UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ DAVID A. JACKSON-MACKAY, Plaintiff - Appellant, and
ARTHUR D. PENR OD; TYLER E. MCCURDY; AUSTIN D. ANDERSON, Plaintiffs,

v. MICHAEL MCDONALD, Sergeant, Platte County Detention Center; DAVID RUSSELL, Captain, Platte County Detention Center; CLYDE HARRIS, Sheriff, Platte County Sheriff’s Department; PLATTE COUNTY WYOMING; PLATTE COUNTY SHERIFF’S DEPARTMENT; PLATTE COUNTY DETENTION CENTER; PLATTE COUNTY COMMISSIONERS, Defendants - Appellees. No. 22-8033 (D.C. No. 2:22- CV-00083-SWS) (D. Wyo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 17, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 22-8033 Document: 010110828056 Date Filed: 03/17/2023 Page: 12 Before HARTZ , BALDOCK , and McHUGH , Circuit Judges.

________________ _________________ David A. Jackson-Mackay, an inmate at the Platte County Detention Center, appeals the dismissal under Federal Rule of Civil Procedure 12(b)(6) of his 1 civilrights complaint under 42 U.S.C. § 1983. 2 Exercising jurisdic tion under 28 U.S.C. § 1291, we affirm in pa rt and remand in part. The complaint states that all defendants are sued in their individual and official capacities. But it makes no sense to sue a governmental entity in its individual capacity. And “[a] suit against a gove rnment agent in his official capacity is treated as a suit against the government.” Mocek v. City of Albuquerque , 813 F.3d 912, 932 (10th Cir. 2015). Th erefore, the district cour t properly classified the defendants into two groups: First, the C ounty Defendants are the Platte County entities (the Detention Center, the County , the Commissioners, and the Sherriff’s Department) and all the individuals sued in their official capac ities; the claims

1 Mr. Mackay brought this litigation with other in mates at the Detention Center, but his co-plaintiffs do not join this appeal. 2 Although Mr. Mackay has three st rikes under 28 U.S.C. § 1915(g) and therefore, absent exceptional circumstances, cannot file a compla int in federal court in forma pauperis , or without prepayment of court fees, that provision does not bar this action because it was not Mr. Mackay who chose the federal forum—Defendants removed the case from state court. See Woodson v. McCollum , 875 F.3d 1304, 1307 (10th Cir. 2017) (“S ection 1915(g) . . . does not preven t an indigent prisoner-plaintiff with three strikes from proceed ing in a case that someone el se filed in federal court.” (internal quotation marks omitted)). It is an open question, however, whether the three-strike bar applies to this appeal. We need not d ecide this novel issue here because “we have long recognized that we reta in discretion to ignore the three-strikes rule and reach the meri ts of an appeal.” Smith v. Veterans Admin. , 636 F.3d 1306, 1309 (10th Cir. 2011). We therefore a ddress the merits of this appeal. Appellate Case: 22-8033 Document: 010110828056 Date Filed: 03/17/2023 Page: 23 against them were treated as “simply a su it against Platte County.” Order at 4, Jackson-Mackay v. McDonald , No. 2:22-CV-00083-SWS (D. Wyo. May 26, 2022), ECF No. 47. Second, the Individual Defe ndants are the three officials at the Detention Center sued in th eir individual capacities. Mr. Mackay alleges that the defendants violated his rights under the First and Fourteenth Amendments to the United St ates Constitution by instituting a policy (1) that required Detention Cent er officials to scan mail re ceived from courts into the Detention Center’s electronic kiosk system instead of opening it in the presence of the addressee inmate, and (2) that forbade inmates from sealing their own outgoing court mail. 3 His principal claim is that the polic y violated his cons titutional right of access to the courts. But he contended in his response to the Individual Defendants’ motion to dismiss that the complaint encompasses two a dditional claims: that the policy violated (1) his due-process right s under the Fourteenth Amendment and (2) his free-speech rights under the First Amendment. The district court granted the Individu al and County Defendants’ motions to dismiss. We affirm the dismissal of Mr . Mackay’s access-to-courts claim for substantially the same reason the district court gave: Mr. Mackay did not show that the mail policy “frustrated or impeded” his nonfrivolous litigation efforts. Gee v.

