Nelson v. Department of Corrections et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ERIC DARNELL NELSON,
Plaintiff,
vs.
DEPARTMENT OF CORRECTIONS,
et al.,
Defendants.
Case No. 4:19-cv-00014-RRB
SCREENING ORDER
In April 2019, Eric Darnell Nelson, a self-represented prisoner, filed a Civil
Rights Complaint under 42 U.S.C. § 1983 and an Application to Waive the Filing
Fee.1 	In 	the 	complaint, 	Mr. 	Nelson 	alleged 	violations 	of 	the 	Prison 	Rape
Elimination 	Act 	by 	a 	corrections 	officer, 	and 	that 	the 	subsequent 	internal
investigation also violated the Prison Rape Elimination Act.2 The Court screened
the complaint and dismissed with leave to amend for failure to state a claim.3
On September 17, 2019, Mr. Nelson filed a First Amended Complaint
alleging a civil rights violation under 42 U.S.C. § 1983.4 	He alleges violations of
his Eighth Amendment rights under the U.S. Constitution by Defendant Amber
1 Dockets 1; 3.
2 Docket 1.
3 Docket 4.
4 Docket 8.
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Doty, a corrections officer at Fairbanks Correctional Center, and Defendant Tammi
Axelsson, the Superintendent at Fairbanks Correctional Center.5 	He sues each
defendant in their individual capacity. 	The alleged facts against each defendant
will be discussed below. For relief, Mr. Nelson requests (1) damages in excess of
$50,000.00 per individual defendant; (2) punitive damages to be determined;
(3) an order requiring defendants “to show accountability”; (4) a declaration that
“compliance and standard will be adhered to, to ensure it will not happen again”;
and (5) for the defendants to “bear the costs of Mental therapy for myself, and any
other person.”6 Mr. Nelson demands a jury trial.
SCREENING REQUIREMENT
Federal law requires a court to conduct an initial screening of a civil
complaint filed by a self-represented prisoner seeking a waiver of the prepayment
of the filing fee. In this screening, a court shall dismiss the case at any time if the
court determines that the action:
(i) 	is frivolous or malicious;
(ii) 	fails to state a claim on which relief may be granted; or
(iii) 	seeks monetary relief against a defendant who is immune
from such relief.7
5 Docket 8 at 1–5.
6 Docket 8 at 8.
7 28 U.S.C. § 1915(e)(2)(B); see also 28 U.S.C. § 1915A(a), (b).
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To determine whether a complaint states a valid claim for relief, courts
consider whether the complaint contains sufficient factual matter that, if accepted
as true, “state[s] a claim to relief that is plausible on its face.”8 	In conducting its
review, a court must liberally construe a self-represented plaintiff’s pleading and
give the plaintiff the benefit of the doubt.9 Before a court may dismiss any portion
of a complaint for failure to state a claim upon which relief may be granted, the
court must provide the plaintiff with a statement of the deficiencies in the complaint
and an opportunity to amend or otherwise address the problems, unless to do so
would be futile.10
DISCUSSION
Mr. Nelson alleges that he has been sexually harassed and abused by a
former 	corrections 	officer 	in 	violation 	of 	his 	Eighth 	Amendment 	rights.
Furthermore, he alleges that after the officer’s misconduct was discovered, the
superintendent was deliberately indifferent to his “personal well-being” in violation
of his Eighth Amendment rights. Mr. Nelson has plausibly alleged a claim against
Defendant Doty. However, Mr. Nelson has not sufficiently alleged a claim against
8 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). In making this determination, a court may consider “materials that
are submitted with and attached to the Complaint.” United States v. Corinthian Colleges,
655 F.3d 984, 999 (9th Cir. 2011) (citing Lee v. L.A., 250 F.3d 668, 688 (9th Cir. 2001)).
9 See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d
1026, 1027 n.1 (9th Cir. 1985) (en banc)).
10 See Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010) (citing Albrecht v.
Lund, 845 F.2d 193, 195 (9th Cir. 1988)).
