Nelson v. Hjorth

Filing 12

MEMORANDUM AND ORDER - The clerk of the court will modify the docket sheet to: List Linda Nelson as the sole Plaintiff, by striking the words "all other similar situation" after her name and add "The county of Madison, Nebraska," as Defendant. All claims alleged against Vern Hjorth, Madison County Sheriff, in his individual and official capacities, are dismissed without prejudice and he shall no longer be a party Defendant. Plaintiff's motion to amend complaint (Filing No. 9 ) is denied without prejudice. Plaintiff's motion for additional time to pay the initial partial filing fee (Filing No. 10 ) is denied without prejudice, as moot. Plaintiff's motion for appointment of counsel (Filing No. 11 ) is de nied without prejudice. For service of process on Defendant, "The county of Madison, Nebraska," the clerk of the court is directed to complete a summons form and a USM-285 form for said Defendant and forward them together with a copy of the Complaint (Filing No. 1 ) and a copy of this Memorandum and Order to the Marshals Service. Plaintiff is granted, on the court's own motion, an extension of time until 90 days from the date of this order to complete service of process. The Unit ed States Marshal shall serve all process in this case without prepayment of fees from Plaintiff. The clerk of the court is directed to set the following pro se case management deadline: July 30, 2018Check for completion of service of process. (Pro Se Case Management Deadline set for 7/30/2018.) Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party; Summons and USM-285 with copy of complaint and order to USM as directed) (CS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LINDA NELSON,
Plaintiff,
v.
VERN HJORTH,
Defendant.

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8:18CV88

MEMORANDUM
AND ORDER

Plaintiff, Linda Nelson, appearing pro se, filed her Complaint (Filing No. 1) on
February 23, 2018, and was granted leave to proceed in forma pauperis on March 8,
2018 (Filing No. 8). Nelson paid an initial partial filing fee on April 2, 2018.1 The
court now conducts an initial review of the Complaint to determine whether summary
dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.
I. SUMMARY OF COMPLAINT
Nelson is a pretrial detainee at the Madison County Jail in Madison, Nebraska.
She sues the Madison County Sheriff, Vern Hjorth, both in his individual and official
capacities, for alleged constitutional violations under 42 U.S.C. § 1983.
Nelson purports to bring this action on behalf of herself and “all others similarly
situated.” For her claims, Nelson alleges:
1)
Nebraska jail standards meant to protect inmates from the wanton
and malicious behavior of jail staff are ignored in their entirety by the
Administration of Madison County Jail....

1

On April 13, 2018, Nelson filed a Motion for Additional Time to Pay Fee
(Filing No. 10). That motion will be denied without prejudice, as moot.

2)
...No reading material from any sourse [sic] is allowed, regardless
of the subject matter, unless it is selected and distributed by jail staff....
3)
The ban against reading material includes religious and spiritual
books and publications. Only the Protestant Bible is allowed.... Religious
activities are segregated based on “Protestant” Bible study and “Catholic
services.” ...
4)
The jail has no grievance procedure....While the “Inmate Request
Form” provided by the jail does have a box to check which says
“Grievance,” the forms are rarely, if ever, even acknowledged—let alone
answered. No grievance ever submitted by Nelson received a response....
5)
No due process exists at Madison County Jail. An inmate is
confined in “administrative segregation” at the whim of staff. No
documentation is ever provided regardless of the length of the
segregation. No hearings are ever held regardless of the circumstances.
There is no way to appeal any disciplinary actions.... Among the rule
violations that will result in “administrative segregation” and a complete
denial of visiting is writing a grievance or complaining about jail
conditions such as hunger and cold.
6)
...It is openly declared to be [jail policy] intended to make sure
inmates are punished simply by the fact of locking people in a cage,
making sure they stay hungry and cold, and use psychological pain by
banning simple access to current events via the media or books, doing
visits on staff whim....
7)

...Staff is allowed to swear at and taunt inmates with impunity....

8)
Equal protection is further denied to females in that women are
absolutely barred due solely to their gender from the inmate work
program....
9)
Access to courts is denied by ... refusal to allow access to current
law books. The newest edition of Nebraska Statutes allowed inmates is
1999 with updates to 2006. Absolutely no access is allowed to case law.

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Correspondence from legal sources is open[ed] and reviewed. Using the
court to address the conditions of the jail meets with retaliation.
10) ...Phone use is cost prohibitive, at a minimum cost of $20 and
limited to purchase on 2 days of the week....
11) Among the infractions for which inmates will be “locked
down”—and thus automatically lose visiting for a minimum of one
week—is laughing.
12) ...Medical orders from doctors are “vetoed” by jail staff. Nelson
was denied a brace and a sling for a wrist and shoulder injury ....
13)

No mental health issues are addressed at all.

14) ...An inmate who cannot afford the twenty dollar minimum to
place a phone call dares not ever complain about jail conditions because
to do so would be to risk all contact with family.
15) ...[Jail staff] have convinced inmates that to try to do anything will
result in unacceptable retaliation... Neb RRS § 47-115 makes the sheriff
liable for the negligence and misconduct of the jailers.
16) ...[P]ersonal hygiene is limited to deodorant with no acceptable
level of active ingredients and costly products that maximize personal
discomfort, such as dandruff shampoo with no active ingredients. No
way to clean shower curtains, which have mold on them, now way to
clean smocks which smell of other inmates who wore them ..., no
t-shirts.... Simple soap is withheld for up to 24 hours.
17) ...[J]ail staff will report to immigration ...inmates who are natural
born US citizens who just happen to be brown.
18) Mail from religious volunteers to inmates in the form of post cards
with Bible verses are discarded upon receipt, ....
19) Items are often removed from inmate mail (such as drawings)
without any sort of notice....
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20) Periodicals received in the mail are confiscated without notice to
the inmates.
(Filing No. 1 at CM/ECF pp. 5-13).
For relief, Nelson “just want[s] the court to order the sheriff to follow the laws”
(Filing No. 1 at CM/ECF p. 5). More specifically, Nelson states:
I would like the court to certify a class action because the problems at
Madison County have effected [sic] hundreds of people over many years.
I would like the court to order the jail (Hjorth) to adhere to the Nebraska
Jail Standards and stop punishing people by making them cold, hungry
and bored. Order him to stop punishing people without due process. Stop
taking visits away. Make the phones actually a reasonable available way
to contact family. Order the sheriff to make it so people can reasonably
hope to afford a phone call to secure bail[;] ... to provide copies of the
Nebraska Jail Standards as mandated by Nebraska law[;] ... to create a
true grievance procedure[;]...not to override medical advice[;] ... [and]
to pay all the costs of these proceedings .... [F]ind that Hjorth is guilty of
neglect of duty pursuant to Neb RRS § 47-116[;] order Hjorth to pay the
punitive damages established by Nebraska law for such neglect of duty[;]
... [and] for any further relief that the court deems proper ....
(Filing No. 1 at CM/ECF pp. 5, 14).
II. 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 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).

