Harrison v. Lancaster County Sheriff Dept.
MEMORANDUM AND ORDER: Plaintiff shall file an amended complaint that states a claim upon which relief may be granted by May 31, 2017. Failure to file an amended complaint within the time specified by the court will result in the court dismissing this case without further notice to Plaintiff. The clerk of court is directed to set a pro se case management deadline for May 31, 2017 to check for an amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KMG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LANCASTER COUNTY SHERIFF
Plaintiff filed his Complaint on March 28, 2017. (Filing No. 1.) He has been
given leave to proceed in forma pauperis. (Filing No. 5.) 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).
I. SUMMARY OF COMPLAINT
Plaintiff sues the Lancaster County Sheriff’s Department. (Filing No. 1 at
CM/ECF p. 2.) Liberally construed, he also sues Deputy Tyler Loos (“Loos”) of
the Lancaster County Sheriff’s Department. (See id. at CM/ECF pp. 5, 10-11.)
Plaintiff seeks $10,000 in damages. (Id.)
Plaintiff alleges that on March 29, 2017, Loos conducted a traffic stop of
Plaintiff’s vehicle because a light was out. (Filing No. 1 at CM/ECF p. 10.)
Plaintiff maintains, however, that the stop was without probable cause. (Id. at
CM/ECF pp. 8, 5-11.) He also alleges that Loos made the stop on account of his
race, stating, “Loos rode parallel to his vehicle [with direct] and prolonged
extensive observation” prior to the stop so that Loos “knew the vehicle was driven
by a black man.” (Id. at CM/ECF p. 8, 10.)
Plaintiff alleges that Loos cited Plaintiff for driving under suspension even
though Plaintiff informed Loos during the stop that he had a temporary driver’s
license. (Id. at CM/ECF pp. 4, 8, 10.) 1 Plaintiff asserts that Loos made reference to
prior stops as the basis for the citation, so Plaintiff believes that Loos cited him for
a previous violation. (Id. at CM/ECF p. 8.) Plaintiff also claims that his vehicle
was illegally searched and seized when it was searched prior to being impounded
for “driving under suspended driving privileges as such.” (Id. at CM/ECF pp. 8,
10.) He then, “under duress,” had to pay for reinstatement of his Nebraska
identification card before the towing company would release his vehicle to him.
(Id. at CM/ECF p. 11.)
After a trial, the Lancaster County Court found Plaintiff guilty of driving
under suspension, a Class III misdemeanor, finding that Plaintiff’s privileges to
operate a motor vehicle in Nebraska were suspended as a result of his December
2015 conviction in Lancaster County Court for no proof of insurance. Plaintiff did
not reinstate his privileges in the State of Nebraska until April 2, 2016, and the fact
that the State of California reinstated his driving privileges in California on
January 19, 2016, did not reinstate his driving privileges in the State of Nebraska.2
Plaintiff alleges that the “[un]lawful traffic stop” was the result of
“[Un]Constitutional Policies, Procedures, Ordinances, and Laws [of] the County of
Lancaster and the City of Lincoln . . . .” (Filing No. 1 at CM/ECF p. 8.)
Specifically, Plaintiff alleges that the citation process used by the Lancaster
County Sheriff’s Department and the traffic/municipal courts is unconstitutional,
PDF of JUSTICE document for State v. Rodney Harrison, Lancaster County
Court Case No. CR 16-6096, at https://www.nebraska.gov/justice//case.cgi; Stutzka
v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005) (court may take judicial
notice of judicial opinions and public records).
because an issued citation is not signed by a “judicial officer,” in violation of the
“Separation of Powers.” (Id. at CM/ECF pp. 8, 11-12.)
II. APPLICABLE STANDARDS OF 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). The court
must dismiss a complaint or any portion of it 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. §
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.” 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.”).
“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or
grounds for a claim, and a general indication of the type of litigation involved.’”
Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014)
(quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a]
pro se complaint must be liberally construed, and pro se litigants are held to a
lesser pleading standard than other parties.” Topchian, 760 F.3d at 849 (internal
quotation marks and 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).
