Petitphait v. Christensen et al

Filing 8

MEMORANDUM OPINION on the court's own motion. Plaintiff has failed to allege sufficient facts to state a claim upon which relief may be granted against the City of Omaha. In light of this, plaintiffs Amended Complaint will be dismissed without prejudice. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party) (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RAFAEL J. PETITPHAIT,

)
)
Plaintiff,
)
)
v.
)
)
JEREMY CHRISTENSEN # 1632,
)
KEITH WILLIAMSON # 1635,
)
OMAHA POLICE DEPARTMENT,
)
)
Defendants.
)
______________________________)

8:12CV45

MEMORANDUM OPINION

This matter is before the Court on its own motion.

On

March 26, 2012, the Court conducted an initial review of
plaintiff’s Complaint and found that plaintiff failed to state a
claim upon which relief may be granted (Filing No. 6).
the Court gave plaintiff the opportunity to amend.
CM/ECF p. 5.)

However,

(Id. at

On March 29, 2012, plaintiff filed an Amended

Complaint (Filing No. 7).
In his Amended Complaint, plaintiff raises an equal
protection claim.

(Id.)

For the reasons discussed below,

plaintiff’s Amended Complaint fails to state a claim upon which
relief may be granted.
I.

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).

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. &

Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations
omitted).
III. DISCUSSION OF CLAIMS
As the Court previously informed plaintiff, the Equal
Protection Clause “requires the government to treat similarly
situated people alike.”

Klinger v. Department of Corrections, 31

F.3d 727, 731 (8th Cir. 1994).

To state an equal protection
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claim, a plaintiff must establish that he was treated differently
from others similarly situated.

Johnson v. City of Minneapolis,

152 F.3d 859, 862 (8th Cir. 1998); see also Mathers v. Wright,
636 F.3d 396, 399 (8th Cir. 2011) (concluding that to state a
class-of-one equal protection claim, a plaintiff must allege that
a defendant intentionally treated her differently from others who
are similarly situated and that no rational basis existed for the
difference in treatment); Flowers v. City of Minneapolis, 558
F.3d 794, 799-800 (8th Cir. 2009) (holding that while a police
officer’s investigative decisions remain subject to traditional
class-based equal protection analysis, they may not be attacked
in a class-of-one equal protection claim).

Different treatment

of dissimilarly situated persons does not violate the equal
protection clause.

Barket, Levy & Fine, Inc. v. St. Louis

Thermal Energy Corp., 21 F.3d 237, 242 (8th Cir. 1994).
Here, plaintiff alleges that Dean Cameron (“Cameron”)
assaulted him and then called the police (Filing No. 7; see also
Filing No. 1).

Plaintiff asserts that Cameron is Caucasian, but

does not describe his own race or skin color (Filing No. 7).
When Omaha Police Officers Jeremy Christensen (“Christensen”) and
Keith Williamson (“Williamson”) arrived, they handcuffed
plaintiff and went to talk to Cameron, who “lied” and told them
that plaintiff was making terroristc threats.

(Id.)

Subsequently, Christensen and Williamson arrested plaintiff for
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making terroristic threats and issued him a ticket for assault.
(Id.)

Plaintiff states that he did not make any terroristic

threats and he feels that Christensen and Williamson
discriminated against him.

(Id.)

Even when liberally construed, plaintiff’s Amended
Complaint does not allege facts sufficient to nudge his equal
protection claim across the line from conceivable to plausible.
Indeed, plaintiff does not describe his race or his skin color,
nor does he explain how he is similarly situated to Cameron.
Moreover, plaintiff does not specify the capacity in which he
sues Christensen and Williamson.

Because plaintiff does not

specify the capacity in which he sues Christensen and Williamson,
the Court assumes that plaintiff sues Christensen and Williamson
in their official capacities only.

See, e.g., Johnson v.

Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (“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.”).

Claims against Christensen and Williamson in their

official capacities only are actually claims against their
employer, the City of Omaha, Nebraska.

See Parrish v. Luckie,

963 F.2d 201, 203 n.1 (8th Cir. 1992) (“Suits against persons in
their official capacity are just another method of filing suit

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against the entity. . . . A plaintiff seeking damages in an
official-capacity suit is seeking a judgment against the entity.
. . . Therefore, the appellants in this case will collectively be
referred to as the City.”) (quotations omitted).

Accord Eagle v.

Morgan, 88 F.3d 620, 629 n.5 (8th Cir. 1996) (“‘[A]n officialcapacity suit is, in all respects other than name, to be treated
as a suit against the entity.’”) (quoting Kentucky v. Graham, 473
U.S. 159, 165 (1985)).
As a municipality, the City of Omaha may be liable
under Section 1983 if its “policy” or “custom” caused a violation
of 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 (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 Cnty., 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;
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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.
Here, plaintiff does not allege that the City of Omaha
practices any unconstitutional misconduct, that the City of
Omaha’s policymaking officials authorized any unconstitutional
misconduct, or that any unconstitutional custom was the moving
force behind his injuries.

Even with the most liberal

construction, plaintiff has failed to allege sufficient facts to
state a claim upon which relief may be granted against the City
of Omaha.

In light of this, plaintiff’s Amended Complaint will

be dismissed without prejudice.

A separate order will be entered

in accordance with this memorandum opinion.
DATED this 6th day of April, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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