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Franklin v. Frakes

United States District Court, D. Nebraska

May 11, 2017

SCOTT FRAKES, Director, In his Individual and Official Capacity; DIANE SABATKA-RINE, Deputy Director, In her Individual and Official Capacity; FRED BRITTEN, Warden, In his Individual and Official Capacity; BRAD HANSEN, Warden, In his Individual and Official Capacity; et al.; Defendants.


          Richard G. Kopf Senior United States District Judge

         Plaintiff filed a Complaint on October 17, 2016. (Filing No. 1.) He has been given leave to proceed in forma pauperis. (Filing No. 7.) 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. 9.) The court now conducts review of Plaintiff's Amended Complaint (Filing No. 19).

         I. BACKGROUND

         This case is essentially a continuation of Franklin v. Kenney, et al., 4:14CV3243 (D. Neb. 2014). In Franklin, the American Civil Liberties Union Foundation - Nebraska filed suit on behalf of Plaintiff against several prison officials for multiple assaults Plaintiff suffered from members of the Peckerwoods prison gang while confined at the Nebraska State Penitentiary (“NSP'). (Filing Nos. 1, 28, 4:14CV3243.) Plaintiff alleged that the defendants committed both federal constitutional and state law violations. (Id.) In response, the defendants filed a summary judgment motion arguing that Plaintiff failed to (1) comply with the Nebraska State Tort Claims Act and (2) exhaust his administrative remedies pursuant to the Prison Litigation Reform Act. (Filing Nos. 41, 42, 4:14CV3243.) Plaintiff subsequently filed a motion to dismiss the case without prejudice. (Filing No. 48, 4:14CV3243.) The court granted Plaintiff's motion to dismiss and denied the defendants' summary judgment motion as moot. (Filing No. 49, 4:14CV3243.)


         Plaintiff is a prisoner currently confined at the Diagnostic Evaluation Center (“DEC”)[1] in Lincoln, Nebraska. He names in his Complaint multiple defendants including the previous and current directors of the Nebraska Department of Correctional Services (“NDCS”) as well as wardens, deputy wardens, unit administrators, unit managers, case managers, and unidentified John Does employed at various correctional facilities within NDCS. (Filing No. 19 at CM/ECF pp. 2-15.) Plaintiff sues Michael L. Kenney and Mario Peart solely in their individual capacities, and the rest of Defendants in their official and individual capacities. (Id.)


          In October of 2012, Anthony Stranghoener (“Stranghoener”), another inmate and a member of the Peckerwoods prison gang, assaulted Plaintiff at the Sarpy County Jail. (Filing No. 19 at CM/ECF p. 19.) Plaintiff suffered a broken jaw, an orbital fracture, and a detached retina from the assault. (Id.) On November 20, 2012, Franklin was transferred to DEC. (Id. at CM/ECF p. 20.) Plaintiff alleges that he alerted DEC Assistant Warden Rine[2] (“Rine”), DEC Warden Dennis Bakewell (“Bakewell”), and John Does 1-4[3] about the assault and his fear of the Peckerwoods. (Id. at CM/ECF pp. 20-21.) He alleges that he was assured by staff at DEC that he and Stranghoener would be placed on “central monitoring” in order to keep Stranghoener away from Plaintiff. (Id. at CM/ECF p. 21.) Central monitoring, according to Plaintiff, is “the internal inmate tracking system that NDCS uses to identify which inmates may be assigned to which facilities based on the nature of their crime and any known conflicts with other inmates.” (Id.)

         In February of 2013, Plaintiff was transferred to NSP, where he was assaulted again by Stranghoener and other members of the Peckerwoods in April of 2013. (Id. at CM/ECF pp. 21-22.) Plaintiff returned to DEC in May of 2013, due to his parole revocation, where he expressed his fear of the Peckerwoods to Rine and DEC Warden Fred Britten (“Britten”)[4]. (Id. at CM/ECF pp. 22-23.) Plaintiff alleges that he advised them that he feared being transferred to NSP or to the Tecumseh State Correctional Institution (“TSCI”) because of Stranghoener and the Peckerwoods presence at those facilities. (Id.) Plaintiff asserts that Britten responded, “You will not be classified at NSP or TSCI.” (Id. at CM/ECF p. 23.) However, Plaintiff was transferred to NSP on December 31, 2013, where he was assaulted nine days later by a member of the Peckerwoods, Jason Warrington. (Id.) Plaintiff suffered a head injury and cervical strain from the assault. (Id.) Plaintiff was treated at the medical clinic at DEC, where he again expressed his fears to Rine, Britten, and John Does 1-4. (Id. at CM/ECF pp. 23-24.) On May 14, 2014, Plaintiff was assaulted again upon his return to NSP. (Id. at CM/ECF p. 24.)

         Plaintiff alleges that the inmate populations of DEC and NSP were overcrowded by specific percentages during this period of time. (Id. at CM/ECF pp. 21-24.) He asserts that Bakewell/Britten, Rine, and/or John Does 1-4 failed to notify NSP of his central monitoring “and/or Warden Sabatka-Rine and/or Does 5-8 to take the appropriate actions to ensure Plaintiff's safety.” (Id. at CM/ECF pp. 21-22, 23.) Plaintiff alleges that he notified Sabatka-Rine, upon his transfer to NSP in February of 2013, of his central monitoring and about his safety concerns. (Id. at CM/ECF p. 8.)

