Akins v. Officer Schreiner et al

Filing 6

MEMORANDUM AND ORDER - On the court's own motion, Plaintiff shall have 30 days from the date of this Memorandum and Order to file an amended complaint that states a claim upon which relief may be granted. Failure to file an amended complaint in accordance with this Memorandum and Order will result in dismissal of this matter without further notice. In the event Plaintiff files an amended complaint, Plaintiff shall restate the allegations of the current Complaint and any new allegati ons. Failure to consolidate all claims into one document may result in the abandonment of claims. The clerk's office is directed to set a pro se case management deadline in this case using the following text: August 18, 2014: Check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SAMAR AKINS,
Plaintiff,
v.
OFFICER SCHREINER, FRANK
FOSTER, Investigater, LAURA
SUHR, C.P.S, PEG SNELLER,
Hamilton Forensic Inteniuxi,
JENNIFER DENNIS, Child
Advocate, and LYNN AYERS,
Director Child Advocacy Center,
Defendants.

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4:14CV3081

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on April 18, 2014. (Filing No. 1.)
Plaintiff has been given leave to proceed in forma pauperis. (Filing No. 5.) The court
now conducts an initial review of Plaintiff’s claims to determine whether summary
dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I. SUMMARY OF COMPLAINT
Plaintiff Samar Akins (“Plaintiff”) purports to bring this action on behalf of
himself and on behalf of his minor son, Michael Akins (“M.A.”). (Filing No. 1 at
CM/ECF p. 1.) Liberally construed, Plaintiff alleges Officer Schreiner, Frank Foster,
Laura Suhr, Peg Sneller-Hamilton, Jennifer Dennis, and Lynn Ayers violated his
rights under the Federal Constitution’s Equal Protection Clause, and also conspired
to “obstruct justice” in violation of 42 U.S.C. § 1985(2). Plaintiff also alleges Suhr
violated his rights to free speech under the First Amendment.
As relief, Plaintiff seeks compensatory and punitive damages from each of the
named defendants. He also seeks relief as “this court sees fit.” (Filing No. 1 at

CM/ECF pp. 6-7.) Plaintiff has sued the defendants in their individual capacities only.
(Id. at CM/ECF p. 1.) The court will summarize the allegations Plaintiff makes
against each defendant in the paragraphs below.
A.

Schreiner

Plaintiff alleges he contacted the Lincoln Police Department on April 14, 2014,
to report that it was unsafe for M.A. to return to a home he shared with his mother.
(Id. at CM/ECF p. 2.) Schreiner, an officer with the Lincoln Police Department,
responded to the call. Plaintiff informed her that Ishmael Gutierrez (“Gutierrez”) was
present at M.A.’s mother’s home, and a court order indicated that Gutierrez was to
have no contact with M.A. Plaintiff alleges that Gutierrez had been accused of
“inappropriately touch[ing] M.A.” (Id.) Schreiner responded that “it was ok for the
plaintiff to return his son home to his mother,” and that she did not believe Gutierrez
had touched M.A. inappropriately. (Id.) Plaintiff alleges Schreiner “clearly violated
dept. policy and percedure [sic], and acted with personal prejudice and bias against
the plaintiff.” (Id.)
B.

Foster

Plaintiff alleges Foster, an investigator with the Family Crimes Unit, was
assigned to investigate allegations that Gutierrez had inappropriately touched M.A.
(Id. at CM/ECF p. 3.) Foster decided “not to investigate the case” because M.A. “did
not make a disclosure” when he was interviewed about the allegations. (Id.) Plaintiff
alleges M.A’s refusal to disclose that he had been abused should not have been the
only factor Foster considered when deciding whether to investigate. Plaintiff alleges
Foster “acted with personal prejudice and bias against the plaintiff.” (Id. at CM/ECF
pp. 3-4.)

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C.

Suhr

Plaintiff alleges Suhr, a caseworker with Child Protective Services, “closed her
investigation” into allegations that Gutierrez had inappropriately touched M.A. (Id.
at CM/ECF p. 5.) Suhr knew that M.A. was “sick with a fever” when he was
interviewed about the allegations of abuse, but Suhr did “did nuthing [sic] to
intervene.” (Id.) Suhr was also the caseworker in a prior case in which Gutierrez was
accused of inappropriately touching M.A. Plaintiff lodged a complaint against Suhr
with her supervisor because Plaintiff was “dissatisfied with her actions and inactions
in handling the [previous] case.” (Id.) Plaintiff alleges Suhr “acted with personal
prejudice and bias against the plaintiff.” (Id. at CM/ECF pp. 5-6.)
D.

