Webb v. Johnson

• Decision Date: 19 May 2021
• Docket Number: 4:21CV3042
• Parties: YOHAN WEBB, Plaintiff, v. BRAD JOHNSON, KEN PREY, RICK GRAY, UNKNOWN NUMEROUS CORRECTIONAL OFFICERS, SEAN FLOWERDAY, CHRISTA YOAKUM, DEB SCHORR, ROMA AMUNDSON, RICK VEST, KEITH HARVAT, CHRIS CANTRELL, SCOTT FRAKES, MARK BENNE, KEVIN STUKENHOLTZ, JIM PESCHONG, SHERRY MORROW, CONNIE PFEIFFER, BRAD ALEXANDER, and DARIA ANDERSON-FADEN, Defendants.
• Court: U.S. District Court — District of Nebraska

YOHAN WEBB, Plaintiff, v. BRAD JOHNSON, KEN PREY, RICK GRAY, UNKNOWN NUMEROUS CORRECTIONAL OFFICERS,SEAN FLOWERDAY, CHRISTA YOAKUM, DEB SCHORR, ROMA AMUNDSON,RICK VEST, KEITH HARVAT, CHRIS CANTRELL, SCOTT FRAKES,

MARK BENNE, KEVIN STUKENHOLTZ, JIM PESCHONG, SHERRY MORROW,

CONNIE PFEIFFER, BRAD ALEXANDER,

and DARIA ANDERSON-FADEN, Defendants.

4:21CV3042

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

May 19, 2021

MEMORANDUM AND ORDER

Plaintiff, a state prisoner being held as a pretrial detainee at the Lancaster County Jail, filed his pro se Complaint (Filing 1) on February 25, 2021, and has been granted leave to proceed in forma pauperis ("IFP"). Having since waived Plaintiff's initial partial filing fee requirement, court will now conduct an initial review of Plaintiff's Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.

I. LEGAL STANDARDS ON INITIAL REVIEW

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, or any portion of the complaint," it determines "(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). Comparable language is contained in 28 U.S.C. § 1915(e)(2)(B) (applicable to IFP plaintiffs).

"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)). 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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.").

"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).

II. SUMMARY OF COMPLAINT

Plaintiff brings this action under 42 U.S.C. § 1983, and complains he was disciplined in retaliation for his refusal to allow his temperature taken as part of the jail's Covid-19 testing procedure. Plaintiff alleges that while he was housed in J-Pod he received 6 disciplinary reports and sanctions for refusing to have his temperaturetaken, which resulted him being restricted to his cell for 35 days, although he was permitted to shower during his 1-hour "out times." Plaintiff was later moved to S-Pod, where he allegedly was denied "out time" for showers on 7 different days between November 9-21, 2020. Plaintiff notes the dates and times these denials occurred, and alleges that "the correctional officer(s) in control bubble Pod S3 told me upon request to shower that they were instructed by a superior to not let me shower, if I did not let staff take my temperature." (Filing 1, pp. 18, 20.) Plaintiff alleges he subsequently told another correctional officer, Vanessa Ventry, that he was not allowed to take showers, and she then informed her superior, Lt. Mueller, who directed that Plaintiff be permitted his "out time" for showers even though Plaintiff would not allow his temperature be taken. Plaintiff alleges that being disciplined and confined to his cell in S-Pod for 24-hours on 7 days was "cruel and unusual" punishment and was in violation of jail standards. Plaintiff also claims he was denied procedural due process. (Filing 1, p. 21.) He seeks to recover damages for mental anguish and emotional distress, and unspecified declaratory or injunctive relief.¹ (Filing 1, pp. 16-17, 21.)

