claims or parties. See Owens v. Hinsley, 635 F.3d
950, 952 (7th Cir. 2011)).
Here, it appears that Plaintiff intends to “connect” all the named
defendants through an alleged shared objective of depriving Plaintiff of various
constitutionally protected rights. Specifically, Plaintiff alleges an overarching
19
conspiracy to “mistreat him over [a two] year period” at three facilities. Filing
No. 13 at 37. And in support he submits it should be “clear” to this Court from
the allegations in his Amended Complaint that all named defendants worked
together to facilitate the numerous constitutional deprivations alleged. See Id.
at 39.
“To plead conspiracy, a complaint must allege specific facts suggesting
that there was a mutual understanding among the conspirators to take actions
directed toward an unconstitutional end.” Duvall v. Sharp, 905 F.2d 1188,
1189 (8th Cir. 1990) (citing Haley v. Dormire, 845 F.2d 1488, 1490 (8th Cir.
1988)). While a plaintiff need not show that each participant knew “the exact
limits of the illegal plan,” the plaintiff must show evidence sufficient to support
the conclusion that the defendants reached an agreement to deprive the
plaintiff of constitutionally guaranteed rights. Larson by Larson v. Miller, 76
F.3d 1446, 1458 (8th Cir. 1996).
As pleaded, despite Plaintiff’s assurances otherwise, this Court sees no
clear connection which would allow Plaintiff’s case to proceed against all of the
defendants named on all of the claims alleged. For example, Plaintiff alleges
that he was denied access to adequate showers at both TSCI and RTC, due to
the failure of each institution to provide him with an assistant which he needs
to shower due to his disabilities. See Filing No. 13 at 11, 18. It appears that
Plaintiff believes that the mere fact that the similarity in the lack of showering
due to a lack of assistance establishes that groups of defendants worked
together to deprive him of his shower access (or worked together to create this
wholesale deprivation of many different protected rights at different
institutions at different times). See Id. at 39. Such conclusory statements do
not meet the pleading standards required for a conspiracy claim to proceed.
See Wit v. City of Lincoln, Neb., No. 4:19CV3006, 2019 WL 1459054, at *3 (D.
20
Neb. Apr. 2, 2019) (“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”) (citing Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)).
Indeed, Plaintiff’s allegations supporting any actual agreement between
the defendants to commit the alleged violations are almost entirely
nonexistent. Plaintiff concludes that Frakes, Sabatka-Rine, and Jeffreys as
NDCS directors knew (or should have known) of all of the claims set forth in
the Amended Complaint alleged because “they are end of the line for the
administrative remedies for plaintiff[‘]s mistreatment.” Filing No. 13 at 39.
Plaintiff also concludes that because defendants Wassamer, Gable, Wilhiem,
Taggard Boyd, Crunshank, Hurt, Stegeman, Freeze, Staiger, and Illic “are the
administrative front office at the [three] facilities,” they knew about the alleged
unconstitutional treatment because it was occurring “in front of their faces.”
Id. However, Plaintiff does not argue that Frakes, Sabatka-Rine, and Jeffreys,
or Wassamer, Gable, Wilhiem, Taggard Boyd, Crunshank, Hurt, Stegeman,
Freeze, Staiger, and Illic, spoke or otherwise communicated with each other a
desire to collectively allow the alleged violations to continue, especially not to
the extent all the claims against all the defendants are properly before this
Court in the same action. All Plaintiff alleges is that each of these defendants
knew or should have known of the alleged violations. Indeed, these conclusory
statements that each individual knew of the alleged constitutional violations
does nothing to point to a collective decision between them all to engage in any,
much less all, of the actions which would support the claims alleged in the
Amended Complaint.
As the Amended Complaint does not contain the factual support
necessary to find an agreement existed between all of the parties, which in
turn would support a conspiracy claim, joinder of the claims and parties cannot
21
proceed as currently pleaded. As such, this Court has the following options:
(1) dismissing the unrelated claims and parties from this action,3 (2) severing
the unrelated claims and parties into a new case (or cases), or (3) allowing
Plaintiff to amend his complaint for a second time so he may either attempt to
bolster his conspiracy claim to allow joinder of all claims and defendants under
Rule 20 or decide which parties and claims he wishes to dismiss or sever into
a new case or cases. It is the belief of this Court that allowing Plaintiff to
determine how to proceed is the better course of action. Therefore the Court
shall allow amendment of the Amended Complaint.
