United States District Court, D. Nebraska
MICHAEL J. LONGS II, Plaintiff,
TROY L. HAWK, Defendant.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
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. (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.
SUMMARY OF COMPLAINT
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.
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.)
relief, Plaintiff seeks injunctive relief and damages.
(Filing No. 10.)
APPLICABLE 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. §
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).
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
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.
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