Paez v. Nutsch

Filing 14

MEMORANDUM AND ORDER regarding Complaint 1 filed by Benjamin Paez. After initial review,1. All § 1983 claims alleged against Defendant in his official capacity are dismissed with prejudice.2. Plaintiff shall have 30 days to file an amended complaint against Defendant in his individual capacity only. Failure to file an amended complaint within the time specified by the court will result in the court entering a final judgment of dismissal with prejudice, and closing this case, wi thout further notice to Plaintiff.3. In the event Plaintiff files an amended complaint, Plaintiff shall restate the allegations of the Complaint (Filing 1 ) and any new allegations. Failure to consolidate all claims into one document may result in the abandonment of claims. Plaintiff is warned that an amended complaint will supersede, not supplement, his prior pleadings.4. The court reserves the right to conduct further review of Plaintiff's claims in the event he files an amended complaint.5. The Clerk of the Court is directed to set a pro se case management deadline using the following text: March 22, 2021amended complaint due.6. Plaintiff's motion to appoint counsel (Filing 5 ) is denied without prejudi ce to reassertion.7. 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 without further notice. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(JAB)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BENJAMIN PAEZ,

4:20CV3108

Plaintiff,
MEMORANDUM
AND ORDER

vs.
M. J. NUTSCH, NSP Troop E. Badge # 321,
Defendant.

Plaintiff, a state prisoner, filed his pro se Complaint on September 14, 2020.
(Filing 1.) Plaintiff was granted leave to proceed in forma pauperis on November 3,
2020. (Filing 10.) Now that Plaintiff has paid the required initial partial filing fee,
the court 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
Plaintiff alleges Defendant, a Nebraska State Patrol Trooper, conducted an
unlawful search of Plaintiff’s vehicle and person—including a roadside visual body
cavity search—and unlawfully seized Plaintiff’s cell phone during a 2-hour traffic
stop on May 27, 2020. Plaintiff also claims he is a victim of racial profiling. No
arrest was made, but Plaintiff was cited for speeding and possession of less than one
ounce of marijuana. Plaintiff alleges those charges were later dropped.
II. STANDARDS ON INITIAL REVIEW
The court is required to conduct an initial review of “a complaint in a civil
action in which a prisoner seeks redress from a governmental entity or officer or
employee of a governmental entity.” 28 U.S.C.A. ' 1915A(a). On such initial
review, the court must dismiss the complaint if it: “(1) is frivolous, malicious, or
fails to state a claim upon which relief may be granted; or (2) seeks monetary relief
from a defendant who is immune from such relief.” 28 U.S.C.A. ' 1915A(b). See

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also 28 U.S.C. ' 1915(e)(2)(B) (requiring dismissal of in forma pauperis complaints
“at any time” on the same grounds as ' 1915A(b)).
“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)). 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.”).
“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). This means that “if the essence of an
allegation is discernible, even though it is not pleaded with legal nicety, then the
district court should construe the complaint in a way that permits the layperson’s
claim to be considered within the proper legal framework.” Stone v. Harry, 364 F.3d
912, 915 (8th Cir. 2004). However, even pro se complaints are required to allege
facts which, if true, state a claim for relief as a matter of law. Martin v. Aubuchon,
623 F.2d 1282, 1286 (8th Cir. 1980).
III. ANALYSIS OF COMPLAINT
Liberally construing Plaintiff's Complaint, this is a civil rights action brought
under 42 U.S.C. § 1983 to recover damages for alleged violations of Plaintiff's rights
under the Fourth and Fourteenth Amendments to the United States Constitution. To
state a claim under § 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).

