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Chambers v. Cruz

United States District Court, D. Nebraska

July 19, 2019

DELA CRUZ, Manager, Tecumseh State Prison, SCOTT FRAKES, Director, COLEMAN, Manager, Nebraska State Prison, AMANDA CHADWICK, Unit Manager, ZAMORA, Manager, CROWDER, Manager, CATHY SHEIR, Warden, SHERWOOD, Manager, All employed at Lincoln Correctional Center, HANSEN, Warden, ATHENA THOMAS, Unit Administrator, HARDY, Property Officer, and PAM HILLMAN, Discipline Chair Person, All Employed at Tecumseh Correctional Center, Individually and in their Official Capacities, Defendants.



         Plaintiff, now an inmate at the Lincoln Correctional Center, brings this 42 U.S.C. § 1983 suit against state prison officials requesting declaratory, injunctive, and monetary relief for injuries he allegedly suffered when three inmates assaulted him at the Tecumseh State Correctional Institution. The court has granted Plaintiff permission to proceed in forma pauperis (Filing No. 9), and the court now conducts an initial review of the Complaint (Filing No. 1) to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.


         Plaintiff sues Scott Frakes, Director of the Nebraska Department of Correctional Services (“NDCS”), as well as several managers, wardens, and administrators at the Nebraska State Penitentiary (“NSP”), the Lincoln Correctional Center (“LCC”), and the Tecumseh State Correctional Institution (“TSCI”) in their individual and official capacities for injuries suffered after Plaintiff was assaulted by three inmates at the TSCI. Plaintiff's Complaint describes his repeated transfers among NDCS facilities and his verbal and written correspondence with facility employees warning them that he would be unsafe at some of those facilities due to testimony he gave against another inmate who “was given the death penalty for what [Plaintiff] said about” the inmate. (Filing No. 1 at CM/ECF p. 3.)

         Plaintiff alleges that on March 11, 2016, he was sent from the Douglas County Jail to the NDCS Diagnostic and Evaluation Center (“D&E”), where he told an unidentified intake officer that he “had problems” with two specifically named inmates (“Inmate R.E.” and “Inmate D.S.”[1]). The D&E intake officer allegedly put this information “into the computer.” (Filing No. 1 at CM/ECF p. 3.)

         In November 2016, Plaintiff was transferred to the NSP. When Plaintiff arrived there, he told Defendant Case Manager Coleman that inmates who knew Inmate R.E. were threatening him because Plaintiff testified against Inmate R.E., who then received the death penalty. Plaintiff was placed in protective custody at the NSP until he was moved to the LCC.

         When Plaintiff arrived at the LCC, he informed Defendants Case Manager Zamora and Unit Manager Chadwick that Inmates R.E. and D.S. were on his “keep separate” list. Plaintiff spent two months in protective custody at the LCC followed by eight months in general population. When Plaintiff was informed he was being moved to the NSP, he spoke to Defendant Chadwick, who told him she “could not do anything about this.” Plaintiff told Chadwick “people are trying to hurt me over there, ” after which Chadwick allegedly said, “its not her problem” and Plaintiff should “tell the staff at the prison once [Plaintiff] get[s] there.” (Filing No. 1 at CM/ECF p. 3.)

         When Plaintiff arrived at the NSP, he talked with Defendant Coleman and reminded him about “the people I have trouble with and that I wanted protective custody for my safety.” (Filing No. 1 at CM/ECF p. 4.) Coleman allegedly then told Plaintiff that he would instead be sent to the TSCI, after which Plaintiff “told him again that my life would be at risk if I was sent there because [Inmate R.E.] is there and it[']s in the computer that I have a keep separate on [Inmate R.E.].” (Id.) Defendant Coleman then told Plaintiff he would be returning to the LCC and placed in protective custody.

         On June 29, 2018, Plaintiff was told he would be transferred from the LCC to the TSCI. Plaintiff informed Defendant Case Managers Crowder and Sherwood that he could not go to the TSCI “because [Inmates R.E. and D.S. were] there and I fear for my safety and this is all on the computer.” (Filing No. 1 at CM/ECF p. 4.) Nevertheless, Plaintiff was sent to the TSCI.

