Carroll v. Auman

• Decision Date: 31 May 2022
• Docket Number: 8:22CV164
• Parties: TIMOTHY J. CARROLL, Plaintiff, v. JOHN AUMAN, SS2; AMY VOLBRECHT, HIM; TRACY CULLINS, HIM; and RANDI PINKERMAN, HIM, Defendants.
• Court: U.S. District Court — District of Nebraska

TIMOTHY J. CARROLL, Plaintiff,
v.
JOHN AUMAN, SS2; AMY VOLBRECHT, HIM; TRACY CULLINS, HIM; and RANDI PINKERMAN, HIM, Defendants.

No. 8:22CV164

United States District Court, D. Nebraska

May 31, 2022

MEMORANDUM AND ORDER

Richard G. Kopf Senior United States District Judge

Plaintiff, Timothy J. Carroll (“Carroll”), ^[1] a non-prisoner, has been given leave to proceed in forma pauperis. The court now conducts an initial review of Carroll's Complaint (Filing 1).

I. APPLICABLE STANDARDS ON INITIAL REVIEW

The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. 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).

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

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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.” Id., at 849 (internal quotation marks and citations omitted).

II. SUMMARY OF COMPLAINT

Carroll, a civilly committed patient at the Norfolk Regional Center (“NRC”), “sue[s] [Defendant] John Auman and employees who work in NRC HIM [Health Information Management] in their individual capacity for tampering with [Carroll's] legal mail.” (Filing 1, p. 7, ¶ 4.) Defendants Amy Volbrecht, Tracy Cullins, and Randi Pinkerman are HIM staff members. (Filing 1, p. 7, ¶ 11.)

Carroll complains that on April 8, 2022, “[his] treatment plan coordinator arrived at [his] unit handing [him] a copy of a text order on one of [his] 8^th circuit cases, ” a mailing which “was opened outside [Carroll's] presence by HIM.” (Filing 1, p. 7, ¶¶ 1, 2.) The envelope, which is postmarked April 7, 2022, was rubber-stamped “LEGAL MAIL - OPEN ONLY IN THE PRESENCE OF THE INMATE.” (Filing 1, pp. 10-11.) Although Carroll alleges this order was entered in Court of Appeals Docket No. 21-3707 (see Filing 1, p. 7, ¶ 13), the docket sheet for that appeal does not show any order as having been entered since March 10, 2022, when the clerk granted Carroll an extension of time to file his appellant's brief. In another case, however, Court of Appeals Docket No. 21-3706, a clerk's order was entered on April 7, 2022, granting Carroll's fourth motion for an extension of time to file his appellant's brief.^[2] Carroll alleges that “John Auman is the one who handed out our

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mail for 4-8-22” and that “HIM conspired and opened my mail once John Auman had instructed HIM to regardless of the stamped ‘only open in the presence of the inmate'.” (Filing 1, p. 7, ¶¶ 3, 11.)

Carroll also complains that a case filed in this court, Case No. 8:21CV33, “was abruptly dismissed because my extension of time was supposed to be mailed out but was withheld and both the court and the defendant's copy was never mailed.” (Filing 1, p. 7, ¶ 12.)

Carroll alleges that “[b]ecause of the defendants tampering with my mail, this has caused a dismissal and appeal on U.S. District Court case 8:21CV33 a reversal on 8:20CV160 and a chilling effect when they confiscated and willingly disobeyed the law opening my legal mail outside my presence on my 8th Circuit Court case 213707.” (Filing 1, p. 7, ¶ 13.) For relief, Carroll requests “$150, 000 per defendant for punitive damages.” (Filing 1, p. 5.)

III. DISCUSSION

Carroll indicates this is a civil rights action brought under 42 U.S.C. § 1983. (Filing 1, p. 3.) To state a claim under section 1983, a plaintiff must allege a violation of rights protected by the United States Constitution or created by federal statute, and also must show that the alleged deprivation was caused by conduct of a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

NRC is a state hospital for the mentally ill, whose programs and services are administered by the Nebraska Department of Health and Human Services. See Neb.

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Rev. Stat. §§ 83-101.06, 83-305. Defendants presumably are state employees who were acting under color of state law. Carroll states his claims are based on the First Amendment and the Due Process Clause. (Filing 1, p. 3.)

A. Incoming Mail

Although involuntarily committed individuals do not forfeit their First Amendment right to receive incoming mail, that right may be limited by institutional regulations that are reasonably related to a legitimate penological or institutional interest. Turner v. Safley, 482 U.S. 78 (1987). Indeed, “[t]he governmental interests in running a state mental hospital are similar in material aspects to that of running a prison. Administrators have a vital interest in ensuring the safety of their staff, other patients, and of course in ensuring the patients' own safety.” Morgan v. Rabun, 128 F.3d 694, 697 (8th Cir. 1997); see also Revels v. Vincenz, 382 F.3d 870, 874 (8th Cir. 2004) (although involuntarily committed patient of state hospital is not prisoner per se, his confinement is subject to same safety and security concerns as that of prisoner). See, e.g., Herzog v. O'Niel, No. 8:10CV313, 2012 WL 1161620, at *4 (D. Neb. Apr. 9, 2012) (physician's order directing NRC staff to screen involuntarily committed patient's incoming mail “except from advocacy attorney” did not violate patient's First Amendment rights).

The United States Supreme Court has held that an inmate's privileged mail may not be opened for inspections for contraband outside the presence of the inmate and has defined privileged mail as “mail to or from an inmate's attorney and identified as such.” Wolff v. McDonnell, 418 U.S. 539, 574, 576-77 (1974); see Cody v. Weber, 256 F.3d 764, 768 (8th Cir. 2002) (“[T]his court has interpreted [Wolff] to stand for the proposition that mail from an attorney to an inmate client cannot be opened for inspection outside the inmate's presence.”); Jensen v. Klecker, 648 F.2d 1179, 1182 (8th Cir. 1981) (“Privileged 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.”); see also Harrod v. Halford, 773 F.2d 234, 235 (8th Cir. 1985) (“The purpose of opening mail in the inmate's presence is to protect his attorney/client privilege and to protect the confidentiality of other legal matters. The inmate is assured that his mail has not been read when the letters

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are opened in his presence. Jailers are not required to take the extra time and effort to open mail in the inmate's presence when the mail is not confidential.”).

In Harrod, the Eighth Circuit held that “the mere fact that a letter comes from a legal source is insufficient to indicate that it is confidential and requires special treatment.” 773 F.2d at 236. The Eighth Circuit found it permissible for a correctional facility to open letters not properly marked as “confidential” as required by the facility's policy even though the letters were sent by the clerk of the district court, a district judge, a magistrate judge, the United States Department of Justice, the county corrections department, the bureau of community correctional services, and a law firm. Id. “The Eighth Circuit has construed Wolff as requiring that all attorney-client privileged mail that is opened for inspection for contraband must be done in the presence of the prisoner and not read. But. the Eighth Circuit has not gone beyond...