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Phillips v. Frakes

United States District Court, D. Nebraska

June 8, 2017

SCOTT FRAKES, et al., Defendants.


          Richard G. Kopf Senior United States District Judge.

         Plaintiff, Jarrod Phillips, filed his Complaint on December 12, 2016 (Filing No. 1), and was granted leave to proceed in forma pauperis on January 23, 2017 (Filing No. 7). The court conducted an initial review of the Complaint and entered a Memorandum and Order on March 7, 2017, finding that no plausible claim for relief was stated; however, on its own motion, the court granted Phillips leave to amend (Filing No. 12). Phillips filed an Amended Complaint on March 17, 2017 (Filing No. 14). The court now conducts an initial review of the Amended Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.


         Phillips, an inmate the Nebraska State Penitentiary (“NSP”), alleges that on March 29, 2016, he was provoked into attacking a caseworker, Defendant Randy Bradley. Phillips alleges he was in a closed-door meeting with another caseworker, Russell Schuster (not named as a defendant), when Bradley entered the room and began insulting Phillips; after Phillips responded, Bradley yelled at him to leave; Phillips left but returned after a few minutes to apologize to Schuster for using “dirty language” in responding to Bradley; he discovered Bradley was still in the office; Bradley started laughing at Phillips, which made Phillips angry enough to strike Bradley, “leaving him uncons[ci]ous on the floor”; Phillips placed his hands behind his back and faced the wall while Schuster took out his mace gun and pointed it at Phillips' head; Bradley then regained consciousness and ordered Phillips to sit down in a chair he tossed across the room; Phillips told Bradley to “fuck off” because he was in Schuster's custody; Bradley radioed an emergency call for help and two officers, Defendant Michael Reeves and Jacob Korbel (not named as a defendant), arrived within seconds; Korbel pressed Phillips into the wall and handcuffed him; while in this position with the mace gun still pointed his head, Phillips heard Bradley scream “I['ll] get you” and saw him “lunge over the table and swing a closed fist punch at [Phillips'] head, ” not making contact; “Cpl. Kramer” (not named as a defendant) and several officers, including Defendant Reeves, arrived at this time and restrained Bradley; but when Korbel and Reeves tried to escort Phillips out of the office, Bradley broke free, “yelled I'll kill you and swung a close[d] fist at [Phillips'] face, ” but again failed to make contact; “Cpl. Kramer and other officer[s] again restrained Bradley in the nick of time”; finally, Phillips was escorted to holding and eventually placed in segregation.

         Phillips complains he was disciplined and charged with criminal assault while Bradley was not disciplined or charged, even though Bradley allegedly was involved in “multiple other physical altercations before and after the one with [Phillips]” and “was known for his mistreatment of many inmates.” Phillips claims the disciplinary action that was taken against him, including loss of good-time credits and placement in segregation, and the criminal charge that was filed by Defendant James Rocke, a deputy county attorney, resulted from a false report of the incident that was prepared by Defendant Reeves and from the failure of Defendant John Chavez, a state prison investigator, to question witnesses about the incident. Phillips additionally claims other prison officials were involved in covering up the alleged assault by Bradley and incident and in encouraging the criminal prosecution of Phillips.

         Phillips alleges Defendant Reeves falsely reported that Phillips struggled while being handcuffed and “was try[ing] to move aggressively toward Randy Bradley”; this report was read during a “prison court” hearing on April 4, 2016, which resulted in 2 years being added to Phillips' sentence and “indefinite solitary confinement.” Phillips alleges Defendant Chavez contacted him two hours after the hearing and was made aware that Bradley assaulted Phillips after being knocked out by Phillips; Phillips asked Chavez to interview four witnesses, but he only talked to Cpl. Kramer, who allegedly verified Phillips' claim. Phillips alleges no response was made to several inmate request forms and written grievances he submitted between April and July 2016 in which he asserted that Bradley had assaulted him, and he complains that later grievances, submitted between August and December 2016, were denied for various procedural reasons.

         In addition to claims made against Defendants Bradley, Reeves, Rocke, and Chavez, Phillips claims that:

• Defendant Scott Frakes, Director of Prisons, was instrumental in having criminal charges filed against Phillips and then, after criminal charges were dismissed without prejudice in October 2016 pending an investigation into the behavior of NSP staff, had him transferred to the Tecumseh prison; Phillips was returned to NSP in December 2016 after this lawsuit was filed.
• Defendant Diane Sabatke Rhine, Deputy Director, acting under Defendant Frakes' orders, tried to discredit Phillips and help corrections officers avoid criminal prosecution for assault, false reporting, and obstruction of justice.
• Defendant Michael Rothwell, Deputy Director, also tried to discredit Phillips and help corrections officers avoid prosecution.
• Defendant Rich Cruishank, Warden of NSP, assisted Defendant Frakes in transferring Phillips to Tecumseh prevent him from providing evidence during the investigation into NSP staff.
• Defendant Brad Hanson, Warden of Tecumseh, conspired with Defendants Frakes and Cruishank regarding the transfer and then tampered with Phillips' medication.
• Defendant Capt. Brittenham at NSP conducted an investigation into Phillips' complaints but closed the investigation after discovering evidence that Phillips “was the victim of multiple crimes by multiple officers.”
• Defendant Capt. Freezy at NSP conducted an investigation at the direction of Defendant Cruishank, but closed the investigation after discovering ...

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