3 Mr. Mackay also raises a claim under the Sixth Amendment. We dispose of this issue summarily because that Amendm ent does not support Mr. Mackay’s civilrights claim regarding court mail. The S upreme Court held in a case examining inmate access to mail: “As to the Sixth Am endment, its reach is only to protect the attorney-client relationship from intrusion in the criminal setting .” Wolff v. McDonnell , 418 U.S. 539, 576 (19 74) (emphases added). Appellate Case: 22-8033 Document: 010110828056 Date Filed: 03/17/2023 Page: 34 Pacheco , 627 F.3d 1178, 1191 (10t h Cir. 2010). We also conclude that Mr. Mackay did not preserve a due-process claim for appeal. But because a “document filed pro

se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringe nt standards than formal pl eadings drafted by lawyers,” Erickson v. Pardus , 551 U.S. 89, 94 (2007) (per curiam) (citation and internal quotation marks omitted), we hold that Mr. Mackay adequately ra ised his claim that the mail policy violated hi s First Amendment right to free speech. The Individual Defendants are entitled to qualified imm unity from this claim because no clearly established law holds that the mail policy violated the Constitu tion. But “an entity defendant is not entitled to qualified immunity,” Callahan v. Unified Gov’t of Wyandotte Cnty. , 806 F.3d 1022, 1030 (10th Cir. 201 5), so we remand for further consideration the question, which the di strict court did not address, whether Mr. Mackay’s free-speech claim against the County Defendants stated a claim upon which relief can be granted.
I. ANALYSIS “We review de novo a district court’s decision on a Rule 12(b)(6) motion for dismissal for failure to state a claim.” Waller v. City & County of Denver , 932 F.3d 1277, 1282 (10th Cir. 2019). “In reviewing a motion to dismiss, we accept the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff.” Mayfield v. Bethards , 826 F.3d 1252, 1255 (10t h Cir. 2016). Because Mr. Mackay appears pro se, we c onstrue his pleadings liberally. See id. Still, “conclusory allegations without supporting fa ctual averments are in sufficient to state Appellate Case: 22-8033 Document: 010110828056 Date Filed: 03/17/2023 Page: 45 a claim on which relief can be based.” Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). A city or county “can be directly su ed under § 1983 when its officers commit constitutional violations in accordance with the municipality’s official policy. But liability will not attach wh ere there was no underlying c onstitutional violation by any of the municipal ity’s officers.” Ellis ex rel. Est. of Ellis v. Ogden City , 589 F.3d 1099, 1104 (10th Ci r. 2009) (brackets, citation, and internal quotation marks omitted); see Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown , 520 U.S. 397, 403 (1997) (treating a county as a municipa lity for purposes of § 1983 actions). We therefore begin by addressing whether th e complaint identifie s any constitutional violations.
A. Access-to-Courts Claim To bring an access-to-courts claim “a pr isoner must demonstrate actual injury from interference with his access to the courts—that is, that the prisoner was frustrated or impeded in hi s efforts to pursue a nonfrivol ous legal claim concerning his conviction or his conditions of confinement.” Gee , 627 F.3d at 1191. Mr. Mackay’s complaint does not make this showing. It does not allege any facts demonstrating that the Detention Ce nter’s outgoing-ma il policy hindered Mr. Mackay’s efforts to pursue legal clai ms concerning his conviction or conditions of confinement. Regarding incoming mail, his complaint simply alleges, “When the Defendants[] began scanning incoming court mail, includi ng blank self-help fill-inthe-blank court forms, the Defendants’ c onduct amounted to obstructing Plaintiffs’ Appellate Case: 22-8033 Document: 010110828056 Date Filed: 03/17/2023 Page: 56 access to the courts. The Defendants’ obstructive conduct frust rated and impeded Plaintiffs’ ability to file a nd pursue civil rights claims against another jail.” Aplt. App., Vol. I at 31. As the di strict court ruled, these are conclusory allegations that do not explain how any litigation was hampered. Mr. Mackay made somewhat more specifi c allegations in his response to the Individual Defendants’ moti on to dismiss, claiming: Plaintiffs[] received a court’s “Memor andum and Order” in March 2022 from the United States District Court fo r the District of Nebraska, requiring [them] to complete the “en closed form,” which was a fill-in-the-blank form the court had provided. . . . [I]f Plainti ffs[] failed to complete and return the form by a specified date, the action would be subject to dismissal. Aplt. App., Vol. II at 83–84. Mr. Mackay did not provide the name or number for the case to which he referred. But in his brie f on appeal, he lists a case number for Jackson-Mackay et al. v. Cotant et al. , No. 8:22CV00010 (D. Neb.). For the first time, he contends that because the defenda nts “intercept[ed] th ese forms [from the Nebraska district court], [Mr. Mackay] and his co-parties we re unable to timely file those documents with the Court and ha d no alternative means by which to access those forms or similar forms.” Aplt. Br. at 7. These allega tions come far too late to cure deficiencies in the comp laint. But we note that in any case, the record of the Nebraska federal court shows that the or der that Mr. Mackay complains of was Appellate Case: 22-8033 Document: 010110828056 Date Filed: 03/17/2023 Page: 67 directed only at his co-plain tiffs, and they were able to comply w ith the court order
anyway. 4 The district court properly dismissed th e access-to-courts cl aim against all the defendants because there was no constitutional violation.
B. Due-Process Claim In his response to the Individual Defenda nts’ motion to dismiss, Mr. Mackay contended that one of the claims he brought was “a due process . . . case.” Aplt. App., Vol. II at 83. But his brief on appeal does not argue that his due-process rights were violated, or argue that the district cour t erred in failing to address a due-process claim. Nor do we see an allegation of a deni al of due process in his complaint. We therefore consider the is sue forfeited and waived. See Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Ci r. 2007) (“[T]he omission of an issue in an opening brief generally forfeits appellate cons ideration of that issue.”). 5

