United States District Court, D. Nebraska
DAMON E. FITZGERALD, Plaintiff,
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, SCOTT FRAKES, sued in their official and individual capacities; et al.; Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
filed a Complaint on March 2, 2016. (Filing No. 1.)
He was given leave to proceed in forma pauperis. (Filing
No. 6.) On August 22, 2016, the court ordered Plaintiff
to file an amended complaint because his Complaint failed to
state a claim upon which relief may be granted. (Filing
No. 13.) On December 22, 2016, Plaintiff filed an
Amended Complaint. (Filing No. 20.) Now, the court
conducts review of Plaintiff's Amended Complaint.
Amended Complaint continues to fail to successfully allege
that Defendants were deliberately indifferent to his personal
health or safety. For example, Plaintiff alleges in his
Amended Complaint that he slipped on a puddle of water in his
cell and sustained bruises to his arm and hands from
attempting to catch himself on the sink and concrete.
(Filing No. 20 at CM/ECF p. 15.) He admits, however,
that the bruises were minor so he did not report them to
medical staff. (Id.) Plaintiff further alleges that
he attempted suicide on August 2013 by tying one end of his
shirt to the exposed bars of his cell and the other end
around his neck. (Id. at CM/ECF p. 10.) He
asphyxiated and was transported to the hospital.
(Id.) Plaintiff fails to allege that any Defendants
knew Plaintiff was suicidal, but disregarded, or were
deliberately indifferent to, his health and safety.
See Beaulieau v. Ludeman, 690 F.3d 1017,
1045 (8th Cir. 2012).
Amended Complaint continues to fail to successfully allege an
equal protection claim. He fails to allege that he was
treated differently than others who were similarly situated
to him, specifically, that he was treated differently than
others in the NSP Control Unit. See Klinger v.
Department of Corrections, 31 F.3d 727, 731 (8th Cir.
1994) (“Dissimilar treatment of dissimilarly situated
persons does not violate equal protection.”). It is not
enough that the segregation units in the different Nebraska
correctional facilities “have housed the same class of
inmates” or that the prisoners are “all under the
control of NDCS.” (See id. at CM/ECF pp.
19-20.) Various differences in the correctional facilities,
including security levels, the physical cells, and the
inmates themselves could reasonably account for any
differences in segregation units amongst the facilities.
Amended Complaint continues to fail to successfully allege
that Defendants violated his constitutional right of access
to the courts. Specifically, Plaintiff has suffered no actual
injury, as evidenced by his sixty-page Amended Complaint.
See Lewis v. Casey, 518 U.S. 343, 353 n. 3.
(1977) (the right is only violated if the prisoner has
suffered an “actual injury.”). Plaintiff cites to
Neb. Rev. Stat. § 83-4, 123 in support of his
allegations. (Filing No. 20 at CM/ECF p. 13.)
Section 83-4, 123 (West) is with regard to disciplinary
procedures in the correctional facilities and states:
Nothing in sections 83-4, 109 to 83-4, 123 shall be construed
as to restrict or impair an inmate's free access to the
courts and necessary legal assistance in any cause of action
arising under such sections or to judicial review for
disciplinary cases which involve the imposition of
disciplinary isolation or the loss of good-time credit in
accordance with the Administrative Procedure Act. Such
judicial review may only be invoked after completion of any
review of the hearing prescribed by section 83-4, 122 by the
Section 83-4, 123 is inapplicable here. This is not a review
of a disciplinary case under sections 83-4, 109 to 83-4, 123.
Amended Complaint continues to fail to successfully allege a
right to privacy claim. He alleges that inmates' privacy
in the NSP control unit shower area is not protected from
“direct and constant” view from female staff or
other inmates. (Filing No. 20 at CM/ECF p. 10.)
Plaintiff maintains that surveillance cameras on each gallery
provide a “direct, unobstructed, and continuous
view” of inmates nude in the showers. (Id.) He
claims that any staff member, including females, can access
the surveillance cameras from any office computer in the
facility through the “CCTV” network or view them
on a “4-way split screen” large monitor in the
sergeant's office. (Id.) Plaintiff also alleges
that staff, regardless of gender, must also physically
observe inmates in the shower. (Id.) He states that
Defendants “Kramer, Bean, and Gooding, ” all
female staff members, have watched him shower nude
“directly and without obstruction” on
“multiple occasions.” (Id. at CM/ECF pp.
2, 10, 18, 22.)
regard to his right to privacy claim, Plaintiff must allege
specific allegations as to him. “Mere
conclusory allegations will not suffice.” Wiggins
v. Lockhart, 825 F.2d 1237, 1238 (8th Cir. 1987).
Plaintiff fails to allege specific dates that others observed
him in the shower, either in person or via the surveillance
cameras. He fails to allege who surveilled him on the
cameras. He fails to allege the composition of the NSP
control unit shower area. He fails to allege specific facts
about Defendants Kramer, Bean, and Gooding's in-person
observations of him. He fails to allege that he cannot
position his body in such a way to minimize any invasion of
his privacy. See Turner v. Safley, 482 U.S.
78, 90 (1987) (a relevant factor is whether there is
“the availability of alternative means of exercising
the right at issue”). Plaintiff also fails to request
nominal damages. As the court explained to Plaintiff in its
previous order, even if he states a privacy claim upon which
relief may be granted, his recovery will be limited to
nominal and punitive damages against Defendants in their
individual capacities. (SeeFiling No. 13 at CM/ECF p.
THEREFORE ORDERED that:
Plaintiff's claims for monetary relief against the
Nebraska Department of Corrections and all other Defendants
in their official capacities are dismissed as barred by the
Plaintiff's claims for injunctive relief and declaratory
relief are dismissed as moot.
Plaintiff's claims regarding conditions of confinement,
equal protection, and access to the courts are dismissed
without prejudice for failure to state a claim.
Plaintiff shall file a second amended complaint by March 30,
2017, that states a right to privacy claim upon
which relief may be granted. Failure to file a second amended
complaint within the time specified by the court will result
in the court dismissing this case without further notice to
Plaintiff. The court warns Plaintiff that any second amended
complaint must comply with Federal Rule of Civil Procedure 8,
which requires that every complaint contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief” and that “each allegation . ...