Payne v. Britten et al
Filing
20
MEMORANDUM AND ORDER - Plaintiff's monetary damages claims against the TSCI Defendants and Bell in their official capacities are dismissed without prejudice in accordance with this Memorandum and Order. Plaintiff's Fourteenth Amendment pro cedural due process claims against the TSCI Defendants and Bell are dismissed without prejudice in accordance with this Memorandum and Order. Plaintiff's First and Fourth Amendment claims for injunctive relief against the TSCI Defendants and Be ll in their official capacities, and Plaintiff's First and Fourth Amendment against the TSCI Defendants and Bell in their individual capacities may proceed. Plaintiff's Motion for Temporary Restraining Order 11 nad 19 is denied. Plain tiff's Request for the Appointment of Counsel 1 is denied without prejudice to reassertion. Plaintiff's Motion for Production of Documents 15 is denied as premature. Plaintiff's Motion for Praecipe For Summons 6 is granted to t he extent provided in this Order. The Clerk of the court shall send NINE (9) summons forms and NINE (9) USM-285 forms (for service on Defendants in both their individual capacities and official capacities) to Plaintiff together with a copy of this M emorandum and Order. The Marshal shall serve the summons, the Complaint and the Amended Complaint without payment of costs or fees. The Clerk of the court will copy the Complaint and the Amended Complaint (filing nos. 1 and 18), Plaintiff does not need to do so. Plaintiff is hereby notified that failure to obtain service of process on a defendant within 120 days of the date of this order may result in dismissal of this matter without further notice as to such defendant. The Clerk of the Cour t is directed to set a pro se case management deadline in this case with the following text: October 24, 2011: Check for completion of service of summons. Ordered by Chief Judge Joseph F. Bataillon. (Copy mailed/e-mailed to pro se party along with 9 blank summons and USM-285 forms) (KBJ)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHRISTOPHER M. PAYNE,
Plaintiff,
v.
FRED BRITTEN, et al.,
Defendants.
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4:11CV3017
MEMORANDUM
AND ORDER
Plaintiff filed his Complaint in this matter on February 11, 2011. (Filing No.
1.) Plaintiff has previously been given leave to proceed in forma pauperis. (Filing
No. 7.) Also pending are Plaintiff’s Praecipe for Summons (filing no. 6), Motion for
Temporary Restraining Order (filing no. 11), Amended Motion for Temporary
Restraining Order (filing no. 19) and Motion for Production of Documents (filing no.
15). The court now conducts an initial review of the Complaint to determine whether
summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.
I.
SUMMARY OF COMPLAINT
Plaintiff filed his Complaint on February 11, 2011, against Federal Bureau of
Investigations Agent Jerry Bell (“Bell”) and six individual Tecumseh State
Correctional Institution (“TSCI”) employees (collectively the “TSCI Defendants”).1
(Filing No. 1 at CM/ECF p. 1; Filing No. 18 at CM/ECF pp. 1-2.) Plaintiff sues each
of these Defendants in both their individual and official capacities. (Id. at CM/ECF
p. 7.) Plaintiff is currently confined at TSCI in Tecumseh, Nebraska. (Id.; see also
Docket Sheet.)
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Plaintiff also filed an Amended Complaint on June 2, 2011. (Filing No. 18.)
The court will consider Plaintiff’s Amended Complaint “as supplemental to, rather
than as superseding” his original pleading. NECivR 15.1.
Condensed and summarized, Plaintiff alleges that the TSCI Defendants are
reading and censoring both his incoming and outgoing mail in violation of his
constitutional rights. (Id. at CM/ECF pp. 3-7.) More specifically, Plaintiff alleges
that the TSCI Defendants are censoring his mail at the request of Bell, who is
investigating Plaintiff for alleged involvement in “illegal activity.”2 (Id. at CM/ECF
pp. 6, 12.) Plaintiff received notice that Defendants were detaining his mail and
exhausted his administrative remedies through TSCI’s grievance procedures. (Id. at
CM/ECF pp. 2-3, 12-27.) Plaintiff seeks injunctive relief in the form of a court order
that directs Defendants to stop censoring his mail. (Id. at CM/ECF p. 9.) Plaintiff
also seeks monetary relief in the form of compensatory and punitive damages. (Id.
at CM/ECF pp. 9-10: Filing No. 18 at CM/ECF pp. 16-17.)
II.
