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Wabashaw v. Kenney

United States District Court, D. Nebraska

February 18, 2015

ELROY L. WABASHAW, Plaintiff,
v.
MICHAEL L. KENNEY, Dir, NDCS, BRIAN GAGE, Warden TSCI, ROBERT HOUSTON, Former Dir. NDCS, FRED BRITTEN, Former Warden TSCI, LT. TREMAIN, Officers, OFC. HORN, SGT. THEIN, SGT. LANLEZ, STRANBERG, TSCI Caseworkers, and ZWEIG, TSCI Caseworkers, Defendants.

MEMORANDUM AND ORDER

JOHN M. GERRARD, District Judge.

Plaintiff Elroy Wabashaw ("Plaintiff") filed his Complaint (Filing No. 1) on October 28, 2014. This court has given Plaintiff leave to proceed in forma pauperis. (Filing No. 6.) The court now conducts an initial review of the Complaint and a laterfiled supplemental pleading to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.

I. SUMMARY OF PLEADINGS

Plaintiff is incarcerated at the Tecumseh State Prison ("TSP") in Tecumseh, Nebraska. He filed his Complaint against numerous current and former employees of the TSP and the Nebraska Department of Correctional Services ("NDCS"). (Filing No. 1 at CM/ECF p. 1.) Plaintiff asserted Eighth Amendment claims for failure to protect and deliberate indifference to serious medical needs. Plaintiff later filed a "Supplemental Complaint" in which he named two additional TSP employees and alleged claims of retaliation.

A. Allegations in Plaintiff's Complaint

On June 4, 2014, another inmate at TSP assaulted Plaintiff. Plaintiff and the other inmate lived in different housing units. Plaintiff explained that prison staff must operate doors between the housing units in order for inmates to move between them. On the day of the assault, Defendants Stranberg, Zweig, and Horn were "responsible for the control and security of the inmate movement in and out of the pods and housing units." (Id. at CM/ECF pp. 5, 9.)

As a result of the assault, Plaintiff suffered a fractured right hand, a broken tooth, a concussion, and a bruised chest, face, and rib cage. Plaintiff alleged Defendants Tremain, Thein, and Lanlez observed injuries to Plaintiff's face and hands immediately after the assault, but "never notified medical services to examine plaintiff nor escort[ed] plaintiff to medical for examination." (Id. at CM/ECF p. 9.) Plaintiff did not receive "adequate medical attention" until nine days after the assault. (Id. at CM/ECF p. 5.)

As relief, Plaintiff seeks money damages in the amount of $1, 000, 000.00. (Id. at CM/ECF p. 6.)

B. Allegations in Plaintiff's "Supplemental Complaint"

On July 18, 2014, Plaintiff's case manager notified Plaintiff that prison officials received reliable, corroborated information that Plaintiff's safety was threatened. (Filing No. 8 at CM/ECF pp. 3-4.) Based on this information, prison officials placed Plaintiff in protective custody against his will. (Id. at CM/ECF p. 4.) Plaintiff alleged prison officials' actions in this regard were retaliatory. Although Plaintiff's allegations are somewhat unclear on this issue, as best as the court can tell, Plaintiff alleged the retaliation was in response to grievances he filed complaining about the treatment of prisoners housed in the administrative-confinement and intensivemanagement units.

As relief, Plaintiff asks this court to, among other things, order Defendants to "formulate [a] policy verifying, substantiating reliability, credibility, of confidential informant information." (Id. at CM/ECF p. 5.)

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 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 ...


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