Brooks v. Lincoln Police Department et al

Filing 6

MEMORANDUM AND ORDER- Plaintiffs Complaint (filing no. 1 ) is dismissed without prejudice because it fails to state a claim upon which relief may be granted. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Judge Richard G. Kopf. (Copy mailed/e-mailed to pro se party) (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CLINTON BROOKS JR.,

)
)
Plaintiff,
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v.
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LINCOLN POLICE DEPARTMENT, )
OFFICER SCHMIDT, #1610, In their )
individual capacities, OFFICER
)
HITE, #1643, In their individual
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capacities, and OFFICER
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PICKERING, #1425, In their
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individual capacities,
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Defendants.
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4:11CV3114

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on July 22, 2011. (Filing No. 1.)
Plaintiff is not a prisoner and has been given leave to proceed in forma pauperis in this
matter. (Filing No. 5.) The court now conducts an initial review of the Complaint to
determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I.

SUMMARY OF COMPLAINT
Plaintiff filed his Complaint against four Defendants, the Lincoln Police

Department, and three of its employees in their individual capacities only. (Filing No.
1 at CM/ECF p. 1.) Condensed and summarized, Plaintiff alleges that, on May 12,
2010, he visited Pinnacle Bank in Lincoln, Nebraska to withdraw $100.00. (Id.) The
bank teller gave Plaintiff the $100.00 he requested, but the teller took the money from
the account of another patron with the same name as Plaintiff. (Id. at CM/ECF pp. 12.) On May 14, 2010, Defendant Schmidt spoke with Pinnacle Bank and interviewed
the victim, the bank teller, and other parties involved. (Id. at CM/ECF p. 1.) Based
on these interviews, Defendants Schmidt and Hite spoke with Plaintiff, Plaintiff’s
stepdaughter, and Plaintiff’s wife, and informed them that Plaintiff “was going to be

Arrested.” (Id.) Plaintiff then “left town to avoid being illegally arrested.” (Id. at
CM/ECF p. 2.) On June 1, 2010, Plaintiff “turned himself in” and was cited for
“fraud-impersonation” which was later amended to a charge of “Theft by Deception.”
The Lancaster County Attorney eventually dismissed the charges against Plaintiff.
(Id.)
Plaintiff alleges that he “did nothing wrong” but that Defendant Schmidt “still
continued to pursue an arrest.” (Id.) Plaintiff seeks “$5 MILLION” for violation of
his rights under the U.S. Constitution. (Id. at CM/ECF p. 3.)
II.

APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine

whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e)(2). The court
must dismiss a complaint or any portion thereof 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).
A pro se plaintiff must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 129 S. Ct.
1937, 1950 (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.”). Regardless of whether a plaintiff is represented
or is appearing pro se, the plaintiff’s complaint must allege specific facts sufficient to
state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). However,
a pro se plaintiff’s allegations must be construed liberally. Burke v. North Dakota
Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations omitted).

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III.

DISCUSSION OF CLAIMS
Liberally construed, Plaintiff alleges Defendants falsely arrested him for a

crime he did not commit. (Filing No. 1.) As set forth by the Eighth Circuit:
A false arrest occurs when there is a confinement without legal
justification. . . . The unlawfulness of the restraint is a key element in a
cause of action for false arrest. . . . A police officer who has probable
cause to believe that a suspect has committed a crime is not liable for the
state law tort of false arrest simply because the suspect is later proven
innocent or the charges are dismissed. . . . An officer is empowered to
make an arrest if he or she has reasonable grounds to believe that the
person is guilty of the offense.
Kurtz v. City of Shrewsbury, 245 F.3d 753, 757 (8th Cir. 2001) (citations omitted).
Moreover, “a false arrest claim under § 1983 fails as a matter of law where the officer
had probable cause to make the arrest.” Id. at 758. In determining whether probable
cause exists, “officers are generally entitled to rely on the veracity of information
supplied by the victim of a crime.” Peterson v. City of Plymouth, 60 F.3d 469, 474-75
(8th Cir. 1995).
Here, Plaintiff alleges that Defendants interviewed the victims of his alleged
crime, and then sought to arrest him. (Filing No. 1 at CM/ECF pp. 1-2.) Plaintiff “left
town to avoid” arrest, but later “turned himself in” to Defendants, who cited him for
a crime, although he was not detained. Although the charges against him were later
amended, and then dismissed, Plaintiff own allegations show that Defendants relied
on the crime victims’ statements which resulted in his arrest. There is no question that
Defendants “reasonably believed” Plaintiff committed a crime, and they had probable
cause to arrest him. As set forth above, such actions are not constitutional violations
and Plaintiff has therefore failed to state a claim upon which relief may be granted.
Moreover, since Plaintiff does not claim that he was actually arrested, but instead fled
and later returned voluntarily to accept a citation from Defendants, there is no
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constitutional violation raised in the Complaint.
IT IS THEREFORE ORDERED that:
1.

Plaintiff’s Complaint (filing no. 1) is dismissed without prejudice

because it fails to state a claim upon which relief may be granted.
2.

A separate judgment will be entered in accordance with this

Memorandum and Order.
DATED this 29 th day of September, 2011.
BY THE COURT:
Richard G. Kopf
United States District Judge

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