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Moser v. Frakes

United States District Court, D. Nebraska

March 17, 2019

TELENA MOSER, Personal Representative of the Estate of Terry L. Berry, Jr., Deceased; Plaintiff,
SCOTT FRAKES, Director of the Nebraska Department of Correctional Services, in his individual capacity; BRAD HANSEN, Warden of Tecumseh State Correctional Institution, in his individual capacity; JOANN HELTON, in her individual capacity; ATHENA G BROWN, in her individual capacity; TODD R HAUSSLER, in his individual capacity; DUSTIN H. GUSTAFSON, in his individual capacity; and JOHN/JANE DOES 1-2, employees of Tecumseh State Correctional Institution, in their individual capacities; Defendants.



         This matter is before the Court on the Motion to Dismiss, ECF No. 29, filed by Defendants Scott Frakes and Brad Hansen and on the Motion to Dismiss, ECF No. 35, filed by Defendants Athena Brown, Dustin Gustafson, Todd Haussler, and Joann Helton. For the reasons stated below, the Motion filed by Frakes and Hansen will be granted, and the Motion filed by Brown, Gustafson, Haussler, and Helton will be denied.


         The following facts are those alleged in the Amended Complaint, ECF No. 20, and assumed true for purposes of the pending Motions to Dismiss.

         On April 10, 2017, two Tecumseh State Correctional Institution (TSCI) unit managers, Defendants Athena Brown and Todd Haussler, decided to “double bunk” two inmates, Terry Berry and Patrick Schroeder, in a restrictive housing unit[1] that had no single-occupancy cells available. Am. Compl. ¶ 78-79, ECF No. 20, Page ID 89. Five days later, on April 15, 2017, Schroeder fatally assaulted Berry in their cell.

         Berry entered the custody of the Nebraska Department of Correctional Services (NDCS) and was placed at TSCI on November 20, 2015, following convictions for second-degree forgery and assault by a confined person. Schroeder was placed at TSCI in 2007 and was serving a life sentence on convictions for first-degree murder, use of a deadly weapon to commit a felony, and six counts of second-degree forgery. Schroeder had spent a substantial amount of his sentence in a restrictive housing unit, and TSCI staff generally knew that both Berry and Schroeder had anger issues.

         On April 10, 2017, Schroeder and Berry occupied their own cells in a restrictive housing unit. That day, the Defendant identified as John/Jane Doe 1 informed Schroeder that he would be double bunked with another inmate in the restrictive housing unit, unless Schroeder agreed to move out of his cell to different housing unit. The Defendant identified as John/Jane Doe 2 separately informed Berry that he had the same option- agree to change cells or be subject to double bunking in the restrictive housing unit. Ostensibly, Schroeder and Berry both refused to move cells. See Am. Compl. ¶¶ 72-78, ECF No. 20, Page ID 89. Schroeder also told Doe 1 that he opposed sharing a cell with any other inmate. When Schroeder was informed that his cellmate would be Berry, Schroeder told Defendant Joann Helton, a TSCI case worker, that he opposed sharing a cell with Berry, specifically, because Schroeder knew Berry had “enemies, was talkative[, ] and was believed to be dirty.” Am. Compl. ¶¶ 73-5, ECF No. 20, Page ID 89. Minutes later, Brown and Haussler decided to double bunk Berry and Schroeder in the restrictive housing unit. Moser did not allege that Does 1 or 2 relayed Schroeder's comments to Brown or Haussler, nor did Moser allege that Brown or Haussler otherwise became aware of those comments.

         Section VIII of NDCS Administrative Regulation Number 210.01 sets out the procedure unit managers must follow when making cell assignments for inmates in restrictive housing. Neb. Dep't Corr. Servs., Admin. Reg. 210.01 at 13-14, Section VIII(B) instructs unit managers to consider a non-exhaustive list of factors before making an assignment, including the inmates' history of assaultive behavior, the reasons for the inmates' restrictive housing status, and the inmates' aggression or vulnerability to aggression. Section VIII(G) requires the persons making the assignment to “state in writing why, at the time of the cell assignment, the cell assignment provides each cellmate with reasonable safety from assault.” Brown and Haussler assessed Berry and Schroeder's compatibility, but they failed to complete the written statement required by Section VIII(G).