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“A plaintiff may assert § 1983 claims against a public official acting in his
individual capacity and in his official capacity. For many reasons, including
exposure to individual damage liability and the State’s Eleventh Amendment
immunity, these are different causes of action.” Baker v. Chisom, 501 F.3d 920, 923
(8th Cir. 2007). “Because section 1983 liability exposes public servants to civil
liability and damages, [the Eighth Circuit] ha[s] held that only an express statement
that they are being sued in their individual capacity will suffice to give proper notice
to the defendants. Absent such an express statement, the suit is construed as being
against the defendants in their official capacity. A suit against a public employee in
his or her official capacity is merely a suit against the public employer.” Johnson v.
Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (citations omitted); see
Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989) (“As a judgment against a public
servant in his individual capacity exposes him or her to compensatory and punitive
damages, we have repeatedly stated that section 1983 litigants wishing to sue
government agents in both capacities should simply use the following language:
‘Plaintiff sues each and all defendants in both their individual and official
capacities.’” (quoting Rollins by Agosta v. Farmer, 731 F.2d 533, 536 n. 3 (8th Cir.
1984)); Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir. 1995) (“If a
plaintiff’s complaint is silent about the capacity in which she is suing the defendant,
we interpret the complaint as including only official-capacity claims.”); Artis v.
Francis Howell N. Band Booster Ass’n, Inc., 161 F.3d 1178, 1182 (8th Cir. 1998)
(“If the complaint does not specifically name the defendant in his individual
capacity, it is presumed he is sued only in his official capacity.”); Andrus ex rel.
Andrus v. Arkansas, 197 F.3d 953, 955 (8th Cir. 1999) (“If a complaint is silent, or
only hints at the capacity in which a state officer is sued for monetary damages, the
complaint should be interpreted as an official-capacity claim. In actions against
officers, specific pleading of individual capacity is required to put public officials
on notice that they will be exposed to personal liability.” (citations omitted)).
Here, Plaintiff does not specify that Defendant is being sued in his individual
capacity. Plaintiff does state in his Complaint that “[t]he trooper and agencecy [sic]
should be held accountable” (Filing 1 at 6), and that he seeks to “[h]old the Officer
and agency accountable for [his] trauma and mental abuse” (Filing 1 at 8), but these
statements are not clear enough under Eighth Circuit precedent to give Defendant
notice that he may be personally liable for damages. “Nix requires that a plaintiff’s
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complaint contain a clear statement of her wish to sue defendants in their personal
capacities.” Egerdahl, 72 F.3d at 620 (referring to defendants by name rather than
by official position not sufficient notice). “A ‘cryptic hint’ in plaintiff's complaint is
not sufficient.” Baker, 501 F.3d at 924 (quoting Egerdahl, 72 F.3d at 620, and
holding that complaint’s references to “individual Defendants” and request for
exemplary damages, which may not be recovered in an official-capacity suit, were
not sufficient notice). Thus, Plaintiff’s Complaint will be construed as alleging only
an official-capacity claim against Defendant, which, in effect, is a claim brought
against the Nebraska State Patrol.
The Nebraska State Patrol is a department of the State of Nebraska. See Neb.
Rev. Stat. § 81-2001; Steckelberg v. Rice, 184 F. Supp. 3d 746, 754 n. 4 (D. Neb.
2016), aff'd, 878 F.3d 630 (8th Cir. 2017). The Eleventh Amendment bars claims for
damages that are brought in federal court by private parties against a state, a state
instrumentality, or a state employee who is sued in his or her official capacity. Webb
v. Nebraska, No. 8:19CV416, 2019 WL 5684393, at *4 (D. Neb. Nov. 1, 2019)
(citing Egerdahl, 72 F.3d at 619; Dover Elevator Co. v. Arkansas State Univ., 64
F.3d 442, 446-47 (8th Cir. 1995)). In addition, States or governmental entities that
are considered arms of the state are not suable “persons” within the meaning of 42
U.S.C. § 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 70 (1989).
Plaintiff’s § 1983 claims alleged against Defendant in his official capacity
will therefore be dismissed with prejudice. See Tex. Cmty. Bank, N.A. v. Mo. Dep’t
of Soc. Servs., Div. of Med. Servs., 232 F.3d 942, 943 (8th Cir. 2000) (where
Eleventh Amendment barred suit, state agency was entitled to dismissal with
prejudice); Warren v. Fort Dodge Corr. Facility, 372 F. App’x 685 (8th Cir. 2010)
(modifying dismissal to be with prejudice). However, the court on its own motion
will give Plaintiff 30 days to file an amended complaint against Defendant in his
individual capacity only. In anticipation of such filing, the court will briefly review
the allegations of Plaintiff’s Complaint and discuss pleading requirements.
