United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G.Kopf Senior United States District Judge
Linda Nelson, appearing pro se, filed her Complaint (Filing
No. 1) on February 23, 2018, and was granted leave to proceed
in forma pauperis on March 8, 2018 (Filing No. 8). Nelson
paid an initial partial filing fee on April 2,
2018. The court now conducts an initial review
of the Complaint to determine whether summary dismissal is
appropriate under 28 U.S.C. §§ 1915(e)(2) and
SUMMARY OF COMPLAINT
is a pretrial detainee at the Madison County Jail in Madison,
Nebraska. She sues the Madison County Sheriff, Vern Hjorth,
both in his individual and official capacities, for alleged
constitutional violations under 42 U.S.C. § 1983.
purports to bring this action on behalf of herself and
“all others similarly situated.” For her claims,
1) Nebraska jail standards meant to protect inmates from the
wanton and malicious behavior of jail staff are ignored in
their entirety by the Administration of Madison County
2) ...No reading material from any sourse [sic] is
allowed, regardless of the subject matter, unless it is
selected and distributed by jail staff....
3) The ban against reading material includes religious and
spiritual books and publications. Only the Protestant Bible
is allowed.... Religious activities are segregated based on
“Protestant” Bible study and “Catholic
4) The jail has no grievance procedure....While the
“Inmate Request Form” provided by the jail does
have a box to check which says “Grievance, ” the
forms are rarely, if ever, even acknowledged-let alone
answered. No. grievance ever submitted by Nelson received a
5) No due process exists at Madison County Jail. An inmate is
confined in “administrative segregation” at the
whim of staff. No. documentation is ever provided regardless
of the length of the segregation. No. hearings are ever held
regardless of the circumstances. There is no way to appeal
any disciplinary actions.... Among the rule violations that
will result in “administrative segregation” and a
complete denial of visiting is writing a grievance or
complaining about jail conditions such as hunger and cold.
6) ...It is openly declared to be [jail policy] intended to
make sure inmates are punished simply by the fact of locking
people in a cage, making sure they stay hungry and cold, and
use psychological pain by banning simple access to current
events via the media or books, doing visits on staff whim....
7) ...Staff is allowed to swear at and taunt inmates with
8) Equal protection is further denied to females in that
women are absolutely barred due solely to their gender from
the inmate work program....
9) Access to courts is denied by ... refusal to allow access
to current law books. The newest edition of Nebraska Statutes
allowed inmates is 1999 with updates to 2006. Absolutely no
access is allowed to case law.
from legal sources is open[ed] and reviewed. Using the court
to address the conditions of the jail meets with retaliation.
10) ...Phone use is cost prohibitive, at a minimum cost of
$20 and limited to purchase on 2 days of the week....
11) Among the infractions for which inmates will be
“locked down”-and thus automatically lose
visiting for a minimum of one week-is laughing.
12) ...Medical orders from doctors are “vetoed”
by jail staff. Nelson was denied a brace and a sling for a
wrist and shoulder injury ....
13) No mental health issues are addressed at all.
14) ...An inmate who cannot afford the twenty dollar minimum
to place a phone call dares not ever complain about jail
conditions because to do so would be to risk all contact with
15) ...[Jail staff] have convinced inmates that to try to do
anything will result in unacceptable retaliation... Neb RRS
§ 47-115 makes the sheriff liable for the negligence and
misconduct of the jailers.
16) ...[P]ersonal hygiene is limited to deodorant with no
acceptable level of active ingredients and costly products
that maximize personal discomfort, such as dandruff shampoo
with no active ingredients. No. way to clean shower curtains,
which have mold on them, now way to clean smocks which smell
of other inmates who wore them ..., no t-shirts.... Simple
soap is withheld for up to 24 hours.
17) ...[J]ail staff will report to immigration ...inmates who
are natural born U.S. citizens who just happen to be brown.
18) Mail from religious volunteers to inmates in the form of
post cards with Bible verses are discarded upon receipt, ....
19) Items are often removed from inmate mail (such as
drawings) without any sort of notice....
20) Periodicals received in the mail are confiscated without
notice to the inmates.
