Opinion
4:23-cv-00668-JJV
11-27-2023
STEVEN ISHMAEL XANDER CODY OBAMA, ADC #145160 Plaintiff, v. JAMES GIBSON, Warden, Varner/ Varner Super Max Unit, ADC, et al., Defendants.
I previously entered a Partial Recommended Disposition screening the Complaint pursuant to 28 U.S.C. § 1915A. (Doc. 10.) Before it was acted upon, the parties consented to my jurisdiction. (Doc. 26.) Thus, the Partial Recommended Disposition is withdrawn and this Order is entered in its place.
JOE J. VOLPE UNITED STATES MAGISTRATE JUDGE
I. DISCUSSION
Steven Ishmael Xander Cody Obama (“Plaintiff”) has filed a pro se Amended Complaint seeking relief pursuant to 42 U.S.C. § 1983. Because he has accumulated three strikes, under 28 U.S.C. § 1915(g), he can proceed in forma pauperis only if he is in imminent danger of serious physical injury. On August 22, 2023, I determined Plaintiff's allegations that there is black mold, dust, dirt, lint, spiders, and roaches in the showers and air vents of Isolation 4 at the VSM that is causing him to have severe headaches, changes in his voice, dirty mucus, and watery eyes satisfied the imminent danger exception. (Doc. 7.) Thus, I granted him permission to proceed in forma pauperis as to that conditions of confinement claim only. I then gave him the opportunity to file an Amended Complaint explaining how each of the Defendants were personally involved in that allegation and curing other pleading deficiencies. And I cautioned him an Amended Complaint would render his prior Complaint without any legal effect.
Plaintiff has filed an Amended Complaint alleging Defendants Warden Gibson, Deputy Warden Carroll, Major Barden, and Sergeant Strain were personally aware of but deliberately indifferent to the inhumane conditions in Isolation 4. (Doc. 8.) I conclude, for screening purposes only, Plaintiff has pled a plausible Eighth Amendment conditions of confinement claim against Defendants in their official and individual capacities. Defendants have been served and filed an Answer on that claim only. (Docs. 15.) In contrast, for the following reasons, the remainder of the claims in the Amended Complaint are dismissed without prejudice.
Due to the doctrine of sovereign immunity, I construe the Amended Complaint as seeking injunctive and declaratory relief against Defendants in their official capacities and monetary damages against them in their personal capacities. See Will v. Mich. Dep't of State Police, 491 U.S. 58 (1989); Larson v. Kempker, 414 F.3d 936, 939-40 (8th Cir. 2005); Treleven v. Univ. of Minn., 73 F.3d 816, 819 (8th Cir. 1996).
First, Plaintiff claims the three strikes provision in § 1915(g) is unconstitutional because it denies him access to the courts and equal protection of the laws. But the Eighth Circuit has already rejected both arguments. Higgins v. Carpenter, 258 F.3d 797 (8th Cir. 2001).
Second, Plaintiff says Defendants Gibson, Carroll, and Barden issued him false disciplinary convictions in retaliation for filing grievances. However, as explained in my August 22, 2023 Order, that allegation does not put Plaintiff in imminent danger of serious physical injury. Thus, Plaintiff's retaliation claim is dismissed without prejudice so that he may, if he so chooses, pursue it in a separately filed lawsuit with full payment of the filing fee.
II. CONCLUSION
IT IS, THEREFORE, ORDERED that:
1. The September 11, 2023 Partial Recommended Disposition (Doc. 10) is WITHDRAWN.
2. Plaintiff may proceed with his conditions of confinement claim against Defendants Gibson, Carroll, Barden, and Strain in their official and individual capacities.
3. All other claims in the Amended Complaint (Doc. 8) are DISMISSED without prejudice.
4. It is certified, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from this Memorandum and Order would not be taken in good faith.