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Clauff v. Markvicka

United States District Court, D. Nebraska

July 19, 2017

RICKY A. CLAUFF, Plaintiff,
CHRISTINA MARKVICKA, Jailer; JOHN WESTMAN, Sheriff; KIM CAMPBELL, Jail Administrator; and JIM HELGOTH, Merrick Board of Supervisors; Defendants.


          Richard G. Kopf Senior United States District Judge.

         On May 15, 2017, Plaintiff filed a Complaint in the District Court of Merrick County, Nebraska. (Filing No. 1-1.) Defendants removed the matter to this court on June 15, 2017, because Plaintiff's Complaint asserts both federal constitutional and state law claims. (Filing No. 1 at CM/ECF p. 1.) For the following reasons, the court will remand Plaintiff's state law claims to the District Court of Merrick County, but allow Plaintiff to file an amended complaint that asserts a federal constitutional claim upon which relief may be granted against Defendants.


         Plaintiff is currently confined at the Lincoln Correctional Center in Lincoln, Nebraska. (Filing No. 1-1 at CM/ECF p. 2.) From April 1, 2015, to May 2, 2016, Plaintiff was confined at the Merrick County Jail in Central City, Nebraska. (Id.) He names in his Complaint: Christine Markvicka (“Markvicka”), a jailer at the Merrick County Jail, John Westman (“Westman”), the Merrick County Sheriff, Kim Campbell (“Campbell”), the Merrick County Jail Administrator, and Jim Helgoth (“Helgoth”), a member of the Merrick County Board of Supervisors. (Id. at CM/ECF p. 1.) He seeks monetary damages and injunctive relief. (Id. at CM/ECF pp. 2, 4-5.)

         Plaintiff wrote numerous grievances from April 2015 to December 2016 about Markvicka's violations of the Jail Standards, specifically failure to conduct hourly checks and failure to segregate intoxicated inmates. (Id. at CM/ECF p. 4.) Plaintiff alleges three specific incidents that occurred thereafter. From January 12, 2016, to January 14, 2016, Markvicka turned off the hot water for the inmates[1] and left the outside jail door open while she smoked, which caused Plaintiff and other inmates to suffer numb hands and feet. Plaintiff states that Markvicka responded to inmates' complaints, “Clauff should stop writing grievances.” (Id.)[2] From January 19, 2016, to January 21, 2016, Markvicka shut the “West steel door, ” which caused Plaintiff to suffer numb hands and feet because heat could not enter the dining area and the general population cell block. Plaintiff states that Markvicka instructed a new jailer to ignore inmates' complaints about the closed door. (Id.) On January 26, 2016, Markvicka refused to give Plaintiff and inmates toilet paper, causing them to hold their stool until the next shift in the morning. (Id.)[3]

         Plaintiff contends that Defendants Markvicka, Westman, and Campbell failed to respond to his grievances. (Id. at CM/ECF pp. 3-4.) On June 27, 2016, Plaintiff wrote a letter to the Merrick County Board of Supervisors. (Id. at CM/ECF p. 3.) In response, Helgoth and the Merrick County Attorney wrote to Plaintiff, in relevant part, “To the extent that any of the problems you have raised were confirmed, we have ensured that the proper corrective actions were taken . . . we have requested that all employees that work in the jail review Corrections policies and Jail Standards and complete additional training.” (Id. at CM/ECF p. 38.)


         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); 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).

         Liberally construed, Plaintiff here 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).


         A. Federal Constitutional Claims

         The court liberally construes Plaintiff's claims against Defendants[4] as claims against Merrick County. As a municipal defendant, Merrick County may only be liable under section 1983 if its official “policy” or “custom” caused a violation of Plaintiff's constitutional rights. Doe By & Through Doe v. Washington County, 150 F.3d 920, 922 (8th Cir. 1998) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). An “official policy” involves a deliberate choice to follow a course of action made from among various alternatives by an official who has the final authority to establish governmental policy. Jane Doe A By & Through Jane Doe B v. Special School Dist. of St. Louis County, 901 ...

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