Valentine v. Brown et al

Filing 7

MEMORANDUM AND ORDER that the above-captioned actions are hereby consolidated. The Clerk of the United States District Court for the District of Nebraska shall adjust its records to indicate that the above-captioned cases are consolidated. Case No. 8:16CV131 is hereby designated as the "Lead Case." Case No. 8:16CV174 is hereby designated as the "Member Case." The clerk of the court is directed to complete and issue summonses for Defendants the City of Omaha and Chief of O maha Police Schmader in his official capacity in connection with Case No. 8:16CV174. See Fed. R. Civ. P. 4(j) ("A state, municipal corporation, or any other state-created governmental organization that is subject to suit must be served by: (A) d elivering a copy of the summons and of the complaint to its chief executive officer; or (B) serving a copy of each in the manner prescribed by that state's law for serving a summons or like process on such a defendant."). The clerk of the c ourt is further directed to deliver the summonses, the necessary USM-285 Forms, the complaint in Case No. 8:16CV174 (Filing No. 1 ), and a copy of this order to the United States Marshals Service for service of process upon Defendants the City of Om aha and Chief of Omaha Police Schmader at the office of the Omaha City Clerk, 1819 Farnam Street, Omaha, Nebraska, 68183. The Marshals Service shall serve the summonses and complaint without payment of costs or fees. The Clerk of Court is directed to set a pro se case management deadline in this case with the following text: "October 14, 2016: Check for completion of service." The Clerk of Court is directed to set a pro se case management deadline in this case with the following te xt: "November 14, 2016: Check for disclosure of Jane Doe Defendants and direct service by U.S. Marshal." The parties are bound by the Federal Rules of Civil Procedure and by the Local Rules of this court. Plaintiff shall keep the court in formed of her current address at all times while this case is pending. Failure to do so may result in dismissal. Plaintiff's Motion to Compel (Case No. 8:16CV174, Filing No. 7 ) and "Motion" (Case No. 8:16CV174, Filing No. 9 ) are denied as moot. Member Cases: 8:16-cv-00131-RGK-PRSE, 8:16-cv-00174-RGK-PRSEOrdered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party and mailed as directed)(LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
VERONICA VALENTINE,

)
)
Plaintiff,
)
)
V.
)
)
CHRIS BROWN, #1873, 8 )
UNKNOWN JANE - JOHN DOE )
OMAHA POLICE OFFICERS, and )
THE CITY OF OMAHA,
)
)
Defendants.
)

)
)
Plaintiff,
)
)
V.
)
)
CITY OF OMAHA, CHIEF OF )
OMAHA POLICE SCHMADER, and )
UNKNOWN JOHN JANE DOE )
POLICE,
)
)
Defendants.
)

8:16CV131

MEMORANDUM
AND ORDER

VERONICA VALENTINE,

8:16CV174

MEMORANDUM
AND ORDER

This matter is before the court on its own motion. For the reasons set forth
below, the court will order that the above-captioned actions be consolidated.

BACKGROUND
1.

Case No. 8:16CV131

On March 25, 2016, Plaintiff Veronica Valentine filed suit, naming the City of
Omaha, “8 Unknown Jane-John Omaha Police Officers,” and Omaha Police Officer
Chris Brown as Defendants. Plaintiff alleged that she was the subject of a search
warrant dated July 16, 2015. A state court authorized the search warrant in response
to an application and affidavit submitted by Officer Chris Brown. The face of the
warrant authorized law enforcement to search Plaintiff’s residence and also her
“person.” (Filing No. 4 at CM/ECF p. 7.)
Plaintiff alleged that upon executing the search warrant, two female police
officers (identified as “Jane Does”) instructed her to remove her clothing and “spread
[her] legs apart bend over and cough.” (Filing No. 4 at CM/ECF p. 2.) Over
Plaintiff’s objection, the Jane Doe officers searched Plaintiff’s vagina and anus.
(Filing No. 4 at CM/ECF p. 2.)
On May 25, 2016, the court conducted an initial review of Plaintiff’s Complaint
pursuant to 28 U.S.C. § 1915(e). The court concluded Plaintiff had not sufficiently
plead that the City of Omaha had a policy or custom that violated Plaintiff’s
constitutional rights. Therefore, the court dismissed Plaintiff’s claims against the City
of Omaha, as well as Plaintiff’s official capacity claims against the officers. The court
also found that Plaintiff’s conclusory allegation that the search warrant was “bogus”
was insufficient to state a claim against Officer Chris Brown.
The court determined, however, that Plaintiff stated a plausible Fourth
Amendment individual-capacity claim against the two Jane Doe Defendants who
performed the body cavity search. The court gave Plaintiff 30 days in which to take
reasonable steps to identify the two Jane Doe Defendants and to notify the court of
their names. To date, Plaintiff has not taken further action in this case.
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2.

