Valentine v. City of Omaha et al

Filing 8

MEMORANDUM AND ORDER that the Plaintiff shall file an amended complaint by June 23, 2016, that states a claim upon which relief may be granted against Defendants. Failure to file an amended complaint within the time specified by the court will resu lt in the court dismissing this case without further notice to Plaintiff. The clerk of the court is directed to set a pro se case management deadline using the following text: June 23, 2016 check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

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

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

8:16CV174

MEMORANDUM
AND ORDER

This matter is before the court on initial review of Plaintiff’s Complaint
pursuant to 28 U.S.C. § 1915(e).
I. SUMMARY OF COMPLAINT
Plaintiff filed her Complaint in this case on April 19, 2016. (Filing No. 1.) The
Complaint names the City of Omaha, Chief of Omaha Police Schmader, and Unknown
John and Jane Doe Police as Defendants. The Complaint does not indicate whether
the officers are sued in their individual or official capacities.
Plaintiff alleges 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 claims that the unknown police officers searched her vagina and
anus.
Plaintiff alleges that as a result of the illegal search, she was charged and
indicted for possession of a controlled substance. Also, she claims that the police
officers used excessive force when they arrested her. Plaintiff requests 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.) She also seeks an award of $1,000,000.00
II. 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). The court must
dismiss a complaint or any portion of it 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).
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.” 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.”).
“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds
for a claim, and a general indication of the type of litigation involved.’” Topchian v.
JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v.
Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must
be liberally construed, and pro se litigants are held to a lesser pleading standard than
other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and 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).
III. DISCUSSION OF CLAIMS
Plaintiff has not set forth viable claims in this action. The City of Omaha may
only be liable under section 1983 if its “policy” or “custom” caused a violation of
Plaintiff’s constitutional rights. Doe By and 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 and Through Jane Doe B v. Special
School Dist. of St. Louis Cnty., 901 F.2d 642, 645 (8th Cir.1990).
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.
Plaintiff does not present any factual allegations sufficient to support a claim
against the City of Omaha. The closest Plaintiff comes to alleging the existence of an
official policy or custom is her assertion that Defendants were issuing “bogus”
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warrants. This conclusory allegation does not support a finding that an official policy
or custom caused a violation of Plaintiff’s constitutional rights. Therefore, Plaintiff’s
claims against the City of Omaha will be dismissed.
Plaintiff’s claims against the officers will also be dismissed. Because Plaintiff’s
Complaint does not specify whether he is suing the officers in their official or
individual capacities, this court presumes they are sued in their official capacities
only. See Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999)
(“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 official
capacity.”). A claim against an individual in his official capacity is, in reality, a claim
against the entity that employs the official, in this case, the City of Omaha. See
Parrish v. Luckie, 963 F.2d 201, 203 n.1 (8th Cir. 1992) (“Suits against persons in
their official capacity are just another method of filing suit against the entity. A
plaintiff seeking damages in an official-capacity suit is seeking a judgment against the
entity.”) (internal citations omitted)). As mentioned above, the City of Omaha can
only be liable under § 1983 if a municipal policy or custom caused Plaintiff’s injury.
See Monell v. New York Department of Social Services, 436 U.S. 658, 694 (1978).
Plaintiff has not made allegations supporting such a claim.
On the court’s own motion, the court will provide Plaintiff with an opportunity
to file an amended complaint that states a claim upon which relief may be granted.
Failure to file an amended complaint within the time specified by the court will result
in the court dismissing this case without further notice to Plaintiff.
IT IS THEREFORE ORDERED that:
1.
Plaintiff shall file an amended complaint by June 23, 2016, that states a
claim upon which relief may be granted against Defendants. Failure to file an
amended complaint within the time specified by the court will result in the court
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dismissing this case without further notice to Plaintiff.
2.
The clerk of the court is directed to set a pro se case management
deadline using the following text: June 23, 2016 check for amended complaint.
DATED this 24th day of May, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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