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Collins v. Frakes

United States District Court, D. Nebraska

February 6, 2019

SEAN COLLINS, Plaintiff,
v.
SCOTT FRAKES, Director Nebraska Correctional Department Services -Individual and Official Capacity; ROBERT MADSEN, Warden (Nebraska State Penitentory) - Individual and Official Capacity; M. MARTINEZ, Mental Health Practitioner (Nebraska State Penitentory) - Individual and Official Capacity; J. CONROY, Unit 4 Manager (Nebraska State Penitentory) -Individual and Official Capacity; M. JOHNSON, Case Manager (H66 PC) Housing Unit 4 in Protect Custody -Individual and Official Capacity; D. PELOWSKI, Case Manager (Housing Unit 6 Protective Custody) - Individual and Official Capacity; M. RODRIGUEZ, Case Worker (Housing Unit 4 Protective Custody) - Individual and Official Capacity; C. MORSE, Corporal (D Gallery assigned rotation for Protective Custody) - Individual and Official Capacity; and M. REISDORFF, Sergeant (Assigned in Housing Unit 4) -Individual and Official Capacity; 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”), filed a Complaint on June 15, 2018.[*] (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 (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. 17.)1

         I. SUMMARY OF COMPLAINT

         Plaintiff is a prisoner at Tecumseh State Correctional Institution. He was previously confined at the Nebraska State Penitentiary (“NSP”). Plaintiff filed this Complaint against Scott Frakes, Director of NDCS; Robert Madsen, Warden of NSP; M. Martinez, Mental Health Practitioner at NSP; J. Conroy, Unit 4 Manager at NSP; M. Johnson, Case Manager (H66 PC) Housing Unit 4 Protective Custody; D. Pelowski, Case Manager (Housing Unit 6 Protective Custody); M. Rodriguez, Case Worker (Housing Unit 4 Protective Custody); C. Morse, Corporal (D Gallery assigned rotation for Protective Custody); and M. Reisdorff, Sergeant (Assigned in Housing Unit 4). (Filing No. 1 at CM/ECF pp. 2-3, 8.) Plaintiff sues Defendants in both their individual and official capacities. (Id.) Plaintiff claims that he has been subjected to gross negligence, cruel and unusual punishment, unconstitutional conditions of confinement, breach of confidentiality, and fraud as a prisoner in protective custody at NSP. (Id. at CM/ECF p. 3.)

         Plaintiff alleges that from March 19, 2018 through May 18, 2018, he was “emotionally and mentally abused, violated, and neglected on a daily basis” as a prisoner in protective custody at NSP.2 (Id. at CM/ECF p. 4.) He further claims that he has “suffered through a series of traumatizing events on a daily basis for nearly three months, ever since needing and requesting protective custody.” (Id. at CM/ECF p. 5.) He complains that he filed several emergency grievances, “grievances of [a] sensitive nature, ” and “informal step one grievances, ” ninety-percent of which “did not get returned or logged correctly.” (Id. at CM/ECF p. 4.) Plaintiff asserts that he has “attempted on several occasions to speak with mental health” and has been “deprived privacy and confidentiality” at NSP, and that he “wrote grievances on the matter that still have not been returned.” (Id. at CM/ECF p. 5.) Plaintiff states:

I am completely traumatized and unsure how to properly express it. I feel I can't trust authority now. The abuse and neglect I was put through was catastrophic especially after telling authority I was nearly stabbed and raped and needed protective custody. They neglected my investigation for 8 weeks. I didn't receive hot foods. I received possible poisoned pudding (which was grieved). I had no safe access to medical so if I were to be physically injured I could die. No clean clothes when I showered. Unable to clean cell. Cell door was unsecured randomly multiple times a day sometimes.

(Id. at CM/ECF p. 12.)

         As a result of the alleged abuse and neglect, Plaintiff claims he is “emotionally and mentally scarred” and “broken” and suffering from post-traumatic stress disorder. (Id. at CM/ECF pp. 5, 13.) He alleges that he has been “deprived of even being seen by mental health to discuss issues to attempt coping strategies or grieving” but, in any event, he does “not think it would be safe to trust them and to confide in them.” (Id. at CM/ECF pp. 5, 13.) As relief, Plaintiff seeks $100, 000 from each Defendant for the “corruption, ” “neglect, ” “abuse, ” and “constant” civil rights violations “[he has] endured.” (Id. at CM/ECF p. 5.)

         II. SUMMARY OF MOTION TO AMEND COMPLAINT

         Pursuant to NECivR 15.1(b), Plaintiff's Motion to Amend Complaint (filing No. 17) is granted to the extent that the court will consider the additional allegations in the Motion to Amend Complaint and the documents attached as supplemental to Plaintiff's Complaint (filing no. 1).

         In the supplement (filing no. 17), Plaintiff seeks to: (1) dismiss Defendants Johnson, Rodriguez, Pelowski, Martinez, Reisdorff, and Morse from the case “due to insufficient evidence”; (2) name NDCS as an additional Defendant; and (3) update Defendant Madsen's job title from NSP Warden to “Deputy Director of NDCS.” The court, therefore, will dismiss Defendants Johnson, Rodriguez, Pelowski, Martinez, Reisdorff, and Morse from this action without prejudice.3 The court will direct the clerk's office to remove those Defendants from this action and update Madsen's job title from NSP Warden to “Deputy Director of Nebraska Department of Correctional Services.”4 The supplement focuses solely on NDCS's grievance procedure-namely, the improper processing and handling of prisoner grievances, which, he claims, violates the First Amendment and Nebraska law. Plaintiff alleges that the “current [grievance] process NDCS has established is easily manipulated, abused, and completely unsecure for inmates to depend on officials being properly trained and honest with this process inmates are entitled to under the law.” (Id. at CM/ECF p. 1.) He argues that NDCS interferes with and hinders the processing of prison grievances. (Id. at CM/ECF pp. 2-3.) Plaintiff states that “grievances are being piled up before getting answered, and officials are not obeying time limits.” (Id. at CM/ECF p. 2.) In sum, Plaintiff alleges:

Grievances are the only way inmates have as a resource to express any concerns, wrongdoings, and mistreatment to facilitate a problem. But . . . this paper grievance procedure NDCS has is easily abused and neglected by officials. For example, changed dates, not following time limits, attaching little memos instead of answering, or letting grievances pile up, and even simply discarding grievances into the trash. Something needs to be changed. At least if grievances could be filed at the kiosk, dates and times could be digitally recorded and no accidentally lost grievances could happen. It would be more difficult for officials to manipulate and abuse [the grievance procedure] if there was an electronic grievance system. Since there is NOT, 90% of the wrongdoing is swept under the rug. Or grievances are without merit for civil actions in the courts due to the “exhaustion rule” from officials' manipulations and negligence actions.

(Id. (emphasis in original).)

         Plaintiff claims that he has suffered “reparable injury” and “personal injury, ” and he seeks: (1) a judgment that he has “properly attempted to exhaust the grievance process”; (2) a judgment “overrul[ing] grievance bodies' procedural rulings” because the “officials” are “obviously incapable” of “obey[ing] the process”; (3) an order directing NDCS to change “from the current paper grievance process to an electronic grievance process done on kiosks or . . . tablets to prevent any further negligent, manipulative, or deprived acts to inmates in the future”; and (4) money damages, expenses, and court costs in the amount of $1, 102, 000 from Defendants in their individual capacities. (Id. at CM/ECF pp. 2, 4.)

         III. APPLICABLE 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. See28 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 ...


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