IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

AUSTIN EDWARD LIGHTFEATHER,

Plaintiff, 

vs. 

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.

8:23CV214

MEMORANDUM AND ORDER

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 

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 1 of 30 - Page ID # 86
2

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”),2including the NDCS; Counsel Ombudsman Stephanie Baren; the 

1 As set forth in the Court’s July 18, 2023, Memorandum and Order, Filing No. 10, the Court considers 

page 1 of Filing No. 8 and pages 5 and 6 of Filing No. 9 as supplemental to the Complaint.

2 Lightfeather also identified Judge Kevin McManaman as a potential defendant in the body of his 

Complaint only “if the judge would choose . . . to add him as a defendant” for Judge McManaman’s “roll 

[sic] in sentencing [Lightfeather] to N.D.C.S. custody.” Filing No. 1 at 23. Lightfeather indicates he did not 

list Judge McManaman as a defendant due to “the 11th Amendment regarding immunity the courts would 

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 2 of 30 - Page ID # 87
3

Inspector General of Nebraska3; 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 

sight [sic] on the behalf of McManaman.” Id. As Lightfeather’s complaints against Judge McManaman 

relate solely to his acts in sentencing Lightfeather, Judge McManaman is entitled to immunity from 

Lightfeather’s claims, and the Court, thus, declines to consider Judge McManaman as a defendant in this 

case. See Schottel v. Young, 687 F.3d 370, 373 (8th Cir. 2012) (a judge is immune from suit, including 

suits brought under § 1983 to recover for alleged deprivation of civil rights, for acts performed within the 

judge’s judicial capacity and jurisdiction).

3 Upon docketing, the Court listed “Inspector General of Nebraska” as a description or title associated 

with Counsel Ombudsman Baren, but upon closer review, the Court concludes Lightfeather intended the 

Inspector General as a separate defendant. See Filing No. 1 at 31.

4 Lightfeather also refers to this Defendant as “Valez Lewis Valquez” and “Lewis Valquez.” Filing No. 1 at 

5. The Court will refer to this Defendant as “Vasquez.”

5 Unless otherwise specifically noted, the Court will refer to each individual Defendant by their last name.

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 3 of 30 - Page ID # 88
4

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 

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 4 of 30 - Page ID # 89
5

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 

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 5 of 30 - Page ID # 90
6

(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] 

and [his] condition,” which led Holister to deny Lightfeather canteen items. Id. at 20

6 While in his Complaint Lightfeather denies that he suffers from psychosis, Filing No. 1 at 21, he 

indicates in his First Response that he “needs” his monthly injections of Abilify, Filing No. 11 at 3.

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 6 of 30 - Page ID # 91
7

(spelling corrected). Specifically, Lightfeather alleges inmates Foster and D.J. 

convinced Holister to not give Lightfeather a porter job, threatened to harm Lightfeather, 

and kicked and punched at Lightfeather’s cell door stating, “Once we get this open 

you’re a dead man walking.” Id. at 22. Lightfeather alleges Foster and D.J. first began 

to prey on him by asking Lightfeather if he wanted hygiene supplies and giving 

Lightfeather items he did not want and did not attempt to understand Lightfeather’s 

autism disorder. Id. Lightfeather also claims the “unknown white female officer” at TSCI 

was “rooting against [him], joining in on the narcotic behavior of these prisoners,” and 

told Holister, “I hope Austin Lightfeather kills himself.” Id. at 21. The “unknown white 

female officer” also stole food items from Lightfeather and his legal mail to read with 

other prisoners, and Lightfeather “saw her place something in the food cart before 

serving, such as a chemical item.” Id.

While at the TSCI, Lightfeather alleges inmate Griffin accused Lightfeather of 

being racist and calling Griffin “the N-word,” which Lightfeather denies. Filing No. 9 at 6. 

Shortly thereafter, Lightfeather was transferred back to the RTC and placed on the 

same unit as inmate Jay Bone. Jay Bone and Griffin know each other, and Lightfeather 

alleges the two are “working with officers to help have me murdered with ‘conspiracy.’” 

Id. at 5. Lightfeather alleges that Griffin was going to be transferred in July 2023 to the 

same unit at the RTC as Lightfeather “which [would] place[] both defendants [Griffin and 

Jay Bone] on the same unit as me.” Id. at 6. In his Second Response, Lightfeather 

alleges he learned in September 2023 that Jay Bone and Griffin “have written letters to 

outside sources, and those who have contact with officers of NDCS, to have an officer 

open [Lightfeather’s] cell door to have [him] stabbed.” Filing No. 12 at 3.

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 7 of 30 - Page ID # 92
8

Lightfeather further alleges that, after being transferred back to the RTC, 

Defendants Osuna, Mandoza, and Vasquez “placed a hit” on Lightfeather for telling on 

them. Filing No. 9 at 3. Lightfeather generally alleges that “money is being sent by 

officers and inmates alike to promise my death. I am a target because I am an ‘award 

winning author’ of the book ‘Autism The Fight Inside.’ . . . I have been ‘labeled’ as a 

‘snitch’ because of my book content.” Id. at 7.

In his First Response to the Court’s show cause order, Lightfeather essentially 

argues he has demonstrated imminent danger through what he has alleged in his 

Complaint. He also states that Griffin and Pavey have both been placed on his 

“classification central monitoring no contact list” after two separate interviews with 

NDCS Intelligence in July and August 2023. Filing No. 11 at 1. Lightfeather further 

indicates he met with two NDCS Intelligence investigators about Defendants Pavey and 

Miller. Id. at 5.