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Pro se 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.”).
“The 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).
“To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation
of a right secured by the Constitution and laws of the United States, and must show
that the alleged deprivation was committed by a person acting under color of state
law.” West v. Atkins, 487 U.S. 42, 48 (1988).
III. DISCUSSION OF CLAIMS
For the reasons discussed below, the court finds and concludes that: (1) no
actionable claim for relief is stated against Sheriff Hjorth in his individual capacity;
(2) Madison County should be substituted as Defendant for Sheriff Hjorth in his
official capacity; (3) Nelson cannot bring a class action or assert claims on behalf of
other inmates; (4) Nelson cannot bring suit for alleged violations of Nebraska Jail
Standards; (5) Nelson has alleged a plausible First Amendment claim to challenge a
County policy that bars her receipt of newspaper and magazine subscriptions and has
also alleged a plausible Fourteenth Amendment claim to challenge the adequacy of
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the diet she receives at the Madison County Jail; (6) Nelson’s remaining allegations
fail to state a claim upon which relief may be granted; (7) Nelson’s Motion to Amend
Complaint should be denied; and (8) Nelson’s Motion for Appointment of Counsel
should be denied.
A. Individual vs. Official-Capacity Claims
“Public servants may be sued under § 1983 either in their official capacity, their
individual capacity, or both.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 535
(8th Cir. 1999). Individual-capacity suits seek to impose personal liability upon a
governmental officer, agent, or employee for actions taken under color of state law.
Hafer v. Melo, 502 U.S. 21, 25 (1991). In contrast, suing a defendant in his or her
official capacity is generally an alternative means of suing the governmental entity.
Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). The real party in interest is the
entity, not the official named. Id. at 166 (“As long as the governmental entity receives
notice and an opportunity to respond, an official-capacity suit is, in all respects other
than name, to be treated as a suit against the entity”). Official-capacity claims are
“functionally equivalent to a suit against the employing governmental entity.” Veatch
v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010).
Although Nelson is suing Sheriff Hjorth in his individual capacity as well as his
official capacity, the Complaint does not indicate that he was personally involved in,
or had any direct responsibility for, the alleged violations of constitutional rights.
Nelson correctly notes that the sheriff “shall in all cases be liable for the negligence
and misconduct of the jailer” under Neb. Rev. Stat. § 47-115, but that state statute
does not apply to a federal civil rights claim brought under 42 U.S.C. § 1983.
To state a § 1983 claim, the plaintiff must allege that the defendant was
personally involved in or had direct responsibility for incidents that resulted in injury.
Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985). Because Nelson does not
allege an actionable individual-capacity claim against Sheriff Hjorth, he will be
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dismissed from the action and Madison County will be substituted as Defendant. See,
e.g., Keup v. Leftler, No. 8:17CV117, 2017 WL 3601229, at *2 (D. Neb. Aug. 21,
2017) (on initial review of prisoner complaint claiming that jail policies violated his
constitutional rights, court on its own motion added county as defendant and
dismissed official-capacity claims).
B. County Liability
Local governing bodies, such as counties, are “persons” for the purpose of
§ 1983, but are liable only for injuries arising from an official policy or custom.
Monell v. Department of Social Services, 436 U.S. 658, 690 (1978). An 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 v. Special School Dist., 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 A, 901 F.2d at 646.
Nelson’s allegations do not establish the existence of a governmental custom,
but she does complain about certain jail policies, which will be discussed in more
detail in subsequent sections.
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C. Class Action
Nelson purports to bring this action on behalf of herself and all similarly
situated individuals, but a pro se plaintiff who is not an attorney cannot maintain a
class action. See Evans v. Nebraska Beef, Ltd., No.8:12CV161, 2013 WL 4517258,
at *7 (D. Neb. Aug.21, 2013) (“A litigant may bring his own claims to federal court
without counsel, but not the claims of others.” ); Coleman v. Newton, No.8:08CV10,
2009 WL 1936265, at *1 (D. Neb. June 29, 2009) (“Pro se litigants may not represent
other parties, even in class action proceedings.”) “Every court that has considered the
issue has held that a prisoner proceeding pro se is inadequate to represent the interests
of his fellow inmates in a class action.” Craig v.Cohn, 80 F.Supp.2d 944, 946 (N.D.
Ind. 2000). Nelson will only be allowed to sue Madison County on her own behalf,
and will not be permitted to assert the rights of other prisoners in a class action.
D. Nebraska Jail Standards
The Jail Standards Board established within the Nebraska Commission on Law
Enforcement and Criminal Justice is responsible for developing minimum standards
for the construction, maintenance, and operation of criminal detention facilities by
political subdivisions in Nebraska. See Neb. Rev. Stat. § 83-4,124 et seq.; see also
Neb. Rev. Stat. § 47-101 (providing that Jail Standards Board shall prescribe rules for
the regulation and government of county jails). The Board’s “Standards for Jail
Facilities” may be found at Title 81 of the Nebraska Administrative Code.
Nelson alleges that the operation of the Madison County Jail fails to comply
with these jail standards in several respects. However, “a violation of jail standards
does not equate with a violation of the Constitution.” Henderson v. Greeley, No.
6:13-CV-06137, 2015 WL 1280312, at *2 (W.D.Ark. Mar.20, 2015). “Jail standards,
although helpful and relevant in some cases, do not represent minimum constitutional
standards.” Grayson v. Ross, 454 F.3d 802, 812 (8th Cir. 2006) (quoting Johnson v.
Busby, 953 F.2d 349, 351 (8th Cir.1991) (per curiam)).
