United States District Court, D. Nebraska
RICKY A. CLAUFF, Plaintiff,
CHRISTINA MARKVICKA, Jailer; JOHN WESTMAN, Sheriff; KIM CAMPBELL, Jail Administrator; and JIM HELGOTH, Merrick Board of Supervisors; Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
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.
SUMMARY OF COMPLAINT
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.)
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 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.) 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.)
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
APPLICABLE STANDARDS OF REVIEW
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).
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.”).
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).
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).
Federal Constitutional Claims
court liberally construes Plaintiff's claims against
Defendants 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 ...