In his Second and Third Responses, Lightfeather argues he has demonstrated 

he is in danger for three reasons. First, Corporal Hoffman, who is not a named 

defendant, quit her position at the NDCS after she was tied to the conspiracy involving 

Defendants Pavey and Miller and the murder attempt on Lightfeather’s life on or about 

March 14, 2023,7 on FG Gallery of H-4 Unit in the RTC, where Miller allegedly gave a 

shank to an inmate in a cell near Lightfeather’s. Filing No. 12 at 1; see also Filing No. 1 

at 17. Lightfeather contends that Hoffman quitting “shows direct cause for IFP” in this 

case against all Defendants including Andrews, Osuna, Mandoza, and Vasquez after 

the attempt to poison Lightfeather in January 2023, because Hoffman defended the 

7

In his Complaint, Lightfeather provided March 15, 2023, as the date this event occurred. Filing No. 1 at 

17.

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 8 of 30 - Page ID # 93
9

inmates involved along with Andrews, Krugle, and C.M. Blue. Filing No. 12 at 1–2. 

Second, Lightfeather alleges that Mandoza confessed to poisoning him in January 

2023. And third, Pavey carried out a hit, similar to the one he ordered on Lightfeather, 

where Pavey paid $500 to have a person named Michael a/k/a “Sly” stabbed, and Sly 

was stabbed in August 2023. Lightfeather asserts these circumstances show he faces 

a continuing danger from these inmates and the threats on his life.

II. MOTION TO PROCEED IFP

A. Applicable Legal Standards

As stated in the PLRA, a prisoner cannot 

bring a civil action . . . or proceeding [IFP] if the prisoner has, on 3 or more 

prior occasions, while incarcerated or detained in any facility, brought an 

action . . . in a court of the United States that was dismissed on the 

grounds that it is frivolous, malicious, or fails to state a claim upon which 

relief may be granted, unless the prisoner is under imminent danger of 

serious physical injury.

28 U.S.C. § 1915(g). 

Because Lightfeather has “three strikes,” he may only proceed IFP in this action if 

he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g); see also

Higgins v. Carpenter, 258 F.3d 797, 800 (8th Cir. 2001). “[T]he requisite imminent 

danger of serious physical injury must exist at the time the complaint or the appeal is 

filed . . . . [and] the exception focuses on the risk that the conduct complained of 

threatens continuing or future injury, not on whether the inmate deserves a remedy for 

past misconduct.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (citation 

omitted). “When an inmate is granted leave to proceed in forma pauperis under the 

imminent danger exception, the in forma pauperis ‘action must be limited to imminent 

danger claims that have been properly exhausted.’” Charron v. Whitlock, No. 2:18-CV8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 9 of 30 - Page ID # 94
10

00032-PLC, 2018 WL 3546763, at *1 (E.D. Mo. July 24, 2018) (quoting McAlphin v. 

Toney, 375 F.3d 753, 755 (8th Cir. 2004)). 

Applying these principles, the Eighth Circuit has concluded that the imminentdanger-of-serious-physical-injury standard was satisfied when an inmate alleged that 

prison officials continued to place him near his inmate enemies, despite two prior 

stabbings, Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998), and when an inmate 

alleged deliberate indifference to his serious medical needs that resulted in five tooth 

extractions and a spreading mouth infection requiring two additional extractions, 

McAlphin v. Toney, 281 F.3d 709, 710–11 (8th Cir. 2002). However, the Eighth Circuit 

has held that a general assertion that defendants were trying to kill the plaintiff by 

forcing him to work in extreme weather conditions despite his blood pressure condition, 

was insufficient to invoke the exception to § 1915(g) absent specific fact allegations of 

ongoing serious physical injury, or of a pattern of misconduct evidencing the likelihood 

of imminent serious physical injury. Martin, 319 F.3d at 1050.

B. Analysis

As an initial matter, Lightfeather’s allegations regarding the past instances of 

being poisoned or receiving contaminated or poisoned food trays do not qualify as a 

threat of imminent danger under the plain language of § 1915(g). Ashley, 147 F.3d at 

717 (“Allegations that the prisoner has faced imminent danger in the past are insufficient 

to trigger this exception to § 1915(g) and authorize the prisoner to pay the filing fee on 

the installment plan.”). Lightfeather’s Complaint does not allege any facts indicating he 

is currently suffering physical injury or facing future physical injury from the allegedly 

contaminated food trays. Indeed, Lightfeather does not allege that he received any 

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 10 of 30 - Page ID # 95
11

contaminated or poisoned trays after April 13, 2023, Filing No. 1 at 16, and the January 

2023 poisoning by Osuna, Mandoza, and Vasquez suggests only an isolated incident. 

Therefore, Lightfeather cannot satisfy the imminent danger of serious physical injury 

standard as he makes no claim of continuing physical harm from contaminated or 

poisoned food trays. See Lightfeather v. Dietary of the Lancaster Cnty. Jail, No. 

8:22CV224, 2022 WL 3718109 (D. Neb. Aug. 29, 2022) (no imminent danger where 

Lightfeather alleged no facts suggesting alleged contamination of food likely to continue 

or would result in future physical injury); Ball v. Allen, No. CIV.A. 06-0496-CG-M, 2007 

WL 484547 (S.D. Ala. Feb. 8, 2007) (allegations that prisoner “receives inadequate, 

unsanitary, and contaminated food and beverages,” among other things, insufficient to 

show imminent danger). 