         After Brown and Haussler made their decision, Helton “expressed concerns, ” “stating [ ] she ‘personally felt that it was not the best idea' since Berry ‘was known to be very talkative and bothersome,' and that Schroeder ‘in for life, with a temper would not want someone like' Berry as a cellmate.” Am. Compl. ¶ 85, ECF No. 20, Page ID 90. Although, it is unclear to whom she made these statements. See id. Helton also contacted Dustin Gustafson, the acting Lieutenant, and expressed concern about Berry and Schroeder sharing a cell. Gustafson told her, “there wasn't much that could be done unless she called the person responsible for making the decision at their home.” Id. at ¶ 86. Helton also expressed concern to two other unidentified TSCI staff members, and an investigation by the Office of Inspector General of the Nebraska Correctional System confirmed Helton knew Schroeder objected to sharing a cell with Berry.

         Brown and Haussler's April 10, 2017, decision to double bunk Berry with Schroeder was not reversed; and, five days later, Schroeder fatally assaulted Berry in their cell.

         Previously, in 2015, the Vera Institute of Justice (Vera) began working with NDCS “to curb its use of segregated housing.” Am. Compl. ¶ 16, ECF No. 16, Page ID 83. On November 1, 2016, the Vera issued a report that found NDCS facilities, including the Tecumseh facility, were overcrowded and understaffed which increased the risk of inmate violence. The report also recommended that when inmates in restrictive housing were assigned to share a cell, NDCS should “always ensure [inmates] are carefully matched to minimize the risk of dangerous situations.” Am. Compl. ¶ 54, ECF No. 20, Page ID 87.

         TSCI had two inmate riots, one in May 2015 and one in March 2017, that resulted in inmate fatalities. Moser alleged that overcrowding, understaffing, and overuse of restrictive housing contributed to these riots. She also alleged that the Vera report and the riots made Defendants Scott Frakes, the director of NDCS, and Brad Hansen, the warden at TSCI, aware of a general risk of harm from inmate violence. In 2017, NDCS was operating at 160% of its design capacity, and the Tecumseh facility was operating at 107% of its design capacity of 960 inmates.

         As the personal representative of Berry's estate, Telena Moser brought this action under 42 U.S.C. § 1983 alleging the Defendants violated Berry's Eighth Amendment rights. Moser sued the Defendants in their individual capacities only, and each moved to dismiss Moser's Eighth Amendment claims against them under Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF Nos. 29 & 35.


         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To satisfy this requirement, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Corrado v. Life Inv'rs Ins. Co. of Am., 804 F.3d 915, 917 (8th Cir. 2015) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at 678), cert. denied, 135 S.Ct. 2941 (2015). The complaint's factual allegations must be “sufficient to ‘raise a right to relief above the speculative level.'” McDonough v. Anoka Cty., 799 F.3d 931, 946 (8th Cir. 2015) (quoting Twombly, 550 U.S. at 555). The Court must accept factual allegations as true, but it is not required to accept any “legal conclusion couched as a factual allegation.” Brown v. Green Tree Servicing LLC, 820 F.3d 371, 373 (8th Cir. 2016) (quoting Iqbal, 556 U.S. at 678). Thus, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Ash v. Anderson Merchandisers, LLC, 799 F.3d 957, 960 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at 678), cert. denied, 136 S.Ct. 804 (2016).

         On a motion to dismiss, courts must rule “on the assumption that all the allegations in the complaint are true, ” and “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very remote and unlikely.'” Twombly, 550 U.S. at 555 & 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). “Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Mickelson v. Cty. of Ramsey, 823 F.3d 918, 923 (8th Cir. 2016) (alteration in original) (quoting Iqbal, 556 U.S. at 679).


         I. Supervisory Liability-Frakes (Director of NDCS) and Hansen (Warden)

         “To state a claim under § 1983, the plaintiff must plead that a government official has personally violated the plaintiff's constitutional rights.” Jackson v. Nixon, 747 F.3d 537, 543 (8th Cir. 2014) (quoting Iqbal, 556 U.S. at 676); see also Marsh v. Phelps Cnty., 902 F.3d 745, 754 (8th Cir. 2018). Vicarious liability is inapplicable in § 1983 cases, but “a supervisor may still be liable under § 1983 if either his direct action or his ‘failure to properly supervise and train the offending employee' caused the constitutional violation at issue.” Id. (quoting Tlamka v. Serrell, 244 F.3d 628, 635 (8th Cir. 2001)). A supervisor's personal involvement may also be found “if he is involved in ‘creating, applying, or interpreting a policy' that gives rise to unconstitutional conditions.” Id. (quoting Bonner v. Outlaw, 552 F.3d 673, 679 (8th Cir. 2009)). In the Eighth Amendment context, “a ...

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