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Defendant Axelsson. Mr. Nelson may choose either to move forward on his claim
against Defendant Doty, or he may choose to amend his complaint.
I. 	Defendant Doty
Mr. Nelson has alleged that between May and August 2017, Defendant Doty
performed sexual acts upon him, forced him to engage in sexual intercourse with
her under threat of punishment, and coerced him into performing sexual acts on
her under threat of reprisal and criminal charges.11 As alleged, Defendant Doty is
or was a corrections officer at Fairbanks Correctional Center. “Sexual harassment
or 	abuse 	of 	an 	inmate 	by 	a 	corrections 	officer 	is 	a 	violation 	of 	the 	Eight
Amendment.”12 	Therefore, Mr. Nelson has plausibly alleged a constitutional
violation by a state actor sufficient for this claim to move forward under 42 U.S.C.
§ 1983.
II. 	Defendant Axelsson
Mr. Nelson alleges that, after Defendant Doty was fired for her alleged
misconduct, Defendant Axelsson “showed (deliberate indifference) towards my
mental [s]tate and in fact min[i]mized the situation of one of her staff’s misconduct
and my personal well-being.”13 	He further alleges that Defendant Axelsson has
11 Docket 8 at 4.
12 Wood v. Beauclair, 692 F.3d 1041, 1046 (9th Cir. 2012); relying on Schwenk v. Hartford,
204 F.3d 1187, 1197 (9th Cir. 2000) (establishing that prisoners have an Eighth
Amendment right “to be free from sexual abuse[.]”).
13 Docket 8 at 5.
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not helped “in the prosecution of his claims” and “thereby left me at the unknown,
and unfathomable mercies of any other DOC female staff that may have other
demented idea[s.]”14 	At present, Mr. Nelson has not plausibly alleged a claim
under 42 U.S.C. § 1983 for the reasons discussed below. 	Accordingly, the Court
must dismiss the claim against Defendant Axelsson for failure to state a claim upon
which relief may be granted. The Court grants leave to amend.
a. 	Failure to State a Claim – Rule 8
A complaint seeking relief from a federal court must be clear. Rule 8 of the
Federal Rules of Civil Procedure instructs that a complaint must contain a “short
and plain statement of the claim showing that the [complainant] is entitled to relief.”
A complaint should set out each claim for relief separately. 	Each claim should
identify (1) the specific harm that Mr. Nelson is alleging has occurred to him,
(2) when that harm occurred, (3) where that harm was caused, (4) who he is
alleging caused that specific harm to him, and (5) what specific law he is alleging
was violated as to that specific claim.
As pled, it is unclear from Mr. Nelson’s allegations when and what manner
Defendant Axelsson caused him an injury or harm.
14 Id.
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b. 	42 U.S.C. § 1983
42 U.S.C. § 1983 is a federal statute that “is not itself a source of substantive
rights,” but provides “a method for vindicating rights [found] elsewhere.”15 To state
a claim for relief under 42 U.S.C. § 1983, a plaintiff must “plead that (1) defendants
acting under color of state law (2) deprived plaintiff of rights secured by the federal
Constitution or federal statutes.”16 	To act under color of state law, a complaint
must allege that the defendants acted with state authority as state actors.17 To be
deprived of a right, the defendant’s action needs to either violate a right guaranteed
by the Constitution or an enforceable right created by federal law.18 	Critically, a
plaintiff must establish a causal link between the state action and the alleged
violation of her rights.19 	These essential elements must be pleaded in a § 1983
claim.
42 U.S.C. § 1983 does not confer constitutional or federal rights. Instead, it
provides a mechanism for remedying violations of pre-existing constitutional or
15 Graham v. Connor, 490 U.S. 386, 393–94 (1989) (quoting Baker v. McCollan, 443 U.S.
137, 144 n.3 (1979)).
16 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).
17 West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299,
326 (1941)).
18 Buckley v. City of Redding, 66 F. 3d 188, 190 (9th Cir. 1995); Blessing v. Freestone,
520 U.S. 329, 340–41 (1997).
19 Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007)
(quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)).
