Phillips v. Frakes et al

Filing 17

MEMORANDUM AND ORDER dismissing plaintiff's action without prejudice. Judgment will be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(CCB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JARROD PHILLIPS,
Plaintiff,
v.
SCOTT FRAKES, et al.,
Defendants.

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8:16CV554

MEMORANDUM
AND ORDER

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.
I. SUMMARY OF AMENDED COMPLAINT
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
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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.

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• 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 evidence
that supported Phillips.
• Defendant Trevor Klaassen, personnel investigator for Nebraska Department
of Corrections, failed to investigate Phillips’ complaints for 7 months until
being ordered to do so by Defendant Sabatke-Rhine.
Phillips seeks to recover damages from all Defendants, and, in addition,
requests that Defendants Bradley, Reeves, and Chavez be prosecuted and their
employment terminated, that Phillips’ good-time credits be restored, and that he be
transferred to a “community work release prison.”
II. LEGAL STANDARDS ON INITIAL REVIEW
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) 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).

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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 construing the Amended Complaint, it appears Phillips is attempting
to allege 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. DISCUSSION
Section 803(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides
that “[n]o action shall be brought with respect to prison conditions under section 1983
of this title, or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C.A. § 1997e(a). “[T]he PLRA’s exhaustion requirement applies
to all inmate suits about prison life, whether they involve general circumstances or
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particular episodes, and whether they allege excessive force or some other wrong.”
Porter v. Nussle, 534 U.S. 516, 532 (2002). However, “[a] prisoner need not exhaust
remedies if they are not ‘available.’” Ross v. Blake, 136 S.Ct. 1850, 1855 (2016).
“Accordingly, an inmate is required to exhaust those, but only those, grievance
procedures that are ‘capable of use’ to obtain ‘some relief for the action complained
of.’” Id. at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). It is not clear
whether Phillips has exhausted his administrative remedies with respect to any claim,
but even assuming that he has, the facts alleged in the Amended Complaint fail to
state a claim upon which relief can be granted.
Phillips raises an Eighth Amendment excessive force claim against Defendant
Bradley. “It is well established that a malicious and sadistic use of force by a prison
official against a prisoner, done with the intent to injure and causing actual injury, is
enough to establish a violation of the Eighth Amendment’s cruel and unusual
punishment clause.” Williams v. Jackson, 600 F.3d 1007, 1012 (8th Cir. 2010),
(internal quotations omitted). However, “‘not ... every malevolent touch by a prison
guard gives rise to a federal cause of action,’ a de minimis application of force will not
give result in a constitutional violation.” Id. (quoting Hudson v. McMillan, 503 U.S.
1, 9 (1992)); see also Wilkins v. Gaddy, 130 S.Ct. 1177-78 (2010) (“An inmate who
complains of a push or shove that causes no discernable injury almost certainly fails
to state a valid excessive force claim.” (internal quotation marks omitted)). Where the
force applied is excessive, however, a constitutional claim may survive summary
dismissal even if the resulting injury is de minimis. Wilkins, 130 S.Ct. at 1180.
Here, Phillips did not sustain any physical injury and the alleged assault upon
his person by Defendant Bradley did not involve any physical contact. To the extent
Phillips may claim to have suffered emotional distress or mental anguish because of
Bradley’s alleged threatening behavior or hostile actions, the claim is foreclosed by
the PLRA, which provides: “No Federal civil action may be brought by a prisoner
confined in a jail, prison, or other correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical injury or the
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commission of a sexual act ....” 42 U.S.C. § 1997e(e); see Royal v. Kautzky, 375 F.3d
720, 723 (8th Cir. 2004) (“[W]e read section 1997e(e) as limiting recovery for mental
or emotional injury in all federal actions brought by prisoners.”). In short, Phillips
cannot maintain a § 1983 action for the alleged assault by Defendant Bradley.
Phillips also asserts a substantive due process claim regarding the disciplinary
action that was taken against him, as he alleges that Defendant Reeves filed a false
report and that Defendant Chavez did not conduct a proper investigation.1 Because
Phillips “challenges prison disciplinary matters where the loss of good time credits
was involved, he is precluded from filing an action under 42 U.S.C. § 1983 until the
conclusion of a successful habeas action on those matters, which has not been alleged
here.” Owens v. Isaac, No. C06-16 EJM, 2008 WL 5129503, at *1-2 (N.D. Iowa Dec.
5, 2008), aff’d, 324 F. App’x 539 (8th Cir. 2009) (citing Heck v. Humphrey, 512 U.S.
477, 486-487 (1994)); see Edwards v. Balisok, 520 U.S. 641, 648 (1997) (prisoner’s
claim for damages and declaratory relief “based on allegations ... that necessarily
imply the invalidity of the punishment imposed, is not cognizable under § 1983.”).
The appropriate vehicle for seeking the restoration of good-time credits is a petition
for a writ of habeas corpus under 28 U.S.C. § 2254, which requires prior exhaustion
of any available state remedies. See Sherrod v. Nebraska, No. 4:07CV3216, 2007 WL
2903004, at *1 (D. Neb. Oct. 4, 2007) (citing cases). Phillips therefore cannot obtain
any relief in the present action with respect to the disciplinary actions.2
1

“Only in the rare situation when the state action is ‘truly egregious and
extraordinary’ will a substantive due process claim arise.” Strutton v. Meade, 668 F.3d
549, 557 (8th Cir. 2012). “Substantive due process ‘is concerned with violations of
personal rights ... so severe ... so disproportionate to the need presented, and ... so
inspired by malice or sadism rather than a merely careless or unwise excess of zeal
that it amounted to brutal and inhumane abuse of official power....” Golden ex rel.
Balch v. Anders, 324 F.3d 650, 652-53 (8th Cir. 2003) (alterations in original).
2

