United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
action was filed by plaintiff Tyler Keup, a pro se litigant
who is, according to the court's docket sheet, now
incarcerated at the Douglas County Correctional Center in
Omaha, Nebraska, but whose Complaint involves the Cass County
Jail, where he was previously a detainee. The court has
granted Plaintiff permission to proceed in forma pauperis,
and the court now conducts an initial review of the Complaint
(Filing No. 1) to determine whether summary
dismissal is appropriate under 28 U.S.C. §§
1915(e) and 1915A.
SUMMARY OF COMPLAINT
sues two Cass County Jail employees in their individual and
official capacities for violation of Plaintiff's First
and Fourteenth Amendment rights. Plaintiff alleges that
Defendants refused to send two pieces of Plaintiff's mail
out of the jail when the mail was enclosed in envelopes
adorned with Plaintiff's artwork, including one envelope
that “was painted uniquely with Skittles while the
other had some pencil sketchings of hearts and
ribbons.” (Filing No. 1 at CM/ECF p. 3.)
Plaintiff alleges that Defendants' enforcement of Cass
County Jail Policy § 2.1-which provides, “You may
not write or draw anything on the outside of the envelope
other than the addresses.”-violated his right to free
expression. (Filing No. 1 at CM/ECF p. 10.)
Plaintiff asks the court to declare Cass County Jail Policy
§ 2.1 unconstitutional, enjoin Cass County from
including this policy in its “rule book, ” and
award him costs, nominal damages, and punitive damages.
(Filing No. 1 at CM/ECF p. 9.)
also complains that the Cass County Jail law library
“has no case reports available at all, ” nor a
computer on which to perform legal research regarding his
First Amendment claim. This, Plaintiff claims, violates his
right to access the courts. (Filing No. 1 at CM/ECF pp.
3 & 5.)
LEGAL STANDARDS ON INITIAL 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. §
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
claims against defendants Leftler and Davis in their official
capacities are actually claims against their employer, Cass
County, Nebraska. As a municipality, Cass County may only be
liable under section 1983 if an official municipal
“policy” or “custom” caused a
violation of Plaintiff's constitutional rights.
Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir.
2006) (“A suit against a public official in his
official capacity is actually a suit against the entity for
which the official is an agent.”); 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 (1978)).
Plaintiff specifically alleges that a Cass County Jail
policy, as enforced by Defendants against him, caused the
violation of his First and Fourteenth Amendment rights.
Therefore, I shall order that Cass County, Nebraska, be added
to this case as a defendant, and that Plaintiff's claims
against Leftler and Davis in their official capacities be
dismissed as duplicative of Plaintiff's claims against
B.Claims for Injunctive & Declaratory