Andrews v. City of Omaha Police Department et al

Filing 5

MEMORANDUM AND ORDER - Andrews will have 30 days from the date of this Memorandum and Order to file an amended complaint that states a claim upon which relief can be granted. Failure to respond to this Memorandum and order will result in dismissal of this action without further notice. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 1/26/2015: check for response from Andrews) 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
MICHAEL ANDREWS,
Plaintiff,
v.
CITY OF OMAHA POLICE
DEPARTMENT, et al.,
Defendants.

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8:14CV285

MEMORANDUM AND ORDER

This matter is before the Court on review of plaintiff
Michael Andrews’ (“Andrews” or “plaintiff”) complaint (Filing No.
1).

Plaintiff was granted leave to proceed in forma pauperis in

this matter.

The Court now reviews the complaint in accordance

with 28 U.S.C. § 1915(e).
I.

SUMMARY OF COMPLAINT

Andrews, who lives in Omaha, Nebraska, has sued the
Omaha Police Department, the Omaha Housing Authority, and two
officers of the Omaha Police Department, Luciano Rizzo and
Michael Belcastro (Filing No. 1 at CM/ECF p. 1).

Liberally

construed, he brings this action pursuant to 42 U.S.C. § 1983 for
the violation of his constitutional right to procedural due
process.

He also asserts a state law claim for abuse of process.
Andrews alleged he was in the South Omaha Projects when

he called 911 to report he had been robbed.

Rizzo and Belcastro

responded to the call.

When Andrews explained what had happened,

the officers stated, “we’re not doing this shit.”

Andrews

apparently argued with the officers and asked them if “they
[were] going to do their job.”

They responded by informing

Andrews he would be banned from the South Omaha Projects.
Eventually a housing officer with the Omaha Housing Authority
arrived on the scene, took a photograph of Andrews, and advised
him that he was being placed on the “barred and banned list” for
the South Omaha Projects.

The housing officer never questioned

Andrews about what had occurred, and never gave him “fair
warning” that he would be barred from entering the South Omaha
Projects (Filing No. 1 at CM/ECF pp. 7-9).
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)(2).

A complaint or any portion thereof

must be dismissed if it 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).
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”
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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, 556 U.S. 662, 678 (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

Andrews alleged in his complaint that a housing officer
with the Omaha Housing Authority barred him from the South Omaha
Projects at the request of Belcastro and Rizzo.

Andrews alleged

he did not receive “fair warning” that he would be banned from
the South Omaha Projects and that his picture would be placed in
the gallery of the South Omaha Projects reflecting that he had
been banned from the premises (Filing No. 1 at CM/ECF pp. 8-9).
The Fourteenth Amendment provides that “[n]o State
shall . . . deprive any person of life, liberty, or property
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without due process of law.” U.S. Const. amend. XIV, § 1. In
order to state a procedural due process claim, a plaintiff must
allege that (1) he suffered a deprivation of a constitutionally
protected interest in life, liberty, or property, and (2) such
deprivation occurred without due process of law.
Eldridge, 424 U.S. 319, 332 (1976).

See Mathews v.

“In procedural due process

claims, the deprivation by state action of a constitutionally
protected interest in ‘life, liberty, or property’ is not in
itself unconstitutional; what is unconstitutional is the
deprivation of such an interest without due process of law.”
Zinermon v. Burch, 494 U.S. 113, 125 (1990).
The principle that an individual possesses a
constitutionally protected liberty interest in remaining in a
public place of his or her choosing is well-established.

See

Vincent v. City of Sulphur, No. 2:13-CV-189, 2014 WL 2003193, *6
(W.D. La. May 15, 2014) (collecting cases).

Andrews allegations

suggest the South Omaha Projects are a public place and he has
been banned from the public place without notice and an
opportunity to be heard.

Thus, he has identified a potential

violation of his constitutional rights.

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However, for the reasons

explained below, as pled, his Complaint fails as a matter of law.
A.

Demand for Relief
Complaints filed in federal court must contain “a

demand for the relief sought.”

