United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
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.
SUMMARY OF COMPLAINT
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
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.
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
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.
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.)
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.
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
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.)
APPLICABLE LEGAL STANDARDS ON INITIAL 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) 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).
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 a
lesser pleading standard than other parties.”
Topchian, 760 F.3d at 849 (internal quotation marks
and citations omitted).
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).