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In other words, Nelson cannot bring a § 1983 action based solely upon alleged
violations of the jail standards. Thus, the first numbered claim alleged in her
Complaint fails as a matter of law.
E. Alleged Constitutional Violations
Nelson contends she has been deprived of her constitutional rights under the
“First, Fifth, Eighth, and Fourteenth Amendments: Specifically the rights to freedom
of religion, expression, and to petition the government for a redress of grievances;
right of due process; right against cruel and unusual punishments; and the right of
equal protection of the laws” (Filing No. 1 at CM/ECF p. 3).
For ease of analysis, Nelson’s claims will be categorized as involving (1) the
complete denial of access to outside reading materials, (2) restrictions on the free
exercise of religion, (3) removing materials from correspondence, opening legal mail,
and discarding religious mailings, (4) the prohibitive cost of telephone calls, (5) denial
of access to the courts, (6) the lack of an effective grievance procedure, (7) retaliation
against inmates for filing grievances, (8) lack of due process for placement in
administrative segregation, (9) certain conditions of confinement, (10) verbal abuse
by jail staff, (11) denial of equal protection for female inmates, and (12) inadequate
medical care.
1. Access to Reading Materials
“Prison walls do not form a barrier separating prison inmates from the
protections of the Constitution.” Thornburgh v. Abbott, 490 U.S. 401, 407 (1989).
“[A] prison inmate retains those First Amendment rights that are not inconsistent with
his status as a prisoner or with the legitimate penological objectives of the corrections
system.” Pell v. Procunier, 417 U.S. 817, 822 (1974). Among other things, the
“Constitution protects the rights to receive information and ideas.” Kleindienst v.
Mandel, 408 U.S. 753, 762 (1972).
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Prison policies impinging on inmates’ First Amendment rights are valid only
if they are reasonably related to legitimate penological interests. Turner v. Safley, 482
U.S. 78, 89-90 (1987). To decide whether a particular policy advances such an
interest, the court must consider (1) whether there is a rational connection between the
regulation and a neutral and legitimate governmental interest; (2) whether alternative
means exist for the inmates to exercise their constitutional rights; (3) the impact of
accommodating that right on other inmates and prison personnel; and (4) whether
reasonable alternatives to the regulation exist. Kaden v. Slykhuis, 651 F.3d 966, 968
(8th Cir. 2011) (citing Turner, 482 U.S. at 89-90).
Nelson alleges there is a “total ban against all reading material not provided by
the jail,” which includes “newspapers, magazines, books, religious publications, legal
reviews, the Nebraska Jail Standards, ACLU publications, [and] Holy books other
than the Protestant Bible” (Filing No. 1 at CM/ECF p. 6, ¶ 2). In an inmate request
form dated December 18, 2017, which is attached to the Complaint, Nelson stated: “I
was having my subscriptions (Omaha World Herald [newspaper] and several
magazines) forwarded to me but I was told that all reading material (except religious)
has been banned from any source.” Nelson inquired whether this was true and
indicated she could “find nothing in the rule book about it.” The response she received
next day was simply: “Read rules on message board.” (Filing No. 1 at CM/ECF p. 19).
Nelson then notes as part of her pleading:
“Religious” also banned. Anything mailed in will be placed in property
without notice. The rules on the “message board” say nothing about it.
A followup grievance about it was not answered.
(Filing No. 1 at CM/ECF p. 19).
Liberally construing Nelson’s Complaint, the court concludes she has stated a
plausible First Amendment claim for challenging Madison County’s policy of banning
outside reading material, but only insofar as Nelson alleges she was denied access to
newspaper and magazine subscriptions. See Cooper v. Schriro, 189 F.3d 781, 784 (8th
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Cir. 1999) (reversing § 1915A dismissal of inmate’s First Amendment claim that he
was denied access to printed materials, including “all magazines” and legal and
religious materials; given allegation that prisoner was denied publications, prison
was obligated to proffer legitimate reason for decision to deny these materials);
Sterling/Sayyed v. Banks, 72 F. App’x 504, 506 (8th Cir. 2003) (reversing § 1915A
dismissal of inmate’s First Amendment claim where attachment to complaint supplied
necessary facts).
Absolute bans on inmate access to newspapers and magazines, as
a general rule, violate the First Amendment because they are an
“exaggerated response” to legitimate penological needs. See Mann v.
Smith, 796 F.2d. 79, 82 (5th Cir. 1986) (quoting Bell v. Wolfish, 441 U.S.
520, 547-48 (1979)); see also Koger v. Dart, 114 F.Supp.3d 572, 583
(N.D. Ill. 2015) (when an easy alternative existed, a total ban on
newspapers was an exaggerated response to the jail’s concerns); United
States ex rel. Manicone v. Corso, 365 F.Supp. 576, 577 (E.D.N.Y. 1973)
(“There is no basis for total restrictions on prisoners’ access to the news
in view of their clear First Amendment rights.”) Furthermore, a number
of courts have held that prisoners have a right to receive and read
newspapers. See e.g, Sizemore v. Williford, 829 F.2d 608, 610 (7th Cir.
1987) (absent restrictions based on legitimate goals of confinement,
prison inmates retain First Amendment right to receive and read
newspapers); Mann, 796 F.2d 79, 82-83 (county jail’s policy of banning
newspapers and magazines violated a pretrial detainee’s First
Amendment rights where the state failed to show the ban served a
legitimate government objective); Wilkinson v. Skinner, 462 F.2d 670,
673 n. 5 (2nd Cir. 1972) (“refusal to deliver a newspaper would
ordinarily be interference with appellant’s first amendment rights”);
Rowland v. Jones, 452 F.2d 1005 (8th Cir. 1971) (prison authorities’
denial of access to newspaper “Muhammad Speaks” constituted prior
restraint in violation of First Amendment); Spellman v. Hopper, 95 F.
Supp.2d 1267 (M.D. Ala. 1999) (absolute prohibition on subscription
magazines and newspapers applied to administrative segregation inmates
in Alabama is not reasonably related to legitimate penological goals).