However, as the Amended Complaint suffers from other deficiencies and
issues outside of the improper joinder, the Court shall briefly point them out
here so that Plaintiff may address them when determining how to proceed.
B. Pleading Deficiencies
“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.’”
3 For example, Plaintiff alleges that prior to his transfer he filed grievances about Allen’s
denial of an assistant to help him shower which is part of the Eighth Amendment deliberate
indifference claim he raises in his Amended Complaint against Allen. Id. at 17. This Court
agrees that his First Amendment claim against Allen for allegedly retaliating against
Plaintiff for filing grievances about his shower access is indeed related to his Eighth
Amendment claim against Allen regarding his lack of shower access and is therefore properly
joined as it is brought against the same defendant and as it arises from the same transaction
or occurrence—the denial of adequate shower access. And that claims against any other
defendants factually connected to the denial of shower access/assistance at TSCI would also
be properly joined (including, for instance, complaints and/or requests made to other
individuals at TSCI). However, this Court sees no connection between the lack of shower
access claims at TSCI and his conditions of confinement and retaliation claim allegedly
occurring at RTC a year later relating to a camera and a 24-hour light allegedly being placed
in his cell. See Id. at 22. Therefore, if this Court were to dismiss unrelated claims and parties
from this case, either the shower claims at TSCI or the RTC light/camera claims would be
dismissed as improperly joined.
22
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)). Federal Rule
of Civil Procedure 8 requires every complaint to contain “a short and plain
statement of the claim showing that the pleader is entitled to relief” and that
“each allegation … be simple, concise, and direct.”
Fed. R. Civ. P. 8(a)(2),
(d)(1). Moreover, while pro se complaints “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),
pro se plaintiffs still 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 Iqbal, 556 U.S. at 678 (“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 Amended Complaint is replete with fragmented claims where no
facts connect various defendants to the claims against them.
For example,
Plaintiff alleges his television set was destroyed when he was transferred
between institutions. Filing No. 13 at 14.
And that although he filed a
grievance (or grievances) about his broken television he was told to file a tort
claim, which he did, but his claim was subsequently denied. Id. As Plaintiff
does not indicate which defendant broke his television, which defendant his
claim for destruction of property is against (e.g. the individual who actually
broke the television or the individual who ordered the institutional transfer or
someone else), or if he ever received compensation or a replacement television
set, this claim cannot proceed as pleaded.
The Amended Complaint also contains other pleading deficiencies
related to the elements of each underlying claim. For example, Plaintiff alleges
23
he was denied access to the courts in several instances, including being denied
access to a video court appearance by defendant Wilken, a denial of a lack of
extended access to the law library due to his disabilities by defendant
Crunshank, and failure of defendant Schults to mail his appeal resulting in
the denial of his appeal for untimeliness. Id. at 5–6, 11. While prisoners and
pro-se litigants certainly have a constitutional right to access to the courts, see
Bounds v. Smith, 430 U.S. 817 (1977), overruled on other grounds by Lewis v.
Casey, 518 U.S. 343, 354 (1996), the access guaranteed is meaningful, not
unlimited. Meaningful access “requires prison authorities to assist inmates in
the preparation and filing of meaningful legal papers by providing prisoners
with adequate law libraries or adequate assistance from persons trained in the
law.” Id. at 828. However, to prove actual injury resulting from an alleged
lack of meaningful access to the courts, a plaintiff must “demonstrate that a
nonfrivoulous legal claim had been frustrated or was being impeded.” Casey,
518 U.S. at 353 (emphasis added) (footnotes omitted).
Ultimately as Plaintiff provides no information regarding the nature of
case that was dismissed when Wilken allegedly failed to get Plaintiff to the
hearing, or the status of any claims he allegedly needed more access to the
prison law library to address, his lack of access to court claims as pleaded are
deficient. While dismissal of a case is certainly problematic, this Court cannot
determine whether the case that was dismissed was frivolous in nature, what
type of case was dismissed, or if Plaintiff suffered any discernable injury as a
result. Regarding the lack of extended access to the library, again Plaintiff
does not indicate that he suffered any actual harm as opposed to inconvenience
from the reduced access.
