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Sexton v. Kenney

United States District Court, D. Nebraska

December 16, 2014

LISA K. SEXTON, Plaintiff,
v.
MICHAEL KENNEY, et al., Defendants

Lisa K. Sexton, Plaintiff, Pro se, York, NE.

MEMORANDUM AND ORDER

LYLE E. STROM, Senior United States District Judge.

This action was filed by 24 prisoner plaintiffs on May 27, 2014 (Filing No. 1). All but one plaintiff has asked to be dismissed from this action. The only remaining plaintiff, Lisa Sexton, has been granted leave to proceed in forma pauperis (Filing No. 70). The Court now conducts an initial review of plaintiff's claims to determine whether summary dismissal is appropriate under 28 U.S.C. § § 1915(e) and 1915A.

I. SUMMARY OF COMPLAINT

Plaintiff and 23 other prisoners incarcerated at the Nebraska Center for Women in York, Nebraska, sued 12 employees of the Nebraska Department of Correctional Services (" NDCS"), including wardens, assistant wardens, program directors, and unit managers. No specific allegations are made with respect to any defendant in the complaint. Rather, all individuals are referred to collectively as " Defendants."

The complaint alleges Defendants systematically discriminate against females incarcerated by the NDCS. Since 2013, women have not been allowed to participate in the work ethic camp (Filing No. 1 at CM/ECF p. 7). In addition, " women are required to complete programs such as intensive outpatient therapy but are banned due to their sex and therefore are not given 'points' for programming, which is then used to deny the same women participation in community custody." (Id. at CM/ECF p. 8.)

The complaint sets forth the following statement for relief:

Order the defendants and the Nebraska Department of Correctional Services to offer WEC (work ethic camp) to women as they did until 2013 in a separate place (if they claim security issues by a shared site) and order them to stop using " overrides" to ignore their own classification system in the systematic refusal of community custody for women.

(Id. at CM/ECF p. 8.)

II. 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 thereof 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.

Therefore, where pro se plaintiffs do not set forth enough factual allegations to " nudge[] their claims across the line from conceivable to plausible, their complaint must be dismissed" for failing to state a claim upon which relief can be granted. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (overruling Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), and setting new standard for failure to state a claim upon which relief may be granted). Regardless of whether a plaintiff is represented or is appearing pro se, the plaintiff's complaint must allege specific facts sufficient to state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). However, a pro se plaintiff's allegations must be construed liberally. Burke v. North Dakota Dep't of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (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, ...


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