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Morphis v. Smith, No. 2:14-CV-02027-MEF, 2017 WL 1128463, at *12-13 (W.D.
Ark. Mar. 24, 2017).
While Nelson complains about a “complete ban” on outside reading materials
(Filing No. 1 at CM/ECF p. 6, ¶ 2), she has not set forth sufficient facts to show that
she has not been allowed access to anything other than her newspaper and magazine
subscriptions. Nelson also alleges that “[p]eriodicals received in the mail are
confiscated without notice to the inmate” (Filing No. 1 at CM/ECF p. 13, ¶ 20). This
may constitute a due process violation. See Bonner v. Outlaw, 552 F.3d 673, 676-77
(8th Cir. 2009) (“It is the inmate’s interest in ‘uncensored communication’ that is the
liberty interest protected by the due process clause, regardless of whether that
communication occurs in the form of a letter, package, newspaper, magazine, etc.
Thus, whenever prison officials restrict that right by rejecting the communication,
they must provide minimum procedural safeguards, which include notice to an inmate
that the correspondence was rejected.”). However, because Nelson does not claim to
have had any reading materials confiscated without notice, no deprivation of her due
process rights is alleged.
2. Religious Freedom
Nelson claims that “[t]he ban against reading material includes religious and
spiritual books and publications” and “[o]nly the Protestant Bible is allowed. No
Jewish or Muslim material is allowed.” She also alleges that “[r]eligious activities are
segregated based on ‘Protestant’ Bible study and “Catholic services.” If an inmate
wants to go to the Bible study, he or she is automatically banned from Catholic
services and vice versa. If he or she want to go to Bible study, they must agree not to
go to Catholic services.” (Filing No. 1 at CM/ECF p. 6, ¶ 3).
Nelson does not identify her religious preference or allege any facts to show
that the jail’s policies have infringed upon her religious freedoms. She therefore does
not have standing to litigate this claim. See McGowan v. State of Md., 366 U.S. 420,
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429 (1961) (department store employees convicted of violating Sunday “blue laws”
lacked standing to bring First Amendment claim under the general rule that “a litigant
may only assert his own constitutional rights or immunities.”) (quoting United States
v. Raines, 362 U.S. 17, 22 (1960)); Am. Civil Liberties Union of Minnesota v. Tarek
ibn Ziyad Acad., 643 F.3d 1088, 1093 (8th Cir. 2011) (stating that plaintiffs must
allege infringement of their own religious freedoms in order to have standing to bring
a free exercise claim).
3. Correspondence
Nelson alleges that “[i]tems are often removed from inmate mail (such as
drawings) without any sort of notice” so “[t]he inmate has no way of knowing it
happened unless the person who wrote the letter happens to say they are enclosing
something” (Filing No. 1 at CM/ECF p. 13, ¶ 19). In addition, she claims that “[m]ail
from religious volunteers to inmates in the form of post cards with Bible verses are
discarded upon receipt, with the inmates ever knowing they were received” (Filing
No. 1 at CM/ECF p. 13, ¶ 18).
The Supreme Court has held that “[t]he interest of prisoners and their
correspondents in uncensored communication by letter, grounded as it is in the First
Amendment, is plainly a ‘liberty’ interest within the meaning of the Fourteenth
Amendment even though qualified of necessity by the circumstance of imprisonment.”
Procunier v. Martinez, 416 U.S. 396, 418 (1974), overruled on other grounds by
Abbott, 490 U.S. at 405. As such, “the decision to censor or withhold delivery of a
particular letter must be accompanied by minimum procedural safeguards.” Id. at 417
(approving requirement that an inmate be notified of the rejection and have a
reasonable opportunity to protest the decision).
Again, however, Nelson does not allege that items have been removed from her
mail without notice. Similarly, Nelson claims that “[c]orrespondence from legal
sources is open[ed] and reviewed” (Filing No. 1 at CM/ECF p. 10, ¶ 9), but does
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allege that her legal mail has ever been opened outside her presence.2 Absent such
allegations, no actionable claim for relief is stated.
4. Telephone Usage
Nelson alleges: “Phone use is cost prohibitive, at a minimum cost of $20 and
limited to purchase on 2 days of the week.... A local phone call requires a twenty
dollar “phone card,” which is then billed at fifty cents per minute for local calls.”
(Filing No. 1 at CM/ECF p. 10, ¶ 10). She claims that “[a]n inmate on pretrial status
is often incarcerated simply because the jail makes it impossible to contact friends or
family to even let them know they are in jail” (Filing. No 1 at CM/ECF p. 10, ¶ 10),
and also that “[a]n inmate who cannot afford the twenty dollar minimum to place a
phone call dares not ever complain about jail conditions because to do so would be to
risk all contact with family” (Filing No. 1 at CM/ECF p. 11, ¶ 14).
Nelson does not allege that her own ability to place a telephone call is impacted
by the “phone card” policy or the usage charges. In any event, “[f]ederal courts ...
have consistently rejected First Amendment claims challenging high telephone rates
on grounds that prisoners are not entitled to a specific rate for telephone calls and that
prisoners failed to allege that the rates were so exorbitant as to deprive them of
telephone access altogether.” Hooks v. State of Kentucky, No. 3:16-CV-00187-CRS,
2016 WL 4180003, at *3-4 (W.D. Ky. Aug. 5, 2016) (citing cases); see Kanatzar v.
Cole, No. 17-3115-SAC, 2017 WL 5970836, at *9 (D. Kan. Dec. 1, 2017) (citing

