UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

DAVID A. JACKSON-MACKAY, 

 Plaintiff - Appellant, 

and 

ARTHUR D. PENROD; 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 appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines 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: 1
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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 his1

 civilrights complaint under 42 U.S.C. § 1983.2

 Exercising jurisdiction under 28 U.S.C. 

§ 1291, we affirm in part 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 government 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). Therefore, the district court properly classified the 

defendants into two groups: First, the County 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 capacities; the claims 

1

 Mr. Mackay brought this litigation with other inmates at the Detention 

Center, but his co-plaintiffs do not join this appeal. 

2

 Although Mr. Mackay has three strikes under 28 U.S.C. § 1915(g) and 

therefore, absent exceptional circumstances, cannot file a complaint 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) (“Section 1915(g) . . . does not prevent an indigent prisoner-plaintiff 

with three strikes from proceeding in a case that someone else 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 decide this novel issue here 

because “we have long recognized that we retain discretion to ignore the three-strikes 

rule and reach the merits of an appeal.” Smith v. Veterans Admin., 636 F.3d 1306, 

1309 (10th Cir. 2011). We therefore address the merits of this appeal. 

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against them were treated as “simply a suit 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 Defendants are the three officials at the 

Detention Center sued in their individual capacities. 

Mr. Mackay alleges that the defendants violated his rights under the First and 

Fourteenth Amendments to the United States Constitution by instituting a policy 

(1) that required Detention Center officials to scan mail received 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 policy violated his constitutional right of 

access to the courts. But he contended in his response to the Individual Defendants’ 

motion to dismiss that the complaint encompasses two additional claims: that the 

policy violated (1) his due-process rights under the Fourteenth Amendment and 

(2) his free-speech rights under the First Amendment. 

 The district court granted the Individual 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 Amendment does not support Mr. Mackay’s civilrights claim regarding court mail. The Supreme Court held in a case examining 

inmate access to mail: “As to the Sixth Amendment, its reach is only to protect the 

attorney-client relationship from intrusion in the criminal setting.” Wolff v. 

McDonnell, 418 U.S. 539, 576 (1974) (emphases added). 

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Pacheco, 627 F.3d 1178, 1191 (10th 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 stringent standards than formal pleadings 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 raised his claim that 

the mail policy violated his First Amendment right to free speech. The Individual 

Defendants are entitled to qualified immunity from this claim because no clearly 

established law holds that the mail policy violated the Constitution. 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. 2015), so we remand for further 

consideration the question, which the district 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 (10th Cir. 2016). Because 

Mr. Mackay appears pro se, we construe his pleadings liberally. See id. Still, 

“conclusory allegations without supporting factual averments are insufficient to state 

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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 sued under § 1983 when its officers commit 

constitutional violations in accordance with the municipality’s official policy. But 

liability will not attach where there was no underlying constitutional violation by any 

of the municipality’s officers.” Ellis ex rel. Est. of Ellis v. Ogden City, 589 F.3d 

1099, 1104 (10th Cir. 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 municipality for purposes of § 1983 actions). We 

therefore begin by addressing whether the complaint identifies any constitutional 

violations.

A. Access-to-Courts Claim 

To bring an access-to-courts claim “a prisoner must demonstrate actual injury 

from interference with his access to the courts—that is, that the prisoner was 

frustrated or impeded in his efforts to pursue a nonfrivolous 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 Center’s outgoing-mail policy hindered 

Mr. Mackay’s efforts to pursue legal claims concerning his conviction or conditions 

of confinement. Regarding incoming mail, his complaint simply alleges, “When the 

Defendants[] began scanning incoming court mail, including blank self-help fill-inthe-blank court forms, the Defendants’ conduct amounted to obstructing Plaintiffs’ 

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access to the courts. The Defendants’ obstructive conduct frustrated and impeded 

Plaintiffs’ ability to file and pursue civil rights claims against another jail.” Aplt. 

App., Vol. I at 31. As the district court ruled, these are conclusory allegations that do 

not explain how any litigation was hampered. 

