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Rivera v. Frakes

United States District Court, D. Nebraska

April 24, 2017

SCOTT R. FRAKES, Director; RICHARD CRUICKSHANK, Warden; SCOTT ISHERWOOD, Unit Manager; and RANDY WARE, Case Worker; Defendants.



         Plaintiff filed a Complaint on November 23, 2016. (Filing No. 1.) He has been given leave to proceed in forma pauperis. (Filing No. 4.) He paid the full amount of his initial partial filing fee on March 13, 2017. (See Docket Sheet.) The court now conducts an initial review of Plaintiff's Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).


         Plaintiff is a prisoner within the Nebraska Department of Correctional Services (“NDCS”). He names four defendants in his Complaint: Scott R. Frakes (“Frakes”), Director of the NDCS, Richard Cruickshank (“Cruickshank”), Warden of the Nebraska State Penitentiary, Scott Isherwood (“Isherwood”), a unit manager at the Nebraska State Penitentiary, and Randy Ware (“Ware”), a former case worker at the Nebraska State Penitentiary. (Filing No. 1 at CM/ECF pp. 2, 9; Filing No. 1-2 at CM/ECF p. 7.) Plaintiff sues Defendants in their official and individual capacities. (Filing No. 1 at CM/ECF p. 3.)

         On November 28, 2015, Plaintiff approached the “C-gallery” control center in Housing Unit 5 to look at the time. (Id. at CM/ECF p. 10.) Plaintiff alleges that Ware ordered Plaintiff to “move the hell out of his way.” (Id.) Plaintiff told Ware that he would move once he saw the time. (Id.) Ware walked in front of Plaintiff and called Plaintiff and other inmates “idiots, gangsters, and dumbasses.” (Id. at CM/ECF p. 11.) Plaintiff realized at this time that he had crossed the “red line” in the dayroom, so he stepped back behind it. (Id.) Plaintiff told Ware to quit bothering him. (Id.) Plaintiff alleges that Ware responded, “Keep your mouth shut or I'll spray you.” (Id.) Plaintiff told Ware that he was doing nothing wrong, to leave him alone, and to quit acting like a “bitch.” (Id.) Plaintiff alleges that he ended the conversation and stepped away to view the time without crossing the red line. (Id.) He claims that, without warning or directive, Ware then sprayed him with mace in his face and neck area, which affected his eyesight and breathing and left him tearing and coughing. (Id.) Afterward, staff escorted Plaintiff to shower and to the nurse, who took his vitals but did not flush his eyes. (Id. at CM/ECF pp. 12-13.) For failing to follow staff directives, staff subsequently placed Plaintiff in segregation, where he flushed his eyes and skin. (Id. at CM/ECF p. 13.)

         Ware wrote a misconduct report finding that Plaintiff had committed three rule infractions during the incident. (Filing No. 1-1 at CM/ECF p. 1.) He wrote that Plaintiff's actions and stance became aggressive and Plaintiff refused a direct order to get on the ground, after which Ware “administered three ½ to 1 second burst[s] of O.C. MK-4 spray towards [Plaintiff].” (Id.) Plaintiff alleges that video evidence of the incident contradicts Ware's report. (Filing No. 1 at CM/ECF pp. 17-18.) Prison officials placed the incident and Ware under investigation. (Id. at CM/ECF pp. 14-15.)

         After a disciplinary committee hearing, which Isherwood chaired, Plaintiff was found guilty of only one of three counts - swearing, cursing by calling a staff member a “bitch.” (Filing No. 1-1 at CM/ECF pp. 5-6.) Isherwood denied Plaintiff's request to recuse himself from the hearing. (Filing No. 1 at CM/ECF p. 17.) Plaintiff alleges that Isherwood and Ware are friends and that Ware went to Isherwood for advice after the incident. (Id. at CM/ECF pp. 16-17.) As discipline for the one rule infraction, Plaintiff was given three days, time served, in segregation. (Id. at CM/ECF p. 18.) An Appeals Board at the NDCS upheld the decision of the disciplinary committee based upon evidence presented at the hearing, including Plaintiff's own witnesses' statements that they heard him call Ware a “bitch” and Plaintiff's own statement that he “only used the language that CW Ware used.” (Filing No. 1-1 at CM/ECF p. 15.) Associate Warden Hurt later dismissed the misconduct report against Plaintiff “due to staff use of excessive force.” (Id. at CM/ECF p. 21.) Ware is no longer employed at the NDCS. (Filing No. 1-2 at CM/ECF p. 7.)

         Plaintiff alleges that he had issues concerning his eyesight since Ware sprayed him, specifically blurriness and irritation. (Filing No. 1 at CM/ECF p. 20.) Nearly two months after the incident, Plaintiff asked for a doctor to check his eyes because the eye drops he was given were not helping. (Id. at CM/ECF pp. 20-21.) He was eventually prescribed different eye drops with no total relief. (Id. at CM/ECF pp. 21-22.) A doctor later diagnosed Plaintiff with dry eyes and prescribed him a lubricating solution. (Id. at CM/ECF p. 22.) Plaintiff's vision remains 20/20, although he claims that it was 18/20 prior to the incident. (Id. at CM/ECF p. 21.) Plaintiff alleges that he was given coping skills/adult homework to deal with his incident-related mental health issues, and that he saw a psychiatrist, who prescribed him medication for the same. (Id. at CM/ECF pp. 24-25.)

         Plaintiff claims that staff ridiculed him for being sprayed with mace. (Id. at CM/ECF p. 20.) He claims that staff harassed him, otherwise, and Isherwood did nothing about it. (Id. at CM/ECF pp. 23-24.) Plaintiff asserts that staff and Isherwood “[play] with the unit disciplinary hearing by finding anybody guilty, whether [the] inmate is innocent or not.” (Id. at CM/ECF p. 23.) Plaintiff complains that he informed Cruickshank about the harassment and about being kept from his medical records. (Id. at CM/ECF p. 24.) Plaintiff alleges that Cruickshank informed him that he would need to get a discovery order to obtain his medical log for the day of the incident and “attempted to discourage him” from filing suit by telling Plaintiff that he would definitely lose and that it would not benefit Plaintiff. (Id.)

         Plaintiff asserts that he suffered “harm to his eyesight, unnecessary infliction of pain, harassment and slander of character, pain and suffering, mental health issues . . ., temporary skin irritation, damages to lungs and breathing” because of Defendants' actions. (Filing No. 1 at CM/ECF pp. 28-29.) He seeks declaratory and monetary relief. (Id.)


         The court is required to review prisoner and in forma pauperis complaints seeking relief against a governmental entity or an officer or employee of a governmental entity to determine whether summary dismissal is appropriate. See 28 U.S.C. §§ 1915(e) and 1915A. The court must dismiss a complaint or any 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); 28 U.S.C. § 1915A(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) (“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.”).

         “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 ...

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