2

The Eighth Circuit has interpreted Wolff v. McDonnell, 418 U.S. 539 (1974)
to mean that “[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).
However, “[t]o assert a successful claim for denial of meaningful access to the courts
... an inmate must demonstrate that he suffered prejudice.” Id. at 431 (quoting
Berdella v. Delo, 972 F.2d 204, 210 (8th Cir. 1992)).
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additional cases); Morrow v. Cty. of Nassau, No. 15-CV-4793 SJF AKT, 2015 WL
6691672, at *5 (E.D.N.Y. Nov. 3, 2015) (prisoner’s claim that charges for using
telephones was “too expensive” failed to state claim for constitutional deprivation);
Holloway v. Magness, 666 F.3d 1076, 1080 (8th Cir. 2012) (holding that a jail has no
First Amendment obligation to provide telephone service “at a particular cost to
users”). Nelson’s allegations regarding the expense of making telephone calls are not
sufficient to state a claim upon which relief may be granted.
5. Access to the Courts
It is well established “that prisoners have a constitutional right of access to the
courts” which “requires prison authorities to assist inmates in the preparation and
filing of meaningful legal papers by providing prisoners with adequate law libraries
or adequate assistance from persons trained in the law.” Bounds v. Smith, 430 U.S.
817, 821 & 828 (1977). However, to recover for the deprivation of this constitutional
right, “the inmate ... must go one step further and demonstrate that the alleged
shortcomings in the library or legal assistance program hindered his efforts to pursue
a legal claim.” Lewis v. Casey, 518 U.S. 343, 351 (1996). In other words, to prevail
on an access-to-the-courts claim, a prisoner must establish that she sustained an
“actual injury” by demonstrating “that a nonfrivolous legal claim had been frustrated
or was being impeded.” Id. at 353.
“Actual injury” is not satisfied by demonstrating “just any type of frustrated
legal claim.” Rather, inmates must only be provided the tools required to pursue direct
appeals from convictions for which they are imprisoned, habeas petitions, and actions
under 42 U.S.C. § 1983 to vindicate their basic constitutional rights. Id. at 354-55
(prisons may not impede an inmate’s ability to “attack their sentences, directly or
collaterally, and ... challenge the conditions of their confinement. Impairment of any
other litigating capacity is simply one of the incidental (and perfectly constitutional)
consequences of conviction and incarceration.”).

