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Pieper v. Nebraska Department of Corrections

United States District Court, D. Nebraska

April 4, 2018

JOHN W. PIEPER, Plaintiff,


          Richard G. Kopf Senior United States District Judge.

         Plaintiff, 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 1915A.

         I. Summary of Complaint

         Pieper 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 precautions.

         Named 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.

         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).

         Liberally 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 Cir. 1993).

         III. Discussion of Claims

         The 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).

         In 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).

         The 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 ...

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