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Mack v. Ricketts

United States District Court, D. Nebraska

September 26, 2018

NATHANIAL GERALD SERRELL MACK, Plaintiff,
v.
PETE RICKETTS, Nebraska State Governor officially and Individually; DAVID HEINAMEN, Former Governor Officially and Individually; SCOTT FRAKES, N.D.C.S. Director Officially and Individually; MICHEL KENNEY, Former N.D.C.S. Director Officially and Individually; ROBERT P. HOUSTON, Former N.D.C.S. Director Officially and Individually; MICHAEL ROTHWELL, N.D.C.S. Deputy Director Division of Programs and Community Services Officially and Individually; DIANE SABATKA-RINE, Deputy Director of Opperations Officially and Individually; ROSALYN COTTON, Nebraska State Parole Board Chair Officially and Individually; REX RICHARDS, Nebraska State Parole Board Vice Chair Person Officially and Individually; MARIO PURT, Lincoln Correctional Center Warden Officially and Individually; ROBERT MADSON, Nebraska State Penitentiary Warden Officially and Individually; RICHARD CRUICKSHANK, Nebraska State Penitentiary Warden Officially and Individually; JASON HURT, Nebraska State Penitentiary Associate Warden and Former Lincoln Correctional Center Unit Adminatrator (Officially and Individually); DAVID HARDGRAVES, Lincoln Correctional Center Unit Adminastrator and former Housing Unit Bravo Unit Manager (officially and Individually); DR. JEFF MELVIN, PH.D. N.D.C.S. Behavioral Health Assistant Administrator for Sex Offender Services and C-Sort (Clinical Sex Offender Review Team) Chair Person (Officially and Individually); DR. STEPHANIE BRUHN, N.D.C.S. Behavioral Health Assistant Administrator for Sex Offender Services and C-Sort Team Chair Person (Officially and Individually); WAYNE CHANDLIER, N.D.C.S. Behavioral Health Assistant Administrator for Mental Health Services (Officially and Individually); TAMMY JACKSON, LIMHP N.D.C.S. Mental Health practioner Clinical Sex Offender Programs Manager and C-Sort Vice Chair Person (Officially and Individually); PAUL RODRIQIEZ, LIMHP N.D.C.S. Clinical Sex Offender Programs Manager and C-Sort Team Vice Chair Person (Officially and Individually); JANE DOE I, Former Nebraska State Penitentiary Mental Health Practioner II (Officially and Individually); HEATHER JACKSON, Nebraska State Penitentiary Mental Health Practioner II (Officially and Individually); JERAMY SIMONSEN, Nebraska State Penitentiary Mental Health Practioner II and former Acting Clinical Sex Offender Programs Manager and C-Sort Vice Chair Person (Officially and Individually); and TOM PFEIFER, Nebraska State Penitentiary Librarian (Officially and Individually) et al.; Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Plaintiff, 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. 15.)

         I. SUMMARY OF COMPLAINT

         Plaintiff 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[1] 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.[2]

         Plaintiff 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.)

         Plaintiff 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.

         Plaintiff 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[3] 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.[4] (Id. at CM/ECF pp. 30-31, ¶ 112.)

         Plaintiff 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 capitalization corrected).)

         Liberally 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, ¶ 169).

         As 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 remaining Defendant.

         II. SUMMARY OF MOTION TO AMEND COMPLAINT

         In his 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 against Plaintiff.

         III. 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); 28 U.S.C. § 1915A(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 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).

         IV. DISCUSSION

         A. 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.

         Here, 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.

         Additionally, 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 action.

         The court will now focus its analysis on Plaintiff's remaining claims related to his programming and parole.

         B. Sovereign Immunity

         Plaintiff 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 Plaintiff's claims.

         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. 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.

         Sovereign 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 ...


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