Case No. 8:16CV174

On April 19, 2016, Plaintiff filed suit against the City of Omaha, Chief of
Omaha Police Schmader, and Unknown John and Jane Doe Police. The Complaint
did not indicate whether the officers were sued in their individual or official
capacities.
Plaintiff alleged that in July, 2015, Omaha Police Officers (identified as “John
and Jane Doe”) broke into her house with a “bogus” search warrant. (Filing No. 1 at
CM/ECF p. 1.) She claimed that the unknown police officers searched her vagina and
anus. Plaintiff alleged that as a result of the illegal search, she was charged and
indicted for possession of a controlled substance. Also, she claimed that the police
officers used excessive force when they arrested her. Plaintiff requested that the court
enjoin Defendants from issuing “bogus” warrants and “enjoin any prosecution of
Plaintiff arising as a result of any search perpetrated” on her. (Filing No. 1 at
CM/ECF pp. 2-3.)
On initial review, the court concluded that Plaintiff had failed to state a claim
against the City of Omaha because she had not sufficiently alleged a custom or policy
that violated her constitutional rights. Also, because Plaintiff’s Complaint did not
specify whether she was suing the officers in their official or individual capacities, the
court presumed they were sued in their official capacities only, and found Plaintiff had
failed to state cognizable claims against the officers. Nevertheless, the court provided
Plaintiff with an opportunity to file an amended complaint. Plaintiff was advised that
failure to file an amended complaint within the time specified by the court would
result in the court dismissing this case without further notice.
Plaintiff did not file an amended complaint as directed by the court. Instead,
Plaintiff filed a “Motion,” stating that she has been unable to discover the identities
of the “Jane Doe” Defendants. She requested that the court direct the City of Omaha
to provide the names of the two officers involved in the body cavity search, as well
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as the name of their commanding officer. (Filing No. 9.)
DISCUSSION
Federal Rule of Civil Procedure 42(a) allows for consolidation of cases
involving common issues of law or fact as a matter of convenience and economy in
judicial administration. Fed. R. Civ. P. 42(a). The consent of the parties is not
required by Rule 42(a) for consolidation. 9 Charles A. Wright & Arthur R. Miller,
Federal Practice & Procedure § 2383 (2d ed. 1994). When deciding whether
consolidation is appropriate, the court must weigh the saving of time and effort that
would result from consolidation against any inconvenience, expense, or delay that it
might cause. Wright & Miller, supra, § 2383. “[D]istrict courts generally take a
favorable view of consolidation . . .” Id.
After reviewing each of the cases at issue, this court concludes that
consolidation is appropriate. The cases involve common questions of law and fact,
as they both arise out of the execution of the same search warrant. They also both
involve an allegedly unconstitutional body cavity search performed by the same
unidentified Jane Doe Defendants.
Also, having assessed the status of these cases, the court will allow them both
to proceed to service of process at this time. In Case No. 8:16CV131, the court
concluded that Plaintiff stated a plausible claim against the Jane Doe Defendants. The
court gave Plaintiff 30 days in which to take reasonable steps to identify those
individuals. In Case No. 8:16CV174, the court directed Plaintiff to file an amended
complaint. However, rather than doing so, Plaintiff filed a motion requesting that the
court assist her in identifying the Jane Doe Defendants.1 The court finds that Plaintiff

