Abraham v. Douglas County

Filing 6

MEMORANDUM AND ORDER - Plaintiff shall have until November 14, 2011, to amend his complaint and clearly state a claim upon which relief may be granted against Douglas County, Nebraska, in accordance with this memorandum and order. If plaintiff fails to file an amended complaint, plaintiff's complaint will be dismissed without further notice for failure to state a claim upon which relief may be granted. 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 November 14, 2011, and dismiss if none filed. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party) (AOA)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
GARY LAMONT ABRAHAM,

)
)
Plaintiff,
)
)
v.
)
)
DOUGLAS COUNTY SHERIFF DEPT, )
et al.,
)
)
Defendants.
)
______________________________)

8:11CV302

MEMORANDUM AND ORDER

Plaintiff filed his complaint in this matter on
September 7, 2011 (Filing No. 1).

He has previously been given

leave to proceed in forma pauperis (Filing No. 5).

The Court now

conducts an initial review of the complaint to determine whether
summary dismissal is appropriate pursuant to 28 U.S.C. § 1915A.
I.

SUMMARY OF COMPLAINT
Plaintiff filed his complaint against one defendant,

the Douglas County, Nebraska Sheriff’s Department (Filing No. 1
at CM/ECF p. 1).

Plaintiff alleges that four officers came to

his home on August 23, 2011, while he was in the shower.
CM/ECF pp. 3-4.)

When plaintiff answered the door, he was naked

and several of the officers “drew their guns at” him.
CM/ECF p. 4.)

(Id. at

(Id. at

Plaintiff was allowed to put on shorts, but only

after his neighbors saw him naked.

(Id.)

The officers then

searched plaintiff’s home, found nothing, and told him “sorry
wrong person.”

(Id. at CM/ECF p. 5.)

Plaintiff seeks

“compensation” in the amount of $20,000,000.00.

(Id. at CM/ECF

p. 7.)
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).

A pro se plaintiff 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, 129 S. Ct. 1937, 1950 (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.
Cir. 1985).

See Martin v. Sargent, 780 F.2d 1334, 1337 (8th

However, a pro se plaintiff’s allegations must be

construed liberally.

Burke v. North Dakota Dep’t of Corr. &
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Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations
omitted).
III. DISCUSSION OF CLAIMS
Plaintiff names the Douglas County Sheriff’s Department
as the sole Defendant (Filing No. 1)

The Court notes that claims

against this entity are actually claims against Douglas County,
Nebraska.

A county may only be liable under section 1983 if its

“policy” or “custom” caused a violation of plaintiff’s
constitutional rights.

Doe By and Through Doe v. Washington

County, 150 F.3d 920, 922 (8th Cir. 1998) (citing Monell v.
Department 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 and 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
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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.
Here, plaintiff does not allege that there is a
continuing, widespread, persistent pattern of unconstitutional
misconduct by Douglas County or its employees, or that Douglas
County’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
Douglas County across the line from conceivable to plausible
under the Jane Doe standard.
However, on its own motion, the Court will grant
plaintiff 30 days in which to amend his complaint to sufficiently
allege a claim against Douglas County in accordance with the Jane
Doe standard.

Any amended complaint shall restate the

allegations of plaintiff’s prior complaint (Filing No. 1), and
any new allegations.

Failure to consolidate all claims into one

document will result in the abandonment of claims.

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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.
IT IS ORDERED:
1.

Plaintiff shall have until November 14, 2011, to

amend his complaint and clearly state a claim upon which relief
may be granted against Douglas County, Nebraska, in accordance
with this memorandum and order.

If plaintiff fails to file an

amended complaint, plaintiff’s complaint 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 November 14, 2011, and dismiss if
none filed.

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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 14th day of October, 2011.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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