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Dan v. Douglas County

United States District Court, D. Nebraska

July 27, 2018

ANTHONY TERRY DAN, Plaintiff,
v.
DOUGLAS COUNTY, FOSTER, K. A. GAMBLE, Officer; C. L. GODWIN, Officer; KITCHEN STAFF, ADMINISTRATION STAFF, INMATE ACCOUNT STAFF, ESTEVEZ, RAIMEZ, S. M. ROSE, DONNA FRICKE, MEDICAL STAFF, DR. ESH, COMMISSARY STAFF, BLUM, GRAHAM, VALQUIR, Lieutenant; CUMMINGS, Sergeant; MANAGEMENT, BARBIE, Sergeant; N. A. JORDAN, LISA, badge No. #1589; MAINTENANCE STAFF, M. K. MCLELEAN, Sergeant; and HADDAD, Officer; Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge.

         Plaintiff, a pro se litigant currently incarcerated at the Douglas County Correctional Center (DCCC), filed this 42 U.S.C. § 1983 action in which he complains about a myriad of issues related to his conditions of confinement and his treatment by jail staff. He has been given leave to proceed in forma pauperis. (Filing No. 8.) The court now conducts an initial review of Plaintiff's Complaint[1] to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.

         I. SUMMARY OF COMPLAINT

         Plaintiff brings this § 1983 action against the following Defendants: Douglas County; Officers Foster, K.A. Gamble, C.L. Godwin, [2] Estevez, Raimez, S.M. Rose, Donna Fricke, Blum, Graham, N.A. Jordan, Lisa (Badge #1589), and Haddad; Lieutenant Valquir; Sergeant Cummings; Sergeant Barbie; Sergeant M.K. Mclelean; Dr. Esh; and unnamed DCCC Kitchen Staff, Administration Staff, Inmate Account Staff, Medical Staff, Commissary Staff, Case Management Staff, and Maintenance Staff. Liberally construed, Plaintiff also sues Mod #20 Staff, Record Staff, Officer M. P. Rowe, Mr. Formanek, and the director of DCCC.[3](Filing No. 1 at CM/ECF p. 5; Filing No. 10 at CM/ECF pp. 7-10.) Plaintiff broadly alleges violations of his constitutional rights under the First, Fifth, Sixth, Eighth, and Fourteenth Amendments and refers the court to the numerous supplemental documents submitted with his Complaint as forming the basis of his claims.

         The supplemental documents submitted by Plaintiff consist of copies of grievances filed by Plaintiff with DCCC, the responses to those grievances, as well as several of Plaintiff's narrative accounts of incidents that have transpired during his incarceration. The specific allegations will be discussed below in the “Discussion of Claims, ” but generally, the complaints evidenced by Plaintiff's documents can be broken down into the following categories:

• Harassment, poor treatment, and retaliation by DCCC jail staff (see filing no. 1-1; filing no. 1-7; filing no. 1-8; filing no. 1-9; filing no. 1-11; filing no. 1-12; filing no. 16; filing no. 17; filing no. 19; filing no. 20);
• Inadequate and contaminated food (see filing no. 1-4; filing no. 1-8; filing no. 1-11; filing no. 13; filing no. 14; filing no. 18);
• Unsanitary cell conditions (seefiling no. 1-4; filing no. 1-6);
• Inadequate or improper medical care (seefiling no. 1-3; filing no. 1-6; filing no. 1-13; filing no. 10; filing no. 11; filing no. 13);
• Assaults by officers and inmates (seefiling no. 1-12; filing no. 10; filing no. 11); and
• Inadequate responses to and investigation of Plaintiff's grievances and denial of access to the grievance procedure (seefiling no. 1-1; filing no. 1-2; filing no. 1-3; filing no. 1-5; filing no. 1-6; filing no. 1-7; filing no. 1-8; filing no. 1-9; filing no. 1-10; filing no. 1-11; filing no. 1-12; filing no. 10; filing no. 10-1; filing no. 12; filing no. 15; filing no. 16; filing no. 17).

         As relief for the ill treatment as well as the physical harm Plaintiff has suffered from being fed “out of nasty food trays and mixing [his] food with germs and disease, ” Plaintiff seeks $3, 900, 000.00 in damages. (Filing No. 1 at CM/ECF p. 8.)

