Jones v. Nebraska Department of Correctional Services Officials et al

Filing 9

MEMORANDUM AND ORDER - Plaintiff's claims against NDCS and the Individual Defendants in their official capacities, and Plaintiff's access to courts claims, are dismissed without prejudice. Plaintiff's constitutional claims relating t o his legal mail, alleged against the Individual Defendants in their individual capacities, and Plaintiff's state law claims, may proceed. Plaintiff's Motion for Appointment of Counsel (filing no. 5 ) is denied. To obtain service of p rocess on Defendants in their individual capacities, Plaintiff must complete and return the summons forms which the Clerk of the court will provide. The Clerk of the court shall send THIRTEEN summons forms and THIRTEEN USM-285 forms to Plaintiff, t ogether 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. The Clerk of Court is directed to set a pro se case management deadline in this case with the following text: "September 11, 2013: Check for completion of service of summons." Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party)(AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARVEL JONES,
Plaintiff,
v.
NEBRASKA DEPARTMENT OF
CORRECTIONAL SERVICES
OFFICIALS, et al.,
Defendants.

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8:13CV67

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on March 1, 2013. (Filing No. 1.) Plaintiff
has previously been given leave to proceed in forma pauperis. (Filing No. 8.) The court now
conducts an initial review of the Amended 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 in this matter on March 1, 2013, against the Nebraska
Department of Correctional Services (“NDCS”) and 13 individual NDCS employees
(“Individual Defendants”). (Filing No. 1 at CM/ECF pp. 1-4.) Plaintiff sues the Individual
Defendants in both their official and individual capacities. (Id.) Plaintiff is currently
confined in the Tecumseh State Correctional Institution in Tecumseh, Nebraska. (Id.)
Condensed, summarized, and liberally construed, Plaintiff alleges that Defendants
have repeatedly opened and read his legal mail, outside of his presence and without his
permission.1 (Id. at CM/ECF pp. 4-9.) Plaintiff alleges Defendants’ actions have violated
his constitutional rights and denied him meaningful access to the courts. (Id.) Plaintiff seeks
$525,000.00 in monetary damages against each Defendant. (Id. at CM/ECF p. 9.)

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Plaintiff alleges Defendants read and opened his legal mail on January 3, 2011; October 4, 2011;
October 14, 2011; October 21, 2011; November 9, 2011; December 20, 2011; January 4, 2012; and January
30, 2012. (Filing No. 1 at CM/ECF pp. 4-9.)

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. 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 NDCS and the Individual
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

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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 the NDCS and several individual state employees in both their
individual and official capacities. (Filing No. 1 at CM/ECF pp. 1-4.) As set forth above, the
Eleventh Amendment bars claims for damages by private parties against a state
instrumentality and employees of a state sued in their official capacities. Consequently,
Plaintiff’s monetary damages claims against NDCS and the Individual Defendants in their
official capacities are barred by the Eleventh Amendment.
B.

Legal Mail

Although Plaintiff’s monetary damages claims against the Individual Defendants in
their official capacities are barred, the Eleventh Amendment does not bar Plaintiff’s claims
against the Individual Defendants in their individual capacities. Liberally construed,
Plaintiff alleges the Individual Defendants violated his First and Sixth Amendment rights.
(Id. at CM/ECF pp. 4-9.)
While prisoners retain their First Amendment rights to send and receive mail, “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,

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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 counsel.”).
Here, Plaintiff alleges Defendants have repeatedly opened and read his legal mail,
outside of his presence, and without his permission. (Filing No. 1 at CM/ECF pp. 4-9.)
Liberally construed, Plaintiff has alleged sufficient facts to nudge his constitutional claims
relating to his legal mail 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 claims or potential defenses
thereto.
C.

Access to Courts

In addition to the claims above, Plaintiff alleges that the Individual Defendants denied
him meaningful access to the courts because they opened and read his legal mail. (Filing No.
1 at CM/ECF pp. 4-9.) To prove a violation of the right of meaningful access to the courts,
Plaintiff must establish that Defendants did not provide him with an opportunity to litigate
his claim in “a court of law, which resulted in actual injury, that is, the hindrance of a
nonfrivolous and arguably meritorious underlying legal claim.” Hartsfield v. Nichols, 511
F.3d 826, 831 (8th Cir. 2008) (citation omitted). “To prove actual injury, [Plaintiff] must
‘demonstrate that a nonfrivolous legal claim had been frustrated or was being impeded.’”
Id. (quoting Lewis v. Casey, 518 U.S. 343, 353 (1996)).
Here, Plaintiff has not alleged sufficient facts to demonstrate that Defendants
frustrated or impeded his ability to bring a nonfrivolous legal claim. Although Plaintiff
alleges Defendants opened and read his legal mail, he does not allege that he was prejudiced
or prevented from litigating any of his claims in a court of law. See, e.g., Beaulieu v.
Ludeman, 690 F.3d 1017, 1037 (8th Cir. 2012) (stating to assert a successful claim for denial
of meaningful access to the courts, an inmate must demonstrate that he suffered prejudice
from the opening of legal mail); Gardner, 109 F.3d at 431 (“The act of opening incoming
mail does not injure an inmate’s right to access the courts. The policy that incoming

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confidential legal mail should be opened in inmates’ presence instead serves the prophylactic
purpose of assuring them that confidential attorney-client mail has not been improperly read
in the guise of searching for contraband.”) Accordingly, Plaintiff’s access to courts claims
will be dismissed.
D.

State Law Claims

Liberally construed, Plaintiff may also have claims for violations of state law, such
as negligence. Because the court is permitting Plaintiff’s constitutional claims relating to his
legal mail to proceed against the Individual Defendants in their individual capacities, it will
also permit Plaintiff’s state law claims to proceed.
IV.

MOTION FOR APPOINTMENT OF COUNSEL

Also pending is Plaintiff’s Motion for Appointment of Counsel. (Filing No. 5.) 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. The request for the appointment of
counsel is therefore denied without prejudice.

IT IS THEREFORE ORDERED that:
1.
Plaintiff’s claims against NDCS and the Individual Defendants in their official
capacities, and Plaintiff’s access to courts claims, are dismissed without prejudice.
2.
Plaintiff’s constitutional claims relating to his legal mail, alleged against the
Individual Defendants in their individual capacities, and Plaintiff’s state law claims, may
proceed.
3.

Plaintiff’s Motion for Appointment of Counsel (filing no. 5) is denied.

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4.
To obtain service of process on Defendants in their individual capacities,
Plaintiff must complete and return the summons forms which the Clerk of the court will
provide. The Clerk of the court shall send THIRTEEN summons forms and THIRTEEN
USM-285 forms 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.
5.
Upon receipt of the completed forms, the Clerk of the court will sign the
summons forms, to be forwarded with a copy of the Complaint to the U.S. Marshal for
service of process. The Marshal shall serve the summons and Complaint and Complaint
without payment of costs or fees. Service may be by certified mail pursuant to Federal Rule
of Civil Procedure 4 and Nebraska law in the discretion of the Marshal. The Clerk of the
court will copy the Complaint, and Plaintiff does not need to do so.
6.
Federal Rule of Civil Procedure 4 requires service of the 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.
7.
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 21 days after receipt of the
summons to answer or otherwise respond to a complaint.
8.
The Clerk of Court is directed to set a pro se case management deadline in this
case with the following text: “September 11, 2013: Check for completion of service of
summons.”

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9.
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 15th day of May, 2013.
BY THE COURT:
s/ Joseph F. Bataillon
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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