The Court further concludes that Lightfeather’s general, unsupported, and 

conclusory allegations about inmates Foster, D.J., Griffin, Jay Bone, Osuna, Mandoza, 

and Vasquez threatening to harm Lightfeather, or “working with officers to help have 

[him] murdered with ‘conspiracy,’” Filing No. 9 at 5, or placing a hit on him, Id. at 3, are 

insufficient to demonstrate Lightfeather is facing a specific and genuine threat of serious 

physical injury. “The dangers to which [Lightfeather] has alluded are nothing other than 

the normal and expectable perils of life in prison,” and “[h]e cannot be excused from the 

three-strikes rule based on [such] vague, conclusory and speculative concerns . . . .” 

Jacobs v. Sletten, No. CV 11-548 (ADM/AJB), 2011 WL 13202226, at *2 (D. Minn. Apr. 

7, 2011), report and recommendation adopted, No. CV 11-548 ADM/AJB, 2011 WL 

13202227 (D. Minn. May 10, 2011), aff'd, 433 F. App'x 486 (8th Cir. 2011) (citing Martin, 

319 F.3d at 1050 (“conclusory assertions that defendants were trying to kill” a prisoner 

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 11 of 30 - Page ID # 96
12

were “insufficient to invoke the exception to § 1915(g) absent specific fact allegations of 

ongoing serious physical injury, or of a pattern of misconduct evidencing the likelihood 

of imminent serious physical injury”) (emphasis added)).8

However, giving Lightfeather’s pleadings their most liberal construction, the Court 

concludes that he has alleged sufficient facts to show that he is under imminent danger 

of serious physical injury in order to proceed IFP under the exception to the threestrikes rule in 28 U.S.C. § 1915(g) based on his allegations regarding the “hit” on his life 

ordered by Pavey. Lightfeather alleges Pavey placed a $5000 financial hit on 

Lightfeather’s life after they were cellmates; Lightfeather observed Defendant Miller give 

an inmate located near Lightfeather a shank in order to carry out the hit; Lightfeather 

spoke to NDCS Intelligence investigators about Pavey and Miller; a central monitoring 

no contact order was placed on Lightfeather and Pavey; another NDCS officer quit due 

to her connection to this alleged conspiracy between Pavey and Miller; and Pavey 

successfully ordered a hit on another inmate who was stabbed in 

August 2023. Taking these allegations as true, the Court finds Lightfeather has alleged 

sufficient, specific factual allegations that he faced an imminent danger of serious injury 

at the time he filed his Complaint.

8 See also Jacobs, 2011 WL 13202226, at *2 n.3 (citing Merriweather v. Reynolds, 586 F.Supp.2d 548, 

552 (D.S.C. 2008) (prisoner's averment that he had enemies in prison, that there had been threats 

against his life, and that prison gangs were intending to harm him, was “unsupported, vague, self-serving, 

conclusory speculation” that did not establish an imminent danger of serious physical injury for purposes 

of § 1915(g)); Ticker v. Dawkins, No. 3:08CV49-1-MU (W.D.N.C. 2008), 2008 WL 510199 at *2 (prisoner's 

“broad, completely unsupported” allegation that prison official had solicited other inmates to murder him 

was insufficient to establish imminent danger); Meyers v. U.S. Dist. Court for the Middle Dist. of 

Pennsylvania, No. 1:11-CV-173, (M.D. Pa. 2011), 2011 WL 766937 at *3 (“a vague allegation” of “threats 

and violence” that “are ‘still continuing’ ” is insufficient; because prisoner did not “provide specific factual 

allegations as to how he is in imminent danger at the present time, he cannot avoid application of the 

Three Strikes Rule”)).

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 12 of 30 - Page ID # 97
13

Accordingly, the Court concludes Lightfeather may proceed IFP in this action 

pursuant to the imminent danger exception to the three strikes rule in 28 U.S.C. § 

1915(g). However, because he is a prisoner, Lightfeather must still pay the Court’s 

$350.00 filing fee by making monthly payments to the Court as mandated by the PLRA. 

28 U.S.C. § 1915(b). 

Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner plaintiff must pay an initial partial 

filing fee in the amount of 20 percent of the greater of the plaintiff’s average monthly 

account balance or average monthly deposits for the six months preceding the filing of 

the complaint. However, as set forth in 28 U.S.C. § 1915(b)(4), “[i]n no event shall a 

prisoner be prohibited from bringing a civil action . . . for the reason that the prisoner 

has no assets and no means by which to pay the initial partial filing fee.” When the 

prisoner is unable to pay the initial partial filing fee due to a lack of funds, the 

requirement that the initial partial filing fee will be paid at the outset of the case is 

suspended. See Jackson v. N.P. Dodge Realty Co., 173 F. Supp. 2d 951, 957 n. 9 (D. 

Neb. 2001). Instead, “the whole of the . . . filing fees are to be collected and paid by the 

installment method contained in § 1915(b)(2).” Henderson v. Norris, 129 F.3d 481, 484 

(8th Cir. 1997). 

Here, Lightfeather is permitted to proceed IFP under the imminent danger 

exception to the three strikes rule, and a past certified copy of Plaintiff's inmate account 

statement, as well as his filings in the present case, indicate he has a zero balance. 

See Lightfeather v. Hartman, et al., Case No. 8:22-CV-359-JFB-PRSE (D. Neb), Filing 

No. 9; see also Filing No. 11 at 5 (indicating Lightfeather’s “0.00 insufficient funds” to 

purchase commissary items in Aug. 2023). As such, this matter will proceed to initial 

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 13 of 30 - Page ID # 98
14

review without payment of the initial partial filing fee, and instead the filing fee will be 

collected and remitted, as funds exist, in the manner set forth in 28 U.S.C. § 1915(b)(2). 

