United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
March 7, 2017, the court filed a Memorandum and Order on
initial review of a complaint filed jointly by William Epp
and Dukhan Mumin (Filing No. 1), both of whom are
inmates at the Tecumseh State Correctional Center
(“TSCI”). The court found there was a misjoinder
of parties plaintiff under Rule 20(a)(1) of the Federal Rules
of Civil Procedure and also a misjoinder of claims against
multiple defendants under Rule 20(a)(2) of the Federal Rules
of Civil Procedure. Consequently, the court severed Epp's
claims from Mumin's claims by directing the clerk of the
court to open a new case file for Mumin (see Case No.
4:17CV3032) and then gave each plaintiff 30 days to file an
amended complaint on their own behalf.
plaintiffs were cautioned that in preparing their amended
complaints they must “decide which claims to exclude
from their respective cases in order to comply with Rule
20(a)(2)” (Filing No. 18 at CM/ECF p. 8). The
plaintiffs were also advised that an excluded claim could be
brought in new action, but that a filing fee would be
assessed for each new action filed (Id.).
Amended Complaint in this case was received and filed by the
clerk of the court on April 10, 2017 (Filing No.
21). The postmark is not legible, but the pleading
appears to have been signed by Epp on April 6, 2017
(Id. at CM/ECF pp. 8, 9). If Epp deposited the
amended complaint in the prison mail system on that date, it
was timely filed. See United States v. Harrison, 469
F.3d 1216, 1217 (8th Cir. 2006) (“Under the prison
mailbox rule, a pro se pleading is deemed filed upon deposit
in the prison mail system prior to the expiration of the
filing deadline.”); Sulik v. Taney County, 316
F.3d 813, 815 (8th Cir. 2003) (“[T]he prison mailbox
rule governs the determination of when a prisoner's civil
complaint has been filed.”), overruled on other
grounds in later appeal, 393 F.3d 765 (8th Cir. 2005).
The court now conducts an initial review of Epp's Amended
Complaint to determine whether summary dismissal is
appropriate under 28 U.S.C. §§ 1915(e)(2) and
SUMMARY OF AMENDED COMPLAINT
original Complaint in this matter contained five claims that
were alleged jointly by both Epp and Mumin and two claims
that were alleged solely by Epp. Epp's Amended Complaint
contains three claims, which are identified as follows:
• “Denial of Religious Freedom” (Filing No.
21 at CM/ECF pp. 2-5, ¶¶ 11-36). This claim, which
is brought under the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc
et seq., generally corresponds to one of the claims that was
alleged solely by Epp in the original Complaint (Filing No. 1
at CM/ECF pp. 5-7, ¶¶ 32-56). Epp alleges he has
contracted with Glen and NDCS to obtain a special diet as a
practicing Buddhist since 2011, but the diet has been
suspended on at least four occasions as a disciplinary
measure after he missed a meal; Epp also complains he is not
permitted to obtain food items from outside sources. Epp
alleges Busboom and Frakes have failed to take any corrective
• “Plaintiff was prosecuted under Neb. Rev. Stat.
25-1233(1) which is an unconstitutional statute”
(Filing No. 21 at CM/ECF pp. 5-7, ¶¶ 37-50). This
claim, which the court construes as being brought under 42
U.S.C. § 1983, pertains to a Nebraska statute dealing
with the examination of prisoners and generally corresponds
to the other claim that was alleged solely by Epp in the
original Complaint (Filing No. 1 at CM/ECF pp. 20-22,
¶¶ 168-181). Epp complains the statute did not
allow prisoners to be transported from another county to
testify at his criminal trial.
• Neb. Rev. Stat. 29-2221 et seq. Is
Unconstitutional” (Filing No. 21 at CM/ECF pp. 7-8,
¶¶ 51-56). This claim, which the court construes as
being brought under 42 U.S.C. § 1983, pertains to
Nebraska's habitual criminal statute and generally
corresponds to a claim that was alleged jointly by Epp and
Mumin in the original Complaint (Filing No. 1 at CM/ECF pp.
16-17, ¶¶ 139-149). Epp complains he was sentenced
as a habitual criminal without any jury determination and by
only a preponderance of the evidence.
individuals are named as Defendants in the Amended Complaint:
(1) Scott Frakes, Director of the Nebraska Department of
Correctional Services (“NDCS”); (2) Pete
Ricketts, Governor of Nebraska; (3) Scott Busboom, Associate
Warden at TSCI; (4) Chuck Glen, a NDSC employee in charge of
religious programs; (5) Michael Kenney, former Director of
NDCS; and (6) Brian Gage, former Warden at TSCI (Filing No.
21 at CM/ECF pp. 1-2, ¶¶ 5-10). All of these
Defendants are sued in their individual and official
capacities (Filing No. 21 at CM/ECF p. 1, ¶ 2). The
title in the caption to the Amended Complaint also lists NDCS
and the State of Nebraska as Defendants (Filing No. 21 at
CM/ECF p. 1).
only named Defendants mentioned in allegations pertaining to
the first claim identified above are Frakes, Busboom, and
Glen (Filing No. 21 at CM/ECF pp. 2-3, ¶¶ 14,
None of the named Defendants are mentioned in allegations
pertaining to the second and third claims, although for
relief Epp requests that Neb. Rev. Stat. §§
25-1233(1) and 29-2221 be declared unconstitutional and the
State of Nebraska enjoined “from continually applying
both statutes to criminal defendants until such time as those
provisions are brought into alignment with the U.S.
Constitution and Nebraska Constitution” (Filing No. 21
at CM/ECF p. 8). Epp seeks to recover compensatory and
punitive damages with respect to the first claim.
LEGAL STANDARDS 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. §
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).
DISCUSSION OF CLAIMS