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Guerry v. Frakes

United States District Court, D. Nebraska

February 22, 2016




This matter is before the court on initial review of Plaintiff Brian Guerry’s Complaint. (Filing No. 1.) For the reasons discussed below, the court will allow this case to proceed to service of process against Defendants Scott Frakes, Brian Gage, and the individuals identified as Guiffe and Thompson.


Guerry brings this case against six prison officials under 42 U.S.C. § 1983 for violations of his constitutional rights. Guerry also alleges state-law negligence claims against the prison-official defendants.

Guerry alleged he resided in the protective custody unit of the Tecumseh State Correctional Institution (“TSCI”) on May 10, 2015; specifically, he resided in housing unit 2C, cell 1 (“cell 2-C-1”). Guerry claims he resided in the protective custody unit because he is a sex offender and fears violence at the hands of gangs within general population.

At approximately 4:00 p.m. on this date, Guerry began to suffer from smoke inhalation. He called officers in the unit’s “control bubble” for help. At this time, the control bubble was staffed by three jail officials, including Defendants Guiffe and Thompson. Guerry alleged Guiffe and Thompson remotely opened some cell doors in the unit, but not others. Guerry’s cell door was among those opened. (Filing No. 1 at CM/ECF p. 4.)

Guerry exited his cell and called out for help, but Guiffe and Thompson were no longer in the control bubble. (Filing No. 1 at CM/ECF p. 4.) He proceeded to go to the “small yard, ” where prison staff had instructed protective-custody inmates to go during a fire, but the door to the small yard was locked. Instead, Guiffe and Thompson had unlocked the door to the “Bigger fence in area yard, ” which allowed general-population inmates to enter the unit. (Filing No. 1 at CM/ECF p. 5.) For the next nine or so hours, general population inmates entered the protective-custody unit, harassed protective-custody inmates, and started fires. During this time, Guerry and ten other inmates locked themselves into a cell. Guerry alleged he suffered approximately 10 hours of smoke inhalation. (Filing No. 1 at CM/ECF pp. 6-7.) Law enforcement arrived at approximately 2:00 a.m. the following morning and provided assistance. (Filing No. 1 at CM/ECF p. 7.)

Guerry alleged prison staff returned him to cell 2-C-1 immediately, and did not treat him for smoke inhalation. Following the prison riot, Guerry “ask[ed] for days to be seen by medical, ” but he was advised there would be no inmate movement. Finally, on June 3, 2015, Guerry received medical attention. (Filing No. 1 at CM/ECF p. 7.)

Guerry complains he suffered from various injuries as a result of the prison riot. He alleges his injuries were a result of Frakes’ and Gage’s negligence, deliberate indifference, and failure to train Guiffe and Thompson. In addition, he alleges Guiffe and Thompson were deliberately indifferent to a known risk of serious harm when they abandoned their post in the control bubble during the riot. Guerry seeks declaratory, injunctive, and monetary relief in this matter. (Filing No. 1 at CM/ECF pp. 13-16.)


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. We ...

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