III. INITIAL REVIEW OF COMPLAINT

A. Applicable Standards on Initial Review

The Court is required to review prisoner and in forma pauperis complaints 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); 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).

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 14 of 30 - Page ID # 99
15

Liberally construed, Lightfeather 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). 

B. Requested Relief Unavailable in this § 1983 Action

Lightfeather sues Defendants for violations of his Eighth Amendment rights and 

seeks the following relief: (1) release from NDCS custody, (2) damages of $500,000.00 

from the NDCS and the NDCS Defendants, and (3) injunctive relief in the form of 

specific dietary accommodations such as “packaged food items . . . for [Lightfeather] to 

open . . . before eating,” a food tray delivered separately from others, meals consisting 

of a 3,000 calorie diet, and a photo log of all food provided to Lightfeather. Filing No. 1 

at 27–28. However, for the reasons that follow, Lightfeather cannot obtain such relief in 

the present action under 42 U.S.C. § 1983.

1. Release

Lightfeather explicitly asks to be released from his state-imposed sentence 

“based on safety threats at risk.” Filing No. 1 at 28. “Release from confinement is not 

cognizable relief under § 1983.” McAfee v. Missouri, No. 4:23-CV-526 SRW, 2023 WL 

4419739, at *4–5 (E.D. Mo. July 10, 2023). The United States Supreme Court has 

explained that “a § 1983 action will not lie when a state prisoner challenges ‘the fact or 

duration of his confinement,’ and seeks either ‘immediate release from prison,’ or the 

‘shortening’ of his term of confinement.” Wilkinson v. Dotson, 544 U.S. 74, 79 (2005)

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 15 of 30 - Page ID # 100
16

(internal citations omitted) (quoting Preiser v. Rodriguez, 411 U.S. 475, 482, 489 

(1973)). Thus, the Court cannot grant Lightfeather’s request to be released from NDCS 

custody, and Lightfeather must seek such relief in a habeas corpus action. See Adams 

v. Agniel, 405 F.3d 643, 644–45 (8th Cir. 2005) (explaining that a habeas action is the 

proper vehicle for a prisoner to challenge the legality of his sentence or seek immediate 

or speedier release).

2. Injunctive Relief

All of the injunctive relief Lightfeather requests relates solely to his claims 

regarding contaminated and poisoned food trays. As the Court explained above, 

though, Lightfeather cannot proceed on those claims under the imminent danger 

exception to the three strikes rule as his allegations of past imminent danger from 

contaminated and poisoned food trays do not qualify for the exception and he alleges 

no threat of continuing or future injury. Because his claims for injunctive relief are 

unrelated to his imminent danger claims on which this action may proceed, i.e. his claim 

related to Pavey’s “hit” on Lightfeather, the Court will dismiss his claims for injunctive 

relief. See Charron, 2018 WL 3546763, at *1 (“When an inmate is granted leave to 

proceed in forma pauperis under the imminent danger exception, the in forma pauperis 

‘action must be limited to imminent danger claims that have been properly exhausted.’” 

(quoting McAlphin, 375 F.3d at 755)).

3. Damages

Lightfeather seeks an award of damages from the NDCS and the NDCS 

Defendants. Filing No. 1 at 27. However, Lightfeather did not specify the capacity in 

which any of the Defendants are sued. Where a plaintiff fails to “expressly and 

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 16 of 30 - Page ID # 101
17

unambiguously” state that a public official is sued in his individual capacity, the Court 

“assume[s] that the defendant is sued only in his or her official capacity.” Johnson v. 

Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). The Eleventh Amendment 

bars claims for damages by private parties against a state, state instrumentalities, and 

an employee of a state sued in the employee’s official capacity. See, e.g., Egerdahl v. 

Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir. 1995); Dover Elevator Co. v. Arkansas 

State Univ., 64 F.3d 442, 446–47 (8th Cir. 1995). Any award of retroactive monetary 

relief payable by the state, including for back pay or damages, is proscribed by the 

Eleventh Amendment absent a waiver of immunity by the state or an override of 

immunity by Congress. See, e.g., id.; Nevels v. Hanlon, 656 F.2d 372, 377–78 (8th Cir. 

1981). Thus, the Eleventh Amendment bars Lightfeather’s claims for damages against 

NDCS and the NDCS Defendants in their official capacities, and such claims must be 

dismissed.

Even if Lightfeather had sued all Defendants in their individual capacities, his 

pleadings fail to state a claim for relief against any of the named Defendants as 

explained below.

C. Complaint Fails to State Claim for Relief Against Any Defendant

Liberally construed, Lightfeather alleges an Eighth Amendment failure-to-protect 

claim based on Pavey’s “hit” placed on Lightfeather. “[P]rison officials have a duty . . . to 

protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 

511 U.S. 825, 833 (1994). However, prison officials do not incur constitutional liability 

for every injury suffered by a prisoner. Id. at 834. In order to prevail on an Eighth 

Amendment failure-to-protect claim, an inmate must make two showings. First, the 

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 17 of 30 - Page ID # 102
18

inmate must demonstrate that he or she is “‘incarcerated under conditions posing a 

substantial risk of serious harm.’” Jensen v. Clarke, 73 F.3d 808, 810 (8th Cir. 1996)

(quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The second requirement 

concerns the state of mind of the prison official who is being sued. Id. It mandates that 

the inmate show that the official “knows of and disregards an excessive risk to inmate 

health or safety; the official must both be aware of facts from which the inference could 

be drawn that a substantial risk of serious harm exists, and [the official] must also draw 

the inference.” Id. (internal quotation omitted). This subjective requirement is 

necessary because “only the unnecessary and wanton infliction of pain implicates the 

Eighth Amendment.” Id. (internal quotation omitted).

