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Muhammad v. Busboom

United States District Court, D. Nebraska

May 31, 2016



          Richard G. Kopf Senior United States District Judge

         On April 29, 2016, the court entered an order in which the plaintiff, Iman Muhammed, formerly known as Daryle M. Duncan, was directed to file a second amended complaint that states a claim for relief against the defendant, Scott Busboom, in his individual capacity (Filing No.13). A second amended complaint was received and docketed by the clerk of the court on May 12, 2016 (Filing No. 14).

         The second amended complaint will be considered as supplemental to, rather than as superseding, the plaintiff’s first amended complaint (Filing No. 12). See NECivR 15.1. The first amended complaint will also be considered as supplemental to the original complaint (Filing No. 1), except that all claims alleged against the Tecumseh State Correctional Institution (“TSCI”), TSCI’s Medical Department, or Scott Busboom in his official capacity as Associate Warden at TSCI, are deemed to have been withdrawn by the plaintiff with the filing of the first amended complaint.


         The plaintiff alleges that while incarcerated at TSCI, he was sexually harassed and assaulted by two female staff members for a period of two years, as a result of which he requires mental health counseling and medication. The plaintiff indicates he did not report the acts because of intimidation, but alleges the defendant was aware that these staff members had engaged in inappropriate contact with other inmates and had not intervened.


         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. 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.” Id. at 849.


         An Eighth Amendment claim for failure to protect is comprised of two elements. First, an “inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1994).

         Second, the inmate must establish that the defendant prison official recklessly disregarded that risk. Jackson v. Everett, 140 F.3d 1149, 1151 (8th Cir. 1998). In other words, the prison official must be deliberately indifferent to an inmate’s safety. Farmer, 511 U.S. at 834.

         “[B]ecause the sexual harassment or abuse of an inmate by a corrections officer can never serve a legitimate penological purpose and may well result in severe physical and psychological harm, such abuse can, in certain circumstances, constitute the ‘unnecessary and wanton infliction of pain’ forbidden by the Eighth Amendment.” Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997) (internal quotation and citations omitted). “To prevail on a constitutional claim of sexual harassment, an inmate must therefore prove, as an objective matter, that the alleged abuse or harassment caused ‘pain’ and, as a subjective matter, that the officer in question acted with a sufficiently culpable state of mind. Id.“[W]elcome and voluntary sexual interactions, no matter how inappropriate, cannot as matter of law constitute ‘pain’ as contemplated by the Eighth Amendment. Id. at 1339 (holding that prisoner who entered into consensual relationship with guard had not established the existence of the objective component of a cause of action under the Eighth Amendment).

         The plaintiff was directed to file a second amended complaint because he had failed to allege any facts to show that his sexual contact with the two female TSCI staff members caused him “pain” as contemplated by the Eighth Amendment. Liberally construed, the second amended complaint cures this pleading deficiency and states a claim ...

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