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To state an access-to-the-courts claim, “a prisoner must establish [that] the state
has not provided an opportunity to litigate a claim challenging the prisoner’s sentence
or conditions of confinement in a court of law, which resulted in actual injury, that is,
the hindrance of a nonfrivolous and arguably meritorious underlying legal claim.”
Holt v. Howard, 806 F.3d 1129, 1133 (8th Cir. 2015) (quoting Williams v. Hobbs, 658
F.3d 842, 851-52 (8th Cir. 2011)). “[T]he underlying cause of action and its lost
remedy must be addressed by allegations in the complaint sufficient to give fair notice
to a defendant.” Christopher v. Harbury, 536 U.S. 403, 416 (2002). The “lost” claim
occasioned by the denial of an inmate’s access to the courts must “be described well
enough to apply the ‘nonfrivolous’ test and to show that the ‘arguable’ nature of the
underlying claim is more than hope.” Id.
Here, Nelson merely alleges that the Madison County Jail’s law library has not
been kept current and is incomplete (Filing No. 1 at CM/ECF p. 10, ¶ 9). She does not
alleged any facts to establish an actual injury. Her access-to-the-courts claim therefore
will be dismissed.
6. Grievance Procedure
Nelson alleges that “jail policy is to simply ignore (probably throw away)
grievances” and that there has never been a response to her grievances (Filing No. 1
at CM/ECF pp. 6-7, ¶ 4). While the lack of a meaningful grievance procedure might
excuse the need to exhaust administrative remedies, see Ross v. Blake, 136 S.Ct. 1850,
1855 (2016) (“A prisoner need not exhaust remedies if they are not ‘available.’”), it
does not provide a cause of action under § 1983. See Merryfield v. Jordan, 431 Fed.
App’x 743, 749 (10th Cir. 2011) (holding that civilly committed sex offender lacked
any federal constitutional right to an adequate grievance procedure); see also Lomholt
v. Holder, 287 F.3d 683, 684 (8th Cir. 2002) (holding that allegations regarding
actions of prison officials in handling prisoner’s grievances and regulating access to
his attorney were insufficient to state a constitutional claim); Buckley v. Barlow, 997
F.2d 494, 495 (8th Cir. 1993) (holding that inmates have no “liberty interest” in the
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processing of their grievances, such as would support § 1983 claim for prison
official’s failure to pick up his completed grievance forms).
7. Retaliation
Nelson alleges that “writing a grievance or complaining about jail conditions
such as hunger and cold” or “the twenty dollar minium to place a phone call” will
result in an inmate being placed in administrative segregation and losing visiting
privileges, and that “[u]sing the court to address the conditions of the jail [also] meets
with retaliation (Filing No. 1 at CM/ECF pp. 7, 10, 12, ¶¶ 5, 9, 14). She claims that
jail staff “have convinced inmates that to try to do anything will result in unacceptable
retaliation” (Filing No. 1 at CM/ECF p. 12, ¶ 15).
Retaliation such as this is actionable as a First Amendment violation. See
Hartsfield v. Dep’t of Corr., 107 F. App’x 695, 696 (8th Cir. 2004) (finding district
court erred in dismissing claim that defendant wrote a retaliatory misconduct report
after plaintiff announced his intention to file a grievance against defendant); Sprouse
v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) (filing of false disciplinary charge
against inmate is actionable under § 1983 if done in retaliation for inmate’s having
filed grievance). Here, however, Nelson does not allege that she personally has been
threatened with retaliation or retaliated against. Absent such an allegation, supported
by essential facts, no claim is stated upon which relief may be granted.
8. Administrative Segregation
Pursuant to the due process provisions of the Fourteenth Amendment, a pretrial
detainee may not be punished prior to a determination of guilt in accordance with due
process. Bell, 441 U.S. at 535; see Martinez v. Turner, 977 F.2d 421, 423 (8th Cir.
1992) (requiring pretrial detainee to be placed in administrative segregation is
punishment; claim that pretrial detainee was denied due process when placed in
administrative detention for refusing to work did not lack arguable basis in law and
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should not have been dismissed prior to service). But “not every disability imposed
during ... detention amounts to ‘punishment’ in the constitutional sense.’” Smith v.
Copeland, 87 F.3d 265, 268 (8th Cir. 1996). “[I]f a particular condition or restriction
of ... detention is reasonably related to a legitimate governmental objective, it does
not, without more, amount to ‘punishment.’” Id.
Nelson generally alleges that “[a]n inmate is confined in ‘administrative
segregation’ at the whim of staff, with no hearing or right of appeal (Filing No. 1 at
CM/ECF p. 5, ¶ 5), but does not claim that she has ever been placed in administrative
segregation or otherwise disciplined without benefit of due process. Nelson further
alleges that laughing is considered an infraction (Filing No. 1 at CM/ECF p. 11, ¶ 11),
but she does not claim to have been disciplined for this reason. “In order to prevail on
a Fourteenth Amendment due process claim, the plaintiff must allege that [s]he was
deprived of life, liberty or property by government action.” Singleton v. Cecil, 155
F.3d 983, 987 (8th Cir. 1998).
9. Conditions of Confinement
The Eighth Amendment’s prohibition against “cruel and unusual punishments”
requires that prison officials provide humane conditions of confinement. “Prison
officials must ensure that inmates receive adequate food, clothing, shelter, and
medical care, and must ‘take reasonable measures to guarantee the safety of the
inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer,
468 U.S. 517, 526-27 (1984)). Pretrial detainees are entitled to at least as great
protection under the Fourteenth Amendment as that afforded convicted prisoners
under the Eighth Amendment.” Morris v. Zefferi, 601 F.3d 805, 809 (8th Cir. 2010).
A prisoner asserting a conditions of confinement claim must identify the
“deprivation of a single, identifiable human need such as food, warmth, or exercise,”
and “the risk that the prisoner complains of [must] be so grave that it violates
contemporary standards of decency to expose anyone unwillingly to such a risk.”
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Helling v. McKinney, 509 U.S. 25, 36 (1993); Wilson v. Sieter, 501 U.S. 294, 304
(1991). A conditions of confinement claim based on prison conditions requires a
showing of: (1) a deprivation of “minimal civilized measure of life’s necessities,” and
(2) deliberate indifference by prison officials to those basic needs. Rhodes v.
Chapman, 452 U.S. 337, 347 (1981); Wilson, 501 U.S. at 304.
Nelson alleges that when it is cold in the jail inmates must stay in bed in order
to stay warm; they are not allowed to cover their arms or to wrap a blanket around
their shoulders. She also alleges that inmates are fed stale bread, soggy food, and half
portions which leads to constant hunger. (Filing No. 1 at CM/ECF pp. 7-9, ¶ 6). In
addition, Nelson alleges there is mold on shower curtains and complains that female
prisoners must wear unclean smocks with no t-shirts underneath; she also complains
about a lack of personal hygiene products. (Filing No. 1 at CM/ECF pp. 12-13, ¶ 16).
Nelson’s allegations concerning the food served at the Madison County Jail,
which the court construes as involving an official policy of deliberate indifference to
inmates’ basic needs, are sufficient to state a claim for relief on initial review. See,
e.g., Obama v. Burl, 477 F. App’x 409, 412 (8th Cir. 2012) (allegations by prisoner
that he was constantly hungry from small portions of food, which included some form
of beans for every meal except breakfast, no sweets, and watered-down Kool-Aid,
were sufficient to survive preservice dismissal); Day v. Norris, 219 F. App’x 608, 610
(8th Cir. 2007) (reversing dismissal of prisoner complaint on initial review and
finding allegations that plaintiff was served a diet that did not provide him adequate
nutrition were sufficient at this stage of the litigation); Divers v. Dep’t of Corr., 921
F.2d 191, 193-94 (8th Cir. 1990) (per curiam) (finding not frivolous inmate’s
allegation that his food was insufficient in amount, cold, unappetizing, prepared from
restricted menu, and delivered in unsanitary manner).
As to the other conditions of confinement about which Nelson complains,
however, not enough facts are alleged to state a plausible claim for relief. She does not
allege, for example, at what temperature the jail is usually kept or how often inmates
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are uncomfortably cold. Likewise, it is not clear that the mold in the showers or
clothing issues are continuing problems or health hazards. While “a long-term,
repeated deprivation of adequate hygiene supplies violates inmates’ Eighth
Amendment rights,” Myers v. Hundley, 101 F.3d 542, 544 (8th Cir. 1996), Nelson’s
complaints only concern the quality of the deodorant and shampoo that is made
available to inmates and an alleged delay of up to 24 hours to obtain soap.
10. Verbal Abuse
Nelson alleges that jail staff are “allowed to swear at and taunt inmates with
impunity.” (Filing No. 1 at CM/ECF p. 9, ¶ 7). This does not state a claim upon which
relief may be granted under § 1983. See Doe v. Gooden, 214 F.3d 952, 955 (8th Cir.
2000) (“Verbal abuse is normally not a constitutional violation.”); King v. Olmsted
Cty., 117 F.3d 1065, 1067 (8th Cir. 1997) (“The Constitution does not protect against
all intrusions on one’s peace of mind. Fear or emotional injury which results solely
from verbal harassment or idle threats is generally not sufficient to constitute an
invasion of an identified liberty interest.”) (quotation marks and citation omitted);
Kalmio v. Mettler, No. 4:13-CV-083, 2013 WL 4478691, at *2 (D.N.D. Aug. 20,
2013) (“Standing alone, simple verbal harassment does not constitute cruel and
unusual punishment, deprive a prisoner of a protected liberty interest or deny a
prisoner equal protection of the laws.”) (quotation marks and citations omitted).
11. Equal Protection
The Equal Protection Clause of the Fourteenth Amendment requires the
government to treat similarly situated people alike, a protection that applies to prison
inmates. Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 984 (8th Cir. 2004). In order
to establish an equal protection claim, a prisoner must show that he or she was treated
differently from similarly-situated inmates and that the different treatment was based
upon either a suspect classification or a fundamental right. Weems v. Little Rock