For the reasons below, Lightfeather has failed to state a plausible Eighth 

Amendment failure-to-protect claim against any of the Defendants.

1. NDCS

Lightfeather names NDCS as a defendant. States or governmental entities that 

are considered arms of the state are not suable “persons” within the meaning of 42 

U.S.C. § 1983, Will v. Michigan Dep’t of State Police, 491 U.S. 58, 70 (1989), and suits 

against the state or its agencies are barred by the Eleventh Amendment. Monroe v. Ark. 

State Univ., 495 F.3d 591, 594 (8th Cir. 2007) (Eleventh Amendment bars suit against 

state agency for any kind of relief); Nix v. Norman, 879 F.2d 429, 431-32 (8th Cir. 1989)

(suit brought solely against state or state agency is proscribed by Eleventh 

Amendment); see also Brown v. Arkansas Dep’t of Human Servs., 452 F. App’x 690, 

693 (8th Cir. 2011) (unpublished) (plaintiff’s § 1983 claims against state agency barred 

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 18 of 30 - Page ID # 103
19

by Eleventh Amendment). Accordingly, the NDCS must be dismissed for failure to state 

a claim upon which relief can be granted. 

2. Martin and Inspector General

Lightfeather names Martin and the Inspector General as Defendants in this 

matter, but he makes no allegations against either Defendant in the body of his 

Complaint. He does not allege that either of them are personally involved in the alleged 

constitutional violations or that either of them had any personal involvement whatsoever 

in any acts of which he complains. While Lightfeather includes a section in his 

Complaint titled “Defendant Dietary Kitchen Martin,” Filing No. 1 at 18, he does not 

identify who Martin is or even allege any conduct by Martin. As a result, Lightfeather 

has failed to state a claim upon which relief can be granted against either of these 

Defendants. See Krych v. Hvass, 83 Fed.Appx. 854, 855 (8th Cir. 2003) (holding court 

properly dismissed claims against defendants where pro se complaint was silent as to 

the defendants except for their names appearing in the caption).

3. Inmate Defendants

Lightfeather names NDCS inmates Osuna, Mandoza, Vasquez, Pavey, Foster, 

D.J., Griffin, and Jay Bone as Defendants. As indicated above, to succeed on a § 1983

claim, a plaintiff must demonstrate that the defendant acted under color of state law. 42 

U.S.C. § 1983; West, 487 U.S. 42, 49–50 (1988). Clearly, the inmate Defendants are 

not state actors acting under color of state law. However, a § 1983 claim may be 

brought against a private individual if he conspires with a state actor to deprive a person 

of his constitutional rights. DuBose v. Kelly, 187 F.3d 999, 1003 (8th Cir. 1999). To 

state a 42 U.S.C. § 1983 conspiracy claim, a plaintiff must allege “an agreement 

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 19 of 30 - Page ID # 104
20

between the parties to inflict a wrong against or injury upon another, and an overt act 

that results in damage. A plaintiff must allege with sufficient particularity and 

demonstrate with specific material facts that the parties reached some agreement and 

conspired together to deprive plaintiff of a federal right.” Gometz v. Culwell, 850 F.2d 

461, 464 (8th Cir. 1988) (internal citation and quotation marks omitted).

Here, Lightfeather has not alleged any facts suggesting inmates Foster and D.J. 

are conspiring with a state actor; rather, he states Foster and D.J. threatened to act 

against Lightfeather pursuant to Pavey’s hit, which does not suggest any necessary 

state action. See Filing No. 12 at 3. Lightfeather’s pleadings also do not contain any 

specific allegations showing a meeting of the minds between inmates Osuna, Mandoza, 

Vasquez, Griffin, or Jay Bone and any NDCS officer. Lightfeather’s general and 

conclusory allegations that these inmates are working with officers to have him 

murdered are insufficient not only to show imminent danger, but also to state a plausible 

§ 1983 conspiracy claim. Accordingly, Lightfeather’s claims against these Defendants 

will be dismissed.

With respect to inmate Pavey, the Court has concluded that Lightfeather’s 

allegations in his pleadings and responses to the show cause order are sufficient to 

demonstrate that he faced an imminent danger of serious injury at the time he filed his 

Complaint in order to proceed IFP under the three strikes exception in 28 U.S.C. § 

1915(g). However, the Court finds that Lightfeather’s Complaint, Filing No. 1, and 

supplements, Filing No. 8; Filing No. 9, fail to allege specific factual allegations of an 

agreement between Pavey and an NDCS officer to state a plausible conspiracy claim. 

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 20 of 30 - Page ID # 105
21

Lightfeather alleges in conclusory fashion, without any factual support, that 

Pavey “put out the money to order the hit” and “has a few officers helping him in the 

matter, such as Case Manager Martin, Corrections Officer Hoffman, and Corrections 

Officer Simons,” none of whom are named as defendants in this case. Filing No. 1 at 4. 

