Epp v. Frakes

• Decision Date: 15 June 2017
• Docket Number: 4:16CV3176
• Parties: WILLIAM EPP, Plaintiff, v. SCOTT FRAKES, et al., Defendants.
• Court: U.S. District Court — District of Nebraska

WILLIAM EPP, Plaintiff, v. SCOTT FRAKES, et al., Defendants.

4:16CV3176

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

June 15, 2017

MEMORANDUM AND ORDER

On March 7, 2017, the court filed a Memorandum and Order on initial review of a complaint filed jointly by William Epp and Dukhan Mumin (Filing No. 1), both of whom are inmates at the Tecumseh State Correctional Center ("TSCI"). The court found there was a misjoinder of parties plaintiff under Rule 20(a)(1) of the Federal Rules of Civil Procedure and also a misjoinder of claims against multiple defendants under Rule 20(a)(2) of the Federal Rules of Civil Procedure. Consequently, the court severed Epp's claims from Mumin's claims by directing the clerk of the court to open a new case file for Mumin (see Case No. 4:17CV3032) and then gave each plaintiff 30 days to file an amended complaint on their own behalf.

The plaintiffs were cautioned that in preparing their amended complaints they must "decide which claims to exclude from their respective cases in order to comply with Rule 20(a)(2)" (Filing No. 18 at CM/ECF p. 8). The plaintiffs were also advised that an excluded claim could be brought in new action, but that a filing fee would be assessed for each new action filed (Id.

).

Epp's Amended Complaint in this case was received and filed by the clerk of the court on April 10, 2017 (Filing No. 21). The postmark is not legible, but the pleading appears to have been signed by Epp on April 6, 2017 (Id.

at CM/ECF pp. 8, 9). If Epp deposited the amended complaint in the prison mail system on that date, it was timely filed. See

United States v. Harrison, 469 F.3d 1216, 1217 (8th Cir. 2006) ("Under the prison mailbox rule, a pro se pleading is deemed filed upon deposit in the prison mail system prior to the expiration of the filing deadline."); Sulik v. Taney County,

316 F.3d 813, 815 (8th Cir. 2003) ("[T]he prison mailbox rule governs the determination of when a prisoner's civil complaint has been filed."), overruled on other grounds in later appeal, 393 F.3d 765 (8th Cir. 2005). The court now conducts an initial review of Epp's Amended Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.

I. SUMMARY OF AMENDED COMPLAINT

The original Complaint in this matter contained five claims that were alleged jointly by both Epp and Mumin and two claims that were alleged solely by Epp. Epp's Amended Complaint contains three claims, which are identified as follows:

• "Denial of Religious Freedom" (Filing No. 21 at CM/ECF pp. 2-5, ¶¶ 11-36). This claim, which is brought under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc et seq., generally corresponds to one of the claims that was alleged solely by Epp in the original Complaint (Filing No. 1 at CM/ECF pp. 5-7, ¶¶ 32-56). Epp alleges he has contracted with Glen and NDCS to obtain a special diet as a practicing Buddhist since 2011, but the diet has been suspended on at least four occasions as a disciplinary measure after he missed a meal; Epp also complains he is not permitted to obtain food items from outside sources. Epp alleges Busboom and Frakes have failed to take any corrective action.

• "Plaintiff was prosecuted under Neb. Rev. Stat. 25-1233(1) which is an unconstitutional statute" (Filing No. 21 at CM/ECF pp. 5-7, ¶¶ 37-50). This claim, which the court construes as being brought under 42 U.S.C. § 1983, pertains to a Nebraska statute dealing with the examination of prisoners and generally corresponds to the other claim that was alleged solely by Epp in the original Complaint (Filing No. 1 at CM/ECF pp. 20-22, ¶¶ 168-181). Epp complains the statute did not allow prisoners to be transported from another county to testify at his criminal trial.