III. DISCUSSION

To state a claim under § 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). Plaintiff alleges Defendants violated his rights under the Fifth, Eighth, and Fourteenth Amendments. Defendants, all of whom are sued both in their individual and official capacities, include: (1) Brad Johnson, Director of Lancaster County Department of Corrections ("LCDC"); (2) Ken Prey, Facility Administrator for LCDC; (3) Rick Gray, Facility Administrator for LCDC; (4) numerous correctional officers, names unknown; (5)five members of the Lancaster County Board of Commissioners (Sean Flowerday, Christa Yoakum, Deb Schorr, Roma Amundson, and Rick Vest); and (6) eleven members of the Jail Standards Board (Keith Harvat, Chris Cantrell, Scott Frakes, Marke Benne, Kevin Stukenholtz, Brad Johnson,² Jim Peschong, Sherry Morrow, Connie Pfeifer, Brad Alexander, and Daria Anderson). (Filing 1, pp. 2-3, 12-15.)

A. Claims Made Against Defendants

Plaintiff claims the county commissioners are liable "for the actions of their subordinate (Brad Johnson) whom this board appointed as an (employee) to be 'Director' of the named 'Lancaster County Dept. of Corrections' ...." (Filing 1, p. 16.) This statement is incorrect as a matter of law. "It is well settled that § 1983 does not impose respondeat superior liability." Hughes v. Stottlemyre, 454 F.3d 791, 798 (8th Cir. 2006) (internal quotation marks omitted). To state a § 1983 claim, the plaintiff must allege that the defendant was personally involved in or had direct responsibility for incidents that resulted in injury. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (because there is no vicarious liability in § 1983 actions, a prisoner "must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution"). Plaintiff's Complaint fails to state a claim upon which relief may be granted against the county commissioners.

Plaintiff claims the members of the Jail Standards Board are liable "for the failure of their 'jail standards minimum requirements' ... to be enforced and adhered to [so] that inmates are provided daily showers ...." (Filing 1, p. 16.) "The Jail Standards Board established within the Nebraska Commission on Law Enforcement and Criminal Justice is responsible for developing minimum standards for the construction, maintenance, and operation of criminal detention facilities by political subdivisions in Nebraska. See Neb. Rev. Stat. § 83-4,124 et seq.; see also Neb. Rev. Stat. § 47-101 (providing that Jail Standards Board shall prescribe rules for the regulation and government of county jails)." Nelson v. Hjorth, No. 8:18CV88, 2018 WL 2050571, at *4 (D. Neb. May 2, 2018).

The members of the Jail Standards Board cannot be held liable under § 1983 for their alleged failure to enforce jail standards. A similar claim was rejected by the United States Court of Appeals for the Fifth Circuit in Bush v. Viterna, 795 F.2d 1203 (5th Cir. 1986), because the Texas Commission on Jail Standards did not have a legal obligation to enforce jail standards:

When the Texas legislature created the Commission, the authority to supervise, direct, or control the actual daily operation of each county jail lay with the elected sheriff of the county, subject to a superintending role of the county commissioner's court, the basic legislative body in each Texas county. Neither the statute nor its legislative history suggests an intent to oust the counties from their historic role.

The statute creating the Commission, Tex. Rev. Civ. Stat. Ann. art. 5115.1 (Vernon Supp.1986), empowers that entity to act in several ways. In doing so it distinguishes between grants to the Commission of discretionary authority to act and impositions of mandatory duties to act. For example, the law provides that the Commission shall establish minimum standards for the physical plant of county jails, for custodial care, and for staffing and services at those facilities. Tex. Rev. Civ. Stat. Ann. art. 5115.1 § 9(a)(1)-(3) (Vernon Supp.1986). Similarly, the Commission is obliged to require and review reports about the jails from county sheriffs and commissioners and to report any noncompliance with Commission standards or state law to those local officials and to the governor. Id. §§ 9(a)(8)-(9), 11(b). When the statute turns to enforcement, however, it gives the Commission broad powers without imposing any obligation to act. See id. § 11(d) ("If the [county] commissioners or sheriff does not comply [with commission orders] within the time granted by the commission, the commission may, by order, prohibit the confinement of prisoners in the noncomplying jail.") (emphasis added); id. § 11(f) ("The commission, in lieu of closing a county jail, may institute an action [in state court] in its own name to enforce, or enjoin the violation of, its orders, rules, or procedures, or of Article 5115 Revised Civil Statutes

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