4 Because it is a matter of public record, we can take judicial notice of the docket in Jackson-Mackay v. Cotant , No. 8:22CV00010. See Tal v. Hogan , 453 F.3d 1244, 1264 n.24 (10th Cir. 2006). 5 We note that some of Mr. Mackay’s pl eadings also may s uggest that he is making an equal-protection cl aim. In his response to the Individual Defendants’ motion to dismiss, he wrote that “Defenda nts[] arbitrarily engaged in a course of conduct that singled out a se lect group of inmates” and th at he was not treated like other “similarly situated inma tes.” Aplt. App., Vol. II at 83. And he makes a similar allegation in his appellate brief. See Aplt. Br. at 2, 6. (“ [T]he Appellees[] did not equally apply this policy to all inmates at the Platte County Detention Center; instead, the Appellees[] arbitrarily and capri ciously applied this ‘policy’ only to certain inmates with whom the Appellees[] we re irritated”; “the is sues raised in the District Court Complaint were not regardi ng a single incident of opening or reading Court mail. It was a policy or custom that was recently institut ed and was a blanket policy for specific inmates that chose to challenge the jail staff’s conduct.”). But the complaint did not allege facts showing di sparate treatment of similarly situated Appellate Case: 22-8033 Document: 010110828056 Date Filed: 03/17/2023 Page: 78 C. Free Speech Claim As we have noted, the district court addressed only whether Mr. Mackay had adequately pleaded an access-to-courts clai m. But in our view Mr. Mackay also adequately presented an argument (the mer it of which was not resolved below) that the mail policy was unconstitutional under the First Amendment’s Free Speech Clause. In his complaint Mr. Mackay asserted that the ma il policy violated his rights under the First Amendment. He alleged that “Plaintiffs[] ha ve a constitutional right to communicate with the Court freely and unobs tructed” and that “Defendants’ conduct of inspecting and reading both incoming and outgoing Court mail outside of Plaintiffs’ presence create[d] a chilling effect and is a violation of Plaintiffs’ rights.” Aplt. App., Vol. I at 28. He also cited cases th at recognize an inmate’s First Amendment interest in havi ng incoming legal mail opened only in the inmate’s
presence. See Merriweather v. Zamora , 569 F.3d 307, 317 (6th Cir. 2009); Jones v.
Brown , 461 F.3d 353, 358 (3d Cir. 2006); see also 28 CFR § 540.19 (defining legal mail as “mail from courts or attorneys” and indicating that such mail is to be opened in the inmate’s presence). Further, in his response to the Indi vidual Defendants’ mo tion to dismiss, Mr. Mackay stated that his was “a freedom of speech case.” Aplt. A pp., Vol. II at 83. And in his response to the County Defendant s’ motion to dismiss, he reiterated the assertions that “mail to and from the cour ts should be opened in the presence of