APPLICABLE LEGAL STANDARDS ON INITIAL 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
thereof 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.
A pro se plaintiff must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 129 S. Ct.
2
Plaintiff mentions that this illegal activity may be allegations of “child
enticement.” (Filing No. 1 at CM/ECF p. 3.)
2
1937, 1950 (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.”). Regardless of whether a plaintiff is represented
or is appearing pro se, the plaintiff’s complaint must allege specific facts sufficient
to state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
However, a pro se plaintiff’s allegations must be construed liberally. Burke v. North
Dakota Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations
omitted).
III.
DISCUSSION OF CLAIMS
A.
Plaintiff’s Monetary Damages Claims against the TSCI Defendants in
Their Official Capacities
The Eleventh Amendment bars claims for damages by private parties against
a state, state instrumentalities and an employee of a state sued in the employee’s
official capacity. See, e.g., Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th
Cir. 1995); Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446-47 (8th Cir.
1995). Any award of retroactive monetary relief payable by the state, including for
back pay or damages, is proscribed by the Eleventh Amendment absent a waiver of
immunity by the state or an override of immunity by Congress. See, e.g., Dover
Elevator Co., 64 F.3d at 444; Nevels v. Hanlon, 656 F.2d 372, 377-78 (8th Cir. 1981).
Sovereign immunity does not bar damages claims against state officials acting in their
personal capacities, nor does it bar claims brought pursuant to 42 U.S.C. §1983 which
seek equitable relief from state employee defendants acting in their official capacity.
Here, Plaintiff sues several individual state employees in both their individual
and official capacities. (Filing No. 1 at CM/ECF pp. 1, 7; Filing No. 18 at CM/ECF
p. 1.) As set forth above, the Eleventh Amendment bars claims for damages by
private parties against employees of a state sued in their official capacities.
Consequently, Plaintiff’s monetary damages claims against the TSCI Defendants are
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barred by the Eleventh Amendment. Although Plaintiff’s monetary damages claims
against the TSCI Defendants are barred, the Eleventh Amendment does not bar
Plaintiff’s equitable relief claims against the TSCI Defendants in their official
capacities or Plaintiff’s claims against the TSCI Defendants in their individual
capacities.
B.
Plaintiff’s First Amendment Claims Against the TSCI Defendants
Liberally construed, Plaintiff has asserted that the TSCI Defendants are
violating his rights to send and receive mail. “While prisoners have a right to send
and receive mail, prison officials have a legitimate interest in monitoring that mail for
security reasons.” Ortiz v. Fort Dodge Correctional Facility, 368 F.3d 1024, 1026
(8th Cir. 2004); Thongvanh v. Thalacker, 17 F.3d 256, 258-59 (8th Cir. 1994) (stating
that the prison’s responsibility to maintain order may include reading incoming and
outgoing mail). Prison officials may justifiably censor outgoing mail concerning
escape plans, contraband, threats or evidence of illegal activity. Smith v. Delo, 995
F.2d 827, 830 (8th Cir. 1993); see also Procunier v. Martinez, 416 U.S. 396, 413
(1974) (concluding that restrictions on inmate mail are justified only if they further
an important or substantial government interest unrelated to the suppression of
expression, such as security, order, and rehabilitation), limited by Thornburgh v.
Abbott, 490 U.S. 401, 415-19 (1989) (limiting the Martinez analysis to outgoing
prison mail). Because of the greater security risks associated with incoming mail,
restrictions on incoming inmate mail are justified if they reasonably relate to
legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89 (1987).
Here, the TSCI Defendants are allegedly censoring Plaintiff’s incoming and
outgoing mail because they are cooperating with a criminal investigation regarding
Plaintiff’s involvement in “illegal activity.” (Filing No. 1 at CM/ECF pp. 3-7.)
However, Plaintiff asserts that he is not involved in any illegal activity and that his
mail is being held merely to censor his communications. (Id. at CM/ECF pp. 3-6.)
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Liberally construed, Plaintiff has alleged sufficient facts to “nudge” his First
Amendment mail rights claims against the TSCI Defendants across the line from
conceivable to plausible. However, the court cautions Plaintiff that this is only a
preliminary determination based only on the allegations of the Complaint and is not
a determination of the merits of Plaintiff’s claims or potential defenses thereto.
C.
Plaintiff’s Fourth Amendment Claims Against the TSCI Defendants
Liberally construed, Plaintiff also asserts a Fourth Amendment claim against
th TSCI Defendants for seizing his mail without a warrant. (Id. at CM/ECF pp. 6-7.)
