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Deas v. Kohl

United States District Court, D. Nebraska

July 29, 2015

ROBERT DEAS, Plaintiff,
RANDY KOHL, et al., Defendants.


LAURIE SMITH CAMP, Chief District Judge.

This action was filed by Robert Deas ("Deas"). The court previously granted Deas permission to proceed in forma pauperis in this action. The court now conducts an initial review of the Amended Complaint[1] (Filing No. 9) to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.


Deas alleged he is a protective-custody-status inmate at the Tecumseh State Prison ("TSP") in Tecumseh, Nebraska. Liberally construed, he asserts Eighth and Fourteenth Amendment claims against numerous prison officials.

Deas complains both the prison's Clinical Violent Offender Review Team ("CVORT") and the Nebraska Board of Parole recommended that he participate in the prison's "Violence Reduction Program, " a program he cannot access from within protective custody at the TSP because it is offered at the Nebraska State Penitentiary. (Filing No. 9 at CM/ECF pp. 2, 8, 20.) He alleges he must sign out of protective custody in order to participate in this program. He complains that, by only offering the program to general-population inmates, prison officials are forcing him to choose between his safety and participation in a program that may increase the likelihood of his parole. ( Id. at CM/ECF pp. 2-3.)

Deas also alleged four of the named defendants-Defendants Gage, Broadfoot, Holley, and Frakes-were deliberately indifferent to his health and safety during a prison riot that occurred on May 10, 2015. He alleged they "allowed" prison staff to abandon their posts, and also "allow[ed] a[n] exterior door to be opened by central control giving general population full access to the protective custody units." ( Id. at CM/ECF p. 4.) Upon entering the protective-custody unit, the rioting inmates threatened protective-custody inmates and set two fires. Protective-custody inmates locked themselves in their cells and were forced to breathe smoke from the fires for eight to ten hours. ( Id. )

Deas seeks declaratory relief and money damages against Defendants in their individual and official capacities. He also seeks prospective injunctive relief in the form of an order requiring prison officials "to allow mandated mental health treatment to [Deas] and others similarly situated." ( 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, Deas 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, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).


A. Fourteenth Amendment Due ...

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