United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
a prisoner in the custody of the Nebraska Department of
Correctional Services (“NDCS”), brings this 42
U.S.C. § 1983 action in which he generally complains
about the NDCS' failure to timely screen him for and
provide mental health programming prior to his parole
eligibility date. He has been given leave to proceed in forma
pauperis. (Filing No. 9.) The court now conducts an
initial review of Plaintiff's Complaint (filing no.
1) to determine whether summary dismissal is appropriate
under 28 U.S.C. §§ 1915(e) and 1915A. As part of
its initial review, the court will also consider
Plaintiff's Motion to Amend Complaint. (Filing No.
SUMMARY OF COMPLAINT
has been in the custody of NDCS since 2006 and was
incarcerated at the Nebraska State Penitentiary
(“NSP”) at the time he filed this action but has
since been transferred to the Lincoln Correctional Center
(“LCC”). Plaintiff named twenty-three Defendants
in their individual and official capacities in the caption of
his Complaint. Liberally construed, Plaintiff named an
additional eleven Defendants in the body of his
Complaint but did not specify in what capacity these
eleven Defendants are sued. Defendants include the current
and former governors of the State of Nebraska, members of the
Nebraska State Board of Parole, and past and current
employees of the NDCS such as prison directors, wardens, unit
managers, mental health practitioners, law librarians, and
other NDCS employees.
alleges he was evaluated by mental health staff upon entry
into NDCS custody and it was determined that he complete,
among other things, “I-Help (Inpa[t]ient Health[y]
Lives Program for Sex Offenders).” (Filing No. 1 at
CM/ECF p. 9, ¶¶ 34-36.) Plaintiff was told
that he would have to be evaluated and screened by the
Clinical Sex Offender Review Team (“C-Sort”)
before being able to begin his sex offender programming.
Thereafter, Plaintiff completed the Mental Health Program at
LCC in approximately September 2012 and requested to be moved
to Housing Unit “Eco” at LCC which offered the
sex offender programming Plaintiff was required to complete.
(Id. at CM/ECF pp. 10-11, ¶¶ 43-45.)
Plaintiff's request was denied by the C-Sort team and
Defendant Wayne Chandlier, Assistant Behavioral Health
Administrator for Mental Health Services at LCC, because
Plaintiff's “Parole Eligibility Date and . . .
Tent[a]tive Release Date were to[o] far away.”
(Id. at CM/ECF p. 11, ¶ 45.) Plaintiff spent
the next four years in Housing Unit Bravo, a general
population unit at LCC, during which he continued to inquire
about his need for sex offender programming. (Id. at
CM/ECF pp. 11-12, ¶¶ 47-48.)
alleges that inmates are supposed to be screened for
programming by the appropriate review team, such as C-Sort,
two years before their parole eligibility dates. Plaintiff
alleges he was eligible for parole on April 21, 2017, but was
not screened by C-Sort until April 11, 2016. (Id. at
CM/ECF pp. 13, 16, ¶¶ 55, 66.) It was
recommended that Plaintiff participate in the Biblio-Therapy
Healthy Lives Program (“B-Help”), and Plaintiff
accepted his recommended programming on or about April 20,
2016. (Id. at CM/ECF p. 17, ¶ 70.) Plaintiff
was transferred from LCC to NSP to start the B-Help program
on or about May 5, 2016.
generally alleges that he complied with the B-Help program
requirements and that his June 9, 2016 “midway
Completion Report” recommended that Plaintiff complete
the program and then go on to Work Release and receive a
parole hearing in April 2017. (Id. at CM/ECF pp.
19-20, ¶ 80.) However, Plaintiff later received an
unsatisfactory completion of the B-Help program after
Defendant Heather Jackson, a Mental Health Practitioner II at
the NSP (hereinafter “Jackson (MHPII)”), and the
C-Sort team received kites from other inmates
reporting alleged negative comments made by Plaintiff outside
of the B-Help group sessions and after Jackson (MHPII) and
Defendant Jane Doe, also a Mental Health Practitioner II at
NSP (hereinafter “Doe (MHPII)”), spoke with
Plaintiff about their concerns that he did not disclose
certain “red flag” unhealthy sexual behaviors or
that he identifies as a “transgender wom[a]n” and
“lived what most of society would call a homosexual
life style” during his March 17, 2016 screening
interview. (Id. at CM/ECF pp. 21-27, ¶¶
87-104.) Specifically, Defendant Dr. Stephanie Bruhn, the
Assistant Behavioral Health Administrator for Sex Offender
Services, informed Plaintiff on July 22, 2016, that he
received an “Unsatisfactory Completion” of his
programming due to his “assessment during the last
couple of weeks of group, and the concerns with [his] Coping
Skills, Assessment of Devi[a]nt thoughts and actions with
Blood Letting, Defendant Jackson['s] (MHPII) and
Defendant Doe['s] (MHPII) talk with [him] . . ., Inmates
Writing kites on [him] making alleged statements, and other
assessments made during group.” (Id. at CM/ECF pp.