Put another way, as pleaded, in relation to many of Plaintiff’s claims, the
Court is unable to ascertain a factual connection between a general allegation
24
and what defendant or defendants were involved in the alleged violation, nor
can it be determined how or when any alleged violative incidents took place, or
any detail of the resulting harm.
This is so because Plaintiff’s Amended
Complaint, although very lengthy, is largely conclusory and very light on facts
connecting defendants to the claims alleged.
C. Noncognizable Claims and Relief
1. Claims not involving constitutionally protected rights
Section 1983 only allows suits against any person acting under color of
state law, provided that individual’s actions deprived a plaintiff of his or her
constitutional rights. 42 U.S.C. § 1983. As such, this Court may only address
claims which allege the violation of a constitutionally protected right. Many of
the alleged deprivations suffered by Plaintiff, however, are not constitutionally
protected and therefore cannot proceed in this case.
Plaintiff alleges he was denied access to a job at the prison (or to a
monetary stipend if he was unable to have a job), denied access to commissary
stipends, and denied access to “tablets” containing commissary apps for
ordering food and other communication technology.
Filing No. 13 at 29.
Plaintiff raises additional claims addressing prison officials’ failure to apply or
enforce multiple prison policies including a claim that he was assigned to
housing in a different security level without a hearing in violation of prison
policy and his right to due process. Id. at 17.
He also raises a multitude of
claims relating to what Plaintiff deems inadequate responses to grievances,
and other issues with the prison grievance process. None of these claims may
proceed here.
“Inmates do not have a constitutionally protected right to a grievance
procedure. Because a ... grievance procedure does not confer any substantive
right upon prison inmates, a prison official's failure to comply with the ...
25
grievance procedure is not actionable under § 1983.” Hildebrand v. Kugler, No.
1:19-CV-01006, 2019 WL 2134622, at *1 (W.D. Ark. May 3, 2019), report and
recommendation adopted, No. 1:19-CV-1006, 2019 WL 2130152 (W.D. Ark.
May 15, 2019) (quotation and citation omitted) (collecting cases). There is also
no violation of § 1983 for failure of prison employees to follow prison policies.
Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). There is no constitutional
right to an assignment to a particular housing security level. See Olim v.
Wakinekona, 461 U.S. 238, 245 (1983). Prison employment is also not a right
but a privilege.
See Hansen v. Symmes, No. 11-378 RHK/FLN, 2011 WL
1167119, at *3 (D. Minn. Mar. 2, 2011), report and recommendation adopted,
No. CIV. 11-378 RHK FLN, 2011 WL 1130450 (D. Minn. Mar. 28, 2011) (citing
Clark v. Maryland Dept. of Public Safety and Correctional Services, 316 Fed.
Appx. 279, 281 (4th Cir.2009) (unpublished opinion) (“as prisoners do not have
a constitutionally protected right to work while incarcerated, termination from
a prison job does not constitute an Eighth Amendment violation”)). There are
also no constitutionally protected rights to prison stipends or access to
computer tablets, or televisions. See Smith v. Sapp, 156 F.3d 1232, 1998 WL
384620 at *1 (6th Cir. 1998) (unpublished opinion) (“the Constitution ‘does not
mandate comfortable prisons,’ and forcing an inmate to live without such
privileges as bingo, a television, or a job does not constitute the infliction of
serious pain necessary to state an Eighth Amendment claim”), cert. denied, 525
U.S. 902 (1998).
2. Claims under the ADA and RA
Plaintiff brings multiple claims under the ADA and RA. See e.g. Filing
No. 13 at 1, 4, 6. Such claims, however, cannot proceed against any defendant
regardless of the capacity in which they are sued in a Section 1983 action and
therefore must be dismissed. This is so as the sole recourse for bringing an
26
ADA claim is only under the ADA, rendering any ADA claims brought
pursuant to Section 1983 as subject to dismissal. See Battle v. Minn. Dep't of
Corr., 40 F. App'x 308, 309 (8th Cir. 2002); see also Alsbrook v. City of
Maumelle, 184 F.3d 999, 1010 (8th Cir. 1999) (Congress’ attempt to abrogate
Eleventh Amendment immunity under Title II of ADA was not proper exercise
of its power under § 5 of Fourteenth Amendment); Grey v. Wilburn, 270 F.3d
607, 610 (8th Cir. 2001) (as the comprehensive enforcement mechanisms
provided under section 504 of both the RA and the ADA suggest Congress did
not intend violations of those statutes to be also cognizable under § 1983)
(cleaned up) (citing City of Maumelle, 184 F.3d at 1011).
