Leyva v. Portlock

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

EDUARDO LAMAS LEYVA PLAINTIFF

v. Civil No. 5:18-cv-05100

DEPUTY DYLAN PORTLOCK; DEFENDANTS

OFFICER CHRISTOPHER VELASCO;

SERGEANT NICKOLAS FENNELL;

OFFICER BROOKS; DEPUTY

HOWERTON; DEPUTY YATES; OFFICER

C. MCCLELLAN; OFFICER C. BEAVER;

OFFICER GRIMES; CORPORAL RICKER;

and SERGEANT BZOSKI

OPINION

Plaintiff, Eduardo Lamas Leyva, filed this action pursuant to 42 U.S.C. §1983. He

proceeds pro se and in forma pauperis. The case is before the Court for preservice screening

under the provisions of the Prison Litigation Reform Act (PLRA). Pursuant to 28 U.S.C. §

1915A, the Court has the obligation to screen any complaint in which a prisoner seeks redress

from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §

1915A(a).

I. BACKGROUND

The original Complaint (ECF No. 1) did not state how each of the Defendants had violated

Plaintiff’s federal constitutional rights. Plaintiff was, therefore, ordered (ECF No. 4) to file an

amended complaint by June 26, 2018. Plaintiff was told to utilize the Court’s approved § 1983

complaint form. A copy of the form was sent to him.

Following several extensions of time due to changes in Plaintiff’s address, the Amended

Complaint (ECF No. 15) was filed on August 9, 2018. The Amended Complaint was not

submitted on the form and contained several pages written completely in Spanish. While

Plaintiff indicated he spoke “very limited” English and was having a friend translate for him, it

was unclear if all pages had been translated (fifteen Spanish pages versus only eight pages in

English) or what precisely the situation was. The Court could not determine if all Plaintiff’s

allegations were fully translated. By Order (ECF No. 17) entered on August 22, 2018, Plaintiff

was directed to file a Second Amended Complaint written entirely in English by September 12,

2018. The Complaint was to be verified by both the Plaintiff and the inmate translator. Plaintiff

was advised that failure to obey the Order would subject the case to dismissal.

The Second Amended Complaint (ECF No. 18) was filed on September 6, 2018. The

Second Amended Complaint was not submitted on the § 1983 form complaint and consists of

thirty-five pages of a mix of handwritten material, incident reports, and disciplinary reports.

The material is not arranged in any apparent order. The material does not even specify who

Plaintiff intends to name as Defendants. The Court has therefore added as Defendants those

individuals Plaintiff makes specific allegations against. Plaintiff did not verify the documents

nor is there any verification, or even the name of, the translator.

From the materials submitted as the Second Amended Complaint, the following can be

gleaned:

(1). On some unspecified date, Plaintiff alleges he discovered, with his regular mail, a

letter that talked about an inmate snitching on another. It is not clear whether Plaintiff was the

alleged “snitcher.” However, this letter allegedly put the Plaintiff’s life at risk as well as the

lives of his family. In fact, Plaintiff maintains a family member was later assassinated because

of this letter;

(2). On April 15, 2018, Plaintiff was charged with a major disciplinary after Officers

Portlock and Velasco allegedly found tobacco in Plaintiff’s property;

(3). On April 16, 2018, Plaintiff was issued a major disciplinary by Officer Brooks;

(4). On April 26, 2018, some of Plaintiff’s property was lost when he was moved to a

different pod. That same day, Plaintiff also alleges he informed Officer Velasco about the letter

where death threats were made against Detainee Nicholson.1 Officer Velasco ignored him;

(5). On May 12, 2018, Plaintiff was issued a major disciplinary by Deputy N. Howerton

and Deputy Yates after Plaintiff refused to get out of the shower;

(6). Officer C. McClellan harassed Plaintiff, was racist towards him, and threatened to

put Plaintiff in the “hole” if he continued submitting anything on the kiosk;

(7). On an unspecified number of occasions, Plaintiff went sixty-hours without a shower;

(8). In the early morning on some unspecified date(s), Officer C. Beaver harassed the

Plaintiff by shining a light on him until he woke up;

(9). On a single occasion, when it was made to look like Plaintiff refused his meal, Officer

Grimes asked Plaintiff if he wanted his food. Plaintiff answered affirmatively but states he did

not get the food until later and then without the drink;2

(10). There were times he was not allowed access to the kiosk, when his grievances were

blocked or ignored, and when he was asked to submit his grievances in English even though

part of the staff was bi-lingual; and

(11). Plaintiff asserts official capacity claims against Washington County.

