Reaves v. Robitaille et al

Filing 12

MEMORANDUM AND ORDER - For the reasons set forth above, Plaintiff's claims against Burgess are dismissed with prejudice. Plaintiff shall have 30 days from the date of this Memorandum and Order to file an amended complaint that clearly state s a plausible Fourth Amendment claim against Defendants. If Plaintiff fails to file an amended complaint, or the court finds that the amended complaint is insufficient, this matter will be dismissed without further notice for failure to state a cl aim upon which relief may be granted. In the event that Plaintiff files an amended complaint, Plaintiff shall restate the allegations of the current Complaint and any new allegations. Failure to consolidate all claims into one document may result i n the abandonment of claims. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: October 21, 2013: Check for amended complaint. 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 Judge Joseph F. Bataillon. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DANNY D. REAVES,
Plaintiff,
v.
JONATHAN ROBITAILLE, et al.,
Defendants.

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8:13CV141

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on May 2, 2013. (Filing No. 1.)
Plaintiff is a prisoner who has been granted leave to proceed in forma pauperis.
(Filing No. 8.) The court now conducts an initial review of Plaintiff’s claims to
determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and
1915A.
I.

SUMMARY OF COMPLAINT

Plaintiff filed his Complaint against Jonathan Robitaille (“Robitaille”), Matt
Chandler (“Chandler”), Francis Gallo (“Gallo”), Laurie Burgess (“Burgess”), and
“Unknown Law Enforcement Officers.” (Filing No. 1 at CM/ECF pp. 2-3.) Plaintiff
alleges that Robitaille is a federal law enforcement officer, and Chandler and Gallo
are state law enforcement officers. (Id. at CM/ECF p. 2.) Burgess is a prosecutor in
Sarpy County, Nebraska. (Id.) Plaintiff sues Robitaille, Chandler, Gallo, and Burgess
in their individual capacities only.
Plaintiff’s Complaint asserts violations of his rights pursuant to 42
U.S.C.§ 1983, and Bivens v. Six Unknown Named Agents of Fed. Bureau of Nacotics,
403 U.S. 388 (1971). Plaintiff’s factual allegations are somewhat difficult to decipher.
Liberally construed, and as best as the court can tell, Plaintiff alleges that Robitaille
and Gallo violated his Fourth Amendment rights when they knowingly provided false

information in support of an arrest warrant, and Chandler violated his Fourth
Amendment rights when he relied on the arrest warrant he knew to be based on false
information. Specifically, Plaintiff argues that an individual named Shannon Jackson
was arrested following an attempted bank robbery on March 13, 2009. (Filing No. 1
at CM/ECF p. 3.) Also on March 13, 2009, following the attempted robbery, law
enforcement officers recovered various items of physical evidence they believed to
have been used in the commission of the attempted robbery, including “a B.B. gun,
some clothing, backpack, two way radio, and two tasers.” (Id. at CM/ECF p. 4.) On
March 14 and 15, 2009, Shannon Jackson contacted Plaintiff and, apparently in an
attempt to get Plaintiff to hide or conceal evidence, asked Plaintiff to “clean out the
Honey Comb” and locate other items Jackson dropped in a residential neighborhood.
(Id. at CM/ECF p. 5.) These conversations were recorded by law enforcement.
Plaintiff alleges that, notwithstanding his conversations with Plaintiff, he did not
“attempt to locate any items for Jackson.” (Id. at CM/ECF p. 5.)
On April 16, 2009, Robitaille and Gallo prepared and executed an affidavit
offered in support of Plaintiff’s arrest for conspiracy to tamper with physical evidence.
According to Plaintiff, Robitaille and Gallo believed that, based on Plaintiff’s
conversations with Jackson, Plaintiff “was trying to tamper with the book bag, taser,
two-way radio, and the clothing.” (Id. at CM/ECF p. 7.) Plaintiff alleges that, at the
time Robitaille and Gallo prepared the affidavit, they knew that Plaintiff could not
have tampered with these items because these same items had already been recovered
by law enforcement. (Id. at CM/ECF pp. 7-13.) Plaintiff was ultimately charged in
state court with conspiracy to tamper with physical evidence, and those charges were
later dismissed. (Id. at CM/ECF pp. 7-9.)
Liberally construed, Plaintiff also alleges that Burgess violated his civil rights.
He alleges that, following his arrest for conspiracy to tamper with physical evidence,
he bonded out. Shortly thereafter, Burgess scheduled a bond hearing “without

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probable cause and without any reason given,” which resulted in Plaintiff’s arrest. (Id.
at CM/ECF pp. 7-8.)
Plaintiff requests relief in the form of a declaratory judgment, and
compensatory and punitive damages. (Id. at CM/ECF p. 13.)
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.
Therefore, where pro se plaintiffs do not set forth enough factual allegations to
“nudge[] their claims across the line from conceivable to plausible, 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) (overruling Conley v.
Gibson, 355 U.S. 41 (1967), and setting new standard for failure to state a claim upon
which relief may be granted). 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).
Liberally construed, Plaintiff here alleges federal constitutional claims. To state
a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected
by the United States Constitution or created by federal statute and also must show that
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the alleged deprivation was caused by conduct of a person acting under color of state
law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495
(8th Cir. 1993).
Plaintiff also brings this action pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging violations of
his civil rights guaranteed under the United States Constitution. In Bivens, the
Supreme Court held that one is entitled to recover monetary damages for injuries
suffered as a result of federal officials’ violations of the Fourth Amendment.
III.

