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Epp v. Frakes

United States District Court, D. Nebraska

June 15, 2017

WILLIAM EPP, Plaintiff,
v.
SCOTT FRAKES, et al., Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         On 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.

         The 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.).

         Epp's 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 1915A.

         I. SUMMARY OF AMENDED COMPLAINT

         The 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 action.
• “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.

         Six 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).

         The 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, 20).[1] 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.

         II. LEGAL STANDARDS ON INITIAL REVIEW

         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).

         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).

         III. DISCUSSION OF CLAIMS

         A. ...


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