Plaintiff claims his “civil rights were violated by being stripped [sic] searched
on the side of the highway without a warrant ….” (Filing 1 at 7.) The facts alleged
in the Complaint (Filing 1 at 5-6) are sufficient to support this claim, which arises
under the Fourth Amendment.
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The Fourth Amendment guarantees that the “right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. amend. IV. “Searches conducted outside the judicial process,
without prior approval by judge or magistrate, are per se unreasonable under the
Fourth Amendment—subject only to a few specifically established and welldelineated exceptions.” United States v. Vore, 743 F.3d 1175, 1179 (8th Cir. 2014)
(quoting Katz v. United States, 389 U.S. 347, 357 (1967)).
In the Eighth Circuit, a plaintiff has the burden of proof in a § 1983 action
claiming a Fourth Amendment violation for a warrantless search. Der v. Connolly,
666 F.3d 1120, 1127 (8th Cir. 2012). However, the defendant has the burden of
producing evidence that an exception to the warrant requirement applies.
As the Seventh Circuit explained, “[e]ven if a presumption of
unreasonableness arises from the fact of a warrantless search [or entry],
that does not serve in a civil case to shift ‘the burden of proof in the
sense of the risk of nonpersuasion.’” Valance [v. Wisel, 110 F.3d 1269,
1279 (7th Cir. 1997)] (quoting Fed. R. Evid. 301). Instead, such
“presumption merely serves to impose on the defendant ‘the burden of
going forward with evidence to meet or rebut the presumption.’” Id.
(quoting Fed. R. Evid. 301). A defendant may satisfy this burden of
production by “produc[ing] evidence of consent or of some other
recognized exception to the warrant requirement.” Id. at 1278. “Yet
once the defendant has done so, ‘the ultimate risk of nonpersuasion
must remain squarely on the plaintiff in accordance with established
principles governing civil trials.’” Id. (quoting Ruggiero [v. Krzeminski,
928 F.2d 558, 563 (2d Cir. 1991))].
Id., at 1128. “A plaintiff claiming that her Fourth Amendment rights were violated
by a warrantless [search or] entry need not plead facts affirmatively showing the
absence of any exception to the warrant requirement, because the absence of such
an exception is not a part of the plaintiff’s prima facie case.” Payne v. Galie, 574 F.
App’x 26, 27 (2d Cir. 2014) (citing Ruggiero, 928 F.2d at 563).
Plaintiff specifically alleges that his person was searched without a warrant.
In addition, Plaintiff has alleged facts showing that the search was conducted in an
unreasonable manner, as he was made to “pull down [his] pants by the side of the
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road and show [his] scrotum and body cavity area” to Defendant. (Filing 1 at 5.) This
strip search allegedly was conducted in front of Plaintiff’s mother and a close family
friend, and in full view of passing traffic on a busy highway. (Ibid.)
“In determining reasonableness, courts must consider the scope of the
particular intrusion, the manner in which it is conducted, the justification for
initiating it, and the place in which it is conducted.” United States v. Williams, 477
F.3d 974, 975 (8th Cir. 2007). To comport with the Fourth Amendment, “strip
searches should be conducted in an area as removed from public view as possible
without compromising legitimate security concerns,” and “not in a degrading,
humiliating or abusive fashion.” Richmond v. City of Brooklyn Center, 490 F.3d
1002, 1008 (8th Cir. 2007); see also Robinson v. Hawkins, 937 F.3d 1128, 1137-38
(8th Cir. 2019) (“We have long prohibited officers from unduly invading personal
rights during a strip search.”).
“A traffic stop for a suspected violation of law is a ‘seizure’ of the occupants
of the vehicle and therefore must be conducted in accordance with the Fourth
Amendment.” Heien v. North Carolina, 574 U.S. 54, 60 (2014). “[T]he Fourth
Amendment permits an officer to initiate a brief investigative traffic stop when he
has ‘a particularized and objective basis for suspecting the particular person stopped
of criminal activity.’” Kansas v. Glover, 140 S. Ct. 1183, 1187 (2020) (quoting
United States v. Cortez, 449 U.S. 411, 417-18 (1981)). “A seizure for a traffic
violation justifies a police investigation of that violation.” Rodriguez v. United
States, 575 U.S. 348, 354 (2015).
While Plaintiff admits he “was travling [sic] at a higher rate of speed because
[he] was trying to get [his] mother medical attention,” he complains that “[a]s soon
as the trooper approached my vehicle he asked if [I] had drugs in … my [possession]
and ... I was detained for approx. 2 hours.” (Filing 1 at 5.) Plaintiff alleges that after
he handed over his license and registration, Defendant “asked me if [I] had been
smoking marijuana[. I] said no. [H]e asked me to step out of my vehicle …. He made
me get out of my car[,] patted me down and made me sit in the back of the police
cruiser…. He told me … he was aware of who [I] was and that he felt that … [I] was
running drugs on his highways. He then made my sick mother and her best friend
stand approx. 25 yards [off] the highway in a culvert in knee high weeds. While