Sneller-Hamilton

Plaintiff alleges Sneller-Hamilton, the forensic interviewer assigned to
investigate allegations that Gutierrez had abused M.A., used techniques “almost
guaranteed to produce non disclosure [sic].” (Id. at CM/ECF p. 4.) She also
interviewed M.A. when he was sick with a fever. Plaintiff alleges Sneller-Hamilton
“acted with personal prejudice and bias against the plaintiff.” (Id.)
E.

Dennis

Plaintiff alleges Dennis, an employee of Child Protective Services, knew M.A.
was sick with a fever when he was interviewed by Sneller-Hamilton, and knew
Sneller-Hamilton used interview techniques “designed to produce a non-disclosure.”
(Id.) Plaintiff alleges Dennis acted “with personal prejudice and bias” against
Plaintiff. (Id.)

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F.

Ayers

Plaintiff alleges he asked Ayers, the director of the Child Advocacy Center, to
investigate the interview techniques employed by Sneller-Hamilton when she
interviewed M.A. about the allegations of abuse. (Id. at CM/ECF p. 6.) She
determined that Sneller-Hamilton did not violate “policy and procedures.” (Id.)
Plaintiff alleges Ayers acted “with personal prejudice and bias against the plaintiff.”
(Id.)
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).
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” 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, 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.”). 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
A.

Interests of Other Parties

Plaintiff purports to bring this action on behalf of himself and his minor son.
However, pro se litigants may not represent the interests of other parties. Litschewski
v. Dooley, No. 11-4105-RAL, 2012 WL 3023249, at *1 n. 1 (D.S.D. July 24, 2012),
aff’d, 502 Fed.Appx. 630 (8th Cir. 2013). Moreover, in order for a plaintiff to proceed
with his claims, he must have standing. As a general rule, to establish standing a
plaintiff must assert his legal rights or interests and not “the legal rights or interests
of third parties.” Warth v. Seldin, 422 U.S. 490, 498-99 (1975). Accordingly, the
court will only consider the claims Plaintiff Samar Akins raises on behalf of himself,
and not those he purports to raise on behalf of his son.
B.

Equal Protection

Liberally construed, Plaintiff alleges violations of his equal protection rights
guaranteed by the Fourteenth Amendment to the United States Constitution. (Filing
No. 1 at CM/ECF p. 1 (“[A]ll the defendants above are white, and plaintiff . . . [is]
Black, therefore plaintiff invokes the protection of the . . . . 14th Amen[dment] . . .”).)
The Equal Protection Clause of the Fourteenth Amendment provides that no state shall
“deny to any person within its jurisdiction the equal protection of the laws.” U.S.
Const. amend. XIV, § 1. The clause essentially directs “that all persons similarly
situated should be treated alike.” City of Cleburne v. Cleburne Living Center, 473
U.S. 432, 439 (1985). To state an equal protection claim, a plaintiff must establish
that he was treated differently from others similarly situated to him. Johnson v. City
of Minneapolis, 152 F.3d 859, 862 (8th Cir. 1998).
Plaintiff’s equal protection claims fail for two reasons. First, Plaintiff has not
alleged that he was treated differently from others similarly situated to him. Second,
Plaintiff offers no facts in support of his claims that any of Defendants’ actions were
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motivated by racial animus. On the court’s own motion, Plaintiff will be given an
opportunity to file an amended complaint that states an equal protection claim upon
which relief may be granted.
C.