DISCUSSION OF CLAIMS
A.

Fourth Amendment Claims

Liberally construed, Plaintiff raises Fourth Amendment claims against
Robitaille, Chandler, and Gallo. The Fourth Amendment protects the right of people
to be secure in their persons, houses, papers, and effects against unreasonable searches
and seizures. U.S. Const. amend. IV. “It is well established that the Fourth
Amendment requires a truthful factual showing sufficient to constitute probable cause
before an arrest warrant can issue.” Moody v. St. Charles Co., 23 F.3d 1410, 1412
(8th Cir. 1994). “Information in an affidavit to establish probable cause must be
truthful in the sense that the information put forth is “believed or appropriately
accepted by the affiant as true.” Franks v. Delaware, 438 U.S. 154, 165 (1978).
Here, Plaintiff alleges that Robitaille and Gallo knowingly provided false
information in support of a warrant for Plaintiff’s arrest for conspiracy to tamper with
physical evidence. Specifically, Plaintiff alleges that Defendants “intentionally
omitt[ed] facts that the police [had already] recovered the evidence” they were
accusing Plaintiff of trying to tamper with (i.e., they did not inform the judge that

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Plaintiff could not have actually tampered with the evidence, as it had already been
recovered by law enforcement). (Filing No. 1 at CM/ECF p. 11.)
Plaintiff’s factual allegations are implausible. He attached a copy of the
Affidavit of Probable Cause for Issuance of Arrest Warrant to his Complaint, and
incorporated the document by reference into his Complaint. (See id. at CM/ECF pp.
7, 28-29.) The affidavit clearly sets forth that law enforcement had already recovered
the evidence at the time they believed Plaintiff was attempting to tamper with it. (Id.
at CM/ECF p. 29 (“Bellevue Police had previously recovered clothing, two way
radios, a back and blue backpack and two Tasers . . . .”).) Thus, Plaintiff’s claim that
Defendants intentionally omitted this information, in violation of his Fourth
Amendment rights, fails to state a claim upon which relief may be granted.
Out of an abundance of caution, and because Plaintiff’s factual allegations are
somewhat difficult to decipher, the court will provide Plaintiff with the opportunity
to file an amended complaint that clearly sets forth a Fourth Amendment claim upon
which relief may be granted. On the court’s own motion, Plaintiff shall have 30 days
in which to amend his Complaint to clearly state a claim against Defendants upon
which relief can be granted.
B.

Prosecutorial Immunity

Prosecutors such as Burgess “are entitled to absolute immunity from civil
liability under § 1983 when they are engaged in prosecutorial functions that are
‘intimately associated with the judicial process.’” Schenk v. Chavis, 461 F.3d 1043,
1046 (8th Cir. 2006) (citations omitted). Thus, absolute immunity attaches when a
prosecutor’s actions are “prosecutorial” rather than “investigatory or administrative.”
Id. “Absolute immunity covers prosecutorial functions such as the initiation and
pursuit of a criminal prosecution, the presentation of the state’s case at trial, and other
conduct that is intimately associated with the judicial process.” Brodnicki v. City of
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Omaha, 75 F.3d 1261, 1266 (8th Cir.1996). However, where a prosecutor’s actions
are investigatory or administrative, that individual is entitled only to qualified
immunity. Id. The focus in determining the nature of the prosecutor’s actions is
“whether the [prosecutor’s] act was closely related to [her] role as advocate for the
state.” Id. at 1267.
Liberally construed, Plaintiff alleges that Burgess violated Plaintiff’s civil rights
by scheduling a bond hearing “without probable cause or any reason given,” which
resulted in Plaintiff’s arrest because he did not receive notice of the hearing or attend
the hearing. (Filing No. 1 at CM/ECF p. 8.) Plaintiff’s argument is without merit, and
clearly barred by the doctrine of prosecutorial immunity, which provides that
prosecutors have absolute immunity for activities in or connected with judicial
proceedings such as bond hearings. As such, Burgess is entitled to absolute
prosecutorial immunity and the claims against her will be dismissed with prejudice.
IT IS THEREFORE ORDERED that:
1.
For the reasons set forth above, Plaintiff’s claims against Burgess are
dismissed with prejudice.
2. Plaintiff shall have 30 days from the date of this Memorandum and Order
to file an amended complaint that clearly states a plausible Fourth Amendment claim
against Defendants. If Plaintiff fails to file an amended complaint, or the court finds
that the amended complaint is insufficient, this matter will be dismissed without
further notice for failure to state a claim upon which relief may be granted.
3.
In the event that Plaintiff files an amended complaint, Plaintiff shall
restate the allegations of the current Complaint and any new allegations. Failure to
consolidate all claims into one document may result in the abandonment of claims.

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4.
The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: October 21, 2013: Check for amended
complaint.
5.
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 24th day of September, 2013.
BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

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