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Billups v. Rule

United States District Court, D. Nebraska

January 7, 2015

BILLY R. BILLUPS, Plaintiff,


RICHARD G. KOPF, Senior District Judge.

Plaintiff Billy Billups ("Billups" or "Plaintiff") filed his Complaint (Filing No.

1) in this matter on September 18, 2014. This court has given Billups leave to proceed in forma pauperis. The court now conducts an initial review of Plaintiff's Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.


Billups brings this action pursuant to 42 U.S.C. § 1983 for violations of the Eighth and Fourteenth Amendments. He also raises state law claims for negligence and medical malpractice. He named Case Worker Rule, Frank Hopkins, Fred Britten, Warden Busboom, and Correct Care Solutions as Defendants.

Billups is, and was at all relevant times, incarcerated at the Tecumseh State Prison in Tecumseh, Nebraska. Billups alleged he suffers from a "severe knee injury" and his knee functions "very poorly." (Filing No. 1 at CM/ECF p. 3.) He alleged that on October 5, 2012, Rule ordered him to move from housing unit 1-D-5 to housing unit 3. Billups opposed the move because "he had a lower bunk pass, and did not want to take another prisoner out of his lower bunk." ( Id. ) Rule informed Billups he would be placed in segregation if he did not move. Rule, however, informed Billups he would be assigned to a lower bunk in accordance with his lower-bunk pass. Billups alleged Rule assigned Billups to unit 3's upper gallery, which required Billups to walk up and down stairs. ( Id. )

Upon being assigned to the upper gallery, Billups filed an emergency grievance "to alert staff that he could not go up and down the stairs." ( Id. ) Billups alleged Busboom answered the grievance several days later. Billups did not indicate what Busboom's response was to the grievance. Billups alleged that, by the time Busboom answered the grievance, Billups had already fallen down the stairs and injured himself. Since his fall, Billups has been suffering from severe headaches and other unidentified "physical complications." ( Id. )

Billups seeks monetary relief in "an amount to be determined at trial." He also seeks a court order requiring Defendants to "allow Plaintiff to be seen immediately by trained, outside, professional medical personnel." ( Id. at CM/ECF p. 6.)


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).

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 ...

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