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federal rights.20 Constitutional rights are those conferred by the U.S. Constitution
to individual citizens. Section 1983 can be used as a mechanism for enforcing the
rights guaranteed by a particular federal statute only if (1) the statute creates
enforceable rights and (2) Congress has not foreclosed the possibility of a § 1983
remedy for violations of the statute in question.21 	Section 1983 does not provide
a cause of action for violations of state law.22 However, where a violation of state
law is also a violation of a federal constitutional right, Section 1983 may provide a
cause of action.23
Importantly in a § 1983 action, a plaintiff must demonstrate causation, or
show how the defendant, acting under color of state law, allegedly violated the
plaintiff’s federal rights. 	A person deprives another of a federal constitutional or
statutory right, “within the meaning of § 1983, ‘if he does an affirmative act,
participates in another’s affirmative act, or omits to perform an act which he is
legally required to do that causes the deprivation of which complaint is made.’”24
The required causal connection “may be established when an official sets in motion
20 Graham v. Connor, 490 U.S. 386, 393–94 (1989).
21 Blessing v. Freestone, 520 U.S. 329, 340–41 (1997); Dittman v. California, 191 F.3d
1020, 1027–28 (9th Cir. 1999).
22 Galen v. Cty. of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007).
23 Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 370 (9th Cir. 1996).
24 Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007)
(quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)).
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a ‘series of acts by others which the actor knows or reasonably should know would
cause others to inflict’ constitutional harms.”25
Mr. Nelson has named Defendant Axelsson, who is Superintendent of
Fairbanks Correctional Center, a state actor who is plausibly acting under the color
of law, as having violated his Eighth Amendment rights. However, Mr. Nelson has
not plausibly alleged a violation of either the U.S. Constitution or a federal statute,
or that Defendant Axelsson caused an injury to his rights.
i. 	Eight Amendment – Conditions of Confinement
The Eighth Amendment imposes certain duties on prison officials: (1) to
provide humane conditions of confinement; (2) to ensure that inmates receive
adequate food, clothing, shelter and medical care; and (3) to “take reasonable
measures to guarantee the safety of the inmates.”26
In order to state a claim under the Eight Amendment for cruel and unusual
punishment a prisoner must plausibly allege: 	(1) the prisoner faced a substantial
risk; 	(2) 	the 	defendant 	was 	deliberately 	indifferent 	to 	that 	risk—as 	in—the
defendant knew of it and disregarded it by failing to take reasonable measure to
address it; and (3) the act or failure to act by the defendant caused harm to the
25 Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743).
26 Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citing Hudson v. Palmer, 468 U.S. 517,
526–27 (1984)).
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prisoner.27 	When “evaluating a prisoner’s claim, courts consider whether ‘the
officials 	acted 	with 	a 	sufficiently 	culpable 	state 	of 	mind’ 	and 	if 	the 	alleged
wrongdoing 	was 	objectively 	‘harmful 	enough’ 	to 	establish 	a 	constitutional
violation.”28
Deliberate 	indifference 	is 	the 	conscious 	choice 	to 	disregard 	the
consequences of one’s acts or omissions. An Eighth Amendment claim based on
deliberate indifference must satisfy both an objective and a subjective component
test.29 	A prison official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the official "knows of
and disregards an excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn that a substantial risk
of serious harm exists, and he must also draw the inference.”30
Mr. Nelson’s allegations do not describe a specific condition or injury that
occurred, because Defendant Axelsson knew of a risk, purposeful disregarded that
risk, and Mr. Nelson was harmed due to Defendant Axelsson’s action or inaction.
