United States District Court, D. Nebraska
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.
MEMORANDUM AND ORDER
SMITH CAMP SENIOR UNITED STATES DISTRICT JUDGE.
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.
following facts are those alleged in the Amended Complaint,
ECF No. 20, and assumed true for purposes of the pending
Motions to Dismiss.
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
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
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.
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.
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
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.
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.
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.
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.
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.
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).
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).
Supervisory Liability-Frakes (Director of NDCS) and Hansen
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