Tyler v. Douglas et al
Filing
6
MEMORANDUM AND ORDER - Plaintiff shall have until March 27, 2013, to amend his Complaint and clearly state a claim upon which relief may be granted against Douglas County in accordance with this Memorandum and Order. If Plaintiff fails to file an ame nded complaint, his claims against Defendants 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 March 27, 2013. 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 Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BILLY TYLER,
)
)
Plaintiff,
)
)
v.
)
)
LESLEY DOUGLAS, and COUNTY )
COURT OF NEBRASKKK
)
DOUGLAS COUNTY,
)
)
Defendants.
)
8:12CV443
MEMORANDUM
AND ORDER
Plaintiff filed his Complaint in this matter on December 26, 2012. (Filing No.
1.) Plaintiff 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 under 28 U.S.C. § 1915(e)(2).
I.
SUMMARY OF COMPLAINT
Plaintiff filed his Complaint on December 26, 2012, against the County Court
of Douglas County, Nebraska, and the administrator of the County Court of Douglas
County, Lesley Douglas (“Douglas”). (Filing No. 1 at CM/ECF pp. 1-2.) Plaintiff is
a nonprisoner currently residing in Omaha, Nebraska. (Id.; see Docket Sheet.)
Condensed and Summarized, Plaintiff alleges he failed to appear for a hearing
related to a 2010 “Drug Paraphenalia [sic]” charge. (Filing No. 1 at CM/ECF pp. 1-2.)
Plaintiff was not notified of the hearing and states that Defendants colluded to have
him arrested for failing to appear. (Id.) Plaintiff seeks an injunction against “future
manipulated arrests” and monetary damages. (Id.)
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.
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).
III.
DISCUSSION OF CLAIMS
Plaintiff names Douglas, the county court administrator, as a Defendant in this
matter. (Filing No. 1 at CM/ECF p. 1.) Where a plaintiff fails to “expressly and
unambiguously” state that a public official is sued in his or her individual capacity,
the court “assume[s] that the defendant is sued only in his or her official capacity.”
Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). As set forth
by the Eighth Circuit:
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Because section 1983 liability exposes public servants to civil liability
and damages, we have held that only an express statement that they are
being sued in their individual capacity will suffice to give proper notice
to the defendants. Absent such an express statement, the suit is construed
as being against the defendants in their official capacity.
Id. These rules have been consistently applied to municipal defendants. See, e.g.,
Baker v. Chisom, 501 F.3d 920, 924 (8th Cir. 2007) (affirming dismissal of claims
based on assumption of official capacity only where the plaintiff failed to clearly state
the capacity in which he intended to sue several county defendants); Johnson, 172
F.3d at 535 (assuming official capacity only claims and affirming grant of summary
judgment in favor of county sheriffs). Further, “[a] suit against a public employee in
his or her official capacity is merely a suit against the public employer. Id. Here,
Plaintiff did not specify the capacity in which he sues Douglas. (Filing No. 1.)
Therefore, the court assumes that Douglas is sued in her official capacity only.
Further, the claims against Douglas, in her official capacity, are actually claims
against her employer, Douglas County, Nebraska (“Douglas County”).
Plaintiff also names the County Court of Douglas County, Nebraska, as a
Defendant in this matter. (Filing No. 1.) Like Plaintiff’s claims against Douglas,
Plaintiff’s claims against the County Court of Douglas County, Nebraska, are
construed as claims against Douglas County. As a municipality, Douglas County may
only 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 Sch.
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)).
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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.
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. (Filing No. 1.) Moreover, Plaintiff does not
allege that an unconstitutional custom was the moving force behind his arrest. (Id.)
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 permit 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. If Plaintiff fails to file a sufficient 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.
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IT IS THEREFORE ORDERED that:
1.
Plaintiff shall have until March 27, 2013, to amend his Complaint and
clearly state a claim upon which relief may be granted against Douglas County in
accordance with this Memorandum and Order. If Plaintiff fails to file an amended
complaint, his 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
March 27, 2013.
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 28th day of February, 2013.
BY THE COURT:
Richard G. Kopf
Senior 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,
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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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