Miller v. Davidson

• Decision Date: 10 September 2021
• Docket Number: 4:21CV3092
• Parties: MICHAEL SCOTT MILLER, Plaintiff, v. ELI DAVIDSON, BRENT LOTTMAN, and MATT KADAVY, Defendants.
• Court: U.S. District Court — District of Nebraska

MICHAEL SCOTT MILLER, Plaintiff, v. ELI DAVIDSON, BRENT LOTTMAN, and MATT KADAVY, Defendants.

No. 4:21CV3092

United States District Court, D. Nebraska

September 10, 2021

MEMORANDUM AND ORDER

Richard G. Kopf, Senior United States District Judge

Plaintiff a state prisoner currently being held at the Omaha Correctional Center, filed this action on May 4, 2021, and subsequently was granted leave to proceed in forma pauperis. The court conducted an initial review of Plaintiff's Complaint (Filing 1) and, in a Memorandum and Order (Filing 19) entered on July 1, 2021, determined there was a misjoinder of parties under Federal Rule of Civil Procedure 20. The court also found there was a significant failure to comply with the simplified pleading requirements of Rule 8. On the court's own motion, Plaintiff was given 30 days to file an amended, superseding complaint. In response Plaintiff filed an Amended Complaint (Filing 20) and also a Supplement (Filing 22) before the pleading deadline. Accordingly, the court will now conduct an initial review of the Amended Complaint and Supplement to determine whether summary dismissal is appropriate under 28 U.S.C. §' 1915(e)(2) and 1915A.

I. STANDARDS ON INITIAL REVIEW

The court is required to conduct an initial review of “a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C.A.' 1915A(a). On such initial review, the court must dismiss the complaint if it: “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C.A.' 1915A(b). See also 28 U.S.C. § 1915(e)(2)(B) (requiring dismissal of in forma pauperis complaints “at any time” on the same grounds as' 1915A(b)).

“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)). 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.”).

“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). This means that “if the essence of an allegation is discernible, even though it is not pleaded with legal nicety, then the district court should construe the complaint in a way that permits the layperson's claim to be considered within the proper legal framework.” Stone v. Harry, 364 F.3d 912, 915 (8th Cir. 2004).

II. SUMMARY OF AMENDED COMPLAINT

Plaintiff states this is an action brought under 42 U.S.C. § 1983. He is suing three Defendants, in their individual and official capacities: (1) Brent Lottman, Sheriff of Nemaha County, Nebraska; (2) Matt Kadavy, Nemaha County Jail Administrator and Deputy Sheriff; and (3) Eli Davidson, Nemaha County Deputy Sheriff. (Filing 20, ¶¶ 2-5.) Plaintiff complains about various events that transpired between April 6 and October 20, 2020. (Filing 20, p. 1.)

Plaintiff first complains he was interrogated by Davidson on April 6 while he was suffering from hypothermia and low blood sugar. (Filing 20, ¶ 7.)

Second, Plaintiff complains booking photos of himself and his co-defendant, Josh Brown, were retaken 2 weeks later because of how bad they looked at intake. (Filing 20, ¶¶ 8-9).

Third, Plaintiff complains he was called up to the booking room on April 24 to take a phone call from his attorney, and the call was recorded without Plaintiff's knowledge. (Filing 20, ¶ 10.) Plaintiff alleges an inmate handbook prepared by Lottman and Kadavy falsely states that such calls are not recorded. (Filing 20, ¶ 13.) Plaintiff alleges that when he learned of the recording through his co-defendant, who was warned by his own attorney that all phone lines in the jail were recorded, this chilled him from wanting to have any further conversations with his attorney, and he became distrustful of his attorney. (Filing 20, ¶ 15-17.)

Fourth, Plaintiff further complains that Davidson was in the booking room while Plaintiff was having the phone conversation with his attorney, and Davidson was tapping the trigger of his taser to intimidate Plaintiff. (Filing 20, ¶ 11.)