(Filing No. 1 at CM/ECF pp. 5-13).
relief, Nelson “just want[s] the court to order the
sheriff to follow the laws” (Filing No. 1 at CM/ECF p.
5). More specifically, Nelson states:
I would like the court to certify a class action because the
problems at Madison County have effected [sic]
hundreds of people over many years. I would like the court to
order the jail (Hjorth) to adhere to the Nebraska Jail
Standards and stop punishing people by making them cold,
hungry and bored. Order him to stop punishing people without
due process. Stop taking visits away. Make the phones
actually a reasonable available way to contact family. Order
the sheriff to make it so people can reasonably hope to
afford a phone call to secure bail[;] ... to provide copies
of the Nebraska Jail Standards as mandated by Nebraska law[;]
... to create a true grievance procedure[;]...not to override
medical advice[;] ... [and] to pay all the costs of these
proceedings .... [F]ind that Hjorth is guilty of neglect of
duty pursuant to Neb RRS § 47-116[;] order Hjorth to pay
the punitive damages established by Nebraska law for such
neglect of duty[;] ... [and] for any further relief that the
court deems proper ....
(Filing No. 1 at CM/ECF pp. 5, 14).
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.§
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. JP Morgan 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).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege the violation of a right secured by the Constitution
and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48
DISCUSSION OF CLAIMS
reasons discussed below, the court finds and concludes that:
(1) no actionable claim for relief is stated against Sheriff
Hjorth in his individual capacity; (2) Madison County should
be substituted as Defendant for Sheriff Hjorth in his
official capacity; (3) Nelson cannot bring a class action or
assert claims on behalf of other inmates; (4) Nelson cannot
bring suit for alleged violations of Nebraska Jail Standards;
(5) Nelson has alleged a plausible First Amendment claim to
challenge a County policy that bars her receipt of newspaper
and magazine subscriptions and has also alleged a plausible
Fourteenth Amendment claim to challenge the adequacy of the
diet she receives at the Madison County Jail; (6)
Nelson's remaining allegations fail to state a claim upon
which relief may be granted; (7) Nelson's Motion to Amend
Complaint should be denied; and (8) Nelson's Motion for
Appointment of Counsel should be denied.
Individual vs. Official-Capacity Claims
servants may be sued under § 1983 either in
their official capacity, their individual capacity, or
both.” Johnson v. Outboard Marine Corp., 172
F.3d 531, 535 (8th Cir. 1999). Individual-capacity suits seek
to impose personal liability upon a governmental officer,
agent, or employee for actions taken under color of state
law. Hafer v. Melo, 502 U.S. 21, 25 (1991). In
contrast, suing a defendant in his or her official capacity
is generally an alternative means of suing the governmental
entity. Kentucky v. Graham, 473 U.S. 159, 165-66
(1985). The real party in interest is the entity, not the
official named. Id. at 166 (“As long as the
governmental entity receives notice and an opportunity to
respond, an official-capacity suit is, in all respects other
than name, to be treated as a suit against the
entity”). Official-capacity claims are
“functionally equivalent to a suit against the
employing governmental entity.” Veatch v. Bartels
Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010).
Nelson is suing Sheriff Hjorth in his individual capacity as
well as his official capacity, the Complaint does not
indicate that he was personally involved in, or had any
direct responsibility for, the alleged violations of
constitutional rights. Nelson correctly notes that the
sheriff “shall in all cases be liable for the
negligence and misconduct of the jailer” under
Neb. Rev. Stat. § 47-115, but that state
statute does not apply to a federal civil rights claim
brought under 42 U.S.C. § 1983.
state a § 1983 claim, the plaintiff must allege
that the defendant was personally involved in or had direct
responsibility for incidents that resulted in injury.
Martin v. Sargent,780 F.2d 1334, 1338 (8th Cir.
1985). Because Nelson does not allege an actionable
individual-capacity claim against Sheriff Hjorth, he will be
dismissed from the action and Madison County will be
substituted as Defendant. See, e.g., Keup v.
Leftler, No. 8:17CV117, 2017 WL 3601229, at *2 (D. Neb.
Aug. 21, 2017) (on initial review of prisoner complaint