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Police Dep’t, 453 F.3d 1010, 1016 (8th Cir. 2006); Weiler v. Purkett, 137 F.3d 1047,
1052 (8th Cir.1998).
Nelson claims that “[e]qual protection is denied to females [detained at the
Madison County Jail] in that women are absolutely barred due solely to their gender
from the inmate worker program” (Filing No. 1 at CM/ECF p. 10, ¶ 8). She alleges:
While the rules state “anyone” may apply, the reality is that females may
not participate. No female has ever worked as an inmate worker at the
Madison County Jail. It is absolutely banned. Other excuses are used but
the truth is that it is due solely to their gender.
(Filing No. 1 at CM/ECF p. 10, ¶ 8). Nelson does not allege that she applied for and
was denied admission to the inmate worker program, or that she would qualify for the
program but for her gender.
“A plaintiff has the burden of establishing subject matter jurisdiction, for which
standing is a prerequisite.” Jones v. Gale, 470 F.3d 1261, 1265 (8th Cir. 2006). “To
establish standing, a plaintiff is required to show that he or she had ‘suffered an injury
in fact, meaning that the injury is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical.’” Id. (quoting South Dakota Farm Bureau,
Inc. v. Hazeltine, 340 F.3d 583, 591 (8th Cir. 2003)). Because Nelson’s Complaint
asserts only a facial challenge to the alleged governmental policy or custom, it fails
to allege the requisite standing. See Mosby v. Ligon, 418 F.3d 927, 933-34 (8th Cir.
2005) (discussing constitutional standing).
In addition, Nelson does not allege that male inmates at the Madison County
Jail are similarly situated to female inmates. “Absent a threshold showing that she is
similarly situated to those who allegedly receive favorable treatment, the plaintiff does
not have a viable equal protection claim.” Keevan v. Smith, 100 F.3d 644, 648 (8th
Cir. 1996) (quoting Klinger v. Dep’t of Corrections, 31 F.3d 727, 731 (8th Cir. 1994)).

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Nelson also claims “brown” inmates are reported to immigration authorities
even though they are U.S. citizens (Filing No. 1 at CM/ECF p. 13, ¶ 17). However,
Nelson does not allege that she is a member of this protected class.
12. Inadequate Medical Treatment
“A deliberate indifference to a serious medical need claim presents one subset
of possible conditions of confinement claims, and specifically asserts that a plaintiff
was deliberately deprived of his basic need for medical care.” Christian v. Wagner,
611 F. Supp. 2d 958, 962 (S.D. Iowa 2009), aff’d, 623 F.3d 608 (8th Cir. 2010);
Aswegan v. Henry, 49 F.3d 461, 463-64 (8th Cir.1995) (“A claim asserting deliberate
indifference to a prisoner’s serious medical need is thus best characterized as falling
within a specific subcategory of conditions of confinement claims, not as a separate
and distinct legal theory.”). The same analytical model applies equally to conditions
of confinement cases and to deprivation of medical care cases. Beyerbach v. Sears, 49
F.3d 1324, 1326 n. 1 (8th Cir. 1995), abrogation on other grounds recognized by
Reece v. Groose, 60 F.3d 487, 492 (8th Cir. 1995).
To prevail on a deliberate indifference to a serious medical need claim, a
prisoner detainee must show: (1) she suffered from an objectively serious medical
need, and (2) the defendant knew of the need yet deliberately disregarded it. Jolly v.
Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000). “A serious medical need is one that
has been diagnosed by a physician as requiring treatment, or one that is so obvious
that even a layperson would easily recognize the necessity for a doctor’s attention.”
Schaub v. VonWald, 638 F.3d 905, 914 (8th Cir. 2011) (internal quotations and
citations omitted).
Nelson claims it is “standard operating procedure” for medical orders from
doctors to be “vetoed” by jail staff, and, in particular, alleges:

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Nelson was denied a brace and a sling for a wrist and shoulder injury so
the doctor asked if I could just tie a towel around my arm to act as a sling
if a sling itself is not allowed but was told that a towel isn’t supposed to
be used as anything but a towel.
(Filing No. 1 at CM/ECF p. 11, ¶ 12).
As a pretrial detainee, Nelson’s claim of inadequate medical care arises under
the Fourteenth Amendment, but is nonetheless analyzed under the Eighth Amendment
standard. See Butcher v. Fletcher, 465 F.3d 340, 344 (8th Cir. 2006). To establish
“custom” liability of a local government entity under § 1983 for failure to provide
medical care, the plaintiff must demonstrate (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) the custom was a moving force behind the
constitutional violation. Smith v. City of St. Ann, 576 F. App’x 621 (8th Cir. 2014)
(citing Johnson v. Douglas Cnty. Med. Dep’t, 725 F.3d 825 (8th Cir. 2013)).
Similarly, a policy that results in inadequate treatment is not unconstitutional unless
it evinces deliberate indifference to serious medical needs. See Jenkins v. Cty. of
Hennepin, 557 F.3d 628, 633 (8th Cir. 2009). “Although [Nelson] need not set forth
with specificity the existence of an unconstitutional policy or custom at the pleading
stage, [s]he must nonetheless present some allegations, references, events, or facts
from by which the court could begin to draw an inference that the conduct complained
of, namely deliberate indifference to serious medical needs, resulted from an
unconstitutional policy or custom of the County or a deliberate choice by a
decision-maker with final authority.” Cotton v. Douglas Cty. Dep’t of Corr., No.
8:16CV153, 2016 WL 5816993, at *6 (D. Neb. Oct. 5, 2016).
Even if it may be assumed that a doctor prescribed using a sling or other device
to immobilize Nelson’s arm, her allegation that it is “standard operating procedure”
for staff to “veto” doctor’s orders is not sufficient to show the existence of a policy
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or custom of deliberate indifference to serious medical needs. There is no allegation
that a policymaking official for the County either told jail staff that they could ignore
doctors’ orders or else knew of and tacitly approved of this alleged practice. There is
also no allegation that any specific Defendant was responsible for the denial of the
brace and sling or use of the towel.
Nelson further claims that “[n]o mental health issues are addressed at all”
(Filing No. 1 at CM/ECF p. 11, ¶ 12), but does not allege that she has ever sought or
been denied treatment for mental health issues. As already discussed, Nelson cannot
assert constitutional claims on behalf of the general jail population.
F. Motion to Amend Complaint
On March 30, 21018, Nelson filed a Motion to Amend Complaint (Filing No.
9) to add three Defendants and to include some additional facts. The proposed
additional Defendants are: (1) Captain Bula, who allegedly “blocks almost every
grievance filed by any inmate ... [and destroys] the paperwork filed by inmates”
(Filing No. 9 at CM/ECF p. 1); (2) Sgt. Gene Blank, who allegedly “has been
miscalculating inmate sentences” (Filing No. 9 at CM/ECF p. 2); and (3) Sgt Bill
Kucera, who allegedly “attempted to block Plaintiff’s access to court after Sgt Blank’s
calculation errors came to light” (Filing No. 9 at CM/ECF pp. 2-3). Nelson further
alleges that “inmates are not allowed to know who is supposedly discontinuing their
medication” and that this anonymous doctor “never sees the inmates but merely
discontinues medication based on ‘jail policy,’ not medical factors” (Filing No. 9 at
CM/ECF p. 3). Nelson claims her shoulder injury was not properly treated. Finally,
Nelson alleges that “any inmate who requests to be placed on ‘protected custody’
automatically loses all visiting rights” and must wear handcuffs to visit the law library
(Filing No. 9 at CM/ECF p. 4).
These additional allegations do not correct the pleading deficiencies that have
been discussed above, nor on their own do they state a claim upon which relief may
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be granted. The allegations concerning Capt. Bula’s blocking of grievances do not
pertain directly to Plaintiff. The same is true of Nelson’s allegations regarding the
discontinuation of medication and protected custody conditions. Plaintiff does claim
that Sgt. Blank miscalculated her sentence, but she alleges only a lack of “due
diligence,” which is not sufficient to state a claim under § 1983. “Negligent, or even
grossly negligent, conduct by government officials cannot be the basis of a
constitutional tort claim.” Davis v. Fulton Cty., 90 F.3d 1346, 1352 (8th Cir. 1996).
Nelson claims Sgt. Kucera attempted to block her access to court, but does not allege
any actual injury. See Lewis v. Casey, supra. Finally, Plaintiff alleges she will incur
medical expenses following her release from jail because of her shoulder injury, but
this does not further her “deliberate indifference” claim because she has not alleged
sufficient facts to establish liability. The Motion to Amend Complaint therefore will
be denied without prejudice.
G. Motion to Appoint Counsel
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.” Trial courts have “broad discretion to decide whether both the plaintiff and
the court will benefit from the appointment of counsel, taking into account the factual
and legal complexity of the case, the presence or absence of conflicting testimony, and
the plaintiff’s ability to investigate the facts and present his claim.” Id. Having
considered these factors, Plaintiff’s Motion for Appointment of Counsel will be
denied.
IV. CONCLUSION
To summarize, Nelson has stated plausible claims for obtaining relief against
Madison County with respect to the withholding of her newspaper and magazine
subscriptions and with respect to the quality and quantity of food she is provided. The
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court cautions Nelson that this is only a preliminary determination based on the
allegations of the Complaint and is not a determination of the merits of her claims or
potential defenses thereto. In all other respects, Nelson’s Complaint fails to state a
claim upon which relief can be granted against Madison County. No plausible claim
for relief is alleged against Sheriff Hjorth in his individual capacity. Nelson cannot sue
on behalf of other inmates or bring a class action. Her motions for leave to amend and
for appointment of counsel will be denied.
Accordingly,
IT IS ORDERED:
1.