Fifth, Plaintiff complains Defendants interfered with his attempts to obtain a video recording of the booking room on April 24 to prove his allegation about Davidson's intimidation tactics. Plaintiff alleges he prepared a discovery motion for filing in his criminal case, but Lottman and Kadavy refused his request to have the motion notarized. Presumably, the motion was not filed. (Filing 20, ¶¶ 18-20.) Plaintiff further alleges that by the time of his next court appearance on September 9, the video had been deleted. (Filing 20, ¶ 24.) However, the judge did direct that Plaintiff be provided a copy of the recorded phone conversation. (Filing 20, ¶ 25.)

Sixth, Plaintiff alleges that Lottman lied to the State Ombudsman by denying that the April 24 telephone call was recorded. (Filing 20, ¶¶ 14, 23, 25.)

Seventh, Plaintiff complains that Defendants also refused his request for notarization of a speedy-trial motion he prepared for filing in Missouri in connection with criminal charges pending against him in that state; Plaintiff alleges he filed the motion, but he assumes it was not considered because it was not notarized. (Filing 20, ¶ 21.)

Eighth, Plaintiff complains he was denied access to a fax machine after faxing a dozen letters to the court about Davidson's intimidation. (Filing 20, ¶ 26.)

Ninth, Plaintiff alleges Lottman and Kadavy also intentionally interfered with his medical treatment by scheduling his MRI at the same time as the September 9 court hearing, forcing Plaintiff to forego the MRI. (Filing 20, ¶¶ 29-30.) Plaintiff alleges Kadavy ignored his requests to reschedule the MRI, and, after Plaintiff was moved to the Otoe County jail, denied his request. (Filing 20, ¶¶ 31-32, 42.)

Tenth, Plaintiff alleges he was made to sleep in his own feces after he had an accidental bowel movement, and was denied a shower. (Filing 20, ¶ 33.) Plaintiff further alleges Lottman and Kadavy manipulated the records to cover-up that Plaintiff was in lock-down for 24 hours without a shower, in violation of jail standards. (Filing 20, ¶ 34.)

Eleventh, Plaintiff alleges Lottman and Kadavy moved him to a security cell for 24 hours after he was crying out for medical treatment following a slip-and-fall; Plaintiff alleges they ignored his requests for medical treatment and transportation to a hospital. (Filing 20, ¶ 35.)

Twelfth, Plaintiff complains his glasses were causing migraine headaches, and Kadavy denied his request for an eye exam. (Filing 20, ¶¶ 36, 38.) Plaintiff alleges he also made several other requests for an eye exam, and speculates they were not forwarded to medical. (Filing 20, ¶¶ 36-37.)

Thirteenth, Plaintiff complains his requests for a blood draw to check his high level of triglycerides were repeatedly denied by Kadavy. (Filing 20, ¶¶ 39-40, 42.)

III. DISCUSSION

To state a claim under § 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).

A. Claims One and Two^[1]

Regarding Plaintiff's first claim, that Davidson subjected him to an improper interrogation, the Supreme Court has held that “mere coercion does not violate the text of the Self-Incrimination Clause [of the Fifth Amendment]^[2] absent use of the compelled statements in a criminal case against the witness.” Chavez v Martinez, 538 U.S. 760, 769 (2003) (plurality opinion); see Entzi v. Redmann, 485 F.3d 998, 1002 (8th Cir. 2007) (“[T]he general rule is that a person has no claim for civil liability based on the Fifth Amendment's guarantee against compelled self-incrimination unless compelled statements are admitted against him in a criminal case.”). This “do[es] not mean that police torture or other abuse that results in a confession is constitutionally permissible so long as the statements are not used at trial; it simply means that the Fourteenth Amendment's Due Process Clause, rather than the Fifth Amendment's Self-Incrimination Clause, would govern the inquiry in those cases and provide relief in appropriate circumstances. Chavez, 538 U S., at 773 (footnote omitted); see also Id. at 779 (Souter, J., concurring) (stating that where claim is based on outrageous conduct of police in questioning of suspect, “[t]hat claim, ... if it is to be recognized as a constitutional one that may be raised in an action under § 1983, must sound in substantive due process”). “Convictions based on evidence obtained by methods that are ‘so brutal and so offensive to human dignity' that they ‘shoc[k] the conscience' violate the Due Process Clause.” Id., at 774 (quoting Rochin v. California, 342 U.S. 165, 172, 174 (1952). Plaintiff's allegation that he was interrogated while suffering from hypothermia and low blood sugar does not...