United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge
Brian Frank Guerry (“Guerry”), currently an
inmate at the Omaha Correctional Center, was an inmate at the
Tecumseh State Correctional Center (“TSCI”)
during a prison riot that occurred at TSCI on May 10, 2015.
Guerry filed suit against Defendants Scott Frakes
(“Frakes”), Director of the Nebraska Department
of Correctional Services, Brian Gage (“Gage”),
Warden of TSCI, Chelsea Guiffre (“Guiffre”), a
unit manager, and Daniel Thompson (“Thompson”), a
case worker, in their individual capacities under 42
U.S.C. § 1983, alleging Eighth Amendment
failure-to-protect claims. (Filing No.
1.) Defendants have moved for judgment on the
pleadings pursuant to Fed. R. Civ. P. 12(c) on the
basis of qualified immunity. (Filing Nos. 41,
42.) For the reasons that follow, the court will
deny Defendants' Motion without prejudice to reassertion
in a motion for summary judgment.
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 from gangs within general population based on
an assault he suffered from them in 2013. (Filing No. 1
at CM/ECF p. 4.)
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 Guiffre and Thompson. Plaintiff alleges Guiffre
and Thompson remotely opened some cell doors in the unit, but
not others. Plaintiff's cell door was among those opened.
exited his cell and called out for help, but Guiffre and
Thompson were no longer in the control bubble. (Id.)
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, Guiffre and Thompson had unlocked the door to the
“Bigger fence in area yard, ” which allowed
general-population inmates, including gang members, to enter
the unit. (Id. at CM/ECF pp. 5, 13.) For the next
nine or so hours, general population inmates entered the
protective-custody unit, harassed protective-custody inmates,
and started fires. The general population inmates had access
to the control bubble. During this time, Plaintiff and ten
other inmates locked themselves into a cell. Plaintiff
alleges he suffered approximately 10 hours of smoke
inhalation. (Id. at CM/ECF pp. 6-7.) Law enforcement
arrived at approximately 2:00 a.m. the following morning and
provided assistance. (Id. at CM/ECF p. 7.)
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. (Id.)
filed grievances with prison officials. (Id. at
CM/ECF pp. 17-20.) The following response is attached to
You contend while housed at Tecumseh State Correctional
Institution (TSCI) that during the May 10, 2015 TSCI
disturbance, TSCI staff failed to protect Protective Custody
inmates by abandoning their posts and leaving Protective
Custody inmates to be victimized by General Population
inmates. During the time period you mention in your
Grievance, TSCI staff was busy working through a significant
emergency situation. TSCI inmate and staff safety was an area
of primary concern during the entire period surrounding the
May 10, 2015 disturbance. The May 10, 2015 TSCI disturbance
ultimately impacted all aspects of facility operations in
some way. TSCI staff made every effort to provide the best
environment possible considering the circumstances and
difficulties created by the May 10, 2015 incident.
(Id. at CM/ECF p. 20.)
STANDARD OF REVIEW
on the pleadings is appropriate where no material issue of
fact remains to be resolved and the movant is entitled to
judgment as a matter of law.” Minch Family LLLP v.
Buffalo-Red River Watershed Dist., 628 F.3d 960, 965
(8th Cir. 2010) (citing Faibisch v. Univ. of Minn.,
304 F.3d 797, 803 (8th Cir. 2002)). This is the same standard
used to address a motion to dismiss for failure to state a
claim under Rule 12(b)(6). Ashley Cnty., Ark. v. Pfizer,
Inc., 552 F.3d 659, 665 (8th Cir. 2009).
survive a motion to dismiss, the factual allegations in a
complaint, assumed true, must suffice “to state a claim
to relief that is plausible on its face.” Northstar
Indus., Inc. v. Merrill Lynch & Co., 576 F.3d 827,
832 (8th Cir. 2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A complaint must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Although a complaint need not
include detailed factual allegations, “a
plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” C.N. v. Willmar Pub.
Sch., Indep. Sch. Dist. No. 347, 591 F.3d 624, 629-30
(8th Cir. 2010) (quoting Twombly, 550 U.S. at 555).
Instead, the complaint must set forth “enough facts to
state a claim to relief that is plausible on its face.”
Id. at 630 (citing Twombly, 550 U.S. at
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.” Ritchie v. St. Louis Jewish Light,630 F.3d 713, 716 (8th Cir. 2011) (quoting Ashcroft v.
Iqbal,556 U.S. 662, 678 (2009)) (internal quotation
marks omitted). “Courts must accept ... specific
factual allegations as true but are not required to accept
... legal conclusions.” Outdoor Cent., Inc. v.
GreatLodge.com, Inc.,643 F.3d 1115, 1120 (8th Cir.
2011) (quoting Brown v. Medtronic, Inc., 628 F.3d
451, 459 (8th Cir. 2010)) (internal quotation marks omitted).
When ruling on a defendant's motion to dismiss, a judge
must rule “on the assumption that all the allegations
in the complaint are true, ” and “a well-pleaded
complaint may proceed even if it strikes a savvy judge that
actual proof of those facts is improbable, and ‘that a
recovery is very remote and unlikely.'”
Twombly, 550 U.S. at ...