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Keup v. Leftler

United States District Court, D. Nebraska

August 21, 2017

TYLER KEUP, Plaintiff,
v.
LEFTLER, Sergeant #92030, all being sued in their individual and official capacities, and M. DAVIS, CPL. #92054, all being sued in their individual and official capacities, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         This 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.

         I. SUMMARY OF COMPLAINT

         Plaintiff 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.)

         Plaintiff 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.)

         II. 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 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).

         III. DISCUSSION

         A. Official-Capacity Claims

         Plaintiff's 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)).

         Here, 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 Cass County.

         B.Claims for Injunctive & Declaratory ...


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