Fed.R.Civ.P. 8(a)(3).

did not specify the relief he seeks.
1.)

Andrews

(See generally Filing No.

Accordingly, this matter may not proceed on plaintiff’s

current complaint.

On the Court’s own motion, Andrews will have

an opportunity to file an amended complaint in which he specifies
the relief he seeks.
B.

Claims Against Omaha, Nebraska
Plaintiff named the City of Omaha Police Department,

the Omaha Housing Authority, and two Omaha Police Department
officers -- Rizzo and Belcastro -- as Defendants (Filing No. 1 at
CM/ECF p. 1).

The Court construes a suit against the police

department and the housing authority as being a suit against the
City of Omaha, Nebraska.

Further, because plaintiff did not

specify the capacity in which he is suing Rizzo and Belcastro,
the court assumes he has sued them in their official capacities
only.

See Alexander v. Hedback, 718 F.3d 762, 766 n. 4 (8th Cir.

2013) (“‘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
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official capacity.’”) (quoting Johnson v. Outboard Marine Corp.,
172 F.3d 531, 535 (8th Cir. 1999)).

The Court construes a suit

against Rizzo and Belcastro in their official capacities as being
a suit against the City of Omaha.

See Johnson, 172 F.3d at 535

(“A suit against a public employee in his or her official
capacity is merely a suit against the public employer.”).
For these reasons, as pled, Andrews’s complaint only
asserts claims against the City of Omaha.

For a municipality to

be found liable under § 1983, “individual liability first must be
found on an underlying substantive claim.”

McCoy v. City of

Monticello, 411 F.3d 920, 922 (8th Cir. 2005).

A municipality or

government entity cannot be held vicariously liable for the
actions of one of its agents.

Brockinton v. City of Sherwood,

Ark., 503 F.3d 667, 674 (8th Cir. 2007).

Rather, there must be a

showing a governmental employee was acting in accordance with a
government policy or custom in order for liability to attach to
the municipality under § 1983.
“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 and Through Jane Doe B v.

Special Sch. Dist. of St. Louis Cnty., 901 F.2d 642, 645 (8th

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Cir. 1990) (quoting Pembaur v City of Cincinnati, 475 U.S. 469,
483 (1986)).
In order 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.
Andrews has not asked the Court to make a finding of
individual liability against any City of Omaha employees -- a
step necessary for a finding of municipal liability.
411 F.3d at 922.

See McCoy,

Andrews also does not assert that the alleged

constitutional violation occurred because city officials were
acting in accordance with official government policy or that any
individual who carried out the actions against Andrews was

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responsible for establishing an official policy.

In addition,

Andrews does not allege there was a continuing, widespread,
persistent pattern of unconstitutional misconduct by the City of
Omaha or its employees, or that City of Omaha policymaking
officials were deliberately indifferent to or tacitly authorized
any unconstitutional conduct.

Finally, Andrews does not allege

that an unconstitutional custom was the moving force behind his
injuries.

Accordingly, he has failed to allege sufficient facts

to “nudge” his claims against the City of Omaha across the line
from conceivable to plausible under the Jane Doe standard.
The Court will grant plaintiff 30 days in which to
amend his complaint to sufficiently allege a claim against the
City of Omaha and name any other proper defendants.
IV.

STATE LAW CLAIMS

Andrews may have also intended to assert state law
claims for abuse of process against defendants.

Pending

amendment of the complaint as set forth in this Memorandum and
Order, the Court makes no finding regarding its jurisdiction over
any potential state law claims.
IT IS ORDERED:
1.

Andrews will have 30 days from the date of this

Memorandum and Order to file an amended complaint that states a
claim upon which relief can be granted.
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2.

Failure to respond to this Memorandum and Order

will result in dismissal of this action without further notice.
3.

The clerk’s office is directed to set a pro se

case management deadline using the following text:
2015:

January 26,

check for response from Andrews.
DATED this 29th day of December, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

* This opinion may contain hyperlinks to other documents or Web sites.
The U.S. District Court for the District of Nebraska does not endorse,
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