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Wabashaw v. Gage

United States District Court, D. Nebraska

August 3, 2015

BRIAN GAGE, et al., Defendants.


JOHN M. GERRARD, District Judge.

This matter is before the court on review of Plaintiff Elroy Wabashaw's ("Wabashaw") Amended Complaint (Filing No. 10). For the reasons discussed below, the court will dismiss Wabashaw's federal-law claims with prejudice and his state-law claims without prejudice.


The court conducted a pre-service screening of Wabashaw's Complaint (Filing No. 1) and Supplement (Filing No. 8) on February 18, 2015. ( See Filing No. 9.) The court determined Wabashaw had alleged retaliation claims and Eighth Amendment failure-to-protect and deliberate-indifference claims against the defendants, but that the allegations failed to state a claim upon which relief may be granted. On the court's own motion, the court gave Wabashaw 30 days in which to file an amended complaint.

Wabashaw filed his Amended Complaint (Filing No. 10) on March 18, 2015. His allegations were similar to those raised in his Complaint and Supplement, but he provided additional facts for the courts review. He alleged that on March 16, 2014, he filed a grievance with prison officials complaining about the general treatment of prisoners housed in the special management unit. ( Id. at CM/ECF pp. 5, 10.) Months later, on June 4, 2014, an inmate from a different housing unit bypassed "two secured doors, a control room officer, [and] pod caseworkers undetected" and assaulted Wabashaw. ( Id. at CM/ECF p. 5.) Wabashaw alleged Defendant Horn was in charge of controlling the pod doors at the time of the assault, and Defendants Stranberg and Zweig "were in charge of unit pod floor operations" at the time of the assault. ( Id. at CM/ECF p. 6.) Wabashaw alleged he suffered from the following clearly-observable injuries: "fractured hand; broken left front tooth; light concussion; deep bruise to leftside of face; lower jaw; [and] chemical burns." ( Id. ) Wabashaw alleged he waited nine days to receive "adequate medical attention." ( Id. )

Finally, Wabashaw alleged that on July 18, 2014, prison officials (specifically, Defendants Capps and Halley) forced him into protective custody against his will. ( Id. ) At the time he filed his Amended Complaint, Wabashaw remained in protective custody. He alleged prison officials offered him "no credible documents" to support their decision to place him in protective custody. ( Id. )


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 v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).


A. Retaliation Claims

The first question the court will consider is whether Wabashaw alleged a retaliation claim against one or more defendants upon which relief may be granted. To establish a § 1983 claim for retaliation in ...

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