1 This appears to be the same letter mentioned in item one.

2 Plaintiff also provides a handwritten copy of a grievance he wrote on July 21, 2018, about Officer C. Beaver threatening

him if he did not sign a form indicating that he had received certain medication. (ECF No. 18 at 3). Plaintiff cannot add

to this case claims that arose after the filing of case. This is true because he could not have exhausted his administrative

remedies with respect to this claim prior to the filing of this case on June 5, 2018. The Prison Litigation Reform Act

requires that remedies be exhausted prior to suit being filed. 42 U.S.C. § 1997e(a).

II. LEGAL STANDARD

Under the PLRA, the Court is obligated to screen the case prior to service of process being

issued. The Court must dismiss a complaint, or any portion of it, if it contains claims that: (1)

are frivolous, malicious, or fail to state a claim upon which relief may be granted; or, (2) seek

monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).

A claim is frivolous if “it lacks an arguable basis either in law or fact.” Neitzke v. Williams,

490 U.S. 319, 325 (1989). A claim fails to state a claim upon which relief may be granted if it

does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007). “In evaluating whether a pro se plaintiff has

asserted sufficient facts to state a claim, we hold ‘a pro se complaint, however inartfully pleaded

... to less stringent standards than formal pleadings drafted by lawyers.’” Jackson v. Nixon, 747

F.3d 537, 541 (8th Cir. 2014) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).

III. DISCUSSION

Section 1983 provides a federal cause of action for the deprivation, under color of law, of

a citizen’s “rights, privileges, or immunities secured by the Constitution and laws” of the United

States. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that the defendant acted

under color of state law and that he violated a right secured by the Constitution. West v. Atkins,

487 U.S. 42 (1988); Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir. 1999). The deprivation

must be intentional; mere negligence will not suffice to state a claim for deprivation of a

constitutional right under § 1983. Daniels v. Williams, 474 U.S. 327 (1986); Davidson v.

Cannon, 474 U.S. 344 (1986).

Claim One—the Letter

Plaintiff alleges he received in his regular mail a letter that contained a threat aimed at an

inmate who acted as a snitch. Plaintiff does not allege he was named as the inmate who snitched.

In fact, he refers to the letter later in the complaint as asserting a threat against Inmate Nicholson.

Plaintiff does not indicate who sent the letter, if he knew, or describe the contents of the letter.

He does allege he was involved in at least one altercation because of the letter, was put into pods

with inmates who were associated in some unknown way with the letter, and that he advised

several of the Defendants of the existence of the letter.

Plaintiff has not alleged that any of the named Defendants were responsible for placing

the letter with his mail or that they were even aware of the existence of the letter until after

Plaintiff received it. Clemmons v. Armontrout, 477 F.3d 962, 967 (8th Cir. 2007)(“Liability

under section 1983 requires a causal link to, and direct responsibility for, the deprivation of

rights”). The Court will therefore treat this claim as a failure to protect claim.

“[T]he Eighth Amendment . . . imposes on jailors an obligation to protect inmates from

more generalized harms such as assault by other inmates.” Hott v. Hennepin Cty, Minn., 260

F.3d 901, 906 (8th Cir. 2001). To make out a failure to protect claim, Plaintiff must prove that

one or more of the Defendants were deliberately indifferent to a substantial risk of serious harm.

Id. “[I]t does not matter . . . whether a prisoner faces an excessive risk of attack for reasons

personal to him or because all prisoners in his situation face such a risk.” Doe v. Washington

Cty., 150 F.3d 920, 923 (8th Cir. 1998)(internal quotation marks and citation omitted). It has

been recognized that an inmate identified as a snitch or considered a snitch “is in danger of being

assaulted or killed by other inmates.” Irving v. Dormire, 59 F.3d 441, 451 (8th Cir. 2008).