Plaintiff’s “Motion” may have been submitted in the wrong case. The
court suspects that the Motion was meant to be filed in Case No. 8:16CV131,
where the court directed Plaintiff to take reasonable steps to identify the Jane Doe
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has been making reasonable efforts to identify the Jane Doe Defendants and diligently
prosecute her lawsuits. Therefore, the court will allow these cases to move forward.
Although a complaint must include all the names of all the parties, “[a]n action
may proceed against a party whose name is unknown if the complaint makes
allegations specific enough to permit the identity of the party to be ascertained after
reasonable discovery.” Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir.
1995). “Dismissal is proper only when it appears that the true identity of the
defendant cannot be learned through discovery or the court’s intervention.” Munz v.
Parr, 758 F.2d 1254, 1257 (8th Cir. 1985). The allegations pertaining to the Jane Doe
Defendants are specific enough to allow Plaintiff to ascertain their names through
discovery.
As a litigant proceeding in forma pauperis, Plaintiff is entitled to have service
of process performed by the United States Marshals. However, the United States
Marshals cannot initiate service upon unknown defendants. Therefore, at this time,
the court will only direct the Marshals Service to serve the City of Omaha and Chief
of Omaha Police Schmader in his official capacity in connection with Case No.
8:16CV174.2
Additionally, within 30 days following service of process, the City of Omaha
shall disclose the identities of the Jane Doe Defendants and provide their names to
Plaintiff and the court. See Munz, 758 F.2d at 1257 (“Rather than dismissing the
claim, the court should have ordered disclosure of Officer Doe’s identity by other
defendants named and served or permitted the plaintiff to identify the officer through
discovery”). Thereafter, the court will direct serve of process on the two Jane Doe
Defendants.
The City of Omaha and Officer Chris Brown were previously dismissed
from Case No. 8:16CV131. The claims against the police officers in their official
capacities were also dismissed in Case No. 8:16CV131.
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Defendants.
IT IS THEREFORE ORDERED:
1.

The above-captioned actions are hereby consolidated.

2.

The Clerk of the United States District Court for the District of Nebraska
shall adjust its records to indicate that the above-captioned cases are
consolidated.

3.

Case No. 8:16CV131 is hereby designated as the “Lead Case.” Case No.
8:16CV174 is hereby designated as the “Member Case.”

4.

The clerk of the court is directed to complete and issue summonses for
Defendants the City of Omaha and Chief of Omaha Police Schmader in
his official capacity in connection with Case No. 8:16CV174. See Fed.
R. Civ. P. 4(j) (“A state, municipal corporation, or any other statecreated governmental organization that is subject to suit must be served
by: (A) delivering a copy of the summons and of the complaint to its
chief executive officer; or (B) serving a copy of each in the manner
prescribed by that state’s law for serving a summons or like process on
such a defendant.”). The clerk of the court is further directed to deliver
the summonses, the necessary USM-285 Forms, the complaint in Case
No. 8:16CV174 (Filing No. 1), and a copy of this order to the United
States Marshals Service for service of process upon Defendants the City
of Omaha and Chief of Omaha Police Schmader at the office of the
Omaha City Clerk, 1819 Farnam Street, Omaha, Nebraska, 68183. The
Marshals Service shall serve the summonses and complaint without
payment of costs or fees.

5.

The Clerk of Court is directed to set a pro se case management deadline
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in this case with the following text: “October 14, 2016: Check for
completion of service.”
6.

The Clerk of Court is directed to set a pro se case management deadline
in this case with the following text: “November 14, 2016: Check for
disclosure of Jane Doe Defendants and direct service by U.S. Marshal.”

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 her
current address at all times while this case is pending. Failure to do so
may result in dismissal.

8.

Plaintiff’s Motion to Compel (Case No. 8:16CV174, Filing No. 7) and
“Motion” (Case No. 8:16CV174, Filing No. 9) are denied as moot.

DATED this 14th day of July, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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