Butler et al v. Lancaster County Dept of Corrections et al

Filing 60

MEMORANDUM AND ORDER - Butler has 30 days to file an amended complaint in accordance with this order. This matter will be dismissed without prejudice and without further notice if Butler fails to file an amended complaint in accordance with this orde r. Butler's claims must be presented in one document (i.e., the amended complaint), and not in numerous briefs, motions, andcorrespondences. The clerk's office is directed to set a pro se case management deadline in this matter: April 13 , 2015: Check for amended complaint. The Court will conduct further review of any amended complaint in accordance with 28 U.S.C. §§ 1915(e) and 1915A. Butler's notion to appoint counsel (Filing No. 30 )is denied without prejudice to reassertion. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 4/13/2015: check for amended complaint) Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SERGIO BUTLER,
Plaintiff,
v.
LANCASTER COUNTY DEPARTMENT
OF CORRECTIONS and LANCASTER
COUNTY,
Defendants.

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8:14CV306

MEMORANDUM AND ORDER

This action was filed by six prisoner plaintiffs on
October 6, 2014 (Filing No. 1).
from the action.

All but one has been dismissed

The only remaining plaintiff, Surgio Butler,

has been granted leave to proceed in forma pauperis (Filing No.
56).

The Court now conducts an initial review of Butler’s claims

to determine whether summary dismissal is appropriate under 28
U.S.C. §§ 1915(e) and 1915A.
I.

SUMMARY OF COMPLAINT

Butler and five other prisoners incarcerated at the
Lancaster County Jail in Lincoln, Nebraska, sued Lancaster
County, Nebraska, and the Lancaster County Department of
Corrections concerning the conditions of their confinement at the
jail.

They complained that (1) the smell of methane gas in the

jail causes headaches, (2) violent offenders are housed in the
same units as non-violent offenders, (3) they are denied adequate

medical care, (4) they are denied religious services, (5) the law
library is inadequate, and (6) they are unable to “obtain copies
of motions.”

(Filing No. 1 at CM/ECF pp. 2-3.)

As relief, they

asked the Court to “oversee” that the issues raised in the
Complaint “be corrected.” (Id. at CM/ECF p. 5.)
In later-filed correspondence signed only by Butler,
Butler raised issues set forth in the original complaint, and
also alleged he was not allowed to speak to a supervisor at the
Ombudsman’s Office (Filing No. 27), Lancaster County officials
denied him a “civil suite paper” (Filing No. 29), and inmates are
not tested for communicable diseases or pathogens when they are
admitted to the jail (Filing No. 48).

In later-filed

correspondence signed by Butler, some of the original prisoner
plaintiffs, and other nonparty prisoners, complained there is a
smell of methane gas in the jail, non-violent offenders are
housed with violent offenders, and inmate request forms are
frequently “lost in the mix.”
II.

(Filing No. 38.)

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.
1915(e) and 1915A.

See 28 U.S.C. §§

The Court must dismiss a complaint or any
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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.
Therefore, where pro se plaintiffs do not set forth
enough factual allegations to “nudge[] their claims across the
line from conceivable to plausible, 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) (overruling Conley v. Gibson, 355 U.S. 41 (1957), and
setting new standard for failure to state a claim upon which
relief may be granted).

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).
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
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of state law.

West v. Atkins, 487 U.S. 42, 48 (1988);

Buckley

v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).
III.

DISCUSSION OF CLAIMS

The complaint and the numerous supplements to the
complaint are deficient in at least two respects as they pertain
to Butler.

First, it is unclear from the allegations what claims

pertain to Butler’s legal rights or interests.

Pro se litigants

may not represent the interests of other parties.

Litschewski v.

Dooley, No. 11-4105-RAL, 2012 WL 3023249, at *1 n. 1 (D.S.D. July
24, 2012), aff’d, 502 Fed. Appx. 630 (8th Cir. 2013).

Moreover,

in order for a plaintiff to proceed with his claims, he must have
standing.

As a general rule, to establish standing a plaintiff

must assert his legal rights or interests and not “the legal
rights or interests of third parties.” Warth v. Seldin, 422 U.S.
490, 499 (1975).

Butler, as the only remaining plaintiff, must

assert only his legal rights and interests and not the legal
rights and interests of third parties.
Second, the complaint fails to state a claim against
defendants.

For a municipality to be found liable under § 1983,

“individual liability first must be found on an underlying
substantive claim.”
922 (8th Cir. 2005).

McCoy v. City of Monticello, 411 F.3d 920,
A municipality or government entity cannot

be held vicariously liable for the actions of one of its agents.
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Brockinton v. City of Sherwood, Arkansas, 503 F.3d 667, 674 (8th
Cir. 2007).

Rather, there must be a showing a governmental

employee was acting in accordance with a government policy or
custom in order for liability to attach to the municipality under
§ 1983.

Id.
“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.”

Jane Doe A By and Through Jane Doe B v.

Special Sch. Dist. of St. Louis Cnty., 901 F.2d 642, 645 (8th
Cir. 1990)(quoting Pembaur v City of Cincinnati, 475 U.S. 469,
483 (1986)).
In order 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

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moving force behind the
constitutional violation.
Jane Doe, 901 F.2d at 646.
Butler has not asked the Court to make a finding of
individual liability against any Lancaster County employee -- a
step necessary for a finding of municipal liability.
411 F.3d at 922.

See McCoy,

Butler also does not assert that the alleged

constitutional violations occurred because county officials were
acting in accordance with official government policy or that any
individual who carried out the actions against Butler was
responsible for establishing an official policy.

In addition,

Butler does not allege there was a continuing, widespread,
persistent pattern of unconstitutional misconduct by the county
or its employees, or that county policymaking officials were
deliberately indifferent to or tacitly authorized any
unconstitutional conduct.

Finally, Butler does not allege that

an unconstitutional custom was the moving force behind his
injuries.

Accordingly, he has failed to allege sufficient facts

to state a claim for relief against Lancaster County or the
Lancaster County Department of Corrections.
On the Court’s own motion, Butler will have an
opportunity to file an amended complaint that states a plausible
claim for relief against Lancaster County, Nebraska, names any

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other proper defendants, and sets forth only his legal rights and
Butler’s claims must be presented in one document

interests.

(i.e., the amended complaint), and not in numerous briefs,
motions, and correspondences.
IV.

MOTION TO APPOINT COUNSEL

Plaintiff has filed a motion to appoint counsel (Filing
No. 30).

Counsel cannot be routinely appointed 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[.]”
quotation marks omitted).
this time.

Id. (internal citation and

No such benefit is apparent here at

Thus, the request for the appointment of counsel will

be denied without prejudice to reassertion.
IT IS ORDERED:
1.

Butler has 30 days to file an amended complaint in

accordance with this order.

This matter will be dismissed

without prejudice and without further notice if Butler fails to
file an amended complaint in accordance with this order.
Butler’s claims must be presented in one document (i.e., the

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amended complaint), and not in numerous briefs, motions, and
correspondences.
2.

The clerk’s office is directed to set a pro se

case management deadline in this matter:

April 13, 2015:

Check

for amended complaint.
3.

The Court will conduct further review of any

amended complaint in accordance with 28 U.S.C. §§ 1915(e) and
1915A.
4.

Butler’s notion to appoint counsel (Filing No. 30)

is denied without prejudice to reassertion.
DATED this 13th day of March, 2015.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

* 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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