28-30, ¶¶ 108-109, 112.) Dr. Bruhn then
informed Plaintiff that he had been assessed to complete
I-Help, which at that time was a twenty-four to thirty-six
month program offered at LCC. (Id. at CM/ECF pp.
30-31, ¶ 112.)
filed a grievance on Dr. Bruhn, Jackson (MHPII), and Doe
(MHPII) addressing his concerns with C-Sort's evaluation
of his completion of the B-Help programming, stating:
I was unjustly persecuted for my sexual orientation and that
they were prejudiced in giving me my unsatisfactory
completion. That the assessment for my unsatisfactory
completion was due to my sexual orientation and a First
Amendment violation, and inmates writing “kites”
on me alleging that I made negative statements while on the
unit . . . . I also . . . should have been assessed to
complete O-Help first, and that based on my approximate June
Sixteenth midway completion assessment, I should have
received at least an adequate completion.
(Id. at CM/ECF p. 33, ¶ 120 (spelling,
punctuation, and capitalization corrected).) As a result of
Plaintiff's grievance, C-Sort changed his outcome to
“withdrawn” from treatment and re-affirmed their
recommendation that Plaintiff participate in I-Help. (Id.
at CM/ECF p. 35, ¶ 126.) Plaintiff alleges he
“was eligible for parole April [21, 2017], and because
C-Sort fail[ed] to screen [him] in a timely manner, and their
reevaluation that [he] complete I-Help, [he] was unable to
complete [his] programming before [he] was eligible for early
release ‘parole.'” (Id. at CM/ECF pp.
38-39, ¶ 134 (spelling, punctuation, and
construed, Plaintiff alleges claims of deliberate
indifference to his medical needs, cruel and unusual
punishment, denial of his freedom of speech, and denial of
equal protection and due process against Defendants Dr.
Melvin, Dr. Bruhn, Tammy Jackson (hereinafter “T.
Jackson”), Paul Rodriqiez, Jeramy Simonsen, Jackson
(MHPII), and Doe (MHPII). (Id. at CM/ECF pp. 46-47,
¶ 154.) Plaintiff alleges these same claims plus two
additional claims of unlawful search and seizure and denial
of his “freedom of religious activity” against
Defendants Governor Pete Ricketts, former Governor David
Heineman, and eleven current and former NDCS officials-Scott
Frakes, Mike Kenney, Robert P. Houston, Dr. Randy Kohl,
Michael Rothwell, Diane Sabatka-Rine, Mario Purt, Robert
Madsen, Richard Cruickshank, Machell Capps, and Jason Hurt.
(Id. at CM/ECF p. 48, ¶¶ 157-158.) In
addition to the foregoing, Plaintiff included the following
unrelated allegations in his Complaint:
• Plaintiff was denied access to the law library and the
courts by Defendant Tom Pfeifer, the NSP Law Librarian
(id. at CM/ECF p. 47, ¶¶ 155-156),
• Defendant Dr. Melvin's involvement in
Plaintiff's mental health and sex offender treatment
“violates HIPPA Law” because Dr. Melvin was hired
by Plaintiff's mother to testify on behalf of Plaintiff
in his criminal conviction (id. at CM/ECF p. 49,
¶ 160), and
• the “Gate Pay of Inmates” is
unconstitutional, inadequate, and constitutes cruel and
unusual punishment (id. at CM/ECF p. 52, ¶
relief, Plaintiff seeks declaratory and injunctive relief,
including declarations that the Defendants have violated his
constitutional rights and court orders requiring the
Defendants to take specific actions with respect to
Plaintiff's treatment, programming, and placement on work
release and parole. In addition, Plaintiff seeks compensatory
damages of $1000 for each day after April 21, 2015, punitive
damages of $200, 000 against Defendants Dr. Melvin, Dr.
