Barber v. Frakes
| Decision Date | 13 October 2020 |
| Docket Number | 8:20CV282 |
| Parties | RAYSEAN BARBER, Plaintiff, v. SCOTT FRAKES, DR. SEAN THOMAS, CYNTHIA POLAGE, DR. JEFF MELVIN, DR. BRANDON HOLLISTER, and DR. JEFFERY KASSELMAN, Defendants. |
| Court | U.S. District Court — District of Nebraska |
Plaintiff, RaySean Barber ("Barber"), a state prisoner currently incarcerated at the Lincoln Correctional Center, filed his pro se Complaint on July 16, 2020, and subsequently was granted leave to proceed in forma pauperis. Now that the required initial partial filing fee has been paid, the court conducts an initial review of Barber's Complaint (Filing 1) to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.
Barber complains the defendants wrongfully placed him on an involuntary medication order ("IMO") after he was diagnosed with "schizoaffective disorder, bipolar type, multiple episodes, currently in acute episode." (Filing 1, ¶¶ 1, 2.) On November 11, 2019, Dr. Brandon Hollister, an NDCS psychologist, and Dr. Jeffrey Kasselman, an NDCS physician, submitted an application to NDCS's Involuntary Medication Hearing Committee ("IMHC") to administer psychotropic medication. (Filing 1, ¶¶ 3, 15-17.) The IMHC's members included two psychologists, Dr. Sean Thomas and Dr. Jeff Melvin, and a nurse practitioner, Cynthia Polage. (Filing 1, ¶¶ 4, 12-14.) The IMHC held a hearing on November 13, 2019, and issued the IMO. (Filing 1, ¶¶ 4, 25.) Barber appealed, but the IMHC's decision was upheld by the NDCS Director, Scott Frakes. (Filing 1, ¶¶ 4, 11, 34.)
The foregoing six individuals are named as defendants in this action, and are sued only in their individual capacities for compensatory and punitive damages. (Filing 1, ¶¶ 11-16, 43-46.) Barber alleges the IMO has resulted in depression and requires painful monthly injections of Haldol. (Filing 1, ¶¶ 36-38, 43-45.)
Barber generally "asserts that the facts of this case indicate that his right to freedom of speech, against cruel and unusual punishment, and to equal protections of the law were violated by the acts of the defendants." (Filing 1, ¶ 5.) He states this action is brought pursuant to 42 U.S.C. §§ 1983 and 1985 for the deprivation of his constitutional rights under the First, Eighth, and Fourteenth Amendments. (Filing 1, ¶¶ 8, 39-42.)1
The Prison Litigation Reform Act ("PLRA") requires the court to conduct an initial review of "a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). On such initial review, the court must dismiss the complaint if it: "(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b). See also 28 U.S.C § 1915(e)(2)(B) requiring dismissal of in forma pauperis complaints "at any time" on the same grounds as § 1915A(b)).
"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 groundsfor 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)). 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. iqly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ().
"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). This means that "if the essence of an allegation is discernible, even though it is not pleaded with legal nicety, then the district court should construe the complaint in a way that permits the layperson's claim to be considered within the proper legal framework." Stone v. Harry, 364 F.3d 912, 915 (8th Cir. 2004). However, even pro se complaints are required to allege facts which, if true, state a claim for relief as a matter of law. Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980).
Liberally construing Barber's Complaint, this is a civil rights action brought under 42 U.S.C. §§ 1983 and 1985. Barber is not seeking to enjoin the IMO, but, rather, to hold six individuals personally liable for his alleged injuries.
"No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). This statute applies to all federal actions brought by prisoners, including actions alleging violation of the First Amendment. Sisney v. Reisch, 674 F.3d 839, 842-43 (8th Cir. 2012).
A prisoner cannot recover compensatory damages without a prior showing of physical injury, but can seek nominal damages, punitive damages, injunctive relief, or a declaratory judgment without such a showing. See Royal v. Kautzky, 375 F.3d 720, 723 (8th Cir. 2004). Nominal damages of $1.00 are available to vindicate a violation of rights with no actual injury. Id. at 724. Punitive damages are available only when a defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to protected federal rights." Id. (internal quotation marks and citation omitted).
Barber's alleged depression and resulting loss of enjoyment of life are mental and emotional injuries.2 See Pyle v. Robin Sims, No. 5:15-CV-05245, 2017 WL 663518, at *3 (W.D. Ark. Jan. 30, 2017) ( ), report and recommendation adopted sub nom. Pyle v. Sims, No. 5:15-CV-05245, 2017 WL 662991 (W.D. Ark. Feb. 17, 2017). The Eighth Circuit has not decided whether severe pain, standing alone, constitutes a physical injury under the PLRA, but has held that the injury must be greater than de minimis. See McAdoo v. Martin, 899 F.3d 521, 525-26 (8th Cir. 2018). Barber's allegation that he is administered painful injections of Haldol on a monthly basis does not appear to meet this threshold.
Thus, while the PLRA does not preclude Barber from pursuing his civil rights claims under 42 U.S.C. §§ 1983 and 1985, he may not be eligible for compensatory damages.
Section 1985 "provides a cause of action for damages sustained as a result of ... conspiracies to deprive individuals of equal privileges and immunities and equal protection under the law, 42 U.S.C. § 1985(3)." Kelly v. City of Omaha, 813 F.3d 1070, 1077 (8th Cir. 2016). "[T]he conspiracy not only must have as its purpose the deprivation of 'equal protection of the laws, or of equal privileges and immunities under the laws,' but also must be motivated by 'some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.'" United Bhd. of Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 829 (1983) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971)).
Because Barber has not asserted that the claimed conspiracy was motivated by any racial or other class-based, invidiously discriminatory animus, no viable § 1985 claim is stated. See, e.g., Miller By A.M. v. Dorsey, No. 4:18CV3031, 2018 WL 4854180, at *5 (D. Neb. Oct. 5, 2018) ().
Barber's Complaint merely recites the words of § 1985, which does not satisfy federal pleading standards. "[P]laintiffs who merely parrot the statutory language of the claims that they are pleading (something that anyone could do, regardless of what may be prompting the lawsuit), rather than providing some specific facts to ground those legal claims, ... have not provided the 'showing' required by Rule 8 [of the Federal Rules of Civil Procedure]." Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009); see Twombly, 550 U.S. at 555 .
Also, "[i]n order to state a claim for conspiracy under § 1985, a plaintiff 'must allege with particularity and specifically demonstrate with material facts that the defendants reached an agreement.'" Kelly, 813 F.3d at 1078 . "Thisstandard requires that 'allegations of a conspiracy [be] pleaded with sufficient specificity and factual support to suggest a meeting of the minds directed toward an unconstitutional action.'" Id. (quoting Nelson v. City of McGehee, 876 F.2d 56, 59 (8th Cir. 1989)).3 Here, Barber merely pleads a conclusion that "[a]ll defendants, by agreeing to initiate involuntary medication on the basis of an application which asserted allegations that were not supported by any record, and where Barber was only taking advantage of his right to use grievance procedures...
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