27 See Farmer, 511 U.S. at 832-847.
28 Hudson v. MacMillian, 503 U.S. 1, 8 (1992).
29 Id. at 834.
30 Id. at 837; accord Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002).
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ii. 	Eighth Amendment – Failure to Protect
The 	Eighth 	Amendment 	imposes 	on 	prison 	officials 	a 	duty 	to 	“take
reasonable measures to guarantee the safety of the inmates.”31 	In order for a
prisoner to state a claim alleging a violation of the Eighth Amendment, because
prison officials failed to protect the prisoner or provide adequate safety guarantees,
the prisoner must allege that: (1) the defendant made an intentional decision with
respect to the conditions under which the prisoner was confined; (2) those
conditions put the prisoner at substantial risk of suffering serious harm; (3) the
defendant did not take reasonable available measures to abate that risk, even
though a reasonable officer in the circumstances would have appreciated the high
degree of risk involved—making the consequences of the defendant’s conduct
obvious; and (4) by not taking such measures, the defendant caused the plaintiff’s
injuries.32
Deliberate 	indifference 	is 	the 	conscious 	choice 	to 	disregard 	the
consequences of one’s acts or omissions. An Eighth Amendment claim based on
deliberate indifference must satisfy both an objective and a subjective component
test.33 	A prison official cannot be found liable under the Eighth Amendment for
31 Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citing Hudson v. Palmer, 468 U.S. 517,
526–27 (1984)).
32 See Farmer, 511 U.S. at 832-847;
33 Id. at 834.
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denying an inmate humane conditions of confinement unless the official “knows of
and disregards an excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn that a substantial risk
of serious harm exists, and he must also draw the inference.”34
Mr. Nelson needs to plausibly allege that Defendant Axelsson knew of
Defendant Doty’s actions and disregarded the risk to Mr. Nelson; and/or knows of
other similar risks to Mr. Nelson by other female corrections staff, has disregarded
those risks, and Mr. Nelson has been harmed.
iii. 	Eighth Amendment –Serious Medical Need
To state a claim under the Eighth Amendment for violations involving
medical care, a prisoner must show that a defendant has been deliberately
indifferent to his serious medical needs.35 	A prisoner must demonstrate that:
(1) the he faced a substantial risk; (2) the defendant was deliberately indifferent to
that risk—as in—the defendant knew of it and disregarded it by failing to take
34 Id. at 837; accord Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002).
35 Estelle v. Gamble, 429 U.S. 97, 105 (1976) (“Regardless of how evidenced, deliberate
indifference to a prisoner’s serious illness or injury states a cause of action under
§ 1983.”); see also Simmons v. Navajo County, Arizona, 609 F.3d 1011, 1017 (9th Cir.
2010) (“Although the Fourteenth Amendment’s Due Process Clause, rather than the
Eighth Amendment’s protection against cruel and unusual punishment, applies to pretrial
detainees . . . we apply the same standards in both cases . . . under a ‘deliberate
indifference’ standard.”) (citing Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979)) (further
citation and internal quotation marks omitted).
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reasonable measure to address it; and (3) the act or failure to act by the defendant
caused harm to the prisoner.36
A “showing of nothing more than ‘a difference of medical opinion’ as to the
need to pursue one course of treatment over another [i]s insufficient, as a matter
of law, to establish deliberate indifference. In other words, where a defendant has
based his actions on a medical judgment that either of two alternative courses of
treatment would be medically acceptable under the circumstances, plaintiff has
failed to show deliberate indifference, as a matter of law.”37 	For instance, a
difference of medical opinion regarding medication is not enough to establish an
Eighth Amendment violation.38
“A medical need is serious if failure to treat it will result in ‘significant injury
or the unnecessary and wanton infliction of pain.’ . . . A prison official is deliberately
indifferent to that need if he ‘knows of and disregards an excessive risk to inmate
health.’”39
To establish an Eighth Amendment violation, a plaintiff
must 	satisfy 	both 	an 	objective 	standard—that 	the
36 See Farmer, 511 U.S. at 832–47.
37 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.), cert. denied, 519 U.S. 1029 (1996)
(citing Estelle, 429 U.S. at 107–08).
38 Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (“The Toguchis argue that
Seroquel is superior to Triafon, and therefore should not have been discontinued by
Dr. Chung. However, a mere ‘difference of medical opinion . . . [is] insufficient, as a matter
of law, to establish deliberate indifference.’”) (quoting Jackson, supra).
39 Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014) (en banc) (citations and further
internal quotation marks omitted).
