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Guerry v. Frakes

United States District Court, D. Nebraska

September 15, 2016

BRIAN FRANK GUERRY, Plaintiff,
v.
SCOTT FRAKES, BRIAN GAGE, KEITH BROADFOOT, R HOLLY, GUIFFE, THOMPSON, and NEBRASKA DEPARTMENT OF CORRECTIONS AGENCY, Defendants.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the court on Defendants' Motion to Dismiss. (Filing No. 24.) For the reasons discussed below, Defendants' Motion will be granted, in part.

         I. BACKGROUND

         Plaintiff brought this case against the “Nebraska Department of Corrections Agency” (“Department”), as well as several prison officials for alleged violations of his constitutional rights. In his Complaint, Plaintiff also alleges state-law negligence claims against the prison-official defendants. The prison officials are sued in their official and individual capacities.

         Plaintiff alleges he resided in the protective custody unit of the Tecumseh State Correctional Institution (“TSCI”) on May 10, 2015. Plaintiff 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, Plaintiff 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. Plaintiff alleged Guiffe and Thompson remotely opened some cell doors in the unit, but not others. Plaintiff's cell door was among those opened. (Filing No. 1 at CM/ECF p. 4.)

         Plaintiff 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, Plaintiff and ten other inmates locked themselves into a cell. Plaintiff 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.)

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

         Plaintiff complains he suffered 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. Plaintiff seeks declaratory, injunctive, and monetary relief in this matter. (Filing No. 1 at CM/ECF pp. 13-16.)

         On February 22, 2016, the court conducted an initial review of the Complaint pursuant to 28 U.S.C. §§ 1915(e) and 1915A. (Filing No. 13.) The court concluded that Plaintiff had stated plausible Eighth Amendment failure-to-protect claims against Guiffre, Thompson, Frakes, and Gage. The court allowed those claims and Plaintiff's state law negligence claims to proceed to service of process on these Defendants in their individual and official capacities.

         II. DISCUSSION

         Defendants have moved to dismiss this case pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. A complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face in order to survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible when a plaintiff pleads facts that allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Pro se complaints “must be liberally construed, and pro se litigants are held to a lesser pleading standard than other parties.” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 849 (8th Cir. 2014) (internal quotation marks and citations omitted).

         To state a claim under § 1983, Plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under the color of state law. West v. Atkins,487 U.S. 42, 48 (1988). Plaintiff alleges that ...


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