• Neb. Rev. Stat. 29-2221 et seq. Is Unconstitutional" (Filing No. 21 at CM/ECF pp. 7-8, ¶¶ 51-56). This claim, which the court construes as being brought under 42 U.S.C. § 1983, pertains to Nebraska's habitual criminal statute and generally corresponds to a claim that was alleged jointly by Epp and Mumin in the original Complaint (Filing No. 1 at CM/ECF pp. 16-17, ¶¶ 139-149). Epp complains he was sentenced as a habitual criminal without any jury determination and by only a preponderance of the evidence.

Six individuals are named as Defendants in the Amended Complaint: (1) Scott Frakes, Director of the Nebraska Department of Correctional Services ("NDCS"); (2) Pete Ricketts, Governor of Nebraska; (3) Scott Busboom, Associate Warden at TSCI; (4) Chuck Glen, a NDSC employee in charge of religious programs; (5) Michael Kenney, former Director of NDCS; and (6) Brian Gage, former Warden at TSCI (Filing No. 21 at CM/ECF pp. 1-2, ¶¶ 5-10). All of these Defendants are sued in their individual and official capacities (Filing No. 21 at CM/ECF p. 1, ¶ 2). The title in the caption to the Amended Complaint also lists NDCS and the State of Nebraska as Defendants (Filing No. 21 at CM/ECF p. 1).

The only named Defendants mentioned in allegations pertaining to the first claim identified above are Frakes, Busboom, and Glen (Filing No. 21 at CM/ECF pp. 2-3, ¶¶ 14, 20).¹ None of the named Defendants are mentioned in allegations pertaining to the second and third claims, although for relief Epp requests that Neb. Rev. Stat. §§ 25-1233(1) and 29-2221 be declared unconstitutional and the State of Nebraska enjoined "from continually applying both statutes to criminal defendants until such time as those provisions are brought into alignment with the U.S. Constitution and NebraskaConstitution" (Filing No. 21 at CM/ECF p. 8). Epp seeks to recover compensatory and punitive damages with respect to the first claim.

II. 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).

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).

III. DISCUSSION OF CLAIMS

A. Misjoinder

While a plaintiff may join in one action as many claims as he has against a single defendant, see Fed. R. Civ. P. 18(a), "in actions where more than one defendant is named, such as the one at bar, the analysis under Rule 20 precedes that under Rule 18." Houston v. Shoemaker,

No. 2:16-CV-36-CDP, 2017 WL 35699, at *2 (E.D. Mo. Jan. 4, 2017). Rule 20 provides in part: "Persons ... may be joined in one action as defendants if ... any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and ... any question of law or fact common to all defendants will arise in the action." Fed. R. Civ. P. 20(a)(2). Thus, "[d]espite the broad language of Rule 18(a), plaintiff may join multiple defendants in a single action only if plaintiff asserts at least one claim to relief against each of them that arises out of the same transaction or occurrence and presents questions of law or fact common to all." Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1655 (3d ed. 2016). That situation does not exist in this case.

Even if the State of Nebraska and NDCS are treated as named Defendants, they are immune from suit in federal court in an action brought under 42 U.S.C. § 1983. See Will v. Mich. Dep't of State Police,

491 U.S. 58, 65-66 (1989) ("[A] State is not a 'person' within the meaning of § 1983 ... The Eleventh Amendment bars ... suits [against States for alleged deprivations of civil liberties] unless the State has waived its immunity."). While under the doctrine set forth in Ex Parte Young, 209 U.S. 123 (1908), state officials may be sued in their official capacities for prospective injunctive relief without violating the Eleventh Amendment, the same doctrine does not extend to states or state agencies. Monroe v. Arkansas State Univ., 495 F.3d 591, 594 (8th Cir. 2007). Eleventh Amendment immunity also applies to actions brought under RLUIPA. While the Act provides that a person asserting a violation may "obtain appropriate relief against a government," 42 U.S.C. § 2000cc-2(a), the Supreme Court has held this language does not operate to effecta waiver of the states' sovereign immunity. See Sossamon v. Texas,

563 U.S. 277, 285 (2011).

"In making an officer of the state a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the state,...