United States District Court, D. Nebraska
MICHAEL J. LONGS II, Plaintiff,
BRADLEY JOHNSON, Lancaster County Jail Director; Defendant.
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
filed a Complaint on October 30, 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. 7.) 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 Complaint includes Plaintiff's
supplemental filing (filing no. 8).
SUMMARY OF COMPLAINT
filed this action against Bradley Johnson, the Director of
the Lancaster County Jail, alleging the jail classified
Plaintiff to “maximum security” and “raised
[his] points 7 points for nothing, attempting to oppress
[him] and succeeding at it” because Plaintiff was
assaulted by another inmate on September 17, 2018, as a
result of his reclassification. (Filing No. 1.) Plaintiff
also alleges jail mail room staff are opening and tampering
with his legal mail. Plaintiff claims “[t]he mail
opened directly pertains to this facility, Bradley Johnson
and my jewelry being stolen on 9/6/2018 by staff at this
facility [and] also my car's key fob.” (Filing No.
8 (capitalization and punctuation corrected).) As relief,
Plaintiff seeks damages and injunctive relief. (Filing No. 1;
Filing No. 8.)
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).
construed, Plaintiff alleges violations of his right to be
free from cruel and unusual punishment under the Fourteenth
Amendment and his right to access the courts under
the First Amendment.
officials have a duty . . . to protect prisoners from
violence at the hands of other prisoners.” Farmer
v. Brennan, 511 U.S. 825, 833 (1994). However, prison
officials do not incur constitutional liability for every
injury suffered by a prisoner. Id. at 834. In order
to prevail on an Eighth Amendment failure-to-protect claim,
an inmate must make two showings. First, the inmate must
demonstrate that he or she is “‘incarcerated
under conditions posing a substantial risk of serious
harm.'” Jensen v. Clarke, 73 F.3d 808, 810
(8th Cir. 1996) (quoting Farmer v. Brennan, 511 U.S.
825, 834 (1994)). The second requirement concerns the state
of mind of the prison official who is being sued.
Id. It mandates that the inmate show that the
official “knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of
facts from which the inference could be drawn that a
substantial risk of serious harm exists, and [the official]
must also draw the inference.” Id. (internal
quotation omitted). This subjective requirement is necessary
because “only the unnecessary and wanton infliction of
pain implicates the Eighth Amendment.” Id.
(internal quotation omitted).
respect to Plaintiff's First Amendment claims, it is true
that prisoners retain their First Amendment rights to send
and receive mail, but “prison officials have a duty to
maintain security within the prison, and this may include
reading inmates' incoming and outgoing mail, with the
exception of legal mail.” Thongvanh v.
Thalacker, 17 F.3d 256, 258-59 (8th Cir. 1994). Indeed,
“[p]rivileged prisoner mail, that is mail to or from an
inmate's attorney and identified as such, may not be
opened for inspections for contraband except in the presence
of the prisoner.” Gardner v. Howard, 109 F.3d
427, 430 (8th Cir. 1997) (quotation and citation omitted);
see also Sallier v. Brooks, 343 F.3d 868, 877 (6th
Cir. 2003) (holding that mail from a court constitutes
“legal mail” and cannot be opened outside the
presence of a prisoner who has specifically requested
otherwise); Kamau v. Buss, No. 3:07-CV-372, 2007 WL
2363874, at *2 (N.D. Ind. Aug. 15, 2007) (“The purpose
of preventing prisons from opening legal mail outside of the
presence of an inmate is to protect the Sixth Amendment right
to counsel and the attorney-client privilege by ensuring that
prison officials merely inspect for contraband and do not
read confidential communications between an inmate and his
also well established “that prisoners have a
constitutional right of access to the courts.”
Bounds v. Smith, 430 U.S. 817, 821 (1977). To
prevail on an access to courts claim, a prisoner must
establish that he sustained “an actual injury.”
Moore v. Plaster, 266 F.3d 928, 933 (8th Cir. 2001).
To demonstrate “actual injury, ” the prisoner
must show “‘that a nonfrivolous legal claim had
been frustrated or was being impeded.'”
Id. (quoting Johnson v. Missouri, 142 F.3d
1087, 1089 (8th Cir. 1998)). “[A]n isolated incident,
without any evidence of improper motive or resulting
interference with ...