The Fourth Amendment protects the right of people to be secure in their persons,
houses, papers, and effects against unreasonable searches and seizures. U.S. Const.
amend. IV. However, prisoners have very limited Fourth Amendment rights while
incarcerated. See, e.g., Hudson v. Palmer, 468 U.S. 517 (1984) (finding that inmate
had no reasonable expectation of privacy in his prison cell entitling him to protection
of Fourth Amendment). Indeed, the Eighth Circuit has held that prison officials do
not violate an inmate’s Fourth Amendment rights by inspecting the inmate’s mail.
See United States v. Kelton, 791 F.2d 101, 103 (8th Cir. 1986) (prisoner’s Fourth
Amendment rights were not violated when prison official inspected and copied
prisoner’s outgoing mail); see also Smith, 995 F.2d at 830 (prison officials are
justified in screening outgoing mail for escape plans, contraband, threats, or evidence
of illegal activity); United States v. Vallez, 653 F.2d 403, 406 (9th Cir. 1981)
(concluding that a warrantless seizure of a sealed letter is valid if it serves a
“justifiable purpose of imprisonment or prison security”), receded from on other
grounds by United States v. Goseyun, 789 F.2d 1386, 1387 (9th Cir. 1986) (per
curiam).
Again, Plaintiff asserts that he is not involved in any illegal activity and that
his mail is being held merely to censor his communications. (Filing No. 1 at CM/ECF
pp. 3-6.) Liberally construed, Plaintiff has alleged sufficient facts to “nudge” his
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Fourth Amendment claim against the TSCI Defendants across the line from
conceivable to plausible. As with Plaintiff’s First Amendment claims, the court
cautions Plaintiff that this is only a preliminary determination based only on the
allegations of the Complaint and is not a determination of the merits of Plaintiff’s
claims or potential defenses thereto.
D.
Plaintiff’s Fourteenth Amendment Procedural Due Process Claims
Against the TSCI Defendants and Bell
Liberally construed, Plaintiff alleges that Defendants are detaining his mail
without due process. (Id. at CM/ECF pp. 6-7.) The decision to censor or withhold
delivery of an inmate’s mail must be accompanied by minimum procedural
safeguards, which include notice to the inmate that correspondence was rejected and
an opportunity to protest the decision. Bonner v. Outlaw, 552 F.3d 673, 676-77 (8th
Cir. 2009). Here, Plaintiff was notified that his mail was detained. (Filing No. 1 at
CM/ECF p. 3.) In addition, he was given an opportunity, through TSCI’s grievance
procedure, to protest the decision. (Filing No. 1 at CM/ECF pp. 2, 12-27.) In light
of this, Plaintiff has failed to allege sufficient facts for the court to reasonably infer
that Defendants violated his Fourteenth Amendment due process rights. Accordingly,
Plaintiff’s procedural due process claims against Defendants are dismissed.
E.
Plaintiff’s Monetary Damages Claims Against Bell in his Official
Capacity
As a sovereign power, the United States is immune from suit unless it consents.
Hart v. United States, 630 F.3d 1085, 1088 (8th Cir. 2011). It is well settled that the
United States has not waived its sovereign immunity for suits seeking damages based
on alleged constitutional violations. See, e.g., Thomas-Lazear v. F.B.I., 851 F.2d
1202, 1207 (9th Cir. 1988) (“[T]he United States has not waived its sovereign
immunity in actions seeking damages for constitutional violations.”); FDIC v. Meyer,
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510 U.S. 471, 475-78 (1994) (declining to recognize a direct action for damages
against federal agencies). The shield of sovereign immunity also protects United
States agencies and officers acting in their official capacities. Meyer, 510 U.S. at
475; Kentucky v. Graham, 473 U.S. 159, 166 (1985) (concluding that suits against
public officials acting in their official capacities should be treated as suits against the
public entity).
Plaintiff’s claims against Bell in his official capacity for monetary relief,
treated as claims against the United States, are barred by sovereign immunity.
Therefore, Plaintiff’s monetary damages claims against Bell in his official capacity
are dismissed.
F.