The Complaint contains no factual allegations sufficient to assert a plausible failure to

protect claim against any of the named Defendants. Plaintiff does not allege he was the inmate

identified as the snitch; that the letter came from someone inside the facility; that other inmates

in general were aware of the contents of the letter; that other inmates knew Plaintiff had been

identified as a snitch; or that there existed a situation inside the jail that constituted an excessive

risk to inmate health and safety in general. Plaintiff’s allegation that his nephew was

assassinated at some other location because of the letter does nothing to establish a dangerous

situation existed at the detention center.

To the extent the letter was aimed at another inmate or members of his family, Plaintiff

has no standing to bring a claim on behalf of third parties. Warth v. Seldin, 422 U.S. 490, 499

(1975)(A Plaintiff must assert his own legal rights, rather than the rights of third parties, to have

standing to sue).

Claim Two—April 15th Disciplinary Charge

On April 15, 2018, based on information received, Officers Portlock and Velasco,

Corporal Ricker, and Sergeant Bzoski, searched the property of the Plaintiff and Inmate Gass.

Contraband was found in both inmates’ property. What appeared to be tobacco was found in

Plaintiff’s property. Plaintiff was issued a major disciplinary for: (1) possession of tobacco;

and (2) having property in his possession that was altered from its original form. (ECF No. 18

at 13). A hearing was scheduled for April 30th. (ECF No. 18 at 19).

Due Process requires that an inmate be given certain protections when given a disciplinary

charge. Wolff v. McDonnell, 418 U.S. 539, 555-58 (1974). These requirements are: (1) advance

written notice of the disciplinary charges at least 24 hours before the disciplinary hearing; (2)

an opportunity, when consistent with institutional safety and correctional goals, to call witnesses

and present documentary evidence in his defense; and (3) a written statement from an impartial

decisionmaker identifying the evidence relied on and the reasons for the disciplinary action. Id.

Due Process is satisfied if “some evidence” supports the disciplinary decision. Superintendent

v. Hill, 472 U.S. 445, 454-55 (1985).

There are no factual allegations in the Second Amended Complaint suggesting that

Plaintiff was denied Due Process in connection with these charges. In fact, he has included the

notice of the charges and the notice of the hearing he received. To the extent Plaintiff may be

claiming the disciplinary charges were false, this does not by itself violate the Constitution. See

Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989)(The filing of a false disciplinary charge

against an inmate is not actionable under § 1983 unless filed in retaliation for the inmate’s

exercise of a constitutional right). Plaintiff has not alleged that Officers Portlock and Velasco,

Corporal Ricker, or Sergeant Bzoski were acting in retaliation for Plaintiff’s exercise of his

constitutional rights. No plausible claim is stated.

Plaintiff also asserts he was not provided an attorney in connection with the disciplinary

hearing. This is not one of the Due Process rights provided for in Wolff. See Wolff, 418 U.S. at

570 (no right to either retained or appointed counsel in disciplinary hearings).

Claim Three—April 16th Disciplinary Charge

On April 16, 2018, Deputy Brooks reported that Plaintiff approached him asking about

missing personal items from another block. Deputy Brooks stated he could not do anything

about it at the time because he was passing out food. Plaintiff asked to speak to a sergeant and

was told to put a request into the kiosk. In response, Plaintiff threw his drink at the trustees’

feet and asked if that would get a sergeant down there. Deputy Brooks instructed Plaintiff to

leave the area due to his disrespectful manner. Plaintiff then went to throw his tray away and

after the tray hit the floor kicked it at Deputy Brooks’ feet. Deputy Brooks instructed Plaintiff

to pack his belongings because he was being relocated. Plaintiff responded: “You go pack it.”

Plaintiff refused a second time to pack his belongings. Plaintiff was moved to a different area.

Deputy Brooks gathered Plaintiff’s belongings. When Deputy Brooks attempted to hand

Plaintiff his mattress, Plaintiff kicked it. Plaintiff was handcuffed and taken to the hallway by

Deputy Brooks and Deputy Fennel.

Plaintiff was charged with: (1) failure to obey verbal orders of staff; (2)

throwing/attempting to throw substances toward or upon another; (3) breaking into/disruption

of a detainee line or interfering with operations; and (4) making profane/obscene gestures to a

staff member. (ECF No. 18 at 17). A hearing was scheduled for April 30th. (ECF No. 18 at

20).

