Door v. Omaha Police Department et al

Filing 7

MEMORANDUM AND ORDER - Plaintiff's Complaint (filing no. 1 ) is dismissed without prejudice. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party) (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DUOP DOOR,
Plaintiff,
v.
OMAHA POLICE DEPARTMENT,
and JOHN D. BAHLE,
Defendants.

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8:11CV390

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on November 16, 2011. (Filing No.
1.) Plaintiff was previously given leave to proceed in forma pauperis. (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) and 1915A.
I.

SUMMARY OF COMPLAINT

Plaintiff filed his Complaint in this matter against the Omaha Police
Department and Omaha Police Department Officer John Bahle. (Filing No. 1 at
CM/ECF p. 2.) In the Complaint, Plaintiff alleges that he was arrested at his residence
on August 15, 2011, at which time law enforcement officers informed Plaintiff that
they had a warrant for his arrest. However, upon later reading the police reports
provided to him by his public defender, Plaintiff noted that the police reports stated
that “the warrant is awaiting the judge’s approval.” Plaintiff complains that he has yet
to see the “alleged warrant” used to arrest him. (Id. at CM/ECF pp. 5-6.) Plaintiff
seeks $20,000,000.00 in monetary damages. (Id. at CM/ECF p. 7.)
II.

APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW

The court is required to review prisoner and in forma pauperis complaints
seeking relief against a governmental entity or an officer or employee of a

governmental entity to determine whether summary dismissal is appropriate. See 28
U.S.C. §§ 1915(e) and 1915A. 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); 28 U.S.C. § 1915A.
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, 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. 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.

DISCUSSION OF CLAIMS

Liberally construed, Plaintiff complains that the warrant used to secure his
arrest was not valid. However, as set forth by the Supreme Court in Preiser v.
Rodriquez, 411 U.S. 475 (1973), and Heck v. Humphrey, 512 U.S. 477 (1994), if
success on the merits of a civil rights claim would necessarily implicate the validity
of a prisoner’s conviction or continued confinement, the civil rights claim must be
preceded by a favorable outcome in habeas corpus or similar proceeding in a state or
federal forum. Absent such a favorable disposition of the charges or conviction, a
plaintiff may not use 42 U.S.C. § 1983 to cast doubt on the legality of his conviction
or confinement. See Heck, 512 U.S. at 486-87; see also Smith v. Holtz, 87 F.3d 108,
113 (3d Cir. 1996) (applying Heck to a claim that would implicate the validity of a
future conviction on a pending criminal charge).
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It is clear from the face of the Complaint that Plaintiff is incarcerated at the
Douglas County Correctional Center on pending criminal charges related to his arrest
on August 15, 2011. As set forth above, Plaintiff may not bring a civil rights claim
at this time challenging the validity of his incarceration. The court will dismiss
Plaintiff’s claim related to his arrest without prejudice to reassertion in a habeas
corpus or similar proceeding.
IT IS THEREFORE ORDERED that: Plaintiff’s Complaint (filing no. 1) is
dismissed without prejudice. A separate judgment will be entered in accordance with
this Memorandum and Order.
DATED this 3rd day of February, 2012.
BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
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