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Longs v. Hawk

United States District Court, D. Nebraska

June 26, 2019

TROY L. HAWK, Defendant.


          Richard G. Kopf Senior United States District Judge

         Plaintiff filed a Complaint on October 23, 2018, when he was incarcerated at the Lancaster County Department of Corrections. (Filing No. 1.) He has been given leave to proceed in forma pauperis.[1] (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. For purposes of this initial review, the court will consider Plaintiff's Motion to Amend (filing no. 10) and its attachments as supplemental to the Complaint.


         Plaintiff filed this action against Troy Hawk (“Hawk”), Clerk of the Lancaster County District Court (“Clerk”), alleging Hawk violated 18 U.S.C. §§ 2071 and 2076 “by unlawfully concealing our Appeal in Case NO CI-18-2939 & refusing our in forma pauperis on 4 occasions, also denying our appeal on CR-17-1508 of our bond forfeiture.” (Filing No. 1.) Plaintiff further alleges Hawk denies Plaintiff's “fiancé filing paperwork [Plaintiff] author[s] [him]self, telling her she's not a lawyer.” (Id.) Plaintiff alleges Hawk is acting in concert with other court and county officials to deny Plaintiff his First Amendment rights.

         On November 29, 2018, Plaintiff filed a Motion to Amend (filing no. 10) his Complaint in order to add Lindsey Roby (“Roby”), the Lancaster County Court Clerk, as a defendant. Plaintiff alleges Roby, on numerous occasions, received Plaintiff's filings, and “rather than file [them], she alerts Jail officials, and sends them back opened for Jail officials to inspect, and [she] refuses to file them and correspond with [Plaintiff]” in violation of his First Amendment right. (Id.) The filings allegedly refused by Roby relate to Plaintiff's apparent attempt to file a tort claim related to property he claims was stolen at the jail. Plaintiff attached to his motion several documents which indicate several of his “praecipes” for a tort claim and “appeals” were returned to him either because the Clerk lacked the form Plaintiff was seeking or because the Clerk was unable to process Plaintiff's appeal without the required filing fee or in forma pauperis documents. (Filing No. 10-1.)

         As relief, Plaintiff seeks injunctive relief and damages. (Filing No. 10.)


         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).


         Liberally construing Plaintiff's allegations, Plaintiff seems to be claiming that Hawks and Roby (collectively “Defendants”) deprived him of his constitutional right to access the courts. It is well established “that prisoners have a constitutional right of access to the courts.” Bounds v. Smith, 430 U.S. 817, 821 (1977). However, Plaintiff does not specify in what capacity Defendants are being sued, so 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 Defendants are claims against Lancaster 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 Lancaster 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, ...

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