         On July 15, 2015, Plaintiff was transferred to the Omaha Correctional Center (“OCC”). (Id. at CM/ECF p. 25.) Plaintiff alleges that he expressed his concerns and fears of being placed in general population with members of the Peckerwoods to “the second shift supervisor, ” Case Manager McClyment, and Unit Administrator Weiss. (Id. at CM/ECF pp. 25-26.) However, on July 17, 2015, Plaintiff was placed in general population at OCC. (Id. at CM/ECF p. 25.) On August 21, 2015, Plaintiff was assaulted by a member of the Peckerwoods. (Id.)

         Sexual Assault

         In October of 2015, Plaintiff was transferred to the Lincoln Correctional Center (“LCC”), where he was placed in the protective custody housing unit. (Id. at CM/ECF p. 27.) Plaintiff alleges that he was placed in a cell with a four-time convicted sex offender, who sexually assaulted Plaintiff on October 28, 2015. (Id.) Plaintiff, thereafter, was forced to return to the protective housing unit at LCC despite his refusal. (Id. at CM/ECF pp. 27-28.) He claims other inmates extorted him after they found out about the sexual assault and that staff failed to place those inmates on central monitoring. (Id. at CM/ECF pp. 27, 29.) Plaintiff alleges that he inquired why he had to return to the unit where he feared for his safety, and Deputy Warden Heckman informed him “that is the way it works. We do not have enough RHU beds to house everyone that fears for their safety. We will work with you to separate you from those you fear on A-Unit.” (Id. at CM/ECF pp. 27-28.)


         Plaintiff alleges that he experiences vision and memory issues, pain, and emotional distress and nightmares from the assaults. (Id. at CM/ECF pp. 24, 37) He also physically suffers from neck pain and migraines. (Id. at CM/ECF p. 29.) On December 4, 2015, at his request, “medical” restarted propranolol and Excedrin for Plaintiff. (Id. at CM/ECF p. 28.) On December 15, 2015, Plaintiff asked medical to see a doctor because of neck pain and because his migraines were causing dizziness and “blackouts.” (Id.) Medical responded “sick call to be scheduled.” (Id.) On December 22, 2015, Plaintiff sent another request to medical because of his “neck problems” and his worsening migraines. (Id.) Medical responded that he was on the schedule. (Id.) Because he had yet to be seen, Plaintiff sent another request on January 1, 2016. (Id.) Medical staff responded, “scheduled, ” on January 28, 2016. (Id.) On February 26, 2016, an MRI or CAT scan was performed on Plaintiff's head and, as of that date, doctors were waiting to review it. (Id. at CM/ECF p. 29.)

         Plaintiff claims that, on April 6, 2016, he was rescheduled for a sick call at LCC due to staff shortage.[5] (Id. at CM/ECF p. 31.) According to Plaintiff, he had serious medical problems that he needed to see medical staff about that day, including neck pain and severe migraines. (Id.) LCC Unit Manager Tan denied Plaintiff's subsequent “emergency” grievance, finding that Plaintiff was not in immediate danger of being “subjected to substantial risk of personal injury or serious irreparable harm.” (Id.) Plaintiff states that was not the only time that he and other inmates were rescheduled to see medical due to staff shortage. (Id.)

         In an apparent effort to rectify the exhaustion requirement from Case No. 4:14CV3243, Plaintiff alleges that he presented all of his complaints through the grievance procedure. (Id. at CM/ECF p. 17.) His allegations are replete with his “requests” and grievances to prison officials about the foregoing issues. (Id. at CM/ECF pp. 19-31.) Condensed and summarized, Plaintiff alleges that Defendants violated his rights through the following: failure to protect; failure to train; deliberate indifference to serious medical needs; retaliation; and on several state law grounds. (Id. at CM/ECF pp. 33-45.) He seeks the following from the court: temporary and permanent injunctive relief, declaratory relief, compensatory and punitive damages, and “injunctive relief issued in the order of releasing inmates eligible to be released from prison, to reduce overcrowding, and all such further relief as the court may deem just and proper.” (Id. at CM/ECF p. 47.)


         The 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).

         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 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).

         Liberally 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).


         A. Sovereign Immunity

         The Eleventh Amendment bars claims for damages by private parties against a state, state instrumentalities, and an employee of a state sued in the employee's official capacity. See, e.g., Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir. 1995); Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446-47 (8th Cir. 1995). Any award of retroactive monetary relief payable by the state, including for back pay or damages, is proscribed by the Eleventh Amendment absent a waiver of immunity by the state or an override of immunity by Congress. See, e.g., id.; Nevels v. Hanlon, 656 F.2d 372, 377-78 (8th Cir. 1981). Sovereign immunity does not bar damages claims against state officials acting in their personal capacities, nor does it bar claims brought pursuant to 42 U.S.C. §1983 that seek equitable relief from state employee defendants acting in their official capacity.

         Plaintiff sues multiple state employees for monetary damages. The Eleventh Amendment bars his claims against them in their official capacities and those claims must be dismissed.

         B. ...

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