Taylor v. Holtmeyer et al

Filing 12

MEMORANDUM AND ORDER - Taylor's claims against Holtmeyer in his individual capacity may proceed to service of process. Taylor's claims against the State of Nebraska, the Omaha Police Department, and his claims against Holtmeyer in his of ficial capacity are dismissed without prejudice. To obtain service of process on Holtmeyer, Taylor must complete and return the summons form that the Clerk of the Court will provide. The Clerk of the Court shall send one summons form and one USM-285 form to Taylor together with a copy of this Memorandum and Order. Taylor shall, as soon as possible, complete the forms and send the completed forms back to the Clerk of the Court. In the absence of the forms, service of process cannot occur. The C lerk of the Court is directed to set a pro se case management deadline in this case with the following text: "January 21, 2015: Check for completionof service of summons." Taylor's Motion to Appoint Counsel (Filing No. 11 ) is denied without prejudice to reassertion. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party with one summons and one 285 form)(GJG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DE-VAUNTE J. TAYLOR,
Plaintiff,
v.
JAMES E. HOLTMEYER, STATE
OF NEBRASKA, and OMAHA
POLICE DEPARTMENT,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

4:14CV3127

MEMORANDUM
AND ORDER

Plaintiff De-Vaunte J. Taylor (“Taylor” or “Plaintiff”) filed his Complaint in
this matter on May 30, 2014. (Filing No. 1.) This court has given Taylor leave to
proceed in forma pauperis. The court now conducts an initial review of Plaintiff’s
Complaint to determine whether summary dismissal is appropriate under 28 U.S.C.
§§ 1915(e)(2) and 1915A.
I. SUMMARY OF COMPLAINT
Taylor brings this action pursuant to 42 U.S.C. § 1983 for violations of the
Fourth and Fourteenth Amendments. Taylor alleges that on May 31, 2013, Omaha
Police Department Officer James E. Holtmeyer pulled over the vehicle Taylor was
driving. Taylor alleges Holtmeyer assaulted him during a traffic stop. Taylor alleges,
in relevant part:
James E. Holtmeyer pulled behind me in an alleged traffic stop.
Office[r] Holtmeyer then instructed me out of the Tahoe truck I was
driving at gun point. He then instructed me to turn around and put my
hands up which I did. Officer Holtmeyer then pushed me down
sideways into the drivers [sic] side cockpit of the Tahoe truck I was
driving where he climbed on top of me placing me in a choke hold and
then drug me up out of the cockpit of the Tahoe truck and proceeded to

call me Leanglo and punched me in the face several times before
slam[m]ing me to the ground. All this is caught on video by the police
car cam[e]ra.
(Filing No. 1 at CM/ECF pp. 4-5.)
As a result of this incident, Taylor claims he suffered a “black eye, swollen
face, back pains, mental suffering, [and] depression.” (Id. at CM/ECF p. 5.) As relief,
Taylor asks the court to order the State of Nebraska, the Omaha Police Department,
and Holtmeyer to pay Taylor $1,000,000.00. He also asks the court to order
Holtmeyer to resign. (Id. at CM/ECF p. 6.)
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, 570 (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). A pro se

2

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).
Liberally construed, Plaintiff here alleges federal constitutional claims. To state
a claim under 42 U.S.C. § 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); Buckley v. Barlow, 997 F.2d 494, 495
(8th Cir. 1993).
III. DISCUSSION OF CLAIMS
A.

Sovereign Immunity

The Eleventh Amendment bars claims for damages by private parties against
a state, state instrumentalities, and an employee of a state sued in the employee’s
official capacity. See, e.g., Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th
Cir. 1995); Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446-47 (8th Cir.
1995). Any award of retroactive monetary relief payable by the state, including for
back pay or damages, is proscribed by the Eleventh Amendment absent a waiver of
immunity by the state or an override of immunity by Congress. See, e.g., id.; Nevels
v. Hanlon, 656 F.2d 372, 377-78 (8th Cir. 1981).
Taylor asks the court to order the State of Nebraska to award him monetary
relief because it “hired officer James E. Holtmeyer to protect the public and uphold
the law. Therefor[e] [it is] liable.” (Filing No. 1 at CM/ECF p. 4.) However, the
Eleventh Amendment bars Taylor’s § 1983 claim for monetary relief against the State
of Nebraska in this case. Accordingly, the court will dismiss Taylor’s claims against
the State of Nebraska.

3

B.