Lightfeather also offers his belief, without any discernible factual basis, that Pavey is 

friends with an administrator which enables him to promote Lightfeather’s death and 

that an officer or caseworker could violate the central monitoring in place to keep 

Lightfeather and Pavey separate. Id. at 14–15. And while the Court generously 

construed Lightfeather’s Complaint and supplement as alleging Defendant Miller acted 

pursuant to Pavey’s hit when allegedly providing a shank to another inmate in a cell 

next to Lightfeather’s, see Id. at 17; Filing No. 9 at 3–4, Lightfeather has alleged no 

facts in support of such an agreement between Miller and Pavey. Rather, Lightfeather 

only vaguely alleges that “a designed plot was created by officers where Pavey was 

placed on a unit [at the NSP] to kill [Lightfeather]” and “another plot was created” when 

Lightfeather was sent back to the RTC in which “[a]n officer named Miller, Hoffman, 

Andrews, and Case Worker Lewis of the R.T.C. set up a staged attack on my life.” 

Filing No. 9 at 3–4. 

On its own motion, the Court will give Lightfeather leave to amend his Complaint 

to allege facts in support of a plausible § 1983 conspiracy claim between Pavey and 

Miller or another NDCS officer.

4. Baren

Lightfeather also sues Counsel Ombudsman Baren because she failed to take 

any action on his reports regarding Pavey’s hit and the March 2023 shank incident 

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 21 of 30 - Page ID # 106
22

involving Miller and stopped returning Lightfeather’s phone calls after March 2023. 

Filing No. 1 at 8; see also Filing No. 9 at 4. 

The Ombudsman's office (or Public Counsel) is an office of the legislative branch 

of state government. Robinson v. Nebraska, No. 8:22CV398, 2023 WL 3511371, at *3 

n.4 (D. Neb. May 17, 2023) (citing Smith v. Iverson, No. 8:19CV298, 2019 WL 4417548, 

at *13 (D. Neb. Sept. 16, 2019); State ex rel. Shepherd v. Nebraska Equal Opportunity 

Comm'n, 557 N.W.2d 684, 691 (Neb. 1997)). “The powers of the Public Counsel, 

properly exercised, are purely investigatory and advisory.” Smith, 2019 WL 4417548, at 

*13 (citing Neb. Att'y Gen. Opinion No. 102, 1981 WL 129122, at *2 (May 14, 1981); 

Neb. Rev. Stat. §§ 81-8,241 et seq.). As “Counsel Ombudsman,” Baren is clearly not a 

prison official with any duty to protect Lightfeather from harm by other inmates.

Liberally construed, Lightfeather may be alleging that he was denied due process 

by Baren due to her failure to properly investigate his complaints about the threats to his 

safety. “The Fourteenth Amendment's Due Process Clause protects persons against 

deprivations of life, liberty, or property; and those who seek to invoke its procedural 

protection must establish that one of these interests is at stake.” Wilkinson v. Austin, 

545 U.S. 209, 221 (2005). Thus, Lightfeather must demonstrate that he has been 

deprived of a liberty interest in order to successfully claim that his Fourteenth 

Amendment right to due process has been violated. See Persechini v. Callaway, 651 

F.3d 802, 806 (8th Cir. 2011) (citing Sandin v. Conner, 515 U.S. 472 (1995)). A liberty 

interest can arise out of the Due Process Clause itself or be state-created. Id. (citing Ky. 

Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989)).

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 22 of 30 - Page ID # 107
23

Lightfeather “does not have a protected liberty interest in having his complaint 

investigated by the Ombudsman.” Smith, 2019 WL 4417548, at *13 (citing Buckley v. 

Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (holding that inmates have no liberty interest 

in the processing of their grievances, such as would support § 1983 claim for prison 

officials’ failure to pick up inmate’s completed grievance forms or investigate inmate’s 

grievances); McGrone v. Boyd, No. 8:18CV233, 2019 WL 2583841, at *3 (D. Neb. June 

24, 2019) (holding inmate did not have viable due process claim against warden for 

ignoring his grievances)). Accordingly, Lightfeather’s claims against Baren will be 

dismissed.

5. C.M. Blue, Andrews, Holister, and Unknown White Female Officer

Upon review, the Court also finds that Lightfeather’s claims against Defendants 

C.M. Blue, Andrews, Holister, and the “unknown white female officer” at TSCI must be 

dismissed as none of these defendants are alleged to have any personal involvement in 

the threats to Lightfeather’s safety arising out of Pavey’s hit. “[Section] 1983 liability is 

personal.” Doran v. Eckold, 409 F.3d 958, 965 (8th Cir. 2005) (en banc). “To prevail on 

a § 1983 claim, a plaintiff must show each individual defendant’s personal involvement 

in the alleged violation.” White v. Jackson, 865 F.3d 1064, 1081 (8th Cir. 2017).

Here, the actions of Holister and the “unknown white female officer” at TSCI have 

nothing to do with Pavey’s hit or the March 2023 shank incident at the RTC. Likewise, 

Lightfeather’s allegations regarding C.M. Blue and Andrews relate only to the past 

incidents of alleged poisoning of Lightfeather, and nothing that these Defendants are 

alleged to have done or failed to do threatened Lightfeather with imminent danger of 

serious physical injury at the time his Complaint was filed. Thus, Lightfeather cannot 

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 23 of 30 - Page ID # 108
24

proceed in forma pauperis on any claim against these four Defendants under the threestrikes exception in 28 U.S.C. § 1915(g), and his claims against these Defendants will 

be dismissed.

