United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge.
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 to determine whether summary dismissal is
appropriate under 28 U.S.C. §§ 1915(e) and 1915A.
SUMMARY OF COMPLAINT
brings this § 1983 action against the following
Defendants: Douglas County; Officers Foster, K.A. Gamble,
C.L. Godwin,  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.(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.
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
• 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
• 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
• Assaults by officers and inmates (seefiling no.
1-12; filing no. 10; filing no. 11);
• 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).
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.)
APPLICABLE STANDARDS OF 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. § 1915A(b).
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 Cir. 1993).
Official Capacity Claims
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
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
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;
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.
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
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.
Due Process Claims
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
• 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
• Douglas County Jail Staff refuse to allow Plaintiff to
continue with the grievance procedure and Plaintiff cannot
continue with the grievance ...