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Davis v. Nebraska Department of Correctional Services

United States District Court, D. Nebraska

December 1, 2014

PERRY D. DAVIS, Plaintiff,
v.
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, et al., Defendants.

MEMORANDUM AND ORDER

JOHN M. GERRARD, District Judge.

Plaintiff filed his Complaint (Filing No. 1) in this matter on August 18, 2014. Plaintiff is a prisoner who has been granted leave to proceed in forma pauperis. (Filing No. 8.) The court now conducts an initial review of Plaintiff's claims to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.

I. SUMMARY OF COMPLAINT

This matter is a civil rights action brought by Plaintiff pursuant to 42 U.S.C. § 1983. Plaintiff is an inmate incarcerated at the Tecumseh State Prison ("TSP") in Tecumseh, Nebraska. He sued 17 Defendants in their individual and official capacities. Defendants include 13 Nebraska Department of Correctional Services employees, Plaintiff's privately-retained attorney in his post-conviction proceedings, and the clerk of court, county attorney, and deputy county attorney in Sheridan County, Nebraska. (Filing No. 1 at CM/ECF pp. 2-3.) Plaintiff also named numerous John and Jane Does as Defendants, including 1 to 100 mail-room staff at TSP, and 1 to 100 Sheridan County officials. Plaintiff generally alleged in his Complaint that Defendants violated his right to access the courts and also conspired to violate his right to access the courts.

Plaintiff alleged that he commenced post-conviction proceedings in Sheridan County in 2010. During these proceedings, Defendant Eloise Kampbell, who is the clerk of the court in Sheridan County, "recieved [sic] but [did] not file[]" the following items, which he submitted pro se: a "Motion to Submit Evidence" received on April 5, 2010; a "Brief in Support of his Objection to State's Motion to Dismiss" received on May 5, 2010; and a "Motion to Submit Newly Discovered Evidence Material and Information" received on September 14, 2010.[1] ( Id. at CM/ECF pp. 3-4.) Plaintiff alleged Sheridan County has a policy or practice of impeding his right to access the courts. ( Id. at CM/ECF pp. 16-17.)

Plaintiff also alleged that on August 31, 2010, he placed two items into the legal mail system at TSP. As best as the court can tell from the Complaint and the exhibits attached to the Complaint, the two items were identical, except that one was to be sent "certified" to the Sheridan County clerk's office, and the other was to be sent to Defendant Dennis King, the county attorney in Sheridan County. The items were a "Motion to Submit Newly Discovered Evidence Material and Information." ( Id. at CM/ECF p. 4.) Defendant Cathy Peters, the TSP mail room supervisor, delivered the non-certified item to the United States Postal Service the following day, but TSP mail room and canteen staff held the certified item for 10 days. According to the documents attached to Plaintiff's Complaint, the prison's chief executive officer apologized for the delay and explained that, because the mail was to be delivered "certified, " it was sent through the canteen to ensure there was enough money in Plaintiff's account to cover the cost for certification. ( Id. at CM/ECF p. 38.) In addition, the prison director explained to Plaintiff there had been a "communications break down between the [TSP] canteen staff and the mail room staff on how to place postage on oversized mail, " which "ha[d] been corrected." ( Id. at CM/ECF p. 42.)

Plaintiff alleged corrections officials and county officials conspired to delay this mail (i.e., the "Motion to Submit Newly Discovered Evidence Material and Information") so that it would be received by the Sheridan County clerk's office after the statute of limitations had expired for filing such motions. ( Id. at CM/ECF pp. 16-17.) He also alleged the State of Nebraska and Sheridan County have a policy or custom of impeding his right to access the courts. ( Id. ) He seeks monetary relief in excess of $119, 000, 000.00. ( Id. at CM/ECF pp. 18-19.)[2]

II. APPLICABLE 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 thereof 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.

Therefore, where pro se plaintiffs do not set forth enough factual allegations to "nudge[] their claims across the line from conceivable to plausible, their complaint must be dismissed" for failing to state a claim upon which relief can be granted. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007) (overruling Conley v. Gibson, 355 U.S. 41 (1957), and setting new standard for failure to state a claim upon which relief may be granted). Regardless of whether a plaintiff is represented or is appearing pro se, the plaintiff's complaint must allege specific facts sufficient to state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). However, a pro se plaintiff's allegations must be construed liberally. Burke v. North Dakota Dep't of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations omitted).

III. DISCUSSION OF CLAIMS

A. Rules of Pleading

Plaintiff named 17 individuals as defendants, but only three of them-Eloise Kampbell, Cathy Peters, and Brian Silverman-were actually referred to in Plaintiff's recitation of the facts. ( See Filing No. 1 at CM/ECF pp. 3-4.) Rather, Defendants' names are strewn throughout the 82 exhibits attached to the Complaint. These 82 exhibits consist of 225 pages of documents.

"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)). With few exceptions, Plaintiff's allegations do not give Defendants fair notice of the claims against them. Thus, in the paragraphs that follow, the court will address the claims the undersigned judge is able to discern from reviewing the Complaint and attachments. However, as discussed below, Plaintiff will be provided with an opportunity to file an amended complaint. In order to ensure a just and ...


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