Plaintiff’s Remaining Claims Against Bell
Although Plaintiff’s monetary damages claims against Bell in his official
capacity are barred, sovereign immunity does not bar declaratory and injunctive relief
claims against federal officials acting in their official capacities. See 5 U.S.C. § 702
(action seeking relief other than money damages should not be dismissed because it
is brought against United States); Raz v. Lee, 343 F.3d 936, 938 (8th Cir. 2003)
(holding that § 702’s waiver of sovereign immunity is not limited to cases brought
under the APA, and applies to claims arising under the Constitution); Red Lake Band
of Chippewa Indians v. Barlow, 846 F.2d 474, 476 (8th Cir. 1988) (concluding § 702
waiver is not dependent on application of APA; § 702 waiver is dependent only on
suit being against government and being one for non-monetary relief). Moreover,
damages claims against federal officials, sued in their individual capacities, are
cognizable under Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971). In Bivens, the Supreme Court “recognized for the
first time an implied private action for damages against federal officers alleged to
have violated a citizen’s constitutional rights.” Correctional Services Corp. v.
Malesko, 534 U.S. 61, 66 (2001). To state a claim for damages under Bivens, a
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plaintiff must show that a federal official violated his constitutional rights. Id. at 66.
Here, Plaintiff alleges that Bell, a federal agent, violated Plaintiff’s First and
Fourth Amendment rights by directing the TSCI Defendants to censor his mail
without cause. (Filing No. 1 at CM/ECF pp. 3-6.) Plaintiff seeks both monetary
damages and injunctive relief against Bell. (Id. at CM/ECF p. 9.) Liberally
construed, Plaintiff has alleged sufficient facts to “nudge” his Fourth and First
Amendment claims for injunctive relief against Bell in his official capacity, and his
Bivens claims against Bell, across the line from conceivable to plausible. Again, the
court cautions Plaintiff that this is only a preliminary determination based only on the
allegations of the Complaint and is not a determination of the merits of Plaintiff’s
claims or potential defenses thereto.3
IV.
MOTION FOR TEMPORARY RESTRAINING ORDER
Plaintiff has also filed a Motion for Temporary Restraining Order and an
3
To the extent that Plaintiff alleges state law negligence claims against
Defendants for injunctive relief, or against the TSCI Defendants for monetary relief
in their individual capacities, his claims may also proceed. However, to the extent
that Plaintiff alleges state law negligence claims for monetary relief against Bell, his
claims are barred. See 28 U.S.C. § 2680(b) (stating the Federal Torts Claims Act
waiver of sovereign immunity shall not apply to “any claim arising out of the loss,
miscarriage, or negligent transmission of letters or postal matters”); Ruiz v. United
States, 160 F.3d 273 (5th Cir. 1998) (concluding § 2680(b) is not limited to the U.S.
Postal Service, and applying postal exception to claim based on prison’s failure to
deliver a prisoner’s mail); Soos v. Potter, 72 Fed. App’x 673 (9th Cir. 2003) (holding
that the negligent handling of mail cannot furnish a basis for an action under Bivens);
United States v. Stanley, 483 U.S. 669, 701 (1987) (“Bivens involves not negligent
acts, but intentional constitutional violations . . . .”).
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Amended Motion for Temporary Restraining Order. (Filing Nos. 11 and 19.) The
court will consider Plaintiff’s Amended Motion for Temporary Restraining Order “as
supplemental to, rather than as superseding” his original Motion for Temporary
Restraining Order. See NECivR 15.1. The standards set forth by Dataphase Sys.,
Inc. v. C.L. Sys., Inc., 640 F.2d 109 (8th Cir. 1981), apply to Plaintiff’s Motion. In
Dataphase, the court, sitting en banc, clarified the factors district courts should
consider when determining whether to grant a motion for preliminary injunctive
relief:
(1) the threat of irreparable harm to the movant; (2) the state of balance
between this harm and the injury that granting the injunction will inflict
on other parties litigant; (3) the probability that movant will succeed on
the merits; and (4) the public interest.
Id. at 114. “No single factor in itself is dispositive; rather, each factor must be
considered to determine whether the balance of equities weighs toward granting the
injunction.” United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir. 1998).
“At base, the question is whether the balance of equities so favors the movant that
justice requires the court to intervene to preserve the status quo until the merits are
determined . . . .” Dataphase, 640 F.2d at 113.