         II. APPLICABLE STANDARDS OF 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 has sued Douglas County and multiple officers and employees of DCCC (hereinafter “DCCC Defendants”). Because Plaintiff does not specify in what capacity the DCCC Defendants are being sued, the court must assume they are sued in their official capacities. See Alexander v. Hedback, 718 F.3d 762, 766 n.4 (8th Cir. 2013) (“‘This court has held that, in order to sue a public official in his or her individual capacity, a plaintiff must expressly and unambiguously state so in the pleadings, otherwise, it will be assumed that the defendant is sued only in his or her official capacity.'”) (quoting Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999)). Liberally construed, Plaintiff's claims against the DCCC Defendants are claims against Douglas County. “A suit against a public employee in his or her official capacity is merely a suit against the public employer.” Johnson, supra. To state a plausible claim against Douglas County, Plaintiff must allege that a “policy” or “custom” caused a violation of his constitutional rights.

         A county may only be liable under section 1983 if its “policy” or “custom” caused a violation of Plaintiff's constitutional rights. Doe By and Through Doe v. Washington County, 150 F.3d 920, 922 (8th Cir. 1998) (citing Monell v. Department of Soc. Servs., 436 U.S. 658, 694 (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 and Through Jane Doe B v. Special School Dist. of St. Louis County, 901 F.2d 642, 645 (8th Cir.1990) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)). To establish the existence of a governmental custom, a plaintiff must prove:

1) The existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity's employees;
2) Deliberate indifference to or tacit authorization of such conduct by the governmental entity's policymaking officials after notice to the officials of that misconduct; and
3) That plaintiff was injured by acts pursuant to the governmental entity's custom, i.e., that the custom was the moving force behind the constitutional violation.

Jane Doe, 901 F.2d at 646.

         Here, Plaintiff does not allege that there is a continuing, widespread, persistent pattern of unconstitutional misconduct by Douglas County's employees, or that Douglas County's policymaking officials were deliberately indifferent to or tacitly authorized any unconstitutional conduct. In addition, Plaintiff does not allege that an unconstitutional custom was the moving force behind the alleged constitutional violations. In other words, Plaintiff has failed to allege facts suggesting that a Douglas County “policy” or “custom” caused a violation of his constitutional rights. Accordingly, Plaintiff has failed to allege a cognizable claim against Douglas County and the DCCC Defendants in their official capacities.

         While all of Plaintiff's claims must be dismissed against Defendants in their official capacities, the court will examine Plaintiff's constitutional claims to determine whether Plaintiff should be given an opportunity to amend his Complaint to allege plausible claims for relief against the DCCC Defendants in their individual capacities.

         B. Due Process Claims

         Plaintiff generally asserts that the DCCC grievance procedure violated his due process rights. (See Filing No. 1 at CM/ECF p. 7.) Liberally construed, Plaintiff specifically alleges the following due process violations:

• Case Management Staff and Administration Staff fail to follow the grievance procedure by failing to respond to Plaintiff's grievances within fifteen days as required.
• Officer Donna Fricke incorrectly used Plaintiff's inmate data number as the control number for one of his grievance forms, and Lieutenant Dan Scherer later improperly changed the control number and voided Plaintiff's grievance.
• Officer M.P. Rowe, Officer N.A. Jordan, Sergeant Barbie, Officer Donna Fricke, Officer Godwin, Officer S.M. Rose, Officer Raimez, Case Management Staff, and Administration Staff failed to provide Plaintiff with his requested grievance forms.
• DCCC Administration Staff and Medical Staff failed to adequately investigate Plaintiff's grievances.
• Commissary Staff failed to adequately respond to Plaintiff's grievance regarding his difficulties in placing commissary orders over the phone.
• Inmate Account Staff failed to provide Plaintiff with a certified copy of his trust account statement in response to his grievance.
• Officer Lisa (Badge #1589) refused to notarize Plaintiff's inmate account record as he requested.
• Law Library Staff Ostwald (Badge #8532) gave Plaintiff false addresses and phone numbers for attorneys upon Plaintiff's request for the attorneys' contact information.[4]
• Douglas County Jail Staff refuse to allow Plaintiff to continue with the grievance procedure and Plaintiff cannot continue with the grievance ...

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