Akins v. Officer Firell et al

Filing 6

MEMORANDUM AND ORDER - Plaintiff's Complaint is dismissed without prejudice for failure to state a claim upon which relief may be granted. A separate judgment will be entered in accordance with this order. 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 FIRELL, SGT. PHILLIPS, )
CITY OF LINCOLN POLICE
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DEPARTMENT, and CHIEF
)
PESCHUNG,
)
)
Defendants.
)

4:14CV3151

MEMORANDUM
AND ORDER

Plaintiff Samar Akins (“Akins” or “Plaintiff”) filed his Complaint in this matter
on July 29, 2014. (Filing No. 1.) Akins 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
Akins brings this action against the City of Lincoln Police Department and three
law enforcement officers. Liberally construed, Akins alleges Defendants violated his
rights under the Federal Constitution’s Equal Protection Clause.
On July 27, 2014, Akins contacted the Lincoln Police Department to request a
“wellness check” on his four-year-old son, who had injured his face while in his
mother’s care. After speaking to the child and his mother, Defendant Officer Firell
determined the child had injured his face in an “accident” at the park. (Filing No. 1
at CM/ECF p. 1.)

Akins alleges he has called the Lincoln Police Department approximately 10
times in the past four years to report abuse of his children “by their mother and her
family.” (Filing No. 1 at CM/ECF p. 2.) Despite his attempts to report abuse, law
enforcement officers have not issued any citations or made any arrests. Akins alleges
the Defendants have shown “racial prejudice and bia[s] against [him] as an African
American.” Akins seeks money damages in the amount of $30,000.00 from each of
the individual defendants and $100,000.00 from the Lincoln Police Department.
(Filing No. 1 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).
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
Akins alleges law enforcement officers have not prosecuted his son’s mother
and her family for abuse because they are “non-black” and Akins (the reporter of the
alleged abuse) and his son (the victim of the alleged abuse) are African American.
(Filing No. 1 at CM/ECF p. 3.) Liberally construed, Plaintiff alleges violations of his
equal protection rights guaranteed by the Fourteenth Amendment to the United States
Constitution. The Equal Protection Clause of the Fourteenth Amendment provides
that no state shall “deny to any person within its jurisdiction the equal protect ion 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 or that his
treatment was so arbitrary as to be irrational. Second, Plaintiff offers no facts in
support of his claims that any of Defendants’ actions were motivated by racial animus.
In fact, Plaintiff’s admission in the complaint that the police actively investigated the
matter by speaking with the allegedly abused child and the child’s mother is
inconsistent with any supposition that the lack of prosecution or citation was racially
motivated. Accordingly, Plaintiff’s Complaint fails to state a claim upon which relief
may be granted. The court will not provide Akins an opportunity to amend his
Complaint as doing so would be futile because Akins does not have a Constitutional
right to compel a criminal investigation or prosecution. See Parkhurst v. Tabor, 569
F.3d 861, 866 (8th Cir. 2009) (quoting Doe v. Mayor and City Council of Pocomoke
City, 745 F.Supp. 1137, 1139 (D.Md. 1990) (“The Court is not aware of a
constitutional, statutory, or common law right that a private citizen has to require a
public official to investigate or prosecute a crime.”)).

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IT IS THEREFORE ORDERED that:
1.
Plaintiff’s Complaint is dismissed without prejudice for failure to state
a claim upon which relief may be granted.
2.

A separate judgment will be entered in accordance with this order.

DATED this 27th day of October, 2014.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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