United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
matter is before the court on the Motion to Dismiss brought
by Defendants Corporal Hurt (“Hurt”) and Officer
Kline (“Kline”). (Filing No. 69.) For the reasons
explained below, the motion will be granted, in part.
SUMMARY OF COMPLAINT
who is currently incarcerated at the Lincoln Correctional
Center in Lincoln, Nebraska, filed this action on September
25, 2013, alleging claims against Hurt, Kline, Steinbeck,
Bakewell, and Houston in both their individual and official
capacities. (Filing No. 1.)
Complaint alleges that on September 13, 2013, while he was
incarcerated at the Diagnostic and Evaluation Center, he
informed officer “Dixon” that another inmate
named “Harris” had threatened him. The next
morning, Plaintiff informed Hurt that Harris had threatened
to kill Plaintiff and that Harris had removed his shoelaces.
Later that day, Harris used the shoelaces to assault and
choke Plaintiff. During the assault, Harris bit Plaintiff,
injuring Plaintiff’s back, and Hurt sprayed Plaintiff
with mace. After the assault, Plaintiff was placed in
segregation and requested medical attention for his injuries
on three separate occasions. However, Plaintiff’s
requests were ignored.
alleges that Dixon had made arrangements for Plaintiff to be
moved into another cell prior to Harris’s attack, but
that Steinbeck prevented the move. Plaintiff claims that
Steinbeck and Hurt knew that Harris posed a threat to
Plaintiff’s safety, but failed to take measures to
further alleges that Hurt and Kline falsified their incident
reports regarding Harris’s assault. Plaintiff maintains
that Hurt and Kline have an established practice of treating
black inmates differently than white inmates.
April 15, 2014, the court conducted an initial review of
Plaintiff’s Complaint in accordance with 28 U.S.C.
§ 1915(e)(2). (See Filing No. 13.) The court determined
that Plaintiff’s monetary-damages claims against
Defendants in their official capacities were barred by the
Eleventh Amendment’s grant of sovereign immunity to the
states. (Filing No. 13 at CM/ECF p. 13.) The court found that
Plaintiff’s Eighth Amendment failure-to-protect and
deliberate indifference claims against Defendants in their
individual capacities could proceed to service of process.
February 23, 2015, Defendants filed a motion to dismiss
(Filing No. 39), arguing that Plaintiff’s state-law
claims were barred because Plaintiff did not allege that he
pursued administrative relief by filing a claim with the
State Tort Claims Board as required by Nebraska state law. On
July 20, 2015, the court granted Defendants’ motion, in
part, and dismissed Plaintiff’s state law claims
without prejudice. (Filing No. 46.)
Steinbeck, Bakewell, and Houston filed another motion to
dismiss on October 6, 2015. (Filing No. 56.) The court
granted the motion, in part, and dismissed Plaintiff’s
claims against Steinbeck alleging deliberate indifference to
medical needs and equal protection violations. (Filing No.
62.) The court also dismissed Bakewell and Houston from the
action. However, the court found that Plaintiff had managed
to state a plausible failure-to-protect claim against
only remaining claims in this action are Plaintiff’s
Eighth Amendment claim for failure-to-protect against
Steinbeck in his individual capacity, and Plaintiff’s
Eighth Amendment individual capacity claims against Hurt and
Kline. Because the court already determined that the
failure-to-protect claim can proceed against Steinbeck, ...