United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge
filed a Complaint on June 5, 2017. (Filing No. 1.)
He has been given leave to proceed in forma pauperis.
(Filing No. 6.) The court now conducts an initial
review of Plaintiff's Complaint to determine whether
summary dismissal is appropriate under 28 U.S.C. §§
1915(e) and 1915A.
SUMMARY OF COMPLAINT
is a prisoner confined at the Lancaster County Department of
Corrections who was found guilty after a disciplinary hearing
of refusal to work and sentenced to 10 days in disciplinary
segregation and deprivation of 10 days' good-time credit.
Defendant Brad Johnson, director of the facility, affirmed
the decision. Plaintiff requested that Johnson restore his 10
days' good-time credit.
brings this action pursuant to 42 U.S.C. § 1983. He
asserts that the procedures used in his disciplinary hearing
violated his Fourteenth Amendment due process rights.
Specifically, Plaintiff claims that the reporting officer,
Defendant Robert Mitchell, filed a false misconduct report
and that the hearing officer, Defendant Andrew Truslow,
failed to call and question Plaintiff's requested
witnesses, who would have testified that he did not refuse to
seeks restoration of his 10 days' good-time credit, $190
for each day of the 10 days' good-time served, and an
order to the “dept. of corrections to cease and desist
violating inmates due process, which they do on a daily
basis.” (Filing No. 1 at CM/ECF p. 5.)
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).
Restoration of Good Time/Damages for Deprivation of Good
Eighth Circuit has held that the removal of a prisoner's
good time credits in a disciplinary hearing implicates a
liberty interest protected by the Due Process Clause.
Espinoza v. Peterson,283 F.3d 949, 951 (8th
Cir.2002) (citing Wolff v. McDonnell,418 U.S. 539,
555-58 (1974)). However, a state prisoner who seeks
restoration of good time should do so through a writ of
habeas corpus, which requires exhaustion of state remedies.
Offet v. Solem,823 F.2d 1256, 1258 (8th Cir. 1987).
Where a prisoner ...