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Kosiski v. Frakes

United States District Court, D. Nebraska

January 30, 2017



          Richard G. Kopf Senior United States District Judge

         Plaintiff filed his Complaint on July 13, 2016. (Filing No. 1.) Plaintiff was given leave to proceed in forma pauperis. (Filing No. 11.) On October 11, 2016, the court ordered Plaintiff to file an amended complaint because his Complaint failed to comply with Rule 8 of the Federal Rules of Civil Procedure. (Filing No. 12.) The court advised Plaintiff that his amended pleading will supersede, rather than supplement, his Complaint. (Id.) On November 9, 2016, Plaintiff filed an Amended Complaint. (Filing No. 13.) Now, the court conducts review of Plaintiff's Amended Complaint.


         Plaintiff was convicted of attempted first degree sexual assault of a child. (Filing No. 13 at CM/ECF p. 3.) He is incarcerated with the Nebraska Department of Correctional Services (“NDCS”) at the Omaha Correctional Center (“OCC”). (Id. at CM/ECF p. 2.) Plaintiff has named as Defendants three individuals employed with NDCS: Director Scott R. Frakes (“Frakes”), Warden Barbara Lewien (“Lewien”), and Paul Rodriguez (“Rodriguez”). (Id.) All Defendants are sued in their individual and official capacities. (Id. at CM/ECF p. 3.)

         Plaintiff alleges that Defendants, despite his repeated requests, denied him structured programming prior to his first parole eligibility date in violation of due process and state law. (Id. at CM/ECF pp. 3-5, 10.) He admits that he eventually received a recommendation from the Clinical Sex Offender Review Team (“CSORT”) to participate in the Outpatient Healthy Lives Program (“oHeLP”). (Id. at CM/ECF pp. 3, 5.) Plaintiff began treatment through oHeLP at OCC in January 2016. (Id. at CM/ECF p. 6.)

         Plaintiff alleges that, upon completing the first phase of oHeLP, he requested a progress evaluation from Dr. Kirk A.B. Newring, a former employee of NDCS, because his program facilitators denied his request. (Id.) In a report dated March 15, 2016, Dr. Newring opined that Plaintiff is “not in need of further sexual offense behavior specific treatment, though he is recommended for a Continuing Care/Aftercare level of service.” (Id. at CM/ECF p. 24.) Plaintiff states that one of his facilitators told him on April 6, 2016, that he was “doing well” and that the facilitators would “see what we can do to get you moved up to Phase II.” (Id. at CM/ECF p. 7.)

         In a letter dated April 28, 2016, Rodriguez advised Plaintiff that CSORT reviewed his treatment progress on April 20, 2016, and determined that Plaintiff would be placed on probation. (Id. at CM/ECF pp. 7, 25.) Plaintiff alleges that Rodriguez is the Sex Offender Services Clinical Program Manager and the CSORT Chairperson. (Id. at CM/ECF pp. 2-3.) Plaintiff's probation began April 28, 2016, and remained in effect for approximately sixty days. (Id. at CM/ECF p. 26.) Plaintiff alleges that Rodriguez placed him on probation without procedural due process. (Id. at CM/ECF pp. 8, 11.)

         Plaintiff contends that he told “Mental Health at OCC” on July 18, 2016, that he was contemplating a lawsuit. (Id. at CM/ECF p. 7.) In a letter dated July 22, 2016, Rodriguez informed Plaintiff that CSORT determined on June 17, 2016, that his treatment outcome was “Unsatisfactory Progression and Termination.” (Id. at CM/ECF p. 27.) Plaintiff states that he “made every effort to comply with the expectations and directives given him during his participation in oHeLP, including during probation, to the best of his ability.” (Id. at CM/ECF p. 7.) He alleges that Defendants terminated his programming without procedural due process. (Id. at CM/ECF pp. 8, 11.) Plaintiff claims that Rodriguez terminated him in retaliation for his possible lawsuit and for his favorable evaluation from Dr. Newring after facilitators denied his request. (Id. at CM/ECF pp. 8-9, 11.) He maintains that Rodriguez backdated his termination date from oHeLP to June 17, 2016, a date prior to filing his Amended Complaint. (Id. at CM/ECF p. 11.)

         Plaintiff alleges that he has been denied parole and transfer to “Community custody” because of his termination from oHeLP and because of his “program needs.” (Id. at CM/ECF pp. 9-10.) He also claims that he has been denied transfer and “a favorable recommendation” for parole because he is a sex offender. (Id. at CM/ECF p. 10.) Plaintiff alleges that, despite their lack of treatment, other similarly-situated inmates have received transfers to “Community custody” and been granted parole after favorable recommendations from CSORT. (Id. at CM/ECF p. 10.) He states that a sex offender was granted parole in August after refusing all treatment recommended by CSORT. (Id.)

         Plaintiff seeks a declaratory judgment, injunctive relief, and monetary damages. (Id. at CM/ECF pp. 1, 12-14.)


         The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). 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).

         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 Hopkinsv. 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 ...

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