Once again, Plaintiff makes no allegations that he was denied Due Process in connection

with these charges. He makes no allegations that the facts stated in the disciplinary report are

false or that Deputy Brooks was acting in retaliation for Plaintiff’s having exercised a

constitutional right. No claim is stated against Deputy Brooks.

Claim Four—April 26th Lost Property & Letter

Plaintiff alleges that on April 26, 2018, some unspecified detention center personnel

“caused” part of his property, including his documents, to be lost when he was moved to a

different pod. (ECF No. 18 at 4). He makes no allegations that the missing property was

intentionally taken by any of the named defendants. See Sellers by and through Sellers v. Baer,

28 F.3d 895, 902-03 (8th Cir.1994)(Inadvertence, negligence, or even gross negligence is

insufficient to state a claim under § 1983). Moreover, even if the deprivation was intentional,

no claim is stated because Plaintiff has adequate post-deprivation remedies. See Hudson v.

Palmer, 468 U.S. 517, 533 (1984)(intentional deprivation of property does not violate due

process when meaningful post-deprivation remedy is available); Barnett v. Centoni, 31 F.3d 813

(9th Cir. 1994)(negligent or intentional deprivation of prisoner's property fails to state claim

under § 1983 if state has adequate post-deprivation remedy); Elliot v. Hurst, 307 Ark. 134, 817

S.W.2d 877, 880 (1991)(cause of action for conversion lies where distinct act of dominion is

exerted over property in denial of owner's right).

Next, Plaintiff alleges that he told Officer Velasco about “the letter where death thre[a]ts

were made” against Detainee Nicholson. (ECF No. 18 at 4). Plaintiff states Officer Velasco

ignored him. These allegations do not state a claim that Plaintiff’s constitutional rights were

violated in anyway.

Claim Five—May 12th Disciplinary Charge

Plaintiff was issued a major disciplinary by Deputy N. Howerton and Deputy Yates after

he refused to get out of the shower. (ECF No. 18 at 31). Plaintiff was charged with: (1)

interfering with the taking of count; and (2) failure to obey verbal orders of staff. (Id. at 32). A

hearing was scheduled for May 29th. (Id. at 33). The hearing was held as scheduled and

Plaintiff was found not guilty of interfering with count because an officer confirmed Plaintiff

had asked for soap and shampoo that morning and the officer simply forgot. It was concluded

this caused Plaintiff to not be able to shower in a timely manner. He was found guilty, however,

of refusing to obey an order of the officers. Plaintiff had been ordered out of the shower and

had to be removed bodily.

Plaintiff does not deny the facts as stated in the incident report are correct. Plaintiff does

not allege that he failed to receive notice of the charge, notice of a hearing, the hearing, or a

decision by an impartial decision maker. In fact, Plaintiff has incorporated proof that he did

receive these protections. Nor has Plaintiff alleged Deputies Howerton and Yates were acting

in retaliation for Plaintiff’s having exercised a constitutional right. No claim is stated against

Deputies Howerton and Yates.

Count Six—Harassment, Racist Comments, & Threats

Plaintiff alleges that while he was being seen by the nurse, Officer C. McClellan was

harassing him. (ECF No. 18 at 22). Specifically, Plaintiff alleges that Officer McClellan was

racist towards him and threatened to put Plaintiff in the “hole” if he continued submitting

anything on the kiosk.”

"Generally, mere verbal threats made by a state-actor do not constitute a § 1983 claim.

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." King v. Olmsted County,

117 F.3d 1065, 1067 (8th Cir. 1997). Similarly, taunts, name calling, and the use of offensive

language does not state a claim of constitutional dimension. McDowell v. Jones, 990 F.2d 433,

434 (8th Cir. 1993)(inmate’s claims of general harassment and of verbal harassment were not

actionable under § 1983); O’Donnell v. Thomas, 826 F.2d 788, 790 (8th Cir. 1987)(verbal

threats and abuse by jail officials did not rise to the level of a constitutional violation); Martin

v. Sargent, 780 F.2d 1334, 1338-1339 (8th Cir. 1985)(being called an obscene name and

threatened with adverse consequences unless he cut his hair and shaved does not state a claim

of constitutional dimension); Black Spotted Horse v. Else, 767 F.2d 516, 517 (8th Cir. 1985)(use

of racially offensive language in dealing with a prisoner does not, by itself, state a claim).