Here, the court finds that the Dataphase factors do not favor Plaintiff to a
degree sufficient to warrant issuance of preliminary injunctive relief. Plaintiff’s
Motion generally restates allegations contained in his Complaint and Amended
Complaint. (See Filing Nos. 11 and 19.) Plaintiff has also included affidavits from
personal correspondents who allege that their letters to Plaintiff are being held
“Pending Criminal Investigation.” (See, e.g., Filing Nos. 19-2 and 19-3.) Overall,
however, Plaintiff’s allegations and evidence do not establish that the pending
criminal investigation is invalid, nor do they indicate that Plaintiff is likely to succeed
on the merits of his claims. In light of this, and in consideration of all of the factors,
the court sees no reason to “intervene to preserve the status quo until the merits are
determined . . . .” Dataphase, 640 F.2d at 113.
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V.
REQUEST FOR THE APPOINTMENT OF COUNSEL
Plaintiff also requests the appointment of counsel. (Filing No. 1 at CM/ECF
pp. 10-11.) The court cannot routinely appoint counsel in civil cases. In Davis v.
Scott, 94 F.3d 444, 447 (8th Cir. 1996), the Eighth Circuit Court of Appeals explained
that “[i]ndigent civil litigants do not have a constitutional or statutory right to
appointed counsel. . . . The trial court has broad discretion to decide whether both the
plaintiff and the court will benefit from the appointment of counsel . . . .” Id.
(quotation and citation omitted). No such benefit is apparent here. Plaintiff’s request
for the appointment of counsel is therefore denied without prejudice to reassertion.
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s monetary damages claims against the TSCI Defendants and
Bell in their official capacities are dismissed without prejudice in accordance with
this Memorandum and Order.
2.
Plaintiff’s Fourteenth Amendment procedural due process claims against
the TSCI Defendants and Bell are dismissed without prejudice in accordance with this
Memorandum and Order.
3.
Plaintiff’s First and Fourth Amendment claims for injunctive relief
against the TSCI Defendants and Bell in their official capacities, and Plaintiff’s First
and Fourth Amendment against the TSCI Defendants and Bell in their individual
capacities may proceed.
4.
Plaintiff’s Motion for Temporary Restraining Order (filing nos. 11 and
19) is denied.
5.
Plaintiff’s Request for the Appointment of Counsel (filing no. 1) is
denied without prejudice to reassertion.
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6.
Plaintiff’s Motion for Production of Documents (filing no. 15) is denied
as premature.
7.
Plaintiff’s Motion for Praecipe For Summons (filing no. 6) is granted to
the extent provided below.
8.
To obtain service of process on Defendants, Plaintiff must complete and
return the summons forms which the Clerk of the court will provide. The Clerk of the
court shall send NINE (9) summons forms and NINE (9) USM-285 forms (for service
on Defendants in both their individual capacities and official capacities) to Plaintiff
together with a copy of this Memorandum and Order. Plaintiff shall, as soon as
possible, complete the forms and send the completed forms back to the Clerk of the
court. In the absence of the forms, service of process cannot occur.
9.
Upon receipt of the completed forms, the Clerk of the court will sign the
summons forms, to be forwarded with a copy of Plaintiff’s Complaint and Amended
Complaint to the U.S. Marshal for service of process. The Marshal shall serve the
summons, the Complaint and the Amended Complaint without payment of costs or
fees. Service may be by certified mail pursuant to Fed. R. Civ. P. 4 and Nebraska law
in the discretion of the Marshal. The Clerk of the court will copy the Complaint and
the Amended Complaint (filing nos. 1 and 18), Plaintiff does not need to do so.
10. Fed. R. Civ. Pro. 4 requires service of a complaint on a defendant within
120 days of filing the complaint. However, because in this order Plaintiff is informed
for the first time of these requirements, Plaintiff is granted, on the court’s own
motion, an extension of time until 120 days from the date of this order to complete
service of process.
11. Plaintiff is hereby notified that failure to obtain service of process on a
defendant within 120 days of the date of this order may result in dismissal of this
matter without further notice as to such defendant. A defendant has twenty (20) days
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after receipt of the summons to answer or otherwise respond to a complaint.
12. The Clerk of the Court is directed to set a pro se case management
deadline in this case with the following text: “October 24, 2011: Check for
completion of service of summons.”
13. The parties are bound by the Federal Rules of Civil Procedure and by the
Local Rules of this court. Plaintiff shall keep the court informed of his current
address at all times while this case is pending. Failure to do so may result in
dismissal.
DATED this 27th day of June 2011.
BY THE COURT:
s/ Joseph F. Bataillon
Chief United States District Judge
*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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