United States District Court, D. Nebraska
LYLE E. STROM, Senior District Judge.
This matter is before the Court on defendant Tek Industries, Inc.'s ("Tek") unopposed Motion to Dismiss (Filing No. 40) filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, the Court will grant Tek's motion.
A. Complaint and Amended Complaint
King filed his complaint (Filing No. 1) on March 15, 2013. The Court conducted a preservice screening of the complaint in accordance with 28 U.S.C. §§ 1915(e)(2) and 1915(A), after which King filed an Amended Complaint (Filing No. 14).
King alleged in his Amended Complaint that he is a black male who, at the time he filed this action, was incarcerated at the Nebraska State Penitentiary ("NSP") in Lincoln, Nebraska. (Filing No. 14 at CM/ECF pp. 1-2.) King was employed by Tek "for several years" while he was incarcerated at NSP. ( Id. at CM/ECF p. 2.) King described Tek as "a Private Prison Contractor Corporation operating within the Department of Corrections." ( Id. )
King alleged that on February 6, 2010, he discovered a blue cylinder containing a white substance on the floor of the restroom while he was working at Tek. A NSP correctional officer observed him "smelling the cylinder, " and then accused him of "snorting" the white substance. ( Id. ) A nurse later determined "there was no evidence that would suggest that [King] snorted any white substances." ( Id. )
King alleged a disciplinary committee later found him "guilty of possession/drug abuse." ( Id. ) The documents King attached to his original complaint - items he refers to as "exhibits" - reflect that the prison's disciplinary committee held a hearing on March 2, 2010. It found:
[King] guilty of drug abuse by possessing an item containing a white powdered substance that was identified by the state lab as Bupropion which is an abusive prescription medication that was not prescribed to this inmate as identified by the Pharmacy. Inmate guilty of disobeying by not immediately complying with staffs orders to hand over the blue rubber cylinder containing an abusive medication. Inmate attempted to wash the tube out with water prior to handing it back to staff.
(Filing No. 1 at CM/ECF p. 32.) The disciplinary committee sentenced King to 14 days of room restriction on the drug charge, and 7 days of room restriction on the disobeying-an-officer charge. ( Id. )
King alleged he returned to work following the incident, but was terminated by Tek on February 28, 2010. (Filing No. 14 at CM/ECF p. 4.) The "Employee Termination" Memorandum attached to King's complaint cites the "Reason for Termination" as "Tek's policy on drug abuse." (Filing No. 1 at CM/ECF p. 33.)
Upon King's termination, defendants Joanne Hilgert and Mel Soyh (Tek supervisors) informed King that Tek has a "zero tolerance" policy. (Filing No. 14 at CM/ECF p. 4.) Hilgert and Soyh also informed King he would be allowed to reapply for a job at Tek after two years as long as he did not receive a Class I or Class II misconduct report during those two years. ( Id. )
King attached a document setting forth Tek's company policies and guidelines to his complaint. ( See Filing No. 1 at CM/ECF pp. 34-38.) It provides Tek has a "zero tolerance" drug policy. ( Id. at CM/ECF p. 36.)
One year after Tek terminated King's employment, inmate Ricky Wilcox, a white Tek employee, was found in possession of an altered highlighter with a metal screw attached to it while at work. (Filing No. 14 at CM/ECF p. 6.) King alleged the prison disciplinary committee found Wilcox guilty of possession or manufacture of dangerous contraband and sentenced him to 30 days of segregation. ( Id. ) King alleged Tek allowed Wilcox to return to work following his release from segregation "like nothing ever happen[ed]." ( Id. at CM/ECF p. 2.)
King set forth in his Amended Complaint that Tek's actions in terminating his employment, but not Wilcox's employment, were ...