persons and his later pleadings do not develop the necessary elements of a claim. We therefore need not addre ss this possible claim. Appellate Case: 22-8033 Document: 010110828056 Date Filed: 03/17/2023 Page: 89 inmate-addressee[s]” and that the mail po licy “clearly impedes [P laintiffs’] access to the court and violates their First Amendment rights .” Id. at 179, 181 (emphasis added). He cited Jones in both responses to the motio ns to dismiss. Finally, Mr. Mackay’s appellate brief cites Merriweather and Jones and claims that “Appellees’ conduct of inspecting and pres umably reading both incoming and outgoing mail to and from the Courts outside of the Appe llant’s presence creates a ‘chilling effect’ and violates the Appellant’s constituti onal rights.” Aplt. Br. at 5. As a pro se litigant, Mr. Mackay ad equately preserved the issue. Nevertheless, we affirm the dismissal of the First Amendment claim against the Individual Defendants. They raised qualif ied immunity as an affirmative defense to all the claims. “A § 1983 defendant’s assertion of qualified immunity is an affirmative defense that crea tes a presumption that the defendant is immune from suit. To overcome this presumption, the plaintiff must show (1) the defendant’s actions violated a constituti onal or statutory right, and (2) that right was clearly established at the time of the defendant’s complained-of conduct.” Truman v. Orem City , 1 F.4th 1227, 1235 (10th Cir. 2021) (brackets, citati on, and internal quotation marks omitted). To show that the law wa s clearly established, a plaintiff must ordinarily identify “an on-point Supreme Court or published Tenth Circuit decision that establishes the unlawfulness of the defe ndant’s conduct [or s how that] the clearly established weight of authority from other courts . . . ha[s] found the law to be as the plaintiff maintains.” Cummings v. Dean , 913 F.3d 1227, 1239 (10th Cir. 2019) (original brackets and internal quotation marks omitted). Appellate Case: 22-8033 Document: 010110828056 Date Filed: 03/17/2023 Page: 910 Mr. Mackay has not pointed to any decisi on of this court or the Supreme Court that clearly establishes his right to have incoming court mail opened in his presence or to seal his own outgoing mail. And we held in an unpublishe d opinion that a prison regulation allowing officials to open incoming mail not mark ed as confidential legal material without the inmate-addressee present “satisfie[d] the four factors set forth in Turner v. Saf [] ley , 482 U.S. 78, 89–91 (1987), for determining the validity of a prison regulation” and did not violate an inmate’s “right of access to the courts and his right to privacy and confidentia lity with respec t to his mail.” Medel v. Deland , 974 F.2d 1345 (tbl.), 1992 WL 201073, at *1 ( 10th Cir. 1992). See Grissom v. Roberts , 902 F.3d 1162, 1168 (10th Cir. 2018) ( “an unpublished opinion can be quite relevant in showing that the law was not clearly established”; indeed, we “presume that an unpublished decision was not contra ry to clearly established law at the time.”). But the qualified immunity that prot ects the Individual Defendants does not protect the County Defendants. See Callahan , 806 F.3d at 1030. We think the proper course is to remand the claims against them to the district court for consideration in the first instance.
D. Declaratory Judgment Finally, Mr. Mackay appeals the district court’s failur e to issue a declaratory judgment that the mail policy was unconstit utional and requests a judicial decision “regarding whether or not Cour t mail should be treated as special (legal) mail.” Aplt. Br. at 10. The second request wa s never made to the district court, so we decline the Appellate Case: 22-8033 Document: 010110828056 Date Filed: 03/17/2023 Page: 1011 invitation to opine on the scope of “l egal mail.” As for a declaration of unconstitutionality, it would hard ly be appropriate with resp ect to the claims that we have rejected on the merits. We leave to th e district court to determine what remedy, if any, would be appropriate on Mr . Mackay’s First Amendment claim.
II. CONCLUSION
We AFFIRM the judgment below in a ll respects excep t that we REMAND to the district court for further proceedings Mr. Mackay’s free-spee ch claim against the County Defendants.

Entered for the Court

Harris L Hartz Circuit Judge Appellate Case: 22-8033 Document: 010110828056 Date Filed: 03/17/2023 Page: 11