United States District Court, D. Nebraska
JOSHUA G. FRANKLIN, SR., Plaintiff,
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.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
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).
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.
SUMMARY OF AMENDED COMPLAINT
is a prisoner currently confined at the Diagnostic Evaluation
Center (“DEC”) 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.)
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 (“Rine”), DEC Warden Dennis
Bakewell (“Bakewell”), and John Does
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.)
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”). (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.)
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.)
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.)
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.)
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.)
claims that, on April 6, 2016, he was rescheduled for a sick
call at LCC due to staff shortage. (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.)
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.
APPLICABLE STANDARDS OF 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).
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.
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.