United States District Court, D. Nebraska
CHARLES A. FILHIOL, Plaintiff,
SCOTT FRAKES, NDocs Director; ANY UNKNOWN NDOCS EMPLOYEES INVOLVED IN MY CLASSIFICATION PROCESS AT NDOCS, ANY AND ALL UNKNOWN MEDICAL STAFF AWARE OF MY CURRENT MEDICAL CONDITIONS WHO WORK FOR OR ARE CONTRACTED THROUGH THE NDOCS, and ANY AND ALL UNKNOWN HALL COUNTY NEBRASKA CORRECTIONS STAFF AND MEDICAL STAFF AND ADMINISTRATORS INVOLVED IN THIS CLAIM, Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
filed his Complaint on October 11, 2016. (Filing No.
1.) He has been given leave to proceed in forma
pauperis. (Filing No. 6.) Plaintiff filed a
Supplement to his Complaint. (Filing No. 17.) The
court now conducts an initial review of Plaintiff's
Complaint and Supplement to determine whether summary
dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
time of his Complaint, Plaintiff was a prisoner at the
Diagnostic and Evaluation Center (“D&E”) in
Lincoln, Nebraska. (Filing No. 1 at CM/ECF p. 3.) He
is now a prisoner at a facility in McCook, Nebraska.
(Filing No. 15.) Plaintiff identifies no individual
defendants in his Complaint other than Scott Frakes, Director
of the Nebraska Department of Correctional Services
(“NDCS”). (Filing No. 1 at CM/ECF pp.
asserts that a NDCS case manager classified him to the
“county program” despite staff at D&E being
aware of his chronic, severe asthma. (Id. at pp.
5-6.) Plaintiff alleges that he was subsequently placed at
the Hall County Jail where another inmate assaulted him on
September 3, 2016. (Id. at CM/ECF p. 6.) Plaintiff
claims that he suffered severe burns to his body and asthma
attacks from the assault. (Id.) He admits that Hall
County Jail took him to the emergency room that same day.
(Id.) He alleges, however, that he was not provided
his inhaler and that he was placed in segregation from
September 3rd to September 7th without
additional treatment. (Id.) Plaintiff states that
Hall County Jail did not contact NDCS about the assault until
September 7th. (Id.) He states that NDCS
took him to a burn hospital, where he was treated from
September 8th until September 13th.
(Id.) Plaintiff claims that he had several asthma
attacks at Hall County Jail, and he was not allowed to carry
his inhaler on him. (Filing No. 17 at CM/ECF p. 2.)
seeks monetary damages against unknown NDCS and Hall County
Jail employees. (Filing No. 1 at CM/ECF p. 6.) He
seeks damages against Frakes for “instituting and
carr[y]ing out” an “illegal policy” of
placing “convicted and state committed prisoners”
into county jails due to overcrowding. (Id.)
Plaintiff also would like microwaves banned from the prison
facility and inmates denied access to cleaning chemicals.
(Filing No. 17 at CM/ECF p. 1.)
APPLICABLE STANDARDS OF REVIEW ON INITIAL REVIEW
court is required to review prisoner and in forma pauperis
complaints seeking relief against a governmental entity or an
officer or employee of a governmental entity to determine
whether summary dismissal is appropriate. See 28
U.S.C. §§ 1915(e) and 1915A. 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); 28 U.S.C. § 1915A(b).
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.”).
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
Hopkins v. 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
lesser pleading standard than other parties.”
Topchian, 760 F.3d at 849 (internal quotation marks
and citations omitted).
construed, Plaintiff here alleges federal constitutional
claims. To state a claim under 42 U.S.C. § 1983, a
plaintiff must allege a violation of rights protected by the
United States Constitution or created by federal statute and
also must show that the alleged deprivation was caused by
conduct of a person acting under color of state law. West
v. Atkins, 487 U.S. 42, 48 (1988); Buckley v.
Barlow, 997 F.2d 494, 495 (8th Cir. 1993).
court understands that Plaintiff asserts Eighth Amendment
claims of deliberate indifference to his serious medical
needs. However, Plaintiff's claims primarily fail because
he does not identify any personal involvement by any
individual. See Ellis v. Norris, 179 F.3d 1078, 1079
(8th Cir. 1999) (stating that prisoner must allege
defendants' personal involvement or responsibility for
the constitutional violations to state a § 1983 claim);
see also Martin v. Sargent, 780 F.2d 1334,
1337 (8th Cir. 1985) (“Although it is to be liberally
construed, a pro se complaint must contain specific facts
supporting its conclusions.”). The court cannot analyze
Plaintiff's claims without knowing who they are against
and each individual's personal involvement. His
conclusory allegations against Frakes are insufficient.
See Keeper v. King, 130 F.3d 1309, 1314
(8th Cir. 1997) (finding that general responsibility for
supervising operations of prison is insufficient to establish
personal involvement required to support liability).
court will permit Plaintiff to amend his Complaint to state a
claim upon which relief may be granted. Plaintiff is warned
that an amended complaint will supersede, not supplement, his
Complaint and Supplement. Plaintiff is also warned that he
has no constitutional right to be housed in any particular
prison or to receive a particular classification.
SeeOlim v. Wakinekona, 461 U.S. 238, 245,
(1983); Moody v. Daggett, 429 U.S. 78, 88 n. 9
(1976). Allegations suggesting that staff acted negligently
or refused to follow Plaintiff's requested course of
treatment are also insufficient to support an Eighth
Amendment claim. SeeEstelle v. Gamble, 429
U.S. 97, 106 (1976) (holding that mere negligence or medical
malpractice are insufficient to rise to a constitutional