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Hernandez v. Frakes

United States District Court, D. Nebraska

February 29, 2016

MICHAEL A. HERNANDEZ, Plaintiff,
v.
SCOTT FRAKES, K. J. HUTCHINSON, STEVE ELMSHAEUSER, DAVE EUBANKS, KEN HART, and TRAVIS P. O’GORMAN, Defendants.

MEMORANDUM AND ORDER

Richard G. Kopf Senior United States District Judge.

This matter is before the court on initial review of Plaintiff Michael Hernandez’s Complaint (Filing No. 1) and his proposed Amended Complaint (Filing No. 8-1). See 28 U.S.C. §§ 1915(e)(2) and 1915A. For the reasons that follow, the court finds Hernandez’s pleadings do not state any claims on which relief may be granted. However, the court will allow Hernandez to file an amended complaint.

I. COMPLAINT AND PROPOSED AMENDED COMPLAINT

Hernandez is incarcerated at the Tecumseh State Prison in Tecumseh, Nebraska. He purports to raise claims under state law and also 42 U.S.C. §§ 1981, 1983, and 1985. (Filing No. 1 at CM/ECF pp. 4, 8.) He has sued his prison’s director, Scott Frakes, and also various individuals involved in the criminal proceedings underlying his present confinement, including K. J. Hutchinson, Steve Elmshaeuser, Dave Eubanks, Ken Hart, Len Tabor, and Travis O’Gorman.

Hernandez raised three classes of claims in this action, which appear to be unrelated. First, he alleged Frakes failed to “correct prison over-crowding.” (Filing No. 8-1 at CM/ECF p. 6.) This failure led to a prison riot and a subsequent “lock down” period. Hernandez claims he suffered from smoke inhalation during the riot, and injuries to his knees and hips during the subsequent “lock down” period. (Filing No. 1 at CM/ECF p. 4; Filing No. 8-1 at CM/ECF p. 6.)

Second, Hernandez generally alleged Hutchinson, Elmshaeuser, Eubanks, Hart, Tabor, and O’Gorman conspired against him to ensure he was convicted of a crime. He believes they did so in retaliation for a civil suit he filed in federal court seeking to “enforce equal protection” for Sioux Indians in Box Butte County, Nebraska. (Filing No. 8-1 at CM/ECF pp. 7-8; see also Filing No. 1 at CM/ECF pp. 5-6.)

Third, he alleged his prison’s librarian refuses to copy case law, statutes, or exhibits for him. In addition, prison officials only allow him to spend one hour per week in the law library. (Filing No. 8-1 at CM/ECF p. 9.)

For relief in this case, Hernandez asks for $13, 000, 000 in damages. (Filing No. 1 at CM/ECF p. 8.)

II. STANDARDS ON INITIAL REVIEW

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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