Allen v. The County of Douglas et al

Filing 11

MEMORANDUM AND ORDER that the Plaintiff shall file an amended complaint by October 12, 2016, 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 d ismissing 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: October 12, 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
CORY T. ALLEN,
Plaintiff,
V.
THE COUNTY OF DOUGLAS, is to
be sued in Official Capacity, PAUL
LATSCHER, O.P.D. Officer, is to sued
Individually and in he Official
Capacity, JERRY SWANSON, O.P.D.
Officer, is to be sued Individually and
in his Official Capacity, THE CITY OF
OMAHA, a Municipality, is to be sued
in its Official Capacity, and DONALD
KLEINE, Douglas County District
Attorney, is to be sued Individually and
in his Official Capacity,
Defendants.

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8:16CV221

MEMORANDUM AND ORDER

This matter is before the court on initial review of Plaintiff’s Complaint. (Filing
No. 1.) For the reasons that follow, the court finds Plaintiff’s pleadings do not state
any claims on which relief may be granted. However, the court will allow Plaintiff
to file an amended complaint.
I. SUMMARY OF COMPLAINT
Plaintiff’s Complaint sets forth multiple causes of action, including (1)
conspiracy; (2) violation of civil rights; (3) negligent supervision; (4) aiding and
abetting; (5) intentional infliction of emotional distress; and (6) negligent hiring.
(Filing No. 1.) Defendant’s Complaint names Douglas County, Nebraska, the City of
Omaha, the Douglas County District Attorney, and several Omaha police officers as

defendants. The employee defendants are sued in their official and individual
capacities. Plaintiff seeks monetary relief.
Plaintiff alleges that Defendants Latscher and Swanson, who are Omaha police
officers, pulled him over while he was driving a white Cadillac DeVille without
probable cause. Latscher and Swanson subsequently reported that Plaintiff shot them
during the traffic stop. Plaintiff claims that Latscher and Swanson “submitted
fraudulent police reports in a conspiracy to cover up an accidental shooting of one
police officer by another police officer.” (Filing No. 1 at CM/ECF p. 7.)
II. 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 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); 28 U.S.C. § 1915A(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.
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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).
III. DISCUSSION
1.

Claims Relating to Criminal Conviction

Plaintiff alleges, in part, that Defendants conspired against him to ensure he was
convicted of a crime. Specifically, Plaintiff claims that Latscher and Swanson
“submitted fraudulent police reports in a conspiracy to cover up an accidental shooting
of one police officer by another police officer.” (Filing No. 1 at CM/ECF p. 7.)
Because this claim relates entirely to the validity of Plaintiff’s conviction, it cannot
be brought in a civil rights case.
In Heck v. Humphrey, the Supreme Court held a prisoner may not recover
damages in a § 1983 suit where the judgment would necessarily imply the invalidity
of his conviction, continued imprisonment, or sentence unless the conviction or
sentence is reversed, expunged, or called into question by issuance of a writ of habeas
corpus. 512 U.S. 477, 486-87 (1994); Schafer v. Moore, 46 F.3d 43, 45 (8th Cir.
1995). Although Heck, on its face, addresses only actions brought under § 1983,
courts have expanded the contours of Heck to reach 42 U.S.C. § 1985 and other civil
rights statutes. See, e.g., Poston v. Shappert, 222 Fed. Appx. 301 (4th Cir. 2007);
Cook v. City of Philadelphia, 179 Fed. Appx. 855, 859 (3d Cir. 2006); Browdy v.
Karpe, 131 Fed. Appx. 751, 753 (2d Cir. 2005); McQuillion v. Schwarzenegger, 369
F.3d 1091, 1097 n. 4 (9th Cir. 2004); Lanier v. Bryant, 332 F.3d 999, 1005-06 (6th
Cir. 2003).
Here, the facts demonstrate that the Heck bar is properly invoked. Plaintiff
maintains that Defendants tampered with evidence, altered investigative reports,
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fabricated evidence, and committed other acts of misconduct in connection with his
criminal case. (Filing No. 1 at CM/ECF p. 15.) The court cannot find in Plaintiff’s
favor based on such arguments without calling into question the legitimacy of his
criminal conviction. Heck makes clear that Plaintiff may not use a civil rights action
to cast doubt on the legality of his conviction or confinement. Heck, 512 U.S. at 48687. Rather, he must first find a favorable outcome in a habeas corpus or other similar
proceeding. For these reasons, the court will dismiss Plaintiff’s conviction-related
claims without prejudice to reassertion in a habeas corpus or other similar proceeding.
2.

The City of Omaha, Douglas County, and Official Capacity Claims

Liberally construed, Plaintiff also suggests that Douglas County and the City
of Omaha do not properly train or supervise police officers and that there is an “ongoing pattern of corruption within the Omaha Police Department.” (Filing No. 1 at
CM/ECF p. 7.) These allegations fail to state cognizable claims against Douglas
County or the City of Omaha, because, as municipalities, Douglas County and the
City of Omaha can only be liable under § 1983 if a municipal policy or custom caused
his injury. See Monell v. New York Department of Social Services, 436 U.S. 658, 694
(1978). Plaintiff’s assertion that there is a pattern of corruption and misconduct within
the Omaha Police Department is far too conclusory to allege a municipal policy or
custom creating liability under § 1983.
Likewise, Plaintiff has failed to sufficiently allege official capacity claims
against the employee defendants. A claim against an individual in his official capacity
is, in reality, a claim against the entity that employs the official, in this case, Douglas
County and the City of Omaha. See Parrish v. Luckie, 963 F.2d 201, 203 n.1 (8th Cir.
1992). Plaintiff has failed to plausibly suggest that an official Douglas County or City
policy or custom caused a violation of his constitutional rights.

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3.

Claims against Donald Kleine

Plaintiff has not indicated how Defendant Donald Kleine was personally
involved in the events described in his Complaint. A complaint that fails to allege that
the defendant was personally involved in the alleged misconduct fails to state a claim
against that defendant. See Krych v. Hvass, 83 F. App’x 854, 855 (8th Cir. 2003)
(citing Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974) (holding that court
properly dismissed a pro se complaint where the complaint did not allege that
defendant committed a specific act and the complaint was silent as to defendant except
for his name appearing in caption)). Therefore, Plaintiff has failed to state a claim
against Kleine.
Out of an abundance of caution, 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 ORDERED:
1.
Plaintiff shall file an amended complaint by October 12, 2016, 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.
2.
The clerk of the court is directed to set a pro se case management
deadline using the following text: October 12, 2016: check for amended complaint.
DATED this 12th day of September, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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