The clerk of the court will modify the docket sheet to:
a.

List Linda Nelson as the sole Plaintiff, by striking the words “all
other similar situation” after her name; and

b.

Add “The county of Madison, Nebraska,” as Defendant.

2.

All claims alleged against Vern Hjorth, Madison County Sheriff, in his
individual and official capacities, are dismissed without prejudice and he
shall no longer be a party Defendant.

3.

Plaintiff’s motion to amend complaint (Filing No. 9) is denied without
prejudice.

4.

Plaintiff’s motion for additional time to pay the initial partial filing fee
(Filing No. 10) is denied without prejudice, as moot.

5.

Plaintiff’s motion for appointment of counsel (Filing No. 11) is denied
without prejudice.
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6.

The only claims alleged in Plaintiff’s Complaint that will be allowed are:
(1) A First Amendment claim against Madison County for an alleged
official policy which has prevented Plaintiff from receiving newspaper
and magazine subscriptions (see Filing No. 1 at CM/ECF p. 6, ¶ 2 & p.
18) and (2) a Fourteenth Amendment claim against Madison County for
an alleged official policy of feeding her “stale bread, soggy food, and
½ portions to result in constant hunger (see Filing No. 1 at CM/ECF p.
8, ¶ 6). Any and all other claims alleged in the Complaint are dismissed
without prejudice.

7.

For service of process on Defendant, “The county of Madison,
Nebraska,” the clerk of the court is directed to complete a summons form
and a USM-285 form for said Defendant using the address “Madison
County Clerk, 1313 N. Main Street, Madison, NE 68748,” and forward
them together with a copy of the Complaint (Filing No. 1) and a copy of
this Memorandum and Order to the Marshals Service. The Marshals
Service shall serve Defendant.3 Service may be accomplished by using
any of the following methods: personal, residence, certified mail, or

3

Pro se litigants proceeding in forma pauperis are entitled to rely on service by
the United States Marshals Service. Wright v. First Student, Inc., 710 F.3d 782, 783
(8th Cir. 2013). Pursuant to 28 U.S.C. § 1915(d), in an in forma pauperis case, “[t]he
officers of the court shall issue and serve all process, and perform all duties in
such cases.” See Moore v. Jackson, 123 F.3d 1082, 1085 (8th Cir. 1997) (language
in § 1915(d) is compulsory). See, e.g., Beyer v. Pulaski County Jail, 589 Fed. Appx.
798 (8th Cir. 2014) (unpublished) (vacating district court order of dismissal for failure
to prosecute and directing district court to order the Marshal to seek defendant’s lastknown contact information where plaintiff contended that the jail would have
information for defendant’s whereabouts); Graham v. Satkoski, 51 F.3d 710, 713 (7th
Cir. 1995) (when court instructs Marshal to serve papers for prisoner, prisoner need
furnish no more than information necessary to identify defendant; Marshal should be
able to ascertain defendant’s current address).
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designated delivery service. See Federal Rule of Civil Procedure 4(e);
Neb. Rev. Stat. § 25-508.01 (Reissue 2016).
8.

Federal Rule of Civil Procedure 4(m) requires service of the complaint
on a defendant within 90 days of filing the complaint. However, Plaintiff
is granted, on the court’s own motion, an extension of time until 90 days
from the date of this order to complete service of process.

9.

The United States Marshal shall serve all process in this case without
prepayment of fees from Plaintiff.

10.

The clerk of the court is directed to set the following pro se case
management deadline: July 30, 2018—Check for completion of service
of process.

DATED this 2nd day of May, 2018.
BY THE COURT:
s/ Richard G.Kopf
Senior United States District Judge

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