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Nelson v. Hjorth

United States District Court, D. Nebraska

May 2, 2018

LINDA NELSON, Plaintiff,
VERN HJORTH, Defendant.


          Richard G.Kopf Senior United States District Judge

         Plaintiff, 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.[1] 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 1915A.


         Nelson 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.

         Nelson purports to bring this action on behalf of herself and “all others similarly situated.” For her claims, Nelson alleges:

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 Jail....
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 services.” ...
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 response....
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 impunity....
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.

         Correspondence 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 family.
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).

         For 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).


         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).

         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. 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).

         “To 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 (1988).


         For the 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.

         A. Individual vs. Official-Capacity Claims

         “Public 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).

         Although 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.

         To 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 ...

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