United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
matter is before the court on its own motion. On August 2,
2016, the court ordered Plaintiff to file an amended
complaint “asserting cognizable individual capacity
claims” against Defendants. (Filing No. 8 at CM/ECF
p. 6.) Plaintiff filed his Amended Complaint on
September 26, 2016. (Filing No. 13.) He filed a
“Supplemental Complaint” on November 7, 2016.
(Filing No. 15.) The court considers Plaintiff's
Amended Complaint and “Supplemental Complaint” as
supplemental to his original Complaint. NECivR 15.1(b)
(stating that in pro se cases, the court may consider an
amended pleading as supplemental to the original pleading,
rather than as superseding).
careful review of Plaintiff's Complaint, Amended
Complaint, and “Supplemental Complaint, ” the
court finds Plaintiff's retaliation claim against Shannon
Black (“Black”), Cindy Dykeman
(“Dykeman”), and Lisa Laurell
(“Laurell”) in their individual capacities may
proceed to service of process. Plaintiff contends that Black,
Dykeman, and Laurell threatened to send him to the Norfolk
Regional Center in response to his statements of intent to
file a grievance about Laurell's derogatory comments
about Native Americans. (Filing No. 13 at CM/ECF pp.
5-7.) The court cautions Plaintiff that this is only a
preliminary determination based on his allegations, and is
not a determination of the merits of his claims or potential
other claims against Defendants will be dismissed because
Plaintiff's allegations remain insufficient to state a
claim. Specifically, Plaintiff's additional allegation in
his Amended Complaint that Laurell stated during a phone call
with another individual, “I will bring this to the
pow-wow, ” (Filing No. 13 at CM/ECF p. 3),
still does not render Laurell's conduct pervasive or
severe enough to amount to racial harassment. See Blades
v. Schuetzle, 302 F.3d 801, 805 (8th Cir. 2002).
Plaintiff contends that Laurell moved him to a different
treatment group without notice in retaliation for his
complaints. Plaintiff does not explain how or why the new
treatment group was inferior to the one from which he was
removed. In addition, the court notes that Plaintiff
initially sought to be moved to a different treatment group
because of his distrust of Laurell. (Filing No. 13 at
CM/ECF p. 3.)
remaining allegations in his Amended Complaint and
“Supplemental Complaint, ” when liberally
construed, do not support a claim that state officials denied
him a reasonably safe environment. Plaintiff states that he
told Laurell in confidence that a member of his treatment
group “sexually acted out” with a roommate and
“always breaks boundaries with other patients.”
(Filing No. 13 at CM/ECF p. 5.) He contends that
Laurell revealed this confidential information to members of
his treatment group, which led to a confrontation between
Plaintiff and another group member. (Id. at CM/ECF
pp. 2-3.) In addition, he states that Marilyn Bailey provided
him with hair products that damaged his hair, which required
him to cut his hair in violation of Native American
tradition. (Id. at CM/ECF p. 10.) Finally, Plaintiff
alleges that he filed a grievance and complained about his
fellow patients use of racially discriminatory language.
(Filing No. 15 at CM/ECF pp. 2-5.) While these
alleged incidents are unfortunate, they do not state a claim
of constitutional dimension. There are no facts alleged to
suggest that Defendants were deliberately indifferent to a
known excessive risk to Plaintiff's safety. See
Elizabeth M. v. Montenez, 458 F.3d 779, 786 (8th Cir.
2006) (quoting Beck v. Wilson, 377 F.3d 884, 890
(8th Cir. 2004)) (elements to recover under § 1983 for a
breach of the constitutional duty to provide a
“reasonably safe environment”).
Plaintiff's allegations that any staff failed to respond
to his grievances and complaints do not state a violation of
Plaintiff's constitutional rights. See Merryfield v.
Jordan, 431 Fed.App'x 743, 749 (10th Cir. 2011)
(holding civilly-committed sex offender lacked any federal
constitutional right to an adequate grievance procedure);
see also Lomholt v. Holder, 287 F.3d 683, 684 (8th
Cir. 2002) (holding that allegations regarding actions of
prison officials in handling prisoner's grievances, and
regulating his access to his attorney, were insufficient to
state a constitutional claim); Buckley v. Barlow,
997 F.2d 494, 495 (8th Cir. 1993) (holding that inmates have
no “liberty interest” in the processing of their
grievances, such as would support § 1983 claim for
prison official's failure to pick up his completed
has filed a Motion (Filing No. 14) seeking the
appointment of counsel. The court cannot routinely appoint
counsel in civil cases. In Davis v. Scott, 94 F.3d
444, 447 (8th Cir. 1996), the Eighth Circuit Court of Appeals
explained that “[i]ndigent civil litigants do not have
a constitutional or statutory right to appointed counsel. The
trial court has broad discretion to decide whether both the
plaintiff and the court will benefit from the appointment of
counsel[.]” Id. (internal citation and
quotation marks omitted). No such benefit is apparent here at
this time. Thus, the request for the appointment of counsel
will be denied without prejudice to reassertion.
THEREFORE ORDERED that:
Plaintiff's retaliation claim against Black, Dykeman, and
Laurell in their individual capacities for their threats to
send him to the Norfolk Regional Center may proceed to
service of process. All other claims against all other
Defendants are dismissed for failure to state a claim.
clerk of the court is directed to send to Plaintiff a copy of
the Complaint, the Amended Complaint, the “Supplemental
Complaint, ” this Memorandum and Order, and three
summons forms, and three USM 285 Forms for service on
defendants Lisa Laurell, Shannon Black, and Cindy Dykeman in
their individual capacities. (See attached Notice Regarding
Federal Rule of Civil Procedure 4(m) requires service of the
complaint on a defendant within 90 days of filing the
complaint. However, Plaintiff is granted, on the court's
own motion, an extension of time until 90 days from the date
of this order to complete service of process.
requested to do so in this matter, the United States Marshal
will serve all process in this case without prepayment of
fees from Plaintiff. In making such a request, Plaintiff must
complete the USM 285 forms to be submitted to the clerk of
the court with the completed summons forms. Without these
documents, the United States Marshal will not serve process.
Upon receipt of the completed forms, the clerk of the court
will sign the summons forms and forward them to the United
States Marshal for service on the defendants, together with a
copy of the Complaint.
clerk of the court is directed to set the following pro se
case management deadline: April 19, 2017: check for
completion of service of process.
Plaintiff's Motion (Filing No. 14) seeking the
appointment of ...