Claims against the City of Omaha, Nebraska

Taylor has named the Omaha Police Department as a defendant in this matter.
The court construes a suit against the Omaha Police Department as being a suit against
the City of Omaha, Nebraska. Further, the court construes a suit against Holtmeyer
in his official capacity as being a suit against the City of Omaha, Nebraska.
See Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (“A suit
against a public employee in his or her official capacity is merely a suit against the
public employer.”).
As a municipal defendant, the City of Omaha, Nebraska, may only be liable
under section 1983 if its official “policy” or “custom” caused a violation of the
plaintiff’s constitutional rights. See Doe By & Through Doe v. Washington Cnty.,
150 F.3d 920, 922 (8th Cir. 1998) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
694 (1978)). Here, Taylor alleges only that the Omaha Police Department “hired
officer James E. Holtmeyer to protect the public and uphold the law. Therefor[e] [it
is] liable.” (Filing No. 1 at CM/ECF p. 4.) In other words, Taylor has not alleged the
existence of a policy or custom that led to his injuries. Accordingly, the court will
dismiss Taylor’s claims against the City of Omaha, Nebraska, without prejudice to
reassertion in an amended complaint.
C.

Individual-Capacity Claims Against Holtmeyer

Taylor alleges Holtmeyer drew his weapon during a traffic stop, pushed Taylor,
placed Taylor in a choke hold, drug Taylor out of his vehicle, punched Taylor in the
face several times, and slammed Taylor to the ground.
The Fourth Amendment’s right to freedom from unreasonable searches and
seizures encompasses the right to be free from the use of excessive force. Graham v.
Connor, 490 U.S. 386, 394-95 (1989). Such a claim is analyzed under the Fourth
4

Amendment’s reasonableness standard. “Determining whether the force used to effect
a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful
balancing of the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental interests at stake.”
Samuelson v. City of New Ulm, 455 F.3d 871, 875 (8th Cir. 2006) (internal citations
and quotations omitted).
Here, the court concludes that Taylor has stated a viable excessive force claim
against Holtmeyer in his individual capacity. Accordingly, the claim may proceed to
service of process. The court cautions Taylor that this is only a preliminary
determination based on the allegations of the Complaint. This is not a determination
of the merits of Taylor’s claims or potential defenses thereto.
IV. MOTION TO APPOINT COUNSEL
Taylor seeks the appointment of counsel (Filing No. 11). The court cannot
routinely appoint counsel in civil cases. In Davis v. Scott, 94 F.3d 444, 447 (8th Cir.
1996), the Eighth Circuit Court of Appeals explained that “[i]ndigent civil litigants do
not have a constitutional or statutory right to appointed counsel. . . . The trial court has
broad discretion to decide whether both the plaintiff and the court will benefit from
the appointment of counsel . . . .” Id. (quotation and citation omitted). No such
benefit is apparent here at this time. Thus, the request for the appointment of counsel
will be denied without prejudice to reassertion.
IT IS THEREFORE ORDERED that:
1.
Taylor’s claims against Holtmeyer in his individual capacity may
proceed to service of process.

5

2.
Taylor’s claims against the State of Nebraska, the Omaha Police
Department, and his claims against Holtmeyer in his official capacity are dismissed
without prejudice.
3.
To obtain service of process on Holtmeyer, Taylor must complete and
return the summons form that the Clerk of the Court will provide. The Clerk of the
Court shall send one summons form and one USM-285 form to Taylor together with
a copy of this Memorandum and Order. Taylor shall, as soon as possible, complete
the forms and send the completed forms back to the Clerk of the Court. In the absence
of the forms, service of process cannot occur.
4.
Upon receipt of the completed forms, the Clerk of the Court will sign the
summons form, to be forwarded with a copy of Taylor’s Complaint to the United
States Marshal for service of process. The Marshal shall serve the summons and the
Complaint without payment of costs or fees. Service may be by certified mail
pursuant to Fed. R. Civ. P. 4 and Nebraska law in the discretion of the Marshal. The
Clerk of the Court will copy the Complaint and Taylor does not need to do so.
5.
Federal Rule of Civil Procedure 4 requires service of a complaint on a
defendant within 120 days of filing the complaint. However, because in this order
Taylor is informed for the first time of these requirements, Taylor is granted, on the
court’s own motion, an extension of time until 120 days from the date of this order to
complete service of process.
6.
Taylor is hereby notified that failure to obtain service of process on a
defendant within 120 days of the date of this order may result in dismissal of this
matter without further notice as to such defendant. A defendant has 21 days after
receipt of the summons to answer or otherwise respond to a complaint.

6

7.
The Clerk of the Court is directed to set a pro se case management
deadline in this case with the following text: “January 21, 2015: Check for completion
of service of summons.”
8.
The parties are bound by the Federal Rules of Civil Procedure and by the
Local Rules of this court. Plaintiff shall keep the court informed of his current address
at all times while this case is pending. Failure to do so may result in dismissal.
9.
Taylor’s Motion to Appoint Counsel (Filing No. 11) is denied without
prejudice to reassertion.
DATED this 23rd day of September, 2014.
BY THE COURT:
s/ John M. Gerrard
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.

7