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Wedmore v. Jorgenson

United States District Court, D. North Dakota

October 1, 2015

Travis L. Wedmore, Plaintiff,
Brian Jorgenson, et al., Defendant.




The plaintiff, Travis L. Wedmore (“Wedmore”), is an inmate at the North Dakota State Penitentiary. He initiated this action with the filing of a pro se complaint on December 2, 2014, along with an application to proceed in forma pauperis, which the court granted.

Subsequent to the filing of the initial complaint, Wedmore filed an amended complaint wherein he simply asserted that he had been wronged and then proceeded to list a number of defendants. He also filed notice of his consent to the undersigned’s handling of this matter as well as what the undersigned deemed to be two supplements to his amended complaint.

Upon screening Wedmore’s amended complaint pursuant to 28 U.S.C. §1915A, undersigned identified the following deficiencies: (1) a failure by Wedmore to allege a basis for this court’s exercise of jurisdiction, which is a mandatory requirement under Fed.R.Civ.P. 8(a)(1); and (2) a failure by Wedmore to articulate what wrongs each of the defendants had allegedly engaged. Consequently, the undersigned granted Wedmore leave to file a second amended complaint to address the aforementioned deficiencies. Wedmore filed a second amended complaint on August 24, 2015, which is now before the undersigned for an initial screening pursuant to 28 U.S.C.§1915A.


Congress enacted the Prison Litigation Reform Act of 1995 (“PLRA”) to address the burden imposed by prisoner suits that are too often frivolous and without merit. Jones v. Bock, 549 U.S. 199, 203-04 (2007); Woodford v. Ngo, 548 U.S. 81, 84 (2006). One of the reforms enacted as part of the PLRA for cases in which prisoners are seeking to sue a governmental entity, officer, or employee requires courts to conduct an early screening to weed out claims that clearly lack merit. 28 U.S.C. § 1915A. In conducting the screening, the court is required to identify any cognizable claims and to dismiss the complaint, or any part of it that is frivolous, malicious, fails to state a claim, or seeks monetary relief from an immune defendant. Id.

In enacting the PLRA, Congress did not impose a heightened pleading requirement for prisoner complaints, and, in this case, 42 U.S.C. § 1983 does not impose any such requirement. Jones, 549 U.S. at 203-04. Consequently, to state a cognizable claim, the complaint need only meet the minimal requirements of Fed.R.Civ.P. 8(a)(2) that it contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Erickson v. Pardus, 551 U.S. 89, 93 (2007). In addition, when a prisoner is proceeding pro se, the court must construe the complaint liberally and hold it to a less stringent standard than would be required of an attorney. 94.

To meet the minimal requirements of Rule 8(a)(2) for pleading a cognizable claim, more is required than simply expressing a desire for relief and declaring an entitlement to it. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 & n.3 (2007). “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (quoting Bell Atlantic, 550 U.S. at 570). A complaint fails to meet this minimal pleading standard if it contains nothing more than “labels and conclusions, ” “a formulaic recitation of the elements of a cause of action, ” or “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft, 556 U.S. at 678 (2009) (quoting Bell Atlantic, 550 U.S. at 555, 557).

To state a cognizable claim for violation of federal civil rights under 42 U.S.C. § 1983, the plaintiff must allege a violation of a right secured by the Constitution or the laws of the United States and that the violation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Walker v. Reed, 104 F.3d 156, 157 (8th Cir. 1997). The pleading must also allege a sufficient causal link between the alleged violation and the basis upon which the particular defendant is to be held responsible, keeping in mind that persons sued in their individual capacities must be personally involved or directly responsible since § 1983 does not impose respondeat superior liability. Ashcroft, 556 U.S. at 676-77; Gordon v. Hansen, 168 F.3d 1109, 1113 (8th Cir. 1999).


A. “First Claim(s)

Wedmore was civilly committed as a sexually dangerous individual. On July 17, 2003, he assaulted an employee at the State hospital. He was charged with the offense of simple assault, a Class C felony under State law. He was subsequently convicted and sentenced to a term of five years imprisonment.