         When Plaintiff arrived at the TSCI, he requested protective custody “because I didn't fell [sic] safe.” (Id.) Defendant Case Manager Dela Cruz told Plaintiff that there was no room in protective custody and that Plaintiff had not been housed in protective custody at the LCC. After Plaintiff stated that he “didn't fell [sic] safe on the yard at Tecumseh, ” Dela Cruz placed him “in Special Management Unit on immediate Segregation.” (Id.) On July 1, 2018, Plaintiff submitted an Inmate Interview Request to Defendant Warden Hansen asking why he had been placed in the TSCI when “there was two people on my central monitor.” (Id. at CM/ECF pp. 4, 9.) Warden Hansen replied that he was “working on a suitable living location for you including a transfer back to LCC.” (Id.) On July 3, 2018, Plaintiff submitted another Inmate Interview Request to Warden Hansen, stating, “I am not safe here!” and wondering “why L.C.C. keep[s] trying to put me on this yard. I don't cause any problems. I only had 1 write up in 2 years. I just want to do my time and I was doing that there.” (Filing No. 1 at CM/ECF p. 10.) Warden Hansen responded, “There is no reason why you can't be in general population at TSCI. [Inmate R.E.] is on Death Row and [Inmate D.S.] is on LTRH.” (Id.)

         On July 5, 2018, Plaintiff filed an Inmate Interview Request with Defendant Athena Thomas, TSCI Unit Administrator, alerting her that his “life is in grave danger” by being housed in the same facility as Inmates R.E. and D.S. and that “I have people on this gallery say word is out I am here and people are waiting for me on the yard, and P.C.” (Filing No. 1 at CM/ECF p. 11.) Thomas responded, “You have no Central Monitoring concerns in TSCI-GP so You are recommended to go to GP.” (Id.) On July 7, 2018, Plaintiff wrote Defendant Dela Cruz stating, “I am not safe here” and “I can't go to a p.c. yard or G.P. yard here.” (Filing No. 1 at CM/ECF p. 12.) On July 8, 2018, Plaintiff again wrote to Defendant Hansen requesting that he be allowed to “just stay[] in the hole because [he] felt safe, ” stating that he did not want to be assigned to the “P.C. yard, ” and reminding Hansen that he “took the stand in the [R.E.] trial, everyone knows I am here and I put him on death row!” (Filing No. 1 at CM/ECF pp. 5, 13.)

         On July 12, 2018, Sergeant Ballue in the Special Management Unit at the TSCI ordered Plaintiff to move to another housing unit, but Plaintiff refused to do so “because of my safety.” (Filing No. 1 at CM/ECF pp. 5, 14.) On July 17, 2018, Plaintiff submitted an Inmate Interview Request to Warden Hansen indicating that while he may be located in another area of the TSCI than Inmates R.E. and D.S., “other people know about these things, the word is out I am here and people are waiting for me. I would rather not go out there.” (Filing No. 1 at CM/ECF p. 16.) Warden Hansen replied that Inmate D.S. “will be transferred at some point. If you have specific issues with specific inmates, notify your unit staff so an investigation can be conducted.” (Id.)

         On July 19, 2018, Plaintiff was again asked to move to another TSCI housing unit, which Plaintiff refused “because of my safety.” (Filing No. 1 at CM/ECF pp. 5, 17-18.) The next day, Plaintiff was again instructed to change housing units. Plaintiff complied and was assaulted by three inmates within less than five minutes of his arrival. His property was also stolen. Plaintiff was then returned to the Special Management Unit, where he sought medical attention for severe back and neck pain and headaches. He received medical attention three days later, on July 23, 2018. (Filing No. 1 at CM/ECF p. 21.) On July 24, 2018, Plaintiff sent correspondence to NDCS Chief of Operations Diane Sabatka-Rine requesting to be transferred from the TSCI to the LCC due to safety concerns.

         With assistance from the Ombudsman, Plaintiff was transferred back to the LCC on July 27, 2018, where he sought medical treatment on July 28 and August 9, 2018. (Filing No. 1 at CM/ECF pp. 22, 30, 31 (August 9, 2018, Inmate Interview Request stating, “I been trying to be seen all this time. . . . I am in a lot of pain.”).) Plaintiff wrote LCC Deputy Warden Cathy Sheair on August 9, 2018, asking why he had been transferred to the TSCI when “it was in the computer for me not to be there with two other people.” (Filing No. 1 at CM/ECF p. 23.) Sheair responded, “The one is on death row and you wouldn't have any contact with them. The other person is listed as separate by housing unit.” (Id.) On August 10, 2018, Sabatka-Rine responded to Plaintiff's July 24 letter, stating, among other things, “it was determined that appropriate separation could be maintained with your assignment to TSCI general population” and:

There is no information available to indicate that the individuals who assaulted you on July 20, 2018, were in anyway [sic] connected to the individuals identified on your central monitoring or the specific security threat groups you identified during the completion of your protective custody investigations. As such, it was unforeseeable that members of this particular security threat group would assault you. As you have since been transferred to LCC, this matter is closed and will not be further addressed.

(Filing No. 1 at CM/ECF p. 24.) Plaintiff filed an unsuccessful grievance[2] and appeal[3]at the LCC regarding the above series of events, as well as a claim for $909.43 in personal property that was allegedly stolen from him ...

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