Ashford v. City of Omaha et al

Filing 14

MEMORANDUM AND ORDER - Plaintiffs claims against Defendants may proceed and service is now warranted. To obtain service of process on Defendants, Plaintiff must complete and return the summons form which the Clerk of the court will provide. The Cle rk of the court shall send TWENTY FOUR (24) summons forms and TWENTY FOUR (24) USM-285 forms (for service on the individual Defendants and the municipal Defendants separately) to Plaintiff together with a copy of this Memorandum andOrder. Plaintiff shall, as soon as possible, complete the forms and send the completed forms back to the Clerk of the court. In the absence of the forms, service of process cannot occur. Plaintiff is hereby notified that failure to obtain service of process on a defendant within 120 days of the date of this order may result in dismissal of this matter without further notice as to such defendant. Plaintiffs Motion to Reinstate Case (filing no. 11 ) is granted. The Clerk of the court is directed to reopen this matter in accordance with this Memorandum and Order. The Clerk of the court is directed to update Plaintiffs address pursuant to Filing No. 11 . [ ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 2/20/2013: Check for completion of service of summons), Case reopened. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party with 24 summons/USM-285 forms)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DEVIN ASHFORD,
Plaintiff,
v.
CITY OF OMAHA, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

8:12CV166

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s Motion to Reinstate Case. (Filing
No. 11.) The court dismissed this matter on July 2, 2012, because Plaintiff failed to
inform the court of his current address. (Filing No. 8.) Plaintiff has now updated his
address, and seeks reinstatement of this matter. (Filing No. 11.) For good cause
shown, the court will reopen this matter. However, because Plaintiff is proceeding
in forma pauperis, 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 in this matter against the City of Omaha,
Nebraska, Douglas County, Nebraska, and 31 individuals, including 10 “John Does.”
(Filing No. 1 at CM/ECF pp. 1-2.) The individual Defendants are sued in both their
official and individual capacities and Plaintiff has alleged that each of them was
involved in the violation of his constitutional rights. (Id.)
Condensed and summarized, Plaintiff alleges that he was arrested on May 11,
2010, without a warrant and without probable cause. (Id. at CM/ECF pp. 5, 7.)
Defendants City of Omaha and Douglas County, Nebraska “directed defendants to
lock-up Plaintiff” and charge him with second degree assault and use of a weapon to
commit a felony. (Id.) Defendants booked Plaintiff into the “Douglas County Jail,”

where he remained for six months, until the charges were dismissed on October 8,
2010. (Id. at CM/ECF pp. 5-6.) Plaintiff alleges that his arrest violated the Fourth
Amendment and was the result of a “custom, policy, or official act of Defendants”
and “a failure to properly train the officers and a failure to properly supervise the
officers.” (Id. at CM/ECF pp. 6-7.) Plaintiff seeks more than $200,000 in damages
for his Fourth Amendment claim, and his separate state law claims. (Id. at CM/ECF
pp. 9-10.)
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). 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. 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).

2

III.

DISCUSSION OF CLAIMS

“The Fourth Amendment prohibits a warrantless entry of a home by law
enforcement officers unless the circumstances are within a reasonableness exception
to the warrant requirement.” U.S. v. Clarke, 564 F.3d 949, 958-59 (8th Cir. 2009).
However, the Eighth Circuit has recognized a “reasonableness exception to the
warrant requirement which allows a non-consensual, warrantless search of a home if
the search is supported by probable cause and exigent circumstances.” Id. at 959; see
also United States v. Hogan, 539 F.3d 916, 922 (8th Cir. 2008). When examining if
a search is reasonable, courts consider “all the circumstances of the particular
governmental invasion of a citizen’s personal security.” Terry v. Ohio, 392 U.S. 1,
19 (1968).
In addition, “[i]t is well established that a warrantless arrest without probable
cause violates an individual’s constitutional rights under the Fourth and Fourteenth
Amendments.” Hannah v. City of Overland, Mo., 795 F.2d 1385, 1389 (8th Cir.
1986). “An officer has probable cause to arrest a suspect without a warrant if the
‘facts and circumstances within the officer’s knowledge . . . are sufficient to warrant
a prudent person, or one of reasonable caution, in believing, in the circumstances
shown, that the suspect has committed, is committing, or is about to commit an
offense.’” Arnott v. Mataya, 995 F.2d 121, 124 (8th Cir. 1993) (quoting Michigan
v. DeFillippo, 443 U.S. 31, 37 (1979)).
Here, Plaintiff has alleged that Defendants arrested him without a warrant and
without probable cause. (Filing No. 1.) Plaintiff has further alleged that the unlawful
arrest, and six-month incarceration, was the direct result of an unconstitutional
official custom or policy promoted and sanctioned by the City of Omaha, Douglas
County, and its officers. (Id.) Liberally construing the Complaint, and at this early
stage of the proceedings, the court finds that Plaintiff has alleged sufficient facts to
nudge his Fourth Amendment claim across the line from conceivable to plausible.
3

However, the court cautions Plaintiff that this is a preliminary determination based
only on the allegations of the Complaint and is not a determination of the merits of
Plaintiff's claims or potential defenses thereto.
Liberally construing the Complaint, Plaintiff may also have claims for
violations of state law such as false arrest, malicious prosecution, and/or “abuse of
process.” (Filing No. 1.) The court makes no finding regarding its jurisdiction over
such claims, pending service and a response from Defendants.
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s claims against Defendants may proceed and service is now
warranted.
2.
To obtain service of process on Defendants, Plaintiff must complete and
return the summons form which the Clerk of the court will provide. The Clerk of the
court shall send TWENTY FOUR (24) summons forms and TWENTY FOUR (24)
USM-285 forms (for service on the individual Defendants and the municipal
Defendants separately) to Plaintiff together with a copy of this Memorandum and
Order. Plaintiff shall, as soon as possible, complete the forms and send the completed
forms back to the Clerk of the court. In the absence of the forms, service of process
cannot occur.
3.
Upon receipt of the completed forms, the Clerk of the court will sign the
summons forms, to be forwarded with a copy of the Complaint, to the U.S. Marshal
for service of process. The Marshal shall serve the summons and Complaint without
payment of costs or fees. Service may be by certified mail pursuant to Fed. R. Civ.
P. 4 and Nebraska law in the discretion of the Marshal. The Clerk of the court will
copy the Complaint, and Plaintiff does not need to do so.

4

4.
Fed. R. Civ. Pro. 4 requires service of a complaint on a defendant within
120 days of filing the complaint. However, because in this order Plaintiff is
informed for the first time of these requirements, Plaintiff is granted, on the court’s
own motion, an extension of time until 120 days from the date of this order to
complete service of process.
5.
Plaintiff is hereby notified that failure to obtain service of process on a
defendant within 120 days of the date of this order may result in dismissal of this
matter without further notice as to such defendant. A defendant has twenty (20) days
after receipt of the summons to answer or otherwise respond to a complaint.
6.
The Clerk of the Court is directed to set a pro se case management
deadline in this case with the following text: “February 20, 2013: Check for
completion of service of summons.”
7.
The parties are bound by the Federal Rules of Civil Procedure and by the
Local Rules of this court. 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.
8.
Plaintiff’s Motion to Reinstate Case (filing no. 11) is granted. The Clerk
of the court is directed to reopen this matter in accordance with this Memorandum
and Order.
9.
The Clerk of the court is directed to update Plaintiff’s address pursuant
to Filing No. 11.
DATED this 24th day of October, 2012.

5

BY THE COURT:
s/ John M. Gerrard
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.
6