Bruhn, T. Jackson, Rodriqiez, Simonsen, Jackson (MHPII), and
Doe (MHPII), and punitive damages of $100, 000 against each
SUMMARY OF MOTION TO AMEND COMPLAINT
Motion to Amend Complaint (filing no. 15), Plaintiff
seeks to add claims against the following seven additional
defendants in their individual and official capacities: C.
Bottor, Barbara Lewien, Chris Connelly, Unit Manager Larson,
Lieutenant Bolli, Sergeant Connett, and Corporal N. Cordero.
Plaintiff alleges these Defendants engaged in sexual
discrimination against him and violated his constitutional
rights to due process, access to the courts, freedom of
speech, and to be free from cruel and unusual punishment.
These alleged rights violations stem from an incident that
occurred on October 18, 2017, in which Corporal N. Cordero
allegedly found Plaintiff engaged in sexual activity with
another inmate, and the ensuing misconduct proceedings
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. §
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).
Rules of Joinder
Federal Rule of Civil Procedure 20 states that multiple
defendants may be joined in the same action only if
“any right to relief is asserted against them jointly,
severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or
series of transactions or occurrences.”
Fed.R.Civ.P. 20(a)(2)(A) (emphasis added). In addition, there
must be a “question of law or fact common to all
defendants” in the action. Fed.R.Civ.P. 20(a)(2)(B).
Under Federal Rule of Civil Procedure 21, the proper remedy
for improper joinder of parties is for the court to
“drop a party” or “sever any claim against
a party.” Fed.R.Civ.P. 21. The court may do so
“[o]n motion or on its own.” Id.
Plaintiff has sued thirty-four Defendants in his Complaint
and seeks to add seven more Defendants. As outlined above,
the core of the Complaint's allegations address
Plaintiff's claims regarding his delay in being screened
for and receiving sex offender programming prior to his
parole eligibility date. However, Plaintiff's claims that
(1) he was denied access to the prison law library and courts
by Defendant Pfeifer, (2) Dr. Melvin's involvement in his
treatment “violates HIPPA Law”, and (3) the
“Gate Pay of Inmates” is unconstitutional are
based on unrelated events and do not involve a question of
law or fact common to all the Defendants. Accordingly, the
court will sever these claims from the Complaint as the
claims are not properly joined against the Defendants named
in this action and will drop Tom Pfeifer as a Defendant to
this action as the only claim asserted against him (denial of
access to the courts) does not involve a question of law or
fact common to all the Defendants.
the court will deny Plaintiff's Motion to Amend Complaint
(filing no. 15) based on the rules of joinder. None
of the seven proposed Defendants are properly joined with the
Defendants named in the Complaint because the claims asserted
in the Motion to Amend Complaint are based on events wholly
separate and unrelated to the events and occurrences forming
the basis of the Complaint. If Plaintiff wishes to pursue the
claims identified in his Motion to Amend Complaint or any of
the three unrelated, severed claims identified above, then
Plaintiff will be required to prosecute these
unrelated claims in separate actions and he will be required
to pay a separate filing fee for each separate
court will now focus its analysis on Plaintiff's
remaining claims related to his programming and parole.
has sued the Defendants named in the caption in their
official and individual capacities for declaratory,
injunctive, and monetary relief. Plaintiff did not specify
the capacity in which the other eleven Defendants are sued so
the court “assume[s] that [each] defendant is sued only
in his or her official capacity.” Johnson v.
Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir.
1999). Thus, the first question the court must address is to
what extent, if any, the Eleventh Amendment bars
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.
See, e.g., 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). Any award of retroactive monetary relief payable by
the state, including for back pay or damages, is proscribed
by the Eleventh Amendment absent a waiver of immunity by the
state or an override of immunity by Congress. See,
e.g., id.; Nevels v. Hanlon, 656 F.2d
372, 377-78 (8th Cir. 1981). Thus, the Eleventh Amendment
bars Plaintiff's claim for damages against all the
Defendants in their official capacities.
immunity does not bar damages claims against state officials
acting in their personal capacities, nor does it bar claims
brought pursuant to 42 U.S.C. §1983 that seek equitable
relief from state employee defendants acting in their
official capacity. Because Plaintiff seeks both equitable
relief as well as damages from Defendants in their individual
capacities, the court will review the Complaint to ...