Lightfeather v. Holister

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AUSTIN EDWARD LIGHTFEATHER, Plaintiff, v. BRANDON HOLISTER, LMHIP; UNKNOWN WHITE FEMALE OFFICER FOR NDCS, FOSTER, Inmate of Tecumsehs Super Max Prison; NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, STEPHANIE BAREN, Counsel Ombudsman, Inspector General of Nebraska; BLUE, Case Manager; VICTOR OSUNA, RICARDO MANDOZA, LEWIS VASQUEZ, KRUGLE, Captain, of RTC; CORPRAL ANDREWS, MATTHEW PAVEY, CODY MILLER, Corpral; MARTIN, Dietary Kitchen; D.J., Inmate of Tecumsehs Super Max Prison; LANK GRIFFIN, and BLUE, Defendants.

No. 8:23CV214

United States District Court, D. Nebraska

April 18, 2024

MEMORANDUM AND ORDER

JOSEPH F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE

This matter is before the Court on Plaintiff Austin Edward Lightfeather's (“Lightfeather”) Motion for Leave to Proceed in Forma Pauperis (“IFP”). Filing No. 5. On June 9, 2023, the Court required Lightfeather to show cause why he is entitled to proceed IFP in this action. Filing No. 6. The Prison Litigation Reform Act (“PLRA”) prevents a prisoner with “three strikes” from proceeding IFP unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). The Court has previously determined that three or more federal court cases brought by Plaintiff while a prisoner, were dismissed as frivolous or for failure to state a claim upon which relief may be granted. See e.g., Lightfeather v. McSwine, No 8:22-cv-00238-JFB-PRSE (D. Neb.) (Filing No. 11, finding Plaintiff has “three strikes” and dismissing complaint pursuant to 28 U.S.C. §1915(g)). After being granted an extension of time, see Filing No. 10, Lightfeather filed a second motion to proceed IFP on August 25, 2023, which the Court treats as a response to the show cause order (hereinafter “First Response”). Filing No. 11. Subsequently on November 17, 2023, Lightfeather simultaneously filed two additional responses to the show cause order (hereinafter, respectively, “Second Response” and “Third Response”). Filing No. 12; Filing No. 13.

For the reasons that follow, the Court finds that Lightfeather's Motion for Leave to Proceed IFP, Filing No. 5, shall be granted under 28 U.S.C. § 1915(g)'s imminent danger exception. Upon initial review to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A, the Court finds Lightfeather's Complaint, Filing No. 1, and supplements, Filing No. 8; Filing No. 9,^[1] fail to state a claim upon which relief can be granted.

I. SUMMARY OF COMPLAINT AND RESPONSES

Lightfeather is a convicted and sentenced prisoner in the custody of the Nebraska Department of Correctional Services (“NDCS”). When he filed his Complaint on May 24, 2023, Lightfeather was confined in the Tecumseh State Correctional Institution (“TSCI”), see Filing No. 1 at 32, but he was subsequently transferred to the Reception and Treatment Center (“RTC”) on June 20, 2023, Filing No. 9 at 2, where he is currently confined. Plaintiff sues eighteen defendants in total (collectively “Defendants”),^[2] including the NDCS; Counsel Ombudsman Stephanie Baren; the Inspector General of Nebraska^[3]; RTC staff members Case Manager Blue (“C.M. Blue”), Captain Krugle, Corporal Andrews, Corporal Cody Miller, and “Dietary Kitchen Martin” (hereinafter “Martin”); and TSCI staff members Brandon Holister, LMHIP, and an “unknown white female officer.” Filing No. 1 at 2. Lightfeather also names the following NDCS inmates as defendants: Victor Osuna, Ricardo Mandoza, Lewis Vasquez,^[4]Matthew Pavey, Foster, D.J. a/k/a Dan Jones (“D.J.”), “Lank” Griffin (hereinafter “Griffin”), and “Blue” a/k/a Jay Bone (hereinafter “Jay Bone”).^[5] Id.; Filing No. 9 at 5-6; see also Filing No. 10 at 2 (granting Lightfeather's requests to correct defendant “B.J.” to “D.J.” and add Griffin and Jay Bone as defendants). In essence, Lightfeather seeks release from NDCS custody, damages, and injunctive relief in the form of specific dietary accommodations for violations of his Eighth Amendment rights due to various threats to his safety. Filing No. 1 at 27-28.

Much of Lightfeather's Complaint asserts claims related to his confinement in the RTC between November 2022 and April 2023. Lightfeather alleges that beginning in November 2022, when he was in NDCS custody for a pre-sentence evaluation, his food trays were poisoned or otherwise contaminated. Filing No. 1 at 3, 6, 16, 18-19. An inmate named Carl Russcamp reported to Lightfeather that “an Officer Murphy and a Sgt. Officer both poisoned [Lightfeather's] food tray.” Id. at 3. The poisoning caused Lightfeather “conflictions” in his brain and, he claims, “contributed to cause poor health making me believe that I am Jewish which I don't think I am. But the conflicts make me believe that I am .... and I am unsure of my identity in who I am.” Id. at 6. Lightfeather further alleges Miller delivered food trays to him between February and April 13, 2023, in which he “was fed hair, poison, blue beans, snot, and spit,” Id. at 16 (spelling corrected), and he received a kosher tray while at the TSCI with “a large amount of spit in it,” Id. at 19.

