Wiley v. Austin
| Decision Date | 30 September 2020 |
| Docket Number | 8:20CV220 |
| Parties | TIMOTHY J. WILEY, Plaintiff, v. AUSTIN, 552 Employee, in Individual Capacity; TERRI, Unit Manager, in Individual Capacity; DREW ENGLISH, Compliance Team, in Individual Capacity; DON WHITMOR, Compliance Team, in Individual Capacity; VICTOR, Therapist, in Individual Capacity; JAMES C., Patient - 3F Unit, in Individual Capacity; JOKER T., Patient - 3F Unit, in Individual Capacity; MIKE EPPMAN, Social Worker, in Individual Capacity; and JAKE, 552, in Individual Capacity; Defendants. |
| Court | U.S. District Court — District of Nebraska |
Plaintiff filed his Complaint on June 10, 2020. (Filing 1.) He has been given leave to proceed in forma pauperis without prepayment of fees. (Filing 5.) The 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).
Plaintiff has been civilly committed to the Norfolk Regional Center ("NRC"). He brings this 42 U.S.C. § 1983 action against two other patients and seven NRC employees, who are sued in their individual capacities only, for "1st amendment, restricting access to the law, and lack of safety in a medical facility, unethical treatment." (Filing 1 at 3.) Plaintiff's "Statement of Claim" reads as follows:
On the 28th of May Joker T made a sexual harassment/humiliating comment about "fucking me in the ass and how he doesn't because he doesn't know where my asshole's been." This is referring to how I was raped in jail upon coming to NRC. I reported this to Mike Eppman and he refused to call the State Patrol when I asked to press charges. I reported it to my therapist and unit manager and they both did nothing. He was reported and yet he gets more privileges. On the 1st of June James C [illegible] made terroristic threats "saying he was gonna slash my neck." I reported this to the above and as well as sending a request to speak to the compliance team. The 2nd of June I was silenced on trying to voice my safety by Victor. He told me because I will not finish my assignment that I'm not allowed to take a focus (a way to voice a concern). This is against my 1st amendment rights. Austin the SS2 [Security Specialist 2] laughed at me and told me that I should not get upset over these things. I spoke to Jake the SS2 and asked him what he thought. "You just a [lays back?] and take it like a bitch." I do not feel this is an ethical medical facility and it doesn't care about our 1st amendment right to voice. Don Whitmar [sic] has actually told me that I'm not allowed to call the authorities because he will restrict my phone access. This is a threat towards my 1st amendment rights and right to a safe and ethical/nonprejudice treatment. I would like to sue each individual involved for $500,000. I do not feel safe and feel if I try to voice my safety concern then I'm either gonna be retaliated against or silenced altogether. I spoke to Drew English after a week of waiting to talk to him on these issues but my request apparently got lost even though its in a lock box.
On June 19, 2020, Plaintiff filed a motion to amend the Complaint to correct the names or titles of certain Defendants. (Filing 6.) That motion will be granted.
The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. The court must dismiss a complaint orany 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) ().
"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 construing Plaintiff's Complaint, this is a civil rights action filed under 42 U.S.C. § 1983. To state a claim under this statute, 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). An act violating the Constitution is considered to have occurred under color of law if it is "fairly attributable" to a governmental entity. Meier v. St. Louis, 934 F.3d 824, 829 (8th Cir. 2019) (quoting Smith v. Insley's Inc., 499 F.3d 875, 880 (8th Cir. 2007)), cert. denied, 140 S. Ct. 2566 (2020).
The two patients whom Plaintiff names as Defendants, Joker T. and James C., are private parties who are not alleged to have been acting under color of state lawwhen they made harassing or threatening comments. Therefore, no plausible § 1983 claim is stated against them. See Magee v. Trs. of Hamline Univ., 747 F.3d 532, 536-37 (8th Cir. 2014) (). "The one unyielding requirement [to hold a private party liable] is that there be a 'close nexus' not merely between the state and the private party, but between the state and the alleged deprivation itself." Meier, 499 F.3d at 829 (quoting Wickersham v. City of Columbia, 481 F.3d 591, 597 (8th Cir. 2007)).
Plaintiff claims the seven NRC employees who are named as Defendants violated his constitutional rights when (1) social worker Mike Eppman refused to call the State Patrol after Plaintiff said he wanted to press charges against Joker T. for his harassing comment, (2) Plaintiff's therapist [Victor?] and unit manager [Terri?] also did nothing after he reported Joker T.'s comment to them, (3) Plaintiff reported to these same individuals that James C. threatened to slash Plaintiff's neck, (4) Victor would not let Plaintiff "take a focus" as a way to voice his concern, (5) two security specialists, Austin and Jake, advised Plaintiff not to get upset or to do anything, (6) compliance team member Don Whitmar1 said he will restrict Plaintiff's phone access, and (7) Plaintiff waited for a week to speak to the other compliance team member, Drew English.
"As a general matter, the First Amendment prohibits governmental actors from directing what persons may see, read, speak, or hear." United States v. Ivers, 967 F.3d 709, 718 (8th Cir. 2020) ). The first, second, third fifth, and seventh claims listed above do not involve any restrictions being placed on Plaintiff's right to speak. Plaintiff may have been disappointed with the response—or lack of response—he received from the people he talked to, but they are not alleged to have interfered with his ability to lodge a complaint with the State Patrolor any other authority. See, e.g., Montoya on Behalf of S.M. v. Espanola Pub. Sch. Dist. Bd. of Educ., No. CV 10-651 WPJ/LFG, 2013 WL 12333629, at *4 (D.N.M. Feb. 20, 2013) ().
The fourth claim, against therapist Victor, does involve an alleged restraint on Plaintiff's speech, but the facts alleged are not sufficient to state a plausible First Amendment claim. Plaintiff does not explain what it means to "take a focus," but presumably it would involve some sort of discussion within the confines of NRC, which is a nonpublic forum.2 "Any form of involuntary confinement, whether incarceration or involuntary commitment, may necessitate restrictions on the right to free speech." Beaulieu v. Ludeman, 690 F.3d 1017, 1038-39 (8th Cir. 2012) (). Plaintiff alleges that Victor's proffered reason for not allowing Plaintiff to "take a focus" was because Plaintiff "will not finish [his] assignment." Again, it is unclear what this means, but it does not appear that Plaintiff was "silenced" because he "was trying to voice [his] safety." Without any factual allegations to demonstrate that the alleged restriction was content-based or unreasonable, one cannot begin to draw an inference that Plaintiff's First Amendment rights were violated by Victor.
Finally, Plaintiff alleges that "Don Whitmar has actually told me that I'm not allowed to call the authorities because he will restrict my phone access." It is unclear whether Plaintiff's phone access has already been restricted so as to prevent him from calling the authorities, or whether his phone privileges will be restricted in some manner once he does contact the authorities. It is also unclear whether this statement was made before or after Plaintiff allegedly reported James C.'s threat to Defendant Whitmar.
The court takes judicial notice that Plaintiff alleges in another pending action that restrictions have been placed...
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