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Reising v. Lewien

United States District Court, D. Nebraska

April 12, 2019

GREGORY C. REISING, Plaintiff,
v.
BARB LEWIEN, Warden, Nebraska Department of Corrections; and LINDA LEONARD, Unit Administrator, Community Corrections Omaha; Defendants.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff filed a Complaint on July 23, 2018, while he was a prisoner in the custody of the Nebraska Department of Correctional Services (“NDCS”). (Filing No. 1.) He was given leave to proceed in forma pauperis. (Filing No. 10.) Subsequently, Plaintiff filed a notice of change of address indicating he was no longer incarcerated and paid the remaining balance of his PLRA filing fee. (See Filing Nos. 13 & 14; Docket Sheet.) The court now conducts an initial review of Plaintiff's Complaint[1] to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e).

         I. SUMMARY OF COMPLAINT

         Plaintiff brings this action pursuant to 42 U.S.C. § 1983 against Barb Lewien, the Warden of the Omaha Correctional Center (“OCC”), in her official capacity, and Linda Leonard, Unit Administrator of the Omaha Community Corrections Center (“CCC”), in her official and individual capacities. Plaintiff alleges violations of his Fourteenth Amendment due process rights and his rights under Neb. Rev. Stat. § 83-4, 122(1), (4).[2] (Filing No. 1 at CM/ECF p. 3.)

         On July 11, 2015, while confined at the CCC, Plaintiff alleges he was issued Misconduct Report 5XDM for “possession of unauthorized electronic communication device - cell phone” and a cell phone was seized from him as evidence. (Id. at CM/ECF pp. 5, 12.) On July 15, 2015, Plaintiff went to “IDC Court, ” which the court infers to mean the CCC institutional disciplinary committee proceedings, where Leonard “was the one who initiated this action against [him] then sat as the IDC Chairperson and was the decision maker of the outcome of the IDC hearing.” (Id. at CM/ECF p. 5.)[3] Plaintiff alleges that Leonard failed to disclose the whereabouts of the cell phone evidence prior to the IDC hearing and, instead, told Plaintiff after the hearing that the evidence was mishandled and destroyed. Nearly two years later, Plaintiff learned that the cell phone had not been destroyed and was provided a letter from Lewien informing him that the cell phone evidence had been handed over to Investigator Klassen on March 17, 2017. (Id. at CM/ECF pp. 6, 17; Filing No. 5 at CM/ECF p. 1.)[4]

         Plaintiff alleges that Leonard's actions violated his due process rights because he was found guilty of Misconduct Report 5XDM and “was forced to remain in prison[, ] was not allowed to return to Community Corrections Center and . . . [his] full-time employment at Greater Omaha Packing . . . [a]nd subsequently had [his] parole hearing taken from [him].” (Filing No. 1 at CM/ECF p. 5.) As relief, Plaintiff asks for reimbursement of lost wages and “punitive damages [of] $120, 000” and “that his Community Custody work release status be restored and recommend that his Parole Hearing status be reinstated.” (Id.; Filing No. 5 at CM/ECF p. 1.)

         Along with his Complaint, Plaintiff also filed a “Memorandum of Complaint in Support of Lawsuit” (hereinafter “Memorandum”) (filing no. 4) and a “Detail of Events for Clarity” (filing no. 5). In his Memorandum, Plaintiff complains that inmates are at a disadvantage due to their inability “to create legal documents on a computer and E-File these documents and losing days due to not having mail delivery on Saturdays.” (Filing No. 4 at CM/ECF p. 1.) Plaintiff asks the court “to rule that the department provide legal computers to create legal documents and to E-File documents . . . and also rule that the Prison Delivery Rule should be deemed unconstitutional.” (Id. at CM/ECF p. 2.)

         On November 9, 2018, Plaintiff filed a notice of change of address with the court indicating that he had been released from prison. (Filing No. 13.) A check of Plaintiff's records through the NDCS website shows that he was released on discretionary parole on October 31, 2018. See https://dcs-inmatesearch.ne.gov/ Corrections/CORinput.html (last accessed April 12, 2019).

         II. 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. 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).

         III. DISCUSSION

         Liberally construed, Plaintiff seeks damages, injunctive relief, and declaratory relief against Lewien, in her official capacity only, and Leonard, in her official and individual capacities, for alleged violations of his Fourteenth Amendment due process rights. For the reasons set forth below, the Complaint fails to state a plausible claim for relief against Defendants.

         A. Mootness

         Plaintiff seeks injunctive relief in the form of restoration of his community custody status and parole hearing and access to legal computers in prison. Plaintiff also seeks a declaration that the prison mail rule is unconstitutional. Article III of the Constitution limits federal court jurisdiction to “cases” and “controversies.” A case becomes “moot, ” thus ending jurisdiction, “‘when the issues presented are no longer “live” or the parties lack a legally cognizable interest.'” United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396 (1980) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)); see also Beck v. Mo. State High Sch. Activities Ass'n, 18 F.3d 604, 605 (8th Cir. 1994) (per curiam) (noting that a case is moot when circumstances change to such a degree that “a federal court can no longer grant effective relief”). When a prisoner is released from prison and is no longer subjected to an allegedly unconstitutional policy, the prisoner's claims for declaratory and injunctive relief are moot. Keeling v. Corr., No. CIV 08-5249 PAM/SRN, 2009 WL 2568675, at *2 (D. Minn. Aug. 18, 2009) (citing Dulany v. Carnahan, 132 F.3d ...


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