Valentine v. City of Omaha & Police Office, et al

Filing 6

MEMORANDUM AND ORDER - Plaintiff will have 30 days in which to file an Amended Complaint that states a claim upon which relief can be granted. Failure to file an Amended Complaint in accordance with this Memorandum and Order will result in dismissa l of this action without further notice. The clerk's office is directed to set a pro se case management deadline using the following text: January 12, 2017: check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
VERONICA VALENTINE,
Plaintiff,
v.
CITY OF OMAHA ,
Defendant.

)
)
)
)
)
)
)
)
)
)

8:16CV528

MEMORANDUM
AND ORDER

Plaintiff filed her pro se Complaint on December 5, 2016 (Filing No. 1), and
was granted leave to proceed in forma pauperis on December 7, 2016 (Filing No. 5).
The court now conducts an initial review of the Complaint to determine whether
summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I. SUMMARY OF COMPLAINT
Liberally construing the Complaint, Plaintiff alleges that she was falsely
charged with a criminal offense and placed on pretrial release for a period of 18
months before the charges were dismissed by the prosecutor. She sues the City of
Omaha for $100 million in damages.
II. APPLICABLE 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).
III. DISCUSSION OF CLAIM
“To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation
of a right secured by the Constitution and laws of the United States, and must show
that the alleged deprivation was committed by a person acting under color of state
law.” West v. Atkins, 487 U.S. 42, 48 (1988). The City of Omaha may only be liable
under section 1983 if its “policy” or “custom” caused a violation of Plaintiff’s
constitutional rights. See 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) (citing Pembaur v.
2

City of Cincinnati, 475 U.S. 469, 483 (1986)). 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 allegations of an official policy or custom in her
Complaint. Therefore, she has not alleged sufficient facts to “nudge” her claim against
the City of Omaha across the line from conceivable to plausible under the Jane Doe
standard.
IV. CONCLUSION
Plaintiff’s Complaint fails to state a claim upon which relief can be granted.
On its own motion, however, the court will permit Plaintiff to file an Amended
Complaint.
IT IS THEREFORE ORDERED:
1.
Plaintiff will have 30 days in which to file an Amended Complaint that
states a claim upon which relief can be granted.

3

2.
Failure to file an Amended Complaint in accordance with 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: January 12, 2017: check for amended complaint.
DATED this 13th day of December, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

4