Jones v. City of North Platte et al

Filing 7

MEMORANDUM AND ORDER - Plaintiff shall have 30 days to amend his Complaint and clearly state a claim upon which relief may be granted in accordance with this Memorandum and Order. If Plaintiff fails to file an amended complaint, Plaintiff's clai ms against Defendants will be dismissed without further notice for failure to state a claim upon which relief may be granted. In the event that Plaintiff files an amended complaint, Plaintiff shall restate the allegations of the current Complaint (f iling no. 1 ) and any new allegations. Failure to consolidate all claims into one document may result in the abandonment of claims. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: Check for amended complaint on September 8, 2011. 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 Judge Richard G. Kopf. (Copy mailed/e-mailed to pro se party) (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARLIN E. JONES,
Plaintiff,
v.
CITY OF NORTH PLATTE, et al.,
Defendants.

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8:11CV130

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on April 7, 2011. (Filing No. 1.)
Plaintiff was given leave to proceed in forma pauperis on May 12, 2011. (Filing No.
6.) The court now conducts an initial review of the Complaint to determine whether
summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I.

SUMMARY OF COMPLAINT

Plaintiff filed his Complaint against the City of North Platte, Nebraska (“North
Platte”), Mike Swain (“Swain”), Jim Ady (“Ady”), and Monte McNeil (“McNeil”).
(Filing No. 1 at CM/ECF p. 1.) According to Plaintiff’s allegations, Swain is the
chief of police in North Platte, while Ady and McNeil are police officers. (Id.)
Liberally construed, Plaintiff alleges that on March 22, 2011, Ady and McNeil
“appeared” at his residence and “proceed[ed] to accuse [him] of a criminal act with
full knowledge that the basis for the accusation was relied upon by false information.”
(Id.) Plaintiff alleges that Ady and McNeil intended to charge Plaintiff with
disturbing the peace, but he closed the door instead of arguing with them. (Id.)
Plaintiff further alleges that a short time later, Swain left Plaintiff a telephone
message instructing him to pick up his citation from the police station. Plaintiff did
not pick up the citation “for fear of being arrested upon refusing to sign it.” (Id.)
Plaintiff seeks $150,000.00 in “actual and compensatory damages,” as well as
attorney fees, costs, and punitive damages. (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, 70 (2007); see also Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (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).
III.
A.

DISCUSSION OF CLAIMS

Federal Law Claims

The court has carefully reviewed Plaintiff’s Complaint. As set forth below, the
court determines that Plaintiff has not set forth enough factual allegations to nudge
his claims across the line from conceivable to plausible.
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Plaintiff alleges Defendants deprived him the right “to be free of intrusion into
his life without a just or probable cause,” and the right to “freedom from false
accusation.” (Filing No. 1 at CM/ECF p. 5.) The court is unable to determine from
the face of the Complaint which, if any, federally cognizable civil rights Plaintiff
alleges to have been deprived. On its own motion, the court will permit Plaintiff 30
days in which to amend his Complaint to sufficiently allege which federal statute or
constitutional provision gives rise to his claim for alleged deprivation of rights.
In addition, to the extent Plaintiff alleges a § 1983 suit against the City of
North Platte, as a municipal defendant, the City of North Platte 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 County, 150
F.3d 920, 922 (8th Cir. 1998) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694
(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
School Dist. of St. Louis County, 901 F.2d 642, 645 (8th Cir.1990) (citing Pembaur
v. City of Cincinnati, 475 U.S. 469, 483 (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
constitutional violation.

Jane Doe, 901 F.2d at 646.
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Here, Plaintiff does not allege that there is a continuing, widespread, persistent
pattern of unconstitutional misconduct by North Platte employees, or that North
Platte’s policymaking officials were deliberately indifferent to or tacitly authorized
any unconstitutional conduct. In addition, Plaintiff does not allege that an
unconstitutional custom was the moving force behind his injuries. Accordingly,
Plaintiff has failed to allege sufficient facts to “nudge” his claims against North Platte
across the line from conceivable to plausible under the Jane Doe standard.
On its own motion, the court will permit Plaintiff 30 days in which to amend
his Complaint to sufficiently allege a claim against North Platte in accordance with
the Jane Doe standard. Any amended complaint must restate the allegations of
Plaintiff’s prior Complaint and any new allegations. Failure to consolidate all claims
into one document will result in the abandonment of claims. If Plaintiff fails to file
an amended complaint in accordance with this Memorandum and Order, this matter
will be dismissed without prejudice for failure to state a claim upon which relief may
be granted.
B.

State Law Claims

Plaintiff’s Complaint enumerates seven “counts” against Defendants including
“False Accusations,” “Negligence,” “Intimidation,” “Harassment,” “Emotional
Distress,” “Pain and Suffering,” and “Deprivation of Rights.” (Id. at CM/ECF pp.
2-5.) Liberally construing the Complaint, the majority of Plaintiff’s claims arise
under state law. At this time the court makes no determination as to the validity of
Plaintiff’s state law claims or whether the court has supplemental jurisdiction over
them.
IT IS THEREFORE ORDERED that:

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1.
Plaintiff shall have 30 days to amend his Complaint and clearly state a
claim upon which relief may be granted in accordance with this Memorandum and
Order. If Plaintiff fails to file an amended complaint, Plaintiff’s claims against
Defendants will be dismissed without further notice for failure to state a claim upon
which relief may be granted.
2.
In the event that Plaintiff files an amended complaint, Plaintiff shall
restate the allegations of the current Complaint (filing no. 1) and any new allegations.
Failure to consolidate all claims into one document may result in the abandonment
of claims.
3.
The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: Check for amended complaint on
September 8, 2011.
4.
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 8th day of August, 2011.
BY THE COURT:
Richard G. Kopf
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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