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searching my vehicle he stops[,] comes to the police cruiser and states we have …
some things to discuss. I asked if I was under arrest[. He] stated not at this time but
that while he was searching my car [I] had [received] a text saying [something] about
drug transactions…. [H]e said that at that point he has probable cause to search and
[seize] my phone.” (Ibid.)
As already discussed, Plaintiff is not required to plead facts affirmatively
showing the absence of any exception to the warrant requirement. But, conversely,
if the facts pleaded by Plaintiff show that an exception does apply, then a plausible
Fourth Amendment claim has not been stated. Plaintiff’s admission that he was
traveling “at a higher rate of speed” is evidence that Defendant acted reasonably in
pulling Plaintiff’s vehicle over, even if the speeding ticket was later dismissed.
“Because addressing the infraction is the purpose of the stop, it may ‘last no
longer than is necessary to effectuate th[at] purpose.’” Rodriguez, 575 U.S. at 354
(quoting Florida v. Royer, 460 U.S. 491, 500 (1983)). “Authority for the seizure thus
ends when tasks tied to the traffic infraction are—or reasonably should have been—
completed.” Id. “[T]he Fourth Amendment tolerate[s] certain unrelated
investigations that [do] not lengthen the roadside detention. Id. (citing Arizona v.
Johnson, 555 U.S. 323, 327-28 (2009); Illinois v. Caballes, 543 U.S. 405, 406
(2005)). However, a traffic stop “can become unlawful if it is prolonged beyond the
time reasonably required to complete th[e] mission’ of issuing a … ticket.” Id. at
354-55 (quoting Caballes, 543 U.S., at 407). The seizure remains lawful only “so
long as [unrelated] inquiries do not measurably extend the duration of the stop.” Id.
at 355 (quoting Johnson, 555 U.S., at 333). Liberally construing Plaintiff’s
allegations, he is claiming Defendant unreasonably prolonged the traffic stop in
order to conduct a drug investigation, in violation of the Fourth Amendment.
“[O]nce a motor vehicle has been lawfully detained for a traffic violation, the
police officers may order the driver to get out of the vehicle without violating the
Fourth Amendment’s proscription of unreasonable searches and seizures.” Johnson,
555 U.S. at 331 (quoting Pennsylvania v. Mimms, 434 U.S. 106, 111 n. 6 (1977) (per
curiam)). This rule also applies to passengers. Id. (citing Maryland v. Wilson, 519
U.S. 408, 415 (1997)). However, “[t]o justify a patdown of the driver or a passenger
during a traffic stop, … the police must harbor reasonable suspicion that the person
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subjected to the frisk is armed and dangerous. Id. at 327. Because the facts alleged
by Plaintiff do not show Defendant had reason to believe Plaintiff was armed and
dangerous, the patdown search is presumptively unlawful.
Similarly, the facts alleged in Plaintiff’s Complaint do not show that any
recognized exception to the warrant requirement for a vehicle search is applicable
here. For instance, the automobile exception permits the warrantless search of a
vehicle if police “had probable cause to believe the vehicle contained contraband or
other evidence of a crime before the search began.” Vore, 743 F.3d at 1179 (quoting
United States v. Wells, 347 F.3d 280, 287 (8th Cir. 2003)). Plaintiff’s allegations do
not show there was probable cause for the search.
Nor do the facts alleged in Plaintiff’s Complaint show that the warrantless
seizure of his cell phone was lawful. The seizure was not made incident to an arrest,
see e.g., Riley v. California, 573 U.S. 373, 388, (2014); rather, the phone allegedly
was seized after Defendant viewed an incoming text message during his search of
Plaintiff’s vehicle. Plaintiff alleges he refused Defendant’s request to unlock the
phone, which had already been confiscated.
Plaintiff alleges that after being asked to step out of the vehicle, he told
Defendant he felt like he was being racially profiled because of the appearance of
his vehicle, a 2006 Chevy Impala Super Sport with twenty-two inch chrome wheels
and a custom paint job. (Filing 1 at 5.) Plaintiff also alleges he “feel[s] that if [he]
wasn’t a Latino [he] wouldn[’]t have been subjected to such behaviors and a lack of
professionality by an agency that [he] held in such high regard.” (Ibid.) Plaintiff “felt
that [he] had been subjected to radical racial profiling, ….” (Ibid. at 6.)
“[T]he Constitution prohibits selective enforcement of the law based on
considerations such as race. But the constitutional basis for objecting to intentionally
discriminatory application of laws is the Equal Protection Clause, not the Fourth
Amendment.” Whren v. United States, 517 U.S. 806, 813 (1996). A Fourteenth
Amendment equal protection claim based on a traffic stop “does not require proof
that [Plaintiff] was stopped without probable cause or reasonable suspicion to
believe [he] committed a traffic violation. But [he] must prove that [Defendant]
exercised his discretion to enforce the traffic laws on account of [his] race, which