“To establish a First Amendment retaliation claim under 42 U.S.C. § 1983, the plaintiff

must show (1) he engaged in a protected activity, (2) the government official took adverse action

against him that would chill a person of ordinary firmness for continuing in the activity, and (3)

the adverse action was motivated at least in part by the exercise of the protected activity.” Revels

v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004).

While Plaintiff asserts that Officer McClellan threatened to retaliate against Plaintiff if he

continued to utilize the kiosk, presumably for asserting grievances, there are no other factual

allegations. See Nelson v. Shuffman, 603 F.3d 439, 449 (8th Cir. 2010)(“A prisoner’s right

under the First Amendment to petition for redress of grievances under a prison’s grievance

procedures is clearly established in this court”). Plaintiff does not allege that Officer McClellan

took any adverse action against him or that Plaintiff was afraid to utilize the kiosk or exercise

his other constitutional rights as a result; with respect to the latter, any such allegation is belied

by the documents submitted by Plaintiff.

Despite still being held at the Washington County Detention Center, the documents

submitted by the Plaintiff show he has submitted multiple grievances and/or requests on the

kiosk. He also filed this lawsuit and has continued to file documents in the lawsuit. Clearly,

his exercise of his constitutional rights has not been chilled. No plausible action is stated here

because Plaintiff has not alleged any facts suggesting the existence of an adverse action. See

e.g., King v. Lombardi, No. 4:17-cv-742, 2017 WL 2277190, *3 (E.D. Ark. May 25, 2017)(no

plausible claim of retaliation stated when no adverse action alleged on Defendant’s part).

Claim Seven—No Shower for 60 Hours

Plaintiff alleges that on an unspecified number of occasions he was left for up to sixty

hours without a shower. (ECF No. 18 at 29). To prevail on a conditions of confinement claim,

Plaintiff must show: (1) the condition was serious enough to deprive him of the minimal civilized

measures of life’s necessities, or to constitute a substantial risk of serious harm; and (2) officials

were deliberately indifferent to his health and safety. Smith v. Copeland, 87 F.3d 265, 268 (8th

Cir. 1996).

In this case, Plaintiff’s only allegation is that there were an unspecified number of

occasions when he was denied a shower for up to sixty hours. Plaintiff does not allege that he was

routinely denied showers; that he did not have access to other hygiene supplies; or that there was

an immediate danger to his health.

In general, courts have held that the temporary denial of bedding, exercise, clothes,

showers, or hygiene products is not unconstitutional. See e.g., O’Leary v. Iowa State Men’s

Reformatory, 79 F.3d 82, 83-8 (8th Cir. 1996)(four days without underwear, blankets, mattress,

exercise and visits not a constitutional violation). Further, there is no bright line constitutional

rule as to the number of showers an inmate must have; nor is there a specific time frame within

which showers must be provided. See e.g., Williams v. Delo, 49 F.3d 442, 446 (8th Cir.

1995)(four days without clothes, mattress, running water, bedding, mail, hot food, and hygienic

supplies not a constitutional violation); McCoy v. Goord, 255 F. Supp. 2d 233, 260 (S.D.N.Y.

2003)(two week suspension of shower privileges does not “suffice as a denial of ‘basic hygienic

needs’”); Cosby v. Purkett, 782 F. Supp. 1324, 1329 (E.D. Mo. 1992)(no constitutional violation

where inmates only allowed to shower once every seventy-two hours); Cf. Scott v. Carpenter,

24 Fed. Appx. 645, 648 (8th Cir. 2001)(No Eighth Amendment claim where disabled inmate

who received only fifteen showers over six months and once went twenty-eight days without a

shower rarely took advantage of opportunity to shower. Officials offered, upon request, a

shower or warm water for his basin).

Here, Plaintiff alleges only that on occasion he was denied a shower for up to sixty hours.

No plausible constitutional violation has been stated.

Further, Plaintiff does not mention any of the Defendants in connection with the denial of

shower claim. “Liability under section 1983 requires a causal link to, and direct responsibility

for, the deprivation of rights.” Clemmons, 477 F.3d at 967 (citation omitted). Plaintiff’s

allegations fail to state a plausible claim.