Wedmore arrived at the NDSP on October 2, 2013, to begin serving his sentence. According to Wedmore, he was removed from his cell in the NDSP’s “orientation unit” on October 15, 2013, and placed in administrative segregation for approximately three months due to the fact that he had been civilly committed as a dangerous individual and on account of his assaultive behavior.[1]

Wedmore asserts that he did nothing upon arriving at the NDSP to warrant his placement in administrative segregation, that Weigel had a retaliatory motive for referring him for this placement, that Jorgenson expressed agreement with this placement, that Bertsch relied on erroneous information when approving this placement, and that Budeau, Fode, and Belisle “made excuses” to keep him in administrative segregation. He further avers that his placement in administrative segregation constituted cruel and unusual punishment.

1. Retaliation

Insofar as Wedmore appears to be asserting a claim for retaliation, it fails for lack of specifics. In order to present a retaliation claim, a prisoner must establish: (1) he engaged in a protected activity; (2) an adverse action was taken against him that would deter a person of ordinary firmness from engaging in that conduct, and (3) there is a causal connection between the protected activity and the adverse action. See Farrow v. West, 320 F.3d 1235, 1248 (11th Cir. 2003); Gill v. Pidlypchak, 389 F.3d 379, 380 (2nd Cir. 2004); Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). Although claims of retaliation are not held to a heightened pleading standard, something more than a conclusory allegation is required to satisfy the requirement under Iqbal that a pleading must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. See Williams v. Stewart, 476 Fed. App’x 105 (8th Cir. 2012) (unpublished per curiam) (concluding that a state prisoner’s conclusory allegations of retaliatory discipline failed to state a § 1983 claim); Hartsfield v. Dept’ of Corr., 107 Fed. App’x 695 (8th Cir. 2004) (unpublished per curiam) (affirming the pre-service dismissal of a prisoner’s retaliation claim because he had not offered anything beyond conclusory allegations of retaliation); Atkinson v. Bohn, 931 F.3d 1127, 1128 (8th Cir. 1996) (unpublished per curiam) (“Because [the prisoner’s] allegations of retaliation were speculative and conclusory, this claim was properly dismissed.”); Cameron v. Siddiq, No. 14-3020, 2007 WL 4210442, at* 4 (M.D. Ala. Nov. 28, 2007) (“[I]t is essential that federal courts carefully scrutinize retaliation claims brought by prisoners challenging actions of correctional personnel. [C]ourts must approach prisoner claims of retaliation with skepticism and particular care. This is [necessary because prisoners'] ... claims of retaliation are ... easily fabricated [and] pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration. This is so because virtually any adverse action taken against a prisoner by a prison official-even those otherwise not rising to the level of a constitutional violation-can be characterized [by the prisoner] as a constitutionally proscribed retaliatory act.” (internal citations and quotations omitted)).

Here, the deficiencies that plagued Wedmore's amended complaint continue to plague his second amended complaint. Wedmore has a tendency to make conclusory allegations and then list defendants. For example, he claims that Weigel retaliated against him but does not state what activity he had engaged to prompt this alleged retaliation. He claims that Budeau, Fode, and Belisle made excuses to keep him in administrative segregation but does not state what these alleged excuses were. As for Jorgenson, he provides even less, stating only that Jorgenson agreed to his placement in administrative segregation.

Since Wedmore has not described with the requisite detail what, if any, alleged protected activity he was engaged in at the time of any retaliation, much less articulated a causal connection between his activities and his placement in administrative segregation, his claim fails. In sum, his conclusory assertions that he was retaliated against are insufficient to support a cognizable claim.

2. Cruel and Unusual Punishment

Wedmore’s assertion that his placement in administrative segregation constituted cruel and unusual punishment also fails to serve as a basis for cognizable claim.