Retaliation

Liberally construed, Plaintiff alleges that Suhr acted in retaliation for his
complaints against her in violation of his rights under the First Amendment. (Filing
No. 1 at CM/ECF p. 5 (“Suhr action [sic] can also be attributed to retaliation because
the first time this happened Suhr was also the C.P.S. worker assigned to the case, and
the plaintiff filed complaints against her with her supervisor and the inspector general
because he was dissatisfied with her actions and inactions in handling the case.”).) To
establish a retaliation claim, a plaintiff must show that (1) he engaged in a protected
activity; (2) a government official took adverse action against him that would chill a
person of ordinary firmness from continuing the activity; and (3) the adverse action
was motivated at least in part by the protected activity. Revels v. Vincenz, 382 F.3d
870, 876 (8th Cir. 2004).
As to the first element, when liberally construed, Plaintiff’s allegations suggest
that he exercised his rights to free speech when he filed complaints against Suhr.
However, as to the second and third elements, Plaintiff has not alleged facts sufficient
to state a retaliation claim upon which relief may be granted. Plaintiff has not alleged
that Suhr took an “adverse action” against him. He merely alleges that she closed her
investigation into the allegations of abuse because “a disclosure was not made” by
Plaintiff’s minor son. (See Filing No. 1 at CM/ECF p. 5.) As a pro se plaintiff, Akins
may not assert the legal rights or interests of his minor child. See Warth, 422 U.S. at
498-99. Moreover, the court reads the facts set forth in the Complaint as suggesting
that Suhr closed the investigation because Plaintiff’s minor son did not corroborate
the allegations of abuse Plaintiff was making against Gutierrez, not because Plaintiff
had previously filed complaints against her. The court will not infer retaliatory
animus from Plaintiff’s speculative and conclusory allegations. On the court’s own
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motion, Plaintiff will be given an opportunity to file an amended complaint that states
a retaliation claim upon which relief may be granted.
D.

Conspiracy

Liberally construed, Plaintiff alleges Defendants conspired to violate his rights.
(See Filing No. 1 at CM/ECF p. 6 (“As a whole all the defendant’s [sic] actions or
inactions, collectively produced a result of a conspiracy to obstruct the justice of the
plaintiff and his son . . .”).)
Title 42 U.S.C. § 1985(2) makes it unlawful for “two or more persons [to]
conspire for the purpose of impeding, hindering, obstructing, or defeating, in any
manner, the due course of justice in any State or Territory, with intent to deny any
citizen the equal protection of the laws . . . .” 42 U.S.C. § 1985(2). In addition, a
plaintiff “must allege that an independent federal right has been infringed. Section
1985 is a statute which provides a remedy, but it grants no substantive stand-alone
rights. The source of the rights or laws violated must be found elsewhere.” Federer
v. Gephardt, 363 F.3d 754, 758 (8th Cir. 2004).
Plaintiff’s conspiracy claims fail for two reasons. First, as discussed above, the
independent federal rights Plaintiff claims were infringed were his rights to free
speech under the First Amendment and to equal protection under the Fourteenth
Amendment. However, Plaintiff has not stated a retaliation or equal protection claim
upon which relief may be granted. Accordingly, Plaintiff’s § 1985(3) claim cannot
proceed pursuant to an alleged violation of Plaintiff’s rights under the First or
Fourteenth Amendment. Second, Plaintiff’s conclusory allegations that a conspiracy
existed between Defendants are insufficient to state a claim for relief. See Cooper v.
Delo, 997 F.2d 376, 377 (8th Cir. 1993) (per curium) (complaint subject to dismissal
if allegations of conspiracy are inadequate; plaintiff must allege facts suggesting
mutual understanding between defendants or meeting of minds). On the court’s own

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motion, Plaintiff will be given an opportunity to file an amended complaint that states
a conspiracy claim upon which relief may be granted.
IT IS THEREFORE ORDERED that:
1.
On the court’s own motion, Plaintiff shall have 30 days from the date of
this Memorandum and Order to file an amended complaint that states a claim upon
which relief may be granted. Failure to file an amended complaint in accordance with
this Memorandum and Order will result in dismissal of this matter without further
notice.
2.
In the event Plaintiff files an amended complaint, Plaintiff shall restate
the allegations of the current Complaint and any new allegations. Failure to
consolidate all claims into one document may result in the abandonment of claims.
3.
The clerk’s office is directed to set a pro se case management deadline
in this case using the following text: August 18, 2014: Check for amended complaint.
DATED this 14th day of July, 2014.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District
of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The
court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases
to work or directs the user to some other site does not affect the opinion of the court.

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