United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
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).
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have been withdrawn by the plaintiff with the filing of the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.
SUMMARY OF SECOND AMENDED COMPLAINT
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.
STANDARDS ON INITIAL REVIEW
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).
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.
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).
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
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).
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 ...