“It is undisputed that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (1993). However, the Constitution “does not mandate comfortable prisons.” Rhodes v. Chapman, 452 U.S. 337, 349 (1981). In its prohibition of “cruel and unusual punishments, ” the Eighth Amendment places restraints on prison officials, who may not, for example, use excessive physical force against prisoners. See Hudson v. McMillian, 503 U.S. 1, 4 (1992). The Amendment also imposes a duty upon prison officials to provide humane conditions of confinement, meaning they must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must “take reasonable measures to guarantee the safety of the inmates.” Hudson v. Palmer, 468 U.S. 517, 526-527 (1984); see also Helling, 509 U.S. at 31-32; Washington v. Harper, 494 U.S. 210, 225 (1990); Estelle v. Gamble, 429 U.S. 97, 103 (1976). To violate the Eighth Amendment, a prison official's act or omission must result in the denial of “the minimal civilized measure of life's necessities.” Rhodes, 452 U.S. at 347; Farmer v. Brennan, 511 U.S. 825, 834 (1994); see also Anderson v. Coughlin, 787 F.2d 33, 34-35 (2d Cir.1985). It is “only the unnecessary and wanton infliction of pain” that implicates the Eighth Amendment. Rhodes, 452 U.S. at 347. “To the extent that ... conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.” Id.

Two things are worth noting here. First, the mere fact that Wedmore was placed in administrative segregation does not necessarily give rise to an Eighth Amendment claim. See e.g., Monroe v. Perlman, No., 2009 WL 152651, at * 9 (N.D.N.Y. Jan. 21, 2009) (“It is well established, however, that subjecting a prisoner to the ordinary incidents of SHU disciplinary confinement alone does not rise to a level which is intolerable to the Eighth Amendment's cruel and unusual punishment protections.”); Murphy v. Wheaton, 381 F.Supp. 1252, 1260 (D.C. Ill. 1974) (“[I]solated or segregated confinement does not per se amount to cruel and unusual punishment.”). Second, Wedmore has alleged no facts which, if proven, would tend to show that confinement in administrative segregation constituted cruel and unusual punishment. He does not describe any particularly harsh condition to which he as allegedly subjected to when in administrative segregation (deprivation of any food, clothing, recreation, or sanitation) or otherwise allege that he suffered any injury as a result of his placement in administrative segregation. Rather, he states simply that his confinement in administrative segregation was cruel, unusual, and unfair. Such general statements are insufficient to state a claim under the most liberal of pleading standards. See Twombly, 550 U.S. at 555; Iqbal, supra; see also Miskovitch v. Hostoffer, No., 2010 WL 2404424, at * 8 (W.D. Pa. May 19, 2010) (citing Hutto v. Finley, 437 U.S. 678, 686 (1978), for the proposition that “[n]either classification nor confinement to segregation, either administrative or punitive, implicates the Cruel and Unusual Punishment Clause of the Eighth Amendment unless the conditions themselves are cruel and unusual”).

B. “Second Claim

Wedmore’s second claim arises out of Budeau’s alleged failure to timely respond to a threat of suicide that he made while in administrative segregation. According to Wedmore’s second amended complaint, he was placed in administrative segregation in the Spring of 2014 pending an investigation of a sexual harassment claim filed against him by another inmate. On the evening of May 12, 2014, while in administrative segregation, Wedmore, pushed an emergency call button in his cell and told the responding officer that he was feeling suicidal and wanted to speak with his case manager, Dennis Budeau. After approximately thirty minutes had lapsed and no one came to his cell to speak with him, he acted on his ideations. He was subdued, taken to the emergency room at Sanford Health for treatment, and then returned to administrative segregation, where he was held for 5 days of observation.

Although Wedmore questions why the officer who had received his call did not immediately leap into action, it is Budeau who he asserts was deliberately indifferent to his serious mental health needs. Specifically, he asserts:

Dennis Budeau failed to do his job in making sure I am safe. I called into the Control Booth and the Officer said he would give the message to Dennis Budeau. I told the Officer that I was feeling suicidal and need to talk to Dennis Budeau. I found out later that Dennis Budeau ...

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