United States District Court, D. Nebraska
JOHN W. PIEPER, Plaintiff,
NEBRASKA DEPARTMENT OF CORRECTIONS, et al., Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
John W. Pieper, proceeding pro se, filed his Complaint
(Filing No. 1) on February 7, 2018, and subsequently
was granted leave to proceed in forma pauperis (Filing No.
6). The court now conducts an initial review of the
Complaint to determine whether summary dismissal is
appropriate under 28 U.S.C. §§ 1915(e)(2) and
Summary of Complaint
currently is incarcerated at the Lincoln Correctional Center
(“LCC”). He seeks to recover damages for physical
injuries and mental anguish he sustained as a result of being
attacked by two inmates at the Nebraska State Penitentiary
(“NSP”) on September 22, 2016. Pieper had been
transferred from LCC to NSP on that date to participate in a
Violence Reduction Program (“VRP”) preparatory to
seeking parole. He was attacked by two members of the
Peckerwood prison gang within minutes of his arrival. Pieper
alleges corrections officials had been aware for at least two
years that he would be placed in danger if transferred to
NSP, but they still transferred him and failed to take any
as defendants are the Nebraska Department of Corrections and
fourteen of its officials: (1) Diane J. Sabatka-Rine, Deputy
Director of Institutions; (2) Mario Peart, Former LCC Warden;
(3) Cathy Sheair, Deputy Warden; (4) Paula Sparks, Former
Captain at LCC; (5) Cpl. M. Bruyette, Intel-Secretary; (6)
Matt Tracy, Unit Administrator at NSP; (7) Rick Hardgreaves,
Former LCC Unit Administrator; (8) Salvador Cruz, LCC Unit
Manager; (9) Amanda Chadwick, LCC. Unit Manager; (10) Wayne
Chandler, Behavior Health Programs Manager, LCC Mental
Health; (11) Kerri Paulsen, Licensed Mental Health
Practitioner; (12) Dr. Elizabeth Geiger, Psy.D. Clinical
Psychologist Supervisor, NSP; (13) Brandi Logston, VRP
Clinical Program Manager at Tecumseh State Prison; and (14)
Matt Heckman, Former Deputy Warden.
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).
construing Pieper's complaint, he is suing Defendants for
damages under 42 U.S.C. § 1983. To state a claim under
that section, 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
Discussion of Claims
Eighth Amendment imposes a duty on prison officials “to
protect prisoners from violence at the hands of other
prisoners.” Prater v. Dahm, 89 F.3d 538, 541
(8th Cir. 1996) (quoting Farmer v. Brennan, 511 U.S.
825, 833 (1994)). A prison official is deliberately
indifferent if he “knows of and disregards” a
substantial risk of serious harm to an inmate.
Farmer, 511 U.S. at 837. There is both an objective
component and a subjective component to a claim of deliberate
indifference: (1) whether a substantial risk to the
inmate's safety existed, and (2) whether the officer had
knowledge of the substantial risk to the inmate's safety
but nevertheless disregarded it. Reynolds v.
Dormire, 636 F.3d 976, 979 (8th Cir. 2011). Deliberate
indifference includes something more than negligence but less
than actual intent to harm; it requires proof of a reckless
disregard of the known risk. Id.A prison official
may be held liable under the Eighth Amendment if he or she
knows that an inmate faces a substantial risk of serious harm
and disregards that risk by failing to take reasonable
measures to abate it.” Coleman v. Rahija, 114
F.3d 778, 785 (8th Cir.1997).
other words, to state a claim upon which relief may be
granted, Pieper “must allege that the defendants knew
he was at risk of being attacked and explain how the
defendants' response to this threat of attack was
unreasonable.” Deas v. Kohl, No. 8:15CV35,
2015 WL 4601523, at *5 (D. Neb. July 29, 2015). “[H]e
must allege facts demonstrating how each of the
defendant's actions rose to the level of
‘deliberate indifference' to his health and
safety.” Id.The general responsibility for
supervising the operation of a facility is not sufficient to
establish personal liability. Beaulieu v. Ludeman,
690 F.3d 1017, 1030 (8th Cir. 2012).
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.
Thomas v. Alder, No. 4:11CV3149, 2011 WL 5975903, at
*2 (D. Neb. Nov. 29, 2011) (citing 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)). Sovereign immunity does not bar
damages claims against state officials acting in their
individual capacities, nor does it bar ...