Andrews v. City of Omaha Police Department et al

Filing 8

MEMORANDUM AND ORDER - The Court considers the last two pages of plaintiffs brief (Filing No. 7 at CM/ECF pp. 382-383) as supplemental to plaintiff's amended complaint (Filing No. 6 ). The clerk's office is directed to add the following docket text to the already-existing text at Filing Number 7: "Court will consider CM/ECF pages 382-383 of this filing supplemental to the amended complaint (Filing No. 6)." This matter may proceed to service of process against defendants Luciano Rizzo and Michael Belcastro in their individual capacities. The clerk of the court is directed to send to plaintiff a copy of the amended complaint, a copy of this Memorandum and Order, and two summons forms and two USM 285 Forms for service on Belcastro and Rizzo. Federal Rule of Civil Procedure 4(m) requires service of the complaint on a defendant within 120 days of filing the complaint. However, plaintiff is granted an extension of time until 120 days from the date of this order to c omplete service of process. If requested to do so in this matter, the United States Marshal will serve all process in this case without prepayment of fees from Plaintiff. In making such a request, plaintiff must complete the USM 285 forms to be sub mitted to the clerk of the court with the completed summons forms. Plaintiff' s claims against the City of Omaha Police Department and the Omaha Housing Authority, and his claims against Rizzo and Belcastro in their official capacities, are dism issed without prejudice to reassertion in a second amended complaint that complies with the general rules of pleading. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party with amended complaint, 2 summons forms and 2 USM 285 Forms) (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL ANDREWS,

)
)
Plaintiff,
)
)
v.
)
)
CITY OF OMAHA POLICE
)
DEPARTMENT, LUCIANO RIZZO,
)
Officer, MICHAEL BELCASTRO,
)
City of Omaha Police
)
Department Officer, and OMAHA )
HOUSING AUTHORITY,
)
)
Defendants.
)
)

8:14CV285

MEMORANDUM AND ORDER

This matter is before the Court on its own motion.

On

December 29, 2014, the Court conducted a pre-service screening of
plaintiff’s complaint pursuant to 28 U.S.C. § 1915(e).
No. 5.)

(Filing

The Court determined plaintiff had identified a

potential violation of his constitutional rights (see id. at
CM/ECF p. 4), but the complaint failed as a matter of law because
it did not clearly set forth a demand for the relief sought.
(Id. at CM/ECF p. 5.)

In addition, the complaint only asserted

claims against a municipality, but plaintiff did not allege the
existence of a governmental policy or custom as the moving force
behind his injuries.

(Id. at CM/ECF pp. 5-8.)

Plaintiff was

given 30 days in which to file an amended complaint.
CM/ECF p. 8.)

(Id. at

Plaintiff filed an amended complaint (Filing No. 6) on
January 23, 2015.

The body of the amended complaint is identical

to the body of the original complaint.
Filing No. 6.)

(Compare Filing No. 1 to

Thus, once again, plaintiff did not identify the

relief sought, and plaintiff only asserted claims against a
municipality but did not allege the existence of a governmental
policy or custom.
Plaintiff also filed a 383-page brief (Filing No. 7) in
addition to the amended complaint.
is repetitive and nonsensical.

For the most part, the brief

However, on the final two pages

of plaintiff’s brief, he “expressly and unambiguously states”
that he is suing defendants Luciano Rizzo and Michael Belcastro
in their individual and official capacities.

In addition, he

sets forth that he is seeking money damages from defendants in
various amounts.

(Id. at CM/ECF pp. 382-383.)

As a whole, plaintiff’s brief does not comply with the
general rules of pleading set forth in Rule 8 of the Federal
Rules of Civil Procedure.

However, out of an abundance of

caution, and in order to ensure a just and fair resolution of
this matter, the Court will consider the final two pages of
plaintiff’s brief (Filing No. 7 at CM/ECF pp. 382-383) as a
supplement to the amended complaint.

See NECivR 15.1(b) (stating

that in pro se cases, the Court may consider an amended pleading
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as supplemental to the original pleading, rather than as
superseding); see also Coleman v. Correct Care Solutions, 559
Fed. Appx. 601, 602 (8th Cir. 2014) (“Coleman’s pro se filings,
taken together, adequately raised a claim[.] . . . Ordinarily,
Coleman’s failure to include allegations of race discrimination
in her amended complaint would constitute an abandonment of any
race-related claims raised in her original complaint. . . . But
in assessing Coleman’s amended complaint, we also consider the
allegations of race discrimination raised in her subsequent
filings[.]”) (emphasis added) (citing Pratt v. Corrections Corp.
of Am., 124 Fed. Appx. 465, 466 (8th Cir. 2005) (per curiam)).
The Court will disregard the remainder of the brief.

To the

extent plaintiff seeks to raise claims in this action set forth
in the first 381 pages of his brief, he must do so in a second
amended complaint that complies with the general rules of
pleading.
Upon careful review of plaintiff’s amended complaint,
and in light of his allegations that he is suing them in their
individual capacities, the Court finds that plaintiff’s claims
against Rizzo and Belcastro for violations of his right to
procedural due process may proceed to service of process.
Plaintiff alleged in the amended complaint that Rizzo and
Belcastro banned him from a public place without notice and
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without an opportunity to be heard.

(See Filing No. 5 at CM/ECF

p. 4.)
Upon careful review of plaintiff’s amended complaint,
the Court finds that plaintiff’s claims against the City of Omaha
Police Department, the Omaha Housing Authority, and Rizzo and
Belcastro in their official capacities, may not proceed to
service of process.

Plaintiff has not alleged Rizzo and

Belcastro were acting in accordance with a governmental policy or
custom when they barred him from a public place.

Plaintiff’s

claims against them will be dismissed without prejudice to
reassertion in a second amended complaint.
IT IS ORDERED:
1.

The Court considers the last two pages of

plaintiff’s brief (Filing No. 7 at CM/ECF pp. 382-383) as
supplemental to plaintiff’s amended complaint (Filing No. 6).
The clerk’s office is directed to add the following docket text
to the already-existing text at Filing Number 7:

“Court will

consider CM/ECF pages 382-383 of this filing supplemental to the
amended complaint (Filing No. 6).”
2.

This matter may proceed to service of process

against defendants Luciano Rizzo and Michael Belcastro in their
individual capacities.

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3.

The clerk of the court is directed to send to

plaintiff a copy of the amended complaint, a copy of this
Memorandum and Order, and two summons forms and two USM 285 Forms
for service on Belcastro and Rizzo.

Federal Rule of Civil

Procedure 4(m) requires service of the complaint on a defendant
within 120 days of filing the complaint.

However, plaintiff is

granted an extension of time until 120 days from the date of this
order to complete service of process.
4.

If requested to do so in this matter, the United

States Marshal will serve all process in this case without
prepayment of fees from Plaintiff.

In making such a request,

plaintiff must complete the USM 285 forms to be submitted to the
clerk of the court with the completed summons forms.

Without

these documents, the United States Marshal will not serve
process.

Upon receipt of the completed forms, the clerk of the

court will sign the summons forms and forward them to the Marshal
for service on defendants, together with a copy of the amended
complaint.
5.

Plaintiff’s claims against the City of Omaha

Police Department and the Omaha Housing Authority, and his claims
against Rizzo and Belcastro in their official capacities, are

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dismissed without prejudice to reassertion in a second amended
complaint that complies with the general rules of pleading.
DATED this 13th day of March, 2015.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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