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Washburn v. Lnu

United States District Court, D. Kansas

June 19, 2018

ALLEN DEAN WASHBURN, Plaintiff,
v.
ZACK LNU, et al., Defendants.

          MEMORANDUM AND ORDER

          Sam A. Crow U.S. Senior District Judge

         Plaintiff filed this civil rights complaint under 42 U.S.C. § 1983 and proceeds pro se and in forma pauperis. He alleges that while he was incarcerated at the Marion County Jail, a jail employee named “Zack” violated the constitution by opening plaintiff's legal mail and revealing its contents to “every inmate in the jail.” He purports to bring official capacity claims against “Zack” as well as the Marion County Jail Administration. As relief, plaintiff seeks $1, 500, 000 for pain and suffering. After screening plaintiff's complaint under 28 U.S.C. § 1915(e)(2)(B), the court dismissed the Marion County Jail Administration, and directed preparation of a Martinez report to develop the factual record. (Doc. 8).

         This matter is before the court on the remaining defendant's motion to dismiss (Doc. 14), and plaintiff's second motion for leave to proceed in forma pauperis (Doc. 10), and motion to show cause (Doc. 16).[1] Defendant contends that he is immune from an official capacity suit under the Eleventh Amendment and that plaintiff fails to state a claim upon which relief may be granted under Fed R. Civ. P. 12(b)(6). For the reasons discussed below, the court grants defendant's motion to dismiss and overrules as moot plaintiff's second motion for leave to proceed in forma pauperis and motion to show cause.

         I. Motion to Dismiss

         When analyzing a motion to dismiss under Fed.R.Civ.P. 12(b)(6) the court adheres to the following standards. The court accepts as true the factual allegations in the complaint and draws reasonable inferences in favor of plaintiff. Gann v. Cline, 519 F.3d 1090, 1092 (10th Cir. 2008). The court is not obliged to accept as true a legal conclusion couched as a factual allegation. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The complaint must contain enough allegations of fact “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “Plausibility” refers to whether the facts alleged in the complaint are so general or so innocent that the plaintiffs “‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). If, after drawing upon the court's “judicial experience and common sense, ” the court decides that “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, [then] the complaint has alleged - but it has not ‘show [n]' - ‘that the pleader is entitled to relief.'” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

         The court has examined the motion and related memorandum in support, plaintiff's amended complaint, the Martinez report and the relevant legal authorities.[2] The pertinent facts are undisputed, corroborated, or viewed in the light most favorable to plaintiff.

         A. Factual Background

         From August 15 through October 23 of 2017, plaintiff was incarcerated at the Marion County Jail in Marion, Kansas. Marion County Jail policy requires inmates to submit all outgoing mail in unsealed envelopes so that corrections officers may check for contraband. In violation of this policy, plaintiff submitted outgoing non-legal mail in sealed envelopes marked “legal mail”. Accordingly, to inspect plaintiff's mail for contraband, jail officials regularly opened plaintiff's sealed envelopes and then, without reading the contents, resealed the mail before sending it.

         From the Marion County Jail, plaintiff was transferred to Norton Correctional Facility (NCF). Plaintiff sent a letter from NCF postmarked October 25, 2017, to Mr. Neil Tierney with the “ATF” (the Bureau of Alcohol, Tobacco, Firearms, and Explosives), in which plaintiff states that he is in “Norton Prison”. This is the only letter Tierney received from plaintiff, though plaintiff alleges he sent Tierney other letters.

         Plaintiff alleges that at some point after his transfer, he was told by Jonathan Mangold (another NCF inmate) that “Zack” of the Marion County Jail had opened a letter plaintiff sent to Tierney and revealed its contents to “all inmates in jail” in order to label plaintiff as a “snitch.” Plaintiff alleges that “Zack” did so to get plaintiff killed in retaliation for “beating the charges in Marion County.” Plaintiff grieved this conduct in a letter to the Marion County Sheriff postmarked January 4, 2018 (two days after he filed the complaint in this action) that plaintiff mailed from NCF. Mangold told plaintiff that another inmate named Dustin Shiplet witnessed Zack opening and revealing the contents of the letter. Shiplet, who was incarcerated in the Marion County Jail from September 11, 2017 through March 1, 2018, denies witnessing such conduct.

         B. Official Capacity Claim

         Under 42 U.S.C. § 1983, plaintiff purports to bring a claim against defendant in his official capacity. To state an official capacity claim, however, plaintiff must allege that his purported injuries were caused by a “policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.” Monell v. Dep't of Social Servs., 436 U.S. 658, 690 (1978). As such, official capacity claims sound not against a defendant official personally, but against the “entity of which the officer is the agent.” Estate of Hammers v. Douglas Cnty., Kan. Bd. of Commrs., 2018 WL 1536514 at *5 (D. Kan. March 28, 2018) (citing Kentucky v. Graham, 473 U.S. 159, 165 (1985)). Put another way, injuries caused by a government employee can occur in an official capacity only to the extent the injury results from the execution of the government's policy or custom. Id. Accordingly, a claim for injuries caused by the conduct of a government employee when the conduct is unrelated to a government policy or custom must be brought against the employee in his or her individual capacity.

         Plaintiff makes no allegations that his purported injuries were caused by an official policy, statement, ordinance, regulation, or decision officially adopted and promulgated by the Marion County Jail or relevant officials. Accordingly, plaintiff does not state an official capacity claim under 42 U.S.C. § 1983. His official capacity claim must therefore be dismissed, and as such, the court does not reach defendant's argument that he is entitled to immunity under the Eleventh Amendment.

         C. ...


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