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deprivation was serious enough to constitute cruel and
unusual 	punishment—and 	a 	subjective 	standard—
deliberate indifference.
To meet the objective standard, the denial of a
plaintiff’s 	serious 	medical 	need 	must 	result 	in 	the
“unnecessary and wanton infliction of pain.”
The subjective standard of deliberate indifference
requires “more than ordinary lack of due care for the
prisoner’s interests or safety.” . . . The state of mind for
deliberate indifference is subjective recklessness.40
Mr. Nelson’s allegations mention his mental health, but do not have specific
descriptions of harm or injury. He has not set forth clear allegations that Defendant
Axelsson has acted with either the requisite objective or subjective recklessness,
thereby causing Mr. Nelson significant injury or the unnecessary or wanton
infliction of pain.41
CONCLUSION
Mr. Nelson has plausibly alleged a violation of his Eighth Amendment rights
by Defendant Doty under 42 U.S.C. § 1983. However, he has not plausibly alleged
a claim under 42 U.S.C. § 1983 against Defendant Axelsson. 	Mr. Nelson may
choose to move forward on the single claim against Defendant Doty or he may
amend his complaint.
40 Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012) (quoting Estelle, 429 U.S. at 104
and Farmer v. Brennan, 511 U.S. 825, 835 (1994)) (internal citation omitted) (emphasis
added), overruled on other grounds, Peralta, 744 F.3d at 1083.
41 Docket 8 at 5.
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IT IS THEREFORE ORDERED:
1. 	Mr. Nelson’s Claim #1 adequately states a claim for relief under 42 U.S.C.
§ 1983, and is approved to proceed against Defendant Doty for a violation
of the Eighth Amendment of the U.S. Constitution.
2. Mr. Nelson’s claim against Defendant Axelsson is dismissed for failure
to state a claim upon which relief may be granted.
3. The Application to Waive Prepayment of the Filing Fee, at Docket 3, is
GRANTED. An order directing the collection of fees will be issued
separately.
4. Mr. Nelson has until January 10, 2020 to file either:
a 	Notice of Intent to Proceed on Claim 1 only, which informs the Court
that Mr. Nelson wishes to proceed solely on Claim 1 against Defendant
Doty; or
b 	Amended Complaint, in which Mr. Nelson files restating Claim 1
against Defendant Doty in its entirety, and states revised claims against
Defendant 	Axelsson 	to 	the 	Court 	after 	correcting 	the 	deficiencies
identified in this order.
5. 	Any Amended Complaint must be on this Court’s form, which is being
provided to Mr. Nelson with this order. An amended complaint replaces the
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prior complaint in its entirety.42 	If Mr. Nelson elects to file an amended
complaint, Mr. Nelson must state all of the claims he seeks to bring, including
Claim 1. 	Any claims not included in 	the amended complaint 	will be
considered waived.
6. If Mr. Nelson does not file either a Notice of Intent to Proceed on Claim 1 or
an Amended Complaint on the Court form by January 10, 2020, the matter
will proceed under the current Amended Complaint on Claim 1 only..
7. At all times, Mr. Nelson must keep the Court informed of any change of
address. Such notice shall be titled “NOTICE OF CHANGE OF ADDRESS.”
This notice must not include any requests for any other relief, and it must be
served on any Defendant’s attorney who makes an appearance in this case.
Failure to file a notice of change of address may result in the dismissal of
this case under Rule 41(b) of the Federal Rules of Civil Procedure.
8. The Clerk of Court is directed to send Mr. Nelson the following forms with
this Order: (1) form PS01, with “SECOND AMENDED” written above the
title “Prisoner’s Complaint Under the Civil Rights Act 42 U.S.C. § 1983;”
(2) PS21 Pro Se Notice; (3) form PS23, Notice of Change of Address; and
(4) the District Court’s handbook, “R EPRESENTING YOURSELF IN ALASKA ’S
F EDERAL C OURT .”
42 Local Civil Rule 15.1.
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DATED this 11th day of December, 2019, at Anchorage, Alaska.
/s/ Ralph R. Beistline
Senior United States District Judge
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