A. Lancaster County Sheriff’s Department
The court liberally construes Plaintiff’s claims against the Lancaster County
Sheriff’s Department as claims against Lancaster County. See Lott v. Ferrell, 109
F. App’x 827, 828 (8th Cir. 2004) (claims against the Jail and Sheriff’s Department
were against the County). As a municipal defendant, Lancaster County may only
be liable under section 1983 if its official “policy” or “custom” caused a violation
of the plaintiff’s constitutional rights. 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, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). An “official policy”
involves a deliberate choice to follow a course of action made from among various
alternatives by an official who has the final authority to establish governmental
policy. Jane Doe A By & Through Jane Doe B v. Special Sch. Dist. of St. Louis
Cnty., 901 F.2d 642, 645 (8th Cir. 1990) (citing Pembaur v. City of Cincinnati, 475
U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). To establish the existence
of a governmental custom, a plaintiff must prove:
1) The existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entity’s employees;
2) Deliberate indifference to or tacit authorization of such conduct by
the governmental entity’s policymaking officials after notice to the
officials of that misconduct; and
3) That plaintiff was injured by acts pursuant to the governmental
entity’s custom, i.e., that the custom was the moving force behind the
Jane Doe, 901 F.2d at 646.
Here, Plaintiff alleges that Lancaster County has a policy or custom of
unconstitutionally issuing citations without the signature of a “judicial officer.” It
is not a policy or custom of Lancaster County to issue a citation without the
signature of a judicial officer. It is the law.
It is hereby declared to be the policy of the State of Nebraska to issue
citations in lieu of arrest or continued custody to the maximum extent
consistent with the effective enforcement of the law and the protection
of the public. In furtherance of that policy, except as provided in
sections 42-928 and 42-929, any peace officer shall be authorized to
issue a citation in lieu of arrest or continued custody for any offense
which is a traffic infraction, any other infraction, or a misdemeanor
and for any violation of a city or village ordinance. Such authorization
shall be carried out in the manner specified in sections 29-422 to 29429 and 60-684 to 60-686.
Neb. Rev. Stat. § 29-422 (West). See also, Neb. Rev. Stat. §§ 29-423 through 29425 (content and service of citations). Liberally construed, Plaintiff may suggest
that Lancaster County has a policy or custom of racial profiling. However, Plaintiff
does not allege that a county policy making official had notice of, was deliberately
indifferent to, or authorized the practice of racial profiling. Instead, Plaintiff’s
allegations are largely conclusory. Accordingly, Plaintiff has failed to allege
sufficient facts to “nudge” his claims against Lancaster County across the line from
conceivable to plausible under the Jane Doe standard.
Liberally construed, Plaintiff asserts claims against Loos, although he is not
named as a defendant in the caption. See Miller v. Hedrick, 140 Fed. App’x 640,
641 (8th Cir. 2005) (citing Rice v. Hamilton Air Force Base Commissary, 720 F.2d
1082, 1085 (9th Cir. 1983) (“[A] party may be properly in a case if the allegations
in the body of the complaint make it plain that the party is intended as a
defendant.”)). The court must presume that he is sued in his official capacity. 3 The
court construes a suit against Loos in his official capacity as a suit against
Lancaster County.4 Therefore, Plaintiff has failed to allege sufficient facts to
“nudge” his claims against Loos across the line from conceivable to plausible for
the same reasons that he failed to “nudge” his claims against Lancaster County
across the line.
On the court’s own motion, the court will provide Plaintiff an opportunity to
file an amended complaint that states a claim upon which relief may be granted.
Plaintiff shall file his amended complaint no later than May 31, 2017.
IT IS THEREFORE ORDERED that:
Plaintiff shall file an amended complaint that states a claim upon
which relief may be granted by May 31, 2017. Failure to file an amended
complaint within the time specified by the court will result in the court dismissing
this case without further notice to Plaintiff.
The clerk of the court is directed to set a pro se case management
deadline using the following text: May 31, 2017, check for amended complaint.
See Alexander v. Hedback, 718 F.3d 762, 766 n.4 (8th Cir. 2013) (“‘This
court has held that, in order to sue a public official in his or her individual capacity,
a plaintiff must expressly and unambiguously state so in the pleadings, otherwise,
it will be assumed that the defendant is sued only in his or her official capacity.’”)
(quoting Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999)).
See Johnson, 172 F.3d at 535 (“A suit against a public employee in his or
her official capacity is merely a suit against the public employer.”).
Dated this 1st day of May, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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