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Landers v. Nebraska Department of Corrections

United States District Court, D. Nebraska

February 27, 2018



          Richard G. Kopf Senior United States District Judge.

         Plaintiff filed a Complaint on October 6, 2017. (Filing No. 1.) He has been given leave to proceed in forma pauperis. (Filing No. 6.) 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) and 1915A.


         Plaintiff is a prisoner currently confined at the Nebraska State Penitentiary (“NSP”). He seeks injunctive and declaratory relief under 42 U.S.C. § 1983 against the Department of Correctional Services (“NDCS”); Scott Frakes, Director of NDCS; Diane Sabatka-Rine, Deputy Director of Operations of NDCS; and the members of the Central Office Multi-Disciplinary Review Team (hereinafter “Review Team members”). Plaintiff alleges he has been confined repeatedly in segregation in violation of his rights to due process and to be free from cruel and unusual punishment under the 5th, 8th, and 14th Amendments.

         Plaintiff alleges that he was first placed on the Special Management Unit in Immediate Segregation at the Tecumseh State Correctional Institution (“TSCI”) on May 17, 2015. Prison officials told Plaintiff he was being investigated for involvement in the previous week's riot at TSCI and pending criminal charges. (Filing No. 1 at CM/ECF p.16.) Plaintiff was never issued a misconduct report for any conduct relating to the riot. Plaintiff states he was eventually placed on Administrative Confinement “pending the outcome of an external investigation regarding the 5/10/15 disturbance” and was told he would be released once the investigation concluded. (Id.) Plaintiff remained on Administrative Confinement until February 4, 2016, when he was reclassified as General Population and his administrative segregation ended. However, Plaintiff remained housed in the Special Management Unit which Plaintiff alleges does not meet NDCS qualifications for General Population due to inmates receiving less than six hours out-of-cell time.

         On April 19, 2016, Plaintiff was returned to Immediate Segregation status, and a subsequent classification action placed him on Administrative Confinement. Again, Plaintiff was told his placement was “pending the outcome of an external investigation regarding the 5/10/15 disturbance.” (Id. at CM/ECF p.17.) Even though Plaintiff had never returned to General Population, his official paperwork showed that he had been re-classified to segregation. Plaintiff was later told by Deputy Warden Scott Busboom that Plaintiff should never have been classified as General Population, “calling it ‘a mistake.'” (Id.)

         Plaintiff remained on Administrative Confinement until the summer of 2016 when his classification was relabeled “Long-Term Restrictive Housing” (“LTRH”) as a result of the Nebraska Legislature's passage of “L.B. 598.” (Id. at CM/ECF p.18.) The basis for and treatment under LTRH is the same as that of Administrative Confinement. Plaintiff remained on LTRH until February 15, 2017, when he was placed in General Population following his transfer from TSCI to the NSP in Lincoln, Nebraska.

         On March 8, 2017, Plaintiff was again placed in Immediate Segregation and was told by correctional officers that the placement related to his involvement in the May 10, 2015 TSCI riot and the pending external investigation. Plaintiff alleges NDCS staff told him they were acting on representations from “the Warden and the Administration” that Plaintiff would be “imminently charged.” (Id. at CM/ECF p.19.) The official reason given for Plaintiff's segregation was the same reason given for Plaintiff's previous 21-month confinement and states: “On 5/10/2015 at TSCI, inmate Landers, Dylan, #72127 was involved in a large inmate disturbance. During the course of this disturbance, staff members were assaulted, housing units were set on fire, and two inmates were murdered. Inmate Landers is currently the subject of an ongoing investigation regarding the disturbance.” (Id. at CM/ECF pp.19-20.)

         Plaintiff alleges he appealed his March 8, 2017 reclassification to segregation to the Warden. On April 6, 2017, Plaintiff was informed by prison staff that the Review Team, which is responsible for reviewing Plaintiff's repeated LTRH placement, indicated they would need a different reason than the alleged investigation to “place on the paperwork . . . to mitigate any potential litigation [Plaintiff] may bring forth.” (Id. at CM/ECF p.20.) Plaintiff states he was then informed that Deputy Director Sabatka-Rine ordered staff to file an extension for his immediate segregation so that the paperwork could be altered. On the following day, April 7, 2017, Plaintiff alleges he was given a new referral for LTRH which, in addition to the ongoing investigation of the TSCI riot, was based on Plaintiff's alleged involvement in “the ‘Peckerwoods' security threat group, ” his “dangerous or threatening behavior, ” and the need to “mitigate the risk of his committing future serious assaults.” (Id. at CM/ECF p.21.) Plaintiff denies he has committed any assaults and claims he has not been issued any “security threat” misconduct reports in three years. (Id.) Plaintiff alleges he was informed that Director Frakes and Deputy Director Sabatka-Rine amended the LTRH referral to include the new allegations with the intent to keep Plaintiff in segregation.

         Plaintiff alleges he has participated in the review process to transition to a less-restrictive environment, but he has been denied release from segregation by Frakes and Sabatka-Rine despite recommendations from staff in his housing unit. Plaintiff further alleges he appealed his classification in segregation at both TSCI and at NSP, but all his appeals have been denied, even though he has had no misconduct reports. Plaintiff claims he was told by Frakes, Sabatka-Rine, and the Review Team that he would be released from segregation once the external investigation concluded. (Id. at CM/ECF pp.18-19, 22.) Plaintiff alleges the investigation has concluded, yet he remains in segregation where he is not allowed to shower, use the telephone, or receive any visitation from family. (Id. at CM/ECF pp.14, 24.)

         As relief, Plaintiff seeks an injunction requiring NDCS, Frakes, and Sabatka-Rine to: (1) release him from segregation and place him in General Population; (2) cease all placements of Plaintiff in any form of “alternative housing” more restrictive than General Population; and (3) cease all restrictions that deprive Plaintiff of privileges which he has not specifically abused “as stated in L.B. 598.” (Id. at CM/ECF p.25.) Additionally, Plaintiff seeks an injunction against the members of the Review Team to cease “being ‘rubber stamps' and approving segregational classifications when little or no factual evidence exists.” (Id. at CM/ECF p. 27.) Plaintiff also asks the court to declare that his segregation under the conditions alleged and the “sham reviews” provided him violate his rights under the 5th, 8th, and 14th Amendments and that Frakes “has attempted to harm Plaintiff by holding him in prolonged segregation after acknowledging the harmful affects [sic] and very counterproductive results of it to local news outlets.” (Id. at CM/ECF p.26.)


         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) and1915A. 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 a lesser pleading standard than other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).

         Liberally construed, Plaintiff here alleges federal constitutional claims. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected by the United States Constitution or created by federal statute and also must show that the alleged deprivation was caused by conduct of a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).

         III. ...

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