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Sather v. Kenney

United States District Court, District of Nebraska

April 17, 2015

MICHAEL PATRICK SATHER, Plaintiff,
v.
MICHAEL L. KENNEY, Defendant.

MEMORANDUM AND ORDER

John M. Gerrard United States District Judge

Plaintiff Michael Patrick Sather (“Plaintiff” or “Sather”) filed his Complaint (Filing No. 1) on November 10, 2014. This court has given Sather leave to proceed in forma pauperis. (Filing No. 18.) The court now conducts an initial review of his Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).

I. SUMMARY OF COMPLAINT

Sather was incarcerated at the Omaha Correctional Center when he filed his Complaint. He has since been paroled, and is now residing at a mission in Omaha, Nebraska. (See Filing No. 8.)

Sather sued Michael Kenney, a prison director for the Nebraska Department of Correctional Services, pursuant to 42 U.S.C. § 1983 for violations of his First, Eighth, and Fourteenth Amendment rights. (Filing No. 1 at CM/ECF pp. 3-4.) Sather also alleged state law claims in his Complaint. (Id. at CM/ECF pp. 7-9.)

Sather filed three supplements to his Complaint. (See Filing Nos. 9, 12, and 14.) The court has reviewed the supplements and has considered them in its discussion of Sather’s claims. However, the court notes that much of Filing Number 14 (see Filing No. 14 at CM/ECF pp. 3-13) does not relate to Sather’s claims in this case.

Condensed and summarized, Sather alleged in his Complaint that he waited 86 days to be seen by a mental health provider while incarcerated at the Omaha Correctional Center. Once he was finally visited by a mental health provider, the provider prescribed Klonopin after only a 15-minute consultation. (Filing No. 1 at CM/ECF p. 7.) Sather also alleged that, on two occasions, his anti-depressant was “not available to him because [the medication was] not ordered by the medical staff.” (Id.)

Sather alleged that officers did not allow him to access a toilet on four separate occasions, once while he was incarcerated at the Omaha Correctional Center and three times while he was incarcerated at the Diagnostic and Evaluation Center. (Id. at CM/ECF p. 8.) As a result, Sather “soiled himself” on all four occasions because “he is incontinent and cannot control his bowel movements normally.” (Id.)

Finally, Sather alleged prison officials opened his legal mail without his permission and outside of his presence on more than one occasion. (Id. at CM/ECF p. 9.)

Sather set forth that Kenney “indirectly” participated in causing his injuries. (Id. at CM/ECF p. 2.) In a later-filed pleading, Sather also alleged he received a letter from Kenney on December 22, 2014, which Sather “construed as an alleged threat that if [Sather] were to follow through with this suit, his parole would or could be in jeopardy.” (Filing No. 14 at CM/ECF p. 2.) Sather did not describe the contents of the letter or why he believed it to be a threat.

For relief, Sather requests damages in the amount of $2, 000, 000. (Filing No. 1 at CM/ECF p. 5.) He also asks for changes to the “standard of care” within the Nebraska Department of Correctional Services. (Id.) Finally, he asks that criminal charges be brought against “the administration in question.” (Filing No. 12 at CM/ECF p. 1.)

II. STANDARDS ON INITIAL REVIEW

The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). 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).

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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