Kelly v. Reeves

Filing 8

MEMORANDUM AND ORDER that Kelly shall have until 2/6/12 to amend his Pro Se Civil Complaint. The clerk is directed to set a pro se case management deadline for 2/6/12: check for amended complaint and dismiss if none filed. Kelly's Motion for Temporary Restraining Order, and or Preliminary Injunction 5 and Motion to Set Forth Hearing for Oral Arguments on T.R.O. 6 are denied. Ordered by Senior Judge Warren K. Urbom. (Copy mailed to pro se party) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STEPHEN KELLY,
Plaintiff,
v.
MALLORY REEVES, in her official
capacity,
Defendant.

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4:11CV3208
MEMORANDUM
AND ORDER ON INITIAL
REVIEW, MOTION FOR
TEMPORARY RESTRAINING
ORDER AND OR PRELIMINARY
INJUNCTION, AND MOTION TO
SET FORTH HEARING FOR
ORAL ARGUMENT ON T.R.O.

The plaintiff, Stephen Kelly, (“Kelly”) filed his Pro Se Civil Complaint in this
matter on November 22, 2011. (Filing No. 1.) By my December 12, 2011,
Memorandum and Order on Application to Proceed Without Prepayment of Fees and
Affidavit Kelly was given leave to proceed in forma pauperis. (Filing No. 7.) I now
conduct an initial review of the complaint to determine whether summary dismissal
is appropriate pursuant to 28 U.S.C. § 1915A.
I.

SUMMARY OF COMPLAINT

Kelly filed his complaint against one defendant, Mallory Reeves (“Reeves”),
who Kelly identifies as a nurse and an employee of Saunders County, Nebraska.
(Filing No. 1 at CM/ECF pp. 1, 3-4.) Kelly sues Reeves in her official capacity only.
(Id. at CM/ECF p. 1.)
Condensed and summarized, Kelly alleges that he was incarcerated at the
Saunders County Jail for three days, from June 26, 2011, until June 28, 2011. (Id. at
CM/ECF p. 2.) Prior to, and during, his three-day incarceration, Kelly suffered from
a “severe thyroid condition” and manic depressive disorder. (Id. at CM/ECF pp. 3,
7.) When Kelly entered the jail, he brought with him his thyroid medication, which

included a prescription requiring that he take the medication at the same time every
day on an empty stomach. (Id. at CM/ECF pp. 7-13.) However, Reeves refused to
provide Kelly with his thyroid medication prior to eating breakfast, instead
administering it in accordance with Saunders County Jail’s “medical protocol.” (Id.
at CM/ECF pp. 13-17.) As such, Kelly took his thyroid medication later than he
normally does, on a full stomach, and it therefore failed to regulate his thyroid
properly. As a result, Kelly became ill. (Id. at CM/ECF pp. 18-19.)
Additionally, regarding Kelly’s mental health issues, he alleges that he
requested a visit from a mental health practitioner during his incarceration because
he was “hysterical” and “crying uncontrollably.” (Id. at CM/ECF p. 24.) Reeves
refused to allow Kelly to see an outside mental health professional, in accordance
with the Saunders County Jail’s “medical protocol.” (Id. at CM/ECF pp. 24-26.)
After the refusal of treatment, Kelly allegedly attempted to commit suicide, after
which Saunders County Jail employees took him to the emergency room for
treatment. (Id. at CM/ECF pp. 27-28.) The hospital physician prescribed Kelly
Benadryl, which Reeves administered to Kelly two times per day, rather than the
prescribed three times per day. (Id. at CM/ECF pp. 28-32.)
Kelly alleges that Reeves’ refusal to administer his medication properly or
allow him outside mental health treatment, amounted to “deliberate indifference” to
his serious medical needs. (Id. at CM/ECF p. 4.) Kelly seeks a court order enjoining
Reeves from engaging in the same conduct during his planned February 2012
incarceration in the Saunders County Jail.
II.

APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW

I am required to review in forma pauperis complaints to determine whether
summary dismissal is appropriate. See 28 U.S.C. § 1915(e)(2). I must dismiss a
complaint or any portion thereof that states a frivolous or malicious claim, that fails
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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).
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.
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

Kelly names Reeves, a Saunders County employee, as the sole defendant and
specifies that she is sued in her official capacity only. (Filing No. 1.) “A suit against
a public employee in his or her official capacity is merely a suit against the public
employer.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999).
Therefore, the claims against Reeves in her official capacity only are actually claims
against her employer, Saunders County, Nebraska.
A county may only be liable under section 1983 if its “policy” or “custom”
caused a violation of Kelly’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
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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 entity’s employees;

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; and

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.
Here, Kelly does not allege that there is a continuing, widespread, persistent
pattern of unconstitutional misconduct by Saunders County or its employees. Rather,
Kelly alleges two isolated incidents in which he was administered his medication later
than he desired, and one incident in which he was denied immediate outside medical
assistance upon request. (Filing No. 1.) Further, Kelly does not allege that Reeves
is a policymaking official, that any Saunders County policymaking officials knew of
Reeves’ alleged conduct, or that such officials authorized or were deliberately
indifferent to the alleged conduct. (Id.) Accordingly, Kelly has failed to allege
sufficient facts to “nudge” his claims against Saunders County across the line from
conceivable to plausible under the Jane Doe standard.
However, on its own motion, the court will permit Kelly 30 days in which to
amend his Pro Se Civil Complaint to sufficiently allege a claim against Reeves and

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Saunders County, in accordance with the Jane Doe standard. Any amended
complaint shall restate the allegations of Kelly’s prior Pro Se Civil Complaint (filing
no. 1), and any new allegations. Failure to consolidate all claims into one document
will result in the abandonment of claims. If Kelly fails to file an amended complaint
in accordance with this Memorandum and Order on Initial Review, Motion for
Temporary Retraining Order, and or Preliminary Injunction and Motion to Set Forth
Hearing for Oral Arguments on T.R.O. this matter will be dismissed without prejudice
for failure to state a claim upon which relief may be granted.
IV.

PENDING MOTIONS

Also pending before the court are Kelly’s Motion for Temporary Restraining
Order, and or Preliminary Injunction (filing no. 5) and Motion to Set Forth Hearing
for Oral Arguments on T.R.O. (filing no. 6.) The standards set forth by Dataphase
Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109 (8th Cir. 1981), apply to Kelly’s Motion for
Temporary Restraining Order, and or Preliminary Injunction. 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; see also Planned Parenthood v. Rounds, 530 F.3d 724, 732-33 (8th Cir.
2008) (reiterating Dataphase factors and finding that unless implementation of state
statute is at issue, “district courts should still apply the familiar ‘fair chance of
prevailing’ test”). “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
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that justice requires the court to intervene to preserve the status quo until the merits
are determined. . . .” Dataphase, 640 F.2d at 113.
As set forth above, Kelly has not set forth a plausible cause of action against
Reeves. Without sufficient amendment, the Pro Se Civil Complaint will be dismissed
for failure to state a claim upon which relief must be granted. In light of this, and in
balancing all of the factors, it is apparent that Kelly has not alleged, or submitted any
evidence showing, that there is a fair chance that he will succeed on the merits of his
claims. As such, at this point in the proceedings and in consideration of all of the
factors, I see no reason to “intervene . . . until the merits are determined . . . .”
Dataphase, 640 F.2d at 113.
IT IS THEREFORE ORDERED that:
1.
Kelly shall have until February 6, 2012, to amend his Pro Se Civil
Complaint and clearly state a claim upon which relief may be granted against
Saunders County, Nebraska, in accordance with this Memorandum and Order on
Initial Review, Motion for Temporary Retraining Order and or Preliminary Injunction
and Motion to Set Forth Hearing for Oral Arguments on T.R.O. . If Kelly fails to file
a sufficient amended complaint, Kelly’s Pro Se Civil Complaint will be dismissed
without further notice for failure to state a claim upon which relief may be granted.
2.
In the event that Kelly files an amended complaint, Kelly shall restate
the allegations of the current Pro Se Civil Complaint (filing no. 1), and any new
allegations. Failure to consolidate all claims into one document may result in the
abandonment of claims.
3.
The clerk of the court is directed to set a pro se case management
deadline in this case using the following text: Check for amended complaint on
February 6, 2012, and dismiss if none filed.
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4.
Kelly 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 without
further notice.
5.
Kelly’s Motion for Temporary Restraining Order, and or Preliminary
Injunction (filing no. 5) and Motion to Set Forth Hearing for Oral Arguments on
T.R.O. (filing no. 6) are denied.
Dated January 9, 2012.
BY THE COURT
s/ Warren K. Urbom
United States Senior District Judge

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