United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.
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.
SUMMARY OF COMPLAINT
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.)
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.)
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.
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.)
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.)
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.)
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.)
APPLICABLE STANDARDS OF REVIEW
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).
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.”).
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 ...