As such, to the extent Plaintiff sees to bring claims under the ADA and/or
the RA, Plaintiff must amend his complaint either to proceed directly under
the ADA and/or RA instead of proceeding solely under Section 1983, or file a
separate action under the ADA4 and RA.
IV. CONCLUSION
As discussed, due to the inability for this Court to allow joinder of all of
Plaintiff’s claims and defendants in this action under Federal Rule of Civil
Procedure 20(a)(2) as pleaded, this Court shall grant Plaintiff 60 days to file a
4 Of note, the starting point for this analysis is to determine whether a plaintiff has alleged
sufficient facts to state a plausible ADA claim which requires allegations that: (1) Plaintiff is
a qualified individual with a disability; (2) that he was excluded from participation in or
denied the benefits of services, programs, or facilities at the relevant institution, or was
otherwise subjected to discrimination by the institution; and (3) that such exclusion, denial
of benefits, or other discrimination was by reason of his disability. See Baribeau v. City of
Minneapolis, 596 F.3d 465, 484 (8th Cir. 2010); Layton v. Elder, 143 F.3d 469, 472 (8th Cir.
1998). And, under the ADA, there are two means of discrimination: (1) disparate treatment
and (2) the failure to make reasonable accommodations. Peebles v. Potter, 354 F.3d 761, 765
(8th Cir. 2004). Disparate treatment discrimination is based on “intent or actual motive,”
whereas in the second type of claim, “the ‘discrimination’ is framed in terms of the failure to
fulfill an affirmative duty—the failure to reasonably accommodate the disabled individual’s
limitations.” Id. at 767.
27
second amended complaint addressing the deficiencies noted in this
Memorandum and Order.
IT IS THEREFORE ORDERED:
1. Plaintiff’s motion for status, Filing No. 32, is granted to the extent he
sought the status of his case, which has been provided here. The
remainder of the motion seeking a hearing on the motion for status,
is denied.
2. Upon review of the Amended Compliant, the Court on its own motion,
grants Plaintiff leave to file a second amended complaint. Plaintiff
shall have until March 31, 2025, to file his amended complaint,
keeping in mind the following:
a. Plaintiff is advised he may only present claims against
defendants that may be joined under Rule 20 as discussed
herein. Plaintiff may decide to amend his factual allegations to
further support his conspiracy claim in an attempt to permit
joinder of all claims and defendants under Rule 20 or he may
amend factual support for the claims he intends to proceed with
and indicate which parties and claims he wishes to dismiss or
sever into a new case or cases.
b. Plaintiff is cautioned that if his second amended complaint
continues to include improperly joined claims, this Court will
only screen the first properly joined set of claims and shall
dismiss or sever the rest into a separate action or actions and
assess individual filing fees for each severed case. See Bailey v.
Doe, No. 11-2410, 2011 WL 5061542 (8th Cir. Oct. 26, 2011)
(unpublished opinion) (affirming a trial court's decision to sever
28
a prisoner's complaint into three separate actions and
obligating him to pay three separate filing fees).
c. Plaintiff is further advised that to the extent he seeks to bring
claims under the ADA and/or the RA he must amend his
complaint to raise any claims under the ADA and RA directly
and explicitly state which claims he seeks to raise under the
ADA and/or RA.
d. For the claims he wishes to proceed with, Plaintiff should be
mindful to provide facts (as opposed to conclusions) which
establish what each Defendant did to him, when Defendant(s)
did it, how each Defendant’s actions harmed him, and what
specific legal rights Plaintiff believes each defendant violated.
3. The Clerk of the Court is directed to send Plaintiff the Form Pro Se
14 (“Complaint for Violation of Civil Rights (Prisoner)”).
4. Should Plaintiff
require further
time to comply
with this
Memorandum and Order he must move for an extension, in writing,
prior to the expiration of the deadline for compliance.
5. The Clerk’s Office is directed to set pro se case management deadlines
in this case using the following text: March 31, 2025: check for second
amended complaint.
Dated this 29th day of January, 2025.
BY THE COURT:
John M. Gerrard
Senior United States District Judge
29
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