6. Krugle

Liberally construed, Lightfeather sues Krugle for failing to transfer him to the 

OCC for his safety and failing to “fil[e] criminal charges on his officers in the RTC for 

attempted murder of the 2nd degree,” which the Court assumes refers to the March 

2023 shank incident.9 Filing No. 1 at 12. However, Lightfeather alleges no facts to 

suggest that Krugle was deliberately indifferent to his safety with respect to Pavey’s hit 

or the March 2023 shank incident. 

Lightfeather alleges Krugle investigated the January 2023 poisoning by Osuna, 

Mandoza, and Vasquez but does not allege that Krugle had any involvement in 

investigating the March 2023 shank incident or even that Lightfeather reported the 

incident to Krugle. To the extent it may be inferred Krugle was aware of Lightfeather’s 

reports concerning Pavey and Miller to the NDCS Intelligence Department based on his 

membership in that department, no facts are alleged to show that Krugle or any other 

Intelligence Department member failed to take appropriate action. Rather, Lightfeather 

specifically states that “a central monitoring is in place” to keep Lightfeather and Pavey 

separate and Pavey was placed on his “classification central monitoring no contact list” 

after two separate interviews with NDCS Intelligence in July and August 2023. Id. at 

14–15; Filing No. 11 at 1. Lightfeather also does not allege that he has been placed 

near Pavey since early 2023 when they were cellmates. Thus, the Court finds 

9 Though, it likely may refer to the January 2023 poisoning by Osuna, Mandoza, and Vasquez. See Filing 

No. 1 at 12.

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 24 of 30 - Page ID # 109
25

Lightfeather’s allegations are insufficient to state a plausible failure-to-protect claim 

against Krugle and his claims against Krugle will be dismissed.

7. Miller

Finally, Lightfeather alleges Miller provided a shank to another inmate in a cell 

adjacent to Lightfeather’s in March 2023 in order for the inmate to harm him. Taken as 

true, Lightfeather’s allegations are sufficient to state an Eighth Amendment failure-toprotect claim against Miller. “Anyone who encourages other inmates to harm a prisoner 

without some penological purpose causes risk to the prisoner's safety and does so 

knowingly.” McClain v. Carney, No. 2:23-CV-4012-JDW, 2024 WL 113761, at *10 (E.D. 

Pa. Jan. 10, 2024) (prisoner’s allegations that corrections officers “put the $100 bag of 

commissary hit contract ‘on [his] head’” stated deliberate indifference claim). 

Lightfeather will be given leave to amend his Complaint to allege his Eighth Amendment 

claim against Miller in his individual capacity.

IV. REQUEST FOR APPOINTMENT OF COUNSEL

In his Complaint, Lightfeather included a request for appointed counsel. Filing 

No. 1 at 26. “There is no constitutional or statutory right to appointed counsel in civil 

cases.” Phillips v. Jasper Cnty. Jail, 437 F.3d 791, 794 (8th Cir. 2006). A district court 

“may request an attorney to represent” an indigent civil litigant, 28 U.S.C. § 1915(e)(1), 

but it has a “good deal of discretion” in deciding whether to do so, Chambers v. 

Pennycook, 641 F.3d 898, 909 (8th Cir. 2011). “Relevant criteria for determining 

whether counsel should be requested include the factual and legal complexity of the 

case, the plaintiff’s ability to investigate the facts and to present the claims, and the 

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 25 of 30 - Page ID # 110
26

presence or absence of conflicting testimony.” Recca v. Omaha Police Dep’t, 859 F. 

App'x 3, 4 (8th Cir. 2021) (citing Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996)).

The Court has carefully reviewed the record and finds there is no need for the 

appointment of counsel at this time as, at this early stage of litigation, Lightfeather 

appears able to adequately present his claims. The Court is, however, aware that this 

situation may change as litigation progresses. As the Eighth Circuit Court of Appeals 

instructs, the Court will “continue to be alert to the possibility that, because of procedural 

complexities or other reasons, later developments in the case may show either that 

counsel should be appointed, or that strict procedural requirements should, in fairness, 

be relaxed to some degree.” Williams v. Carter, 10 F.3d 563, 567 (8th Cir. 1993).

V. CONCLUSION

Lightfeather is granted leave to proceed IFP under the imminent danger 

exception to 28 U.S.C. § 1915(g) for his claims related to the threats to his life and 

safety arising from Pavey’s hit. However, Lightfeather’s Complaint fails to state a 

plausible claim for relief against any Defendant. On the Court’s own motion, 

Lightfeather will be given 30 days to file an amended complaint that states a plausible 

claim for relief against Pavey and Miller as set forth above. All other claims will be 

dismissed without prejudice and without leave to amend for the reasons stated above.

If Lightfeather chooses to amend his Complaint, he is advised that the Court will 

no longer permit the piecemeal filing of supplemental materials in this case. 

Lightfeather’s repeated filing of supplementary materials frustrates the Court’s ability to 

discern and review the claims Lightfeather seeks to raise in this matter. It is true that 

complaints filed by pro se litigants are held to less stringent standards than those 

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 26 of 30 - Page ID # 111
27

applied to formal pleadings drafted by lawyers; however, even pro se litigants must 

comply with the Federal Rules of Civil Procedure. Federal Rule of Civil Procedure 8

requires that every complaint contain “a short and plain statement of the claim showing 

that the pleader is entitled to relief” and that “[e]ach allegation . . . be simple, concise, 

and direct.” Fed. R. Civ. P. 8(a)(2), (d)(1). A complaint must state enough to “‘give the 

defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” 

Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555). 

