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Barber v. Frakes

United States District Court, D. Nebraska

June 10, 2019



          Richard G. Kopf Senior United States District Judge

         Plaintiff filed a Complaint on August 27, 2018. (Filing No. 1.)[1] He has been given leave to proceed in forma pauperis. (Filing No. 9.) The court now conducts an initial review of Plaintiff's Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.


         Plaintiff is an inmate in the custody of the Nebraska Department of Correctional Services (“NDCS”) and confined at the Tecumseh State Correctional Institution (“TSCI”). Plaintiff brings this action pursuant to 42 U.S.C. §§ 1983 and 1985 against Scott Frakes, Director of the NDCS; Taggart Boyd, the Warden of the Lincoln Correctional Center (“LCC”); and 10 employees of the LCC for alleged violations of his constitutional rights under the First, Eighth, and Fourteenth Amendments. Liberally construed, Plaintiff also alleges a violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213. (Filing No. 1 at CM/ECF pp. 3, 11.)

         Plaintiff alleges he has been diagnosed with a serious mental illness and was housed in the Mental Health Unit (“MHU”) at the LCC prior to being confined at the TSCI. (Id. at CM/ECF p. 1.) Plaintiff alleges that the Defendants deprive inmates in the MHU of activities and privileges without affording an inmate a hearing or any of the procedures required by Title 68 of the Nebraska Administrative Code, which sets forth the rules for regulating an inmate's behavior, and additional deprivations of privileges are imposed upon admission into the MHU “Levels Program” “for reasons not directly having to do with the treatment of a particular mental illness.” (Id. at CM/ECF pp. 2, 7.) Inmates must sign a consent form and a contract agreeing to the terms of the MHU program prior to entering the MHU and are informed that inmates “can be placed on a therap[e]utic restriction.” (Id. at CM/ECF p. 7.) The Levels Program is administered by the MHU Multi-Disciplinary Team which is made up of the 10 LCC employees Plaintiff named as Defendants.

         On June 1, 2018, Plaintiff alleges he was placed on “level D, which is a restriction that is similar to the sanction ‘room restriction' set forth in Title 68, ” for 17 days without being afforded a hearing based on reports that he had engaged in passing and receiving canteen times with other inmates. (Id. at CM/ECF pp. 8-9.) As a result of being placed on level D, Plaintiff lost his job as the lead porter on the MHU. (Id. at CM/ECF p. 9.) The other inmate with whom Plaintiff allegedly exchanged canteen items did not receive any type of restriction for his alleged misconduct. (Id.)

         Plaintiff alleges the MHU Multi-Disciplinary Team's enforcement of the Levels Program violated the First, Eighth, and Fourteenth Amendments, and that “[a]ll Defendants, by agreeing to the enforcement of the levels program, . . . did conspire, for the purpose of depriving . . . Plaintiffs and others similarly situated of the equal protection of the laws, or of equal privileges or immunities under the laws.” (Id. at CM/ECF pp. 11-12.) For relief, Plaintiff seeks a declaration that the Levels Program is unconstitutional, injunctive relief enjoining the continuation of the MHU Levels Program, and monetary damages. (Id. at CM/ECF p. 12.)


         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).


         A. ...

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