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requires proof of both discriminatory effect and discriminatory purpose.” Johnson
v. Crooks, 326 F.3d 995, 999-1000 (8th Cir. 2003) (citing United States v.
Armstrong, 517 U.S. 456, 465 (1996)). “When the claim is selective enforcement of
the traffic laws or a racially-motivated arrest, the plaintiff must normally prove that
similarly situated individuals were not stopped or arrested in order to show the
requisite discriminatory effect and purpose.” Id. at 1000. It may also be possible to
prove such an equal protection claim with direct evidence of racial discrimination.
Id. (assuming without deciding). Claims that searches or other types of seizures were
conducted in violation of the Equal Protection Clause will also require proof of both
discriminatory effect and discriminatory purpose.
In the context of employment discrimination claims, at least, the Supreme
Court has “negated any need to plead a prima facie case.” Blomker v. Jewell, 831
F.3d 1051, 1056 (8th Cir. 2016) (citing Swierkiewicz v. Sorema, 534 U.S. 506, 512
(2002). If that same rule applies to equal protection claims involving searches and
seizures, then Plaintiff is not required to allege that similarly situated, non-Hispanic
individuals were treated differently. See, e.g., Shqeirat v. U.S. Airways Grp., Inc.,
515 F. Supp. 2d 984, 996 (D. Minn. 2007) (complaint alleging plaintiffs were
arrested without probable cause because of their race and religion was sufficient
under Swierkiewicz). However, the plausibility pleading standard under Twombly
“asks for more than a sheer possibility that a defendant has acted unlawfully.”
Blomker, 831 F.3d at 1056 (quoting Twombly, 550 U.S. at 570). “[E]lements of the
prima facie case are not irrelevant to a plausibility determination in a discrimination
suit” and “are part of the background against which a plausibility determination
should be made.” Id. (citations and internal marks omitted). “While a plaintiff need
not set forth detailed factual allegations or specific facts that describe the evidence
to be presented, the complaint must include sufficient factual allegations to provide
the grounds on which the claim rests. Gregory v. Dillard’s, Inc., 565 F.3d 464, 473
(8th Cir. 2009) (en banc) (quotations and citations omitted).
Plaintiff’s allegations that he “felt” there was racial profiling are not sufficient
under the Twombly pleading standard. For a complaint to state a facially plausible
claim, the factual allegations must be sufficient to “raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. A plaintiff satisfies the plausibility
requirement when he “pleads factual content that allows the court to draw the
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reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678. This standard requires the plaintiff to allege “more than a sheer
possibility that a defendant has acted unlawfully.” Id.
Finally, Plaintiff has requested that he be appointed counsel. (Filing 1 at 8;
Filing 5.) The court cannot routinely appoint counsel in civil cases. In Davis v. Scott,
94 F.3d 444, 447 (8th Cir.1996), the 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. The request for the appointment of counsel is
therefore denied without prejudice.
IV. CONCLUSION
Because Plaintiff has not specified that Defendant is sued in his individual
capacity, Plaintiff’s Complaint is subject to preservice dismissal under 28 U.S.C. ''
1915(e)(2) and 1915A. An action cannot be maintained against Defendant in his
official capacity under 42 U.S.C. § 1983. However, the court on its own motion will
give Plaintiff 30 days to file an amended complaint in which Defendant is sued in
his individual capacity only. Plaintiff’s request to appoint counsel is denied.
IT IS THEREFORE ORDERED:
1.
All § 1983 claims alleged against Defendant in his official capacity are
dismissed with prejudice.
2.
Plaintiff shall have 30 days to file an amended complaint against
Defendant in his individual capacity only. Failure to file an amended complaint
within the time specified by the court will result in the court entering a final judgment
of dismissal with prejudice, and closing this case, without further notice to Plaintiff.
3.
In the event Plaintiff files an amended complaint, Plaintiff shall restate
the allegations of the Complaint (Filing 1) and any new allegations. Failure to
consolidate all claims into one document may result in the abandonment of claims.
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Plaintiff is warned that an amended complaint will supersede, not supplement, his
prior pleadings.
4.
The court reserves the right to conduct further review of Plaintiff's
claims in the event he files an amended complaint.
5.
The Clerk of the Court is directed to set a pro se case management
deadline using the following text: March 22, 2021—amended complaint due.
6.
Plaintiff's motion to appoint counsel (Filing 5) is denied without
prejudice to reassertion.
7.
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 without further
notice.
Dated this 18th day of February, 2021.
BY THE COURT:

Richard G. Kopf
Senior United States District Judge

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