Claim Eight—Shining Light/Harassment

Plaintiff alleges that Officer Beaver harassed him by, for example, shining a light on his

face in the early morning hours until he woke up. As discussed above, claims of general

harassment do not state a constitutional claim. McDowell, 990 F.2d at 434. Nor does the

occasional shining of a light in Plaintiff’s face during a bed check deprive Plaintiff of the

minimal civilized measures of life’s necessities.

Claim Nine—Food

Plaintiff alleges that on a single occasion he was denied a spoon at breakfast. Later that

same day, Plaintiff alleges it was made to look like he did not want to eat or had refused his tray.

Plaintiff suspected this was because he had been making a lot of “noise” that day. Officer

Grimes then asked Plaintiff if he wanted his food and Plaintiff responded affirmatively. Plaintiff

did receive his tray but not until later and then without the drink.

No plausible claim is stated. This alleged deprivation was not serious enough to deprive

Plaintiff of the minimal civilized measures of life’s necessities, or to constitute a substantial risk

of serious harm to his health or safety. Smith, 87 F.3d at 268.

Claim Ten—Grievance Procedure

Plaintiff has alleged there were times he was not allowed to use the kiosk to submit

grievances, or that his grievances were blocked or ignored, or that he was told to submit his

grievances in English even though some of the staff was bilingual. “Inmates do not have a

constitutionally protected right to a grievance procedure. Because a . . . grievance procedure does

not confer any substantive right upon prison inmates, a prison official’s failure to comply with the

. . . grievance procedure is not actionable under § 1983.” Ashann–Ra v. Commonwealth of

Virginia, 112 F.Supp.2d 559, 569 (W.D. Va. 2000) (citations omitted); see also Lombolt v. Holder,

287 F.3d 683, 684 (8th Cir. 2002) (denial of grievances does not state a substantive constitutional

claim); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (“no constitutional right was violated

by the defendants’ failure, if any, to process all of the grievances [Plaintiff] submitted for

consideration). “Rather, prison inmates have a constitutional right to petition the government for

redress through a right of access to the courts.” Blagman v. White, 112 F. Supp. 2d 534, 542 (E.D.

Va. 2000) (citing Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991)). A jail’s “refusal to entertain

such grievances does not compromise the inmate’s constitutional rights, as access to the courts

would still be available.” Id. (citation omitted). “[A]ny alleged due process violation arising from

the alleged failure to investigate . . . grievances is indisputably meritless.” Geiger v. Jowers, 404

F.3d 371, 374 (5th Cir. 2005).

With respect to the language barrier, Plaintiff does not allege there was any prohibition on

his asking for assistance in submitting his grievances in English. It is quite clear from Plaintiff’s

materials that the language barrier did not prevent him from submitting grievances.

“To prove a violation of the right of meaningful access to the courts, a prisoner must

establish 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.” White v. Kautzky,

494 F.3d 677, 680 (8th Cir. 2007). Here, Plaintiff was able to obtain a § 1983 form and submit it

successfully to this Court. He has not alleged he was unable to file any claims with this or any

other court. He has, therefore, failed to state a plausible claim for denial of meaningful access to

the courts.

Claim Eleven--Official Capacity Claims

To the extent Plaintiff is attempting to assert official capacity claims, they are the

equivalent of claims against Washington County. “Official-capacity liability under 42 U.S.C. §

1983 occurs only when a constitutional injury is caused by ‘a government’s policy or custom,

whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent

official policy.’” Grayson v. Ross, 454 F.3d 802, 810-811 (8th Cir. 2006) (quoting Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). Plaintiff has not alleged the existence of any

custom or policy of Washington County that was a moving force behind the alleged

constitutional violations.

IV. CONCLUSION

The claims asserted are subject to dismissal because they are frivolous or fail to state claims

upon which relief may be granted. Therefore, this case is DISMISSED WITHOUT

PREJUDICE. See 28 U.S.C. § 1915(e)(2)(B)(i-ii).

This dismissal constitutes a strike within the meaning of the Prison Litigation Reform Act.

The Clerk is directed to enter a § 1915(g) strike flag on this case.

IT IS SO ORDERED on this 20th day of September 2018.

/s/P.K. Holmes,

P. K. HOLMES, III

CHIEF U.S. DISTRICT JUDGE