Accordingly, if Lightfeather decides to file an amended complaint, he must 

include all of the claims he wishes to pursue against all of the defendants he wishes to 

proceed against in one document. The amended complaint must specify in what 

capacity the defendants are sued and must set forth all of Lightfeather’s claims (and any 

supporting factual allegations) against that defendant. To be clear, Lightfeather’s 

amended complaint must restate the relevant allegations of his Complaint, Filing No. 1; 

Filing No. 8; Filing No. 9, the relevant allegations regarding imminent danger of serious 

injury in his responses, Filing No. 11; Filing No. 12; Filing No. 13, and any new 

allegations. Lightfeather should be mindful to explain who each defendant is, what each 

defendant did to him, when the defendant did it, and how the defendant’s actions 

harmed him. Lightfeather is warned that any amended complaint he files will 

supersede, not supplement, his prior pleadings. Lightfeather is encouraged to use the 

Court-approved form to draft his amended complaint, which the Clerk of the Court will 

provide to him.

If Lightfeather fails to file an amended complaint in accordance with this 

Memorandum and Order, this action will be dismissed without prejudice and without 

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 27 of 30 - Page ID # 112
28

further notice to Lightfeather. The Court reserves the right to conduct further review of 

Lightfeather’s claims pursuant to 28 U.S.C. §§ 1915(e) and 1915A after he addresses 

the matters set forth in this Memorandum and Order.

IT IS THEREFORE ORDERED that:

1. Lightfeather’s Motion for Leave to Proceed IFP, Filing No. 5, is granted. 

His subsequent motion for leave to proceed IFP, Filing No. 11, is denied as moot. 

2. The filing fee shall be collected and remitted, as funds exist, in the manner 

set forth in 28 U.S.C. § 1915(b)(2). Until the full filing fee of $350.00 is paid, 

Lightfeather shall be obligated to pay, and the agency having custody of Lightfeather 

shall forward to the Clerk of the Court, 20 percent of the preceding month’s income in 

such months as the account exceeds $10.00. 

3. The Clerk of the Court shall serve a copy of this order on the appropriate 

financial officer for Plaintiff’s current institution.

4. The following Defendants and claims shall be dismissed or proceed 

further as specified below:

a. Lightfeather’s claims for relief in the form of release and injunctive 

relief are dismissed without prejudice.

b. Lightfeather’s claims for damages against NDCS and the NDCS 

Defendants in their official capacities are dismissed without 

prejudice as they are barred by sovereign immunity.

c. Lightfeather’s claims against Defendants Nebraska Department of 

Correctional Services, Inspector General of Nebraska, Stephanie 

Baren, Dietary Kitchen Martin, Brandon Holister, Unknown White 

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 28 of 30 - Page ID # 113
29

Female Officer for NDCS, Foster, D.J., Case Manager Blue, Victor 

Osuna, Ricardo Mandoza, Lewis Vasquez, Captain Krugle, 

Corporal Andrews, Lank Griffin, and Blue a/k/a Jay Bone are 

dismissed without prejudice and without leave to amend.

d. Lightfeather is granted leave to file an amended complaint to state 

plausible Eighth Amendment failure-to-protect and conspiracy 

claims against Defendants Pavey and Miller arising out of their 

conduct related to Pavey’s hit and the March 2023 shank incident.

5. Lightfeather shall have until May 20, 2024, to file an amended complaint in 

accordance with this Memorandum and Order. Failure to file an amended complaint 

within the time specified by the Court will result in the Court dismissing this case without 

further notice to Lightfeather. Lightfeather should be mindful to explain in his amended 

complaint who each defendant is, whether each defendant is sued in his or her 

individual capacity, official capacity, or both, what each defendant did to him, when the 

defendant did it, and how the defendant’s actions harmed him. 

6. In the event that Lightfeather files an amended complaint, Lightfeather 

shall restate the relevant allegations of the Complaint, Filing No. 1, supplements, Filing 

No. 8; Filing No. 9, any relevant allegations regarding imminent danger of serious injury 

in his responses, Filing No. 11; Filing No. 12; Filing No. 13, and any new allegations. 

Failure to consolidate all claims into one document may result in the abandonment of 

claims. Lightfeather is encouraged to use the form complaint enclosed with this 

Memorandum and Order. Lightfeather is warned that an amended complaint will 

supersede, not supplement, his prior pleadings.

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 29 of 30 - Page ID # 114
30

7. The Clerk of Court is directed to send to Lightfeather a Form Pro Se 14 

Complaint for Violation of Civil Rights (Prisoner Complaint).

8. The Court reserves the right to conduct further review of Lightfeather’s 

claims pursuant to 28 U.S.C. §§ 1915(e) and 1915A in the event he files an amended 

complaint.

9. The Clerk of Court is directed to set a pro se case management deadline 

using the following text: May 20, 2024: check for amended complaint. 

10. The Clerk of Court is directed to remove Defendants Nebraska 

Department of Correctional Services, Stephanie Baren, Brandon Holister, Unknown 

White Female Officer for NDCS, Foster, D.J., Case Manager Blue, Victor Osuna, 

Ricardo Mandoza, Lewis Vasquez, Captain Krugle, Corporal Andrews, Dietary Kitchen 

Martin, Lank Griffin, and Blue a/k/a Jay Bone from this action.

Dated this 18th day of April, 2024.

BY THE COURT:

Joseph F. Bataillon

Senior United States District Judge

8:23-cv-00214-JFB-PRSE Doc # 14 Filed: 04/18/24 Page 30 of 30 - Page ID # 115