Lightfeather alleges Osuna, Mandoza, and Vasquez poisoned him in January 2023 while he was eating with them in the cell Lightfeather shared with these three inmates. “They cooked rice, beans, and fish and poisoned my food specifically by putting small amounts of liquid chemicals in my batch I was given.” Id. at 10 (spelling corrected). Lightfeather alleges he “started to have bloody noses and . . . became ill with cold sweats,” he had 12 to 15 bloody noses in the 4 months after he was poisoned, and he went to medical three times for the condition but was sent back to the cell with Osuna, Mandoza, and Vasquez who were aggressive with Lightfeather “to move out after [he] was poisoned.” Id.

While Lightfeather was ill from the January poisoning, he alleges Andrews did not place him in the skilled nursing facility (“SNF”) due to his bleeding condition nor did she check on him for 10 hours when he laid in bed not moving. Id. at 13. Andrews also allegedly allowed inmates to steal Lightfeather's laundry bundle so he had to wear the same dirty clothes for three weeks. Though unclear, Lightfeather seems to allege that, while he was ill from being poisoned, Andrews allowed a situation on his housing unit to escalate, and Lightfeather was placed in protective custody after being threatened to be jumped by twelve inmates outside his cell. Id. at 10, 13.

Lightfeather reported the January 2023 poisoning by Osuna, Mandoza, and Vasquez to Krugle, a member of the NDCS Intelligence Department, and Krugle spoke to the three inmates. Id. at 12. Krugle promised to keep Lightfeather safe and, while Lightfeather was transferred to the Nebraska State Penitentiary (“NSP”) for a short time, would look into getting Lightfeather transferred to the Omaha Correctional Center (“OCC”). Id. No such transfer occurred, and Lightfeather was transferred back to the RTC and then to the TSCI. Lightfeather also alleges he reported the January 2023 poisoning and the earlier November 2022 poisoning by Officer Murphy to C.M. Blue who failed to take appropriate action and report the officer involved in this poisoning incident as he should have. Id. at 9.

After being poisoned in January 2023, Lightfeather was moved to a different cell in the RTC and placed with inmate Pavey. Pavey and Lightfeather had the same attorney for their state criminal matters, and Pavey talked about his case “too much” which made Lightfeather nervous. Id. at 14. Lightfeather alleges Pavey placed a $5,000 financial hit on Lightfeather's life because Pavey believed Lightfeather “told on him.” Id. Lightfeather alleges “a central monitoring is in place” to keep Lightfeather and Pavey separate, but Lightfeather believes that Pavey is friends with an administrator which enables him to promote Lightfeather's death and an officer or caseworker could violate the central monitoring. Id. at 14-15.

Liberally construed, Lightfeather alleges Defendant Miller acted pursuant to Pavey's hit on Lightfeather while Lightfeather was on RTC's H-unit on March 15, 2023 (hereinafter “March 2023 shank incident”). Id. at 17; Filing No. 9 at 3-4. Lightfeather was moved from the suicide watch gallery into “cell #4” of the “F.G. Gallery of H-Unit when a Corporal Cody Miller could be seen on video by cell #2 and #3 giving cell #2 a shank through the hatch on camera.” Filing No. 1 at 17 (punctuation omitted; spelling corrected). Lightfeather alleges, “Case Worker Lewis was working the Floor Gallery and could be seen on the phone, I believe to have the unit cameras shut off for enough time to kill me.” Id. In response, Lightfeather started to yell and scream to be moved, but the officers denied him the move. Other inmates kept surrounding Lightfeather's door to talk to him, and Lightfeather “then smeared fecal matter and within two minutes . . . was moved back to suicide watch” where he was stripped of his clothing and given a smock to wear. Id.

Lightfeather alleges he reported the March 2023 shank incident, Pavey's hit on Lightfeather, and the earlier poisonings to Counsel Ombudsman Baren, but that she ultimately did nothing for him and stopped returning Lightfeather's phone calls after March 2023. Id. at 7-8; see also Filing No. 9 at 4.

Lightfeather was transferred to the TSCI in approximately April 2023, and Defendant Holister placed Lightfeather on an Involuntary Medication Order (“IMO”) under which Lightfeather is administered Abilify for psychosis, though Lightfeather maintains he only has Autism Spectrum Disorder.^[6] Filing No. 1 at 20-21. Lightfeather alleges he was placed on a unit where he was “threatened by unstable prisoners of Upper B Gallery, who target [him] and lie to LMHIP Brandon Holister about [Lightfeather] a...