In any event, the facts alleged in the Amended Complaint establish that
Phillips attacked Bradley, which is the reason Phillips was disciplined. Defendant
Reeves’ alleged misrepresentations about Phillips subsequently resisting handcuffing
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Regarding the filing of a criminal assault charge against Phillips, Defendant
Rocke has absolute immunity as a deputy county attorney. See Sample v. City of
Woodbury, 836 F.3d 913, 916 (8th Cir. 2016) (“Prosecutors enjoy absolute immunity
in their review of and decisions to charge a violation of the law.”). Phillips claims
other Defendants conspired with Rocke or took actions that resulted in the filing of
the criminal assault charge, but the case was dismissed and Phillips has not suffered
any damages. See Rodgers v. Knight, 781 F.3d 932, 939 (8th Cir.), cert. denied, 136
S. Ct. 232 (2015) (§ 1983 malicious prosecution claim against police officers based
on filing of concealed weapons charge was properly dismissed where plaintiff could
not show any damages because he was not tried on that charge).
In any event, the allegations of the Amended Complaint establish there was
probable cause for charging Phillips with criminal assault after he knocked Defendant
Bradley unconscious. See id. (officers entitled to qualified immunity on malicious
prosecution claim where criminal charges were supported by probable cause). The
applicable statute provides that “[a]ny person (a) who is legally confined in a jail or
an adult correctional or penal institution, ... and (b) who intentionally, knowingly, or
recklessly causes bodily injury to another person shall be guilty of a Class IIIA felony,
....” Neb. Rev. Stat.§ 28-932(1).3

and being aggressive toward Bradley are not alleged to have resulted in an enhanced
penalty. Defendant Chavez’s alleged failure to interview witnesses likewise appears
immaterial. “False evidence or evidence derived from a reckless investigation only
violates a criminal defendants’ due process rights if it is used to deprive the defendant
of her liberty in some way.” Winslow v. Smith, 696 F.3d 716, 735 (8th Cir. 2012)
(internal quotation marks and citation omitted).
3

The court takes judicial notice of the information filed in State v. Jarrod D.
Phillips, Lancaster County District Court Case No. CR16-1356, which is publicly
available at https://www.nebraska.gov/justice/case.cgi.
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The Eighth Circuit has also held that an allegation of malicious prosecution
without more cannot sustain a civil rights claim under § 1983. Joseph v. Allen, 712
F.3d 1222, 1228 (8th Cir. 2013); Kurtz v. City of Shrewsbury, 245 F.3d 753 (8th Cir.
2001). Phillips does not allege that he was charged with criminal assault in retaliation
for complaining about Phillips, but even if he were to make such an allegation, the
claim would fail because the criminal charge was supported by probable cause. See
Reichle v. Howards, 566 U.S. 658, 132 S. Ct. 2088, 2094 (2012) (“[A] plaintiff cannot
state a claim of retaliatory prosecution in violation of the First Amendment if the
charges were supported by probable cause.”). The same is true with respect to the
disciplinary action that was taken against Phillips. See Henderson v. Baird, 29 F.3d
464, 469 (8th Cir. 1994) (“[I]f the discipline which the prisoner claims to have been
retaliatory was in fact imposed for an actual violation of prisoner rules or regulations,
then the prisoner’s claim that the discipline was retaliatory in nature must fail.”
(quoting Goff v. Burton, 7 F.3d 734, 738 (8th Cir. 1993)).
Phillips’ allegations that several Defendants acted to prevent Bradley, Reeves,
and Chavez from being disciplined or prosecuted does not state an actionable § 1983
claim. His status as an alleged victim does not confer standing or entitle Phillips to
any relief. See Bauermeister v. Kor Xiong, No. 8:11CV111, 2011 WL 2530898, at *1
(D. Neb. June 24, 2011) (“A private plaintiff cannot force a criminal prosecution
because the authority to initiate a criminal complaint rests exclusively with state and
federal prosecutors.” (internal quotation marks and citations omitted)), aff’d, 440 F.
App’x 521 (8th Cir. 2011); Gould v. North Dakota, No. 4:14-CV-018, 2014 WL
1406437, at *4 (D.N.D. Apr. 10, 2014) (“[I]t is well-settled that private citizens have
no constitutional or other right to right to a criminal investigation.” (citing cases));
Parkhurst v. Tabor, 569 F.3d 861, 867 (8th Cir. 2009) (holding assault victim lacked
standing to bring § 1983 suit for alleged failure to prosecute).
Thus, while Phillips speculates that he was transferred to the Tecumseh prison
in order to prevent him from providing evidence against Bradley, the transfer did not
deprive him of a constitutional right. Phillips additionally alleges that his medication
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was tampered with by Defendant Brad Hanson, but the grievance forms indicate
Phillips continued to receive his prescribed medication at Tecumseh, only in a
different form—the pills were crushed and dissolved in liquid by medical staff
pursuant to the prison’s policy. This alleged injustice does not constitute an Eighth
Amendment violation. See Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000)
(“[M]ere disagreement with treatment decisions does not rise to the level of
constitutional violation.”) (quoting Estate of Rosenberg v. Crandell, 56 F.3d 35, 37
(8th Cir. 1995)).
IV. CONCLUSION
The Amended Complaint fails to state a claim upon which relief can be granted
and is frivolous. The court will not provide Phillips a further opportunity to amend
because it has concluded that to do so would be futile.
IT IS THEREFORE ORDERED:
1.

Plaintiff’s action is dismissed without prejudice.

2.

Judgment will be entered by separate document.

DATED this 8th day of June, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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