Mr. Mackay made somewhat more specific allegations in his response to the 

Individual Defendants’ motion to dismiss, claiming: 

Plaintiffs[] received a court’s “Memorandum and Order” in March 2022 

from the United States District Court for the District of Nebraska, requiring 

[them] to complete the “enclosed form,” which was a fill-in-the-blank form 

the court had provided. . . . [I]f Plaintiffs[] 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 brief 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 defendants “intercept[ed] these forms [from the 

Nebraska district court], [Mr. Mackay] and his co-parties were unable to timely file 

those documents with the Court and had no alternative means by which to access 

those forms or similar forms.” Aplt. Br. at 7. These allegations come far too late to 

cure deficiencies in the complaint. But we note that in any case, the record of the 

Nebraska federal court shows that the order that Mr. Mackay complains of was 

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directed only at his co-plaintiffs, and they were able to comply with the court order 

anyway.4

 

The district court properly dismissed the access-to-courts claim against all the 

defendants because there was no constitutional violation. 

B. Due-Process Claim 

In his response to the Individual Defendants’ 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 court erred in failing to address a due-process 

claim. Nor do we see an allegation of a denial of due process in his complaint. We 

therefore consider the issue forfeited and waived. See Bronson v. Swensen, 500 F.3d 

1099, 1104 (10th Cir. 2007) (“[T]he omission of an issue in an opening brief 

generally forfeits appellate consideration 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 pleadings also may suggest that he is 

making an equal-protection claim. In his response to the Individual Defendants’ 

motion to dismiss, he wrote that “Defendants[] arbitrarily engaged in a course of 

conduct that singled out a select group of inmates” and that he was not treated like 

other “similarly situated inmates.” 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 capriciously applied this ‘policy’ only to 

certain inmates with whom the Appellees[] were irritated”; “the issues raised in the 

District Court Complaint were not regarding a single incident of opening or reading 

Court mail. It was a policy or custom that was recently instituted 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 disparate treatment of similarly situated 

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C. Free Speech Claim

As we have noted, the district court addressed only whether Mr. Mackay had 

adequately pleaded an access-to-courts claim. But in our view Mr. Mackay also 

adequately presented an argument (the merit 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 mail policy violated his rights 

under the First Amendment. He alleged that “Plaintiffs[] have a constitutional right to 

communicate with the Court freely and unobstructed” 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 that recognize an inmate’s First 

Amendment interest in having 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 Individual Defendants’ motion to dismiss, 

Mr. Mackay stated that his was “a freedom of speech case.” Aplt. App., Vol. II at 83. 

And in his response to the County Defendants’ motion to dismiss, he reiterated the 

assertions that “mail to and from the courts 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 address this possible claim. 

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inmate-addressee[s]” and that the mail policy “clearly impedes [Plaintiffs’] access to 

the court and violates their First Amendment rights.” Id. at 179, 181 (emphasis 

added). He cited Jones in both responses to the motions to dismiss. Finally, 

Mr. Mackay’s appellate brief cites Merriweather and Jones and claims that 

“Appellees’ conduct of inspecting and presumably reading both incoming and 

outgoing mail to and from the Courts outside of the Appellant’s presence creates a 

‘chilling effect’ and violates the Appellant’s constitutional rights.” Aplt. Br. at 5. As 

a pro se litigant, Mr. Mackay adequately preserved the issue. 

Nevertheless, we affirm the dismissal of the First Amendment claim against 

the Individual Defendants. They raised qualified immunity as an affirmative defense 

to all the claims. “A § 1983 defendant’s assertion of qualified immunity is an 

affirmative defense that creates a presumption that the defendant is immune from 

suit. To overcome this presumption, the plaintiff must show (1) the defendant’s 

actions violated a constitutional 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, citation, and internal quotation 

marks omitted). To show that the law was clearly established, a plaintiff must 

ordinarily identify “an on-point Supreme Court or published Tenth Circuit decision 

that establishes the unlawfulness of the defendant’s conduct [or show 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). 

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Mr. Mackay has not pointed to any decision 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 unpublished opinion that a prison 

regulation allowing officials to open incoming mail not marked 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 confidentiality with respect 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 contrary to clearly established law at the 

time.”). 

But the qualified immunity that protects 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 failure to issue a declaratory 

judgment that the mail policy was unconstitutional and requests a judicial decision 

“regarding whether or not Court mail should be treated as special (legal) mail.” Aplt. 

Br. at 10. The second request was never made to the district court, so we decline the 

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invitation to opine on the scope of “legal mail.” As for a declaration of 

unconstitutionality, it would hardly be appropriate with respect to the claims that we 

have rejected on the merits. We leave to the 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 all respects except that we REMAND to 

the district court for further proceedings Mr. Mackay’s free-speech claim against the 

County Defendants. 

Entered for the Court 

Harris L Hartz 

Circuit Judge 

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