Frazier v. Kleine et al
MEMORANDUM AND ORDER that Plaintiff shall file an amended complaint by June 19, 2017, that states a claim upon which relief may be granted against the 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 Court is directed to set a pro se case management deadline using the following text: June 19, 2017Check 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
ALPHONSO V. FRAZIER II,
DON KLEINE, TODD
SCHMADERER, and ARRESTING
Plaintiff, who is incarcerated at the Douglas County Correctional Center, filed
his Complaint in this matter on March 10, 2017. (Filing No. 1.) Plaintiff has been
given leave to proceed in forma pauperis. (Filing No. 8.) 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
Plaintiff alleges that on January 16, 2017, unidentified Omaha police officers
unlawfully entered his home, arrested him, and seized a large hunting knife without
a warrant. Plaintiff further alleges that after Douglas County Attorney Don Kleine
viewed the video of the seizure, Plaintiff was “re-arrested after posting bond.” (Filing
No. 1 at CM/ECF p. 4.) Plaintiff seeks $75,000 in damages.
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
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
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).
Plaintiff seeks damages for alleged violations of his Fourth Amendment right
against unreasonable searches and seizures. Plaintiff contends that the defendants
unlawfully arrested him and seized property from his home without a warrant.
However, because Plaintiff’s Complaint does not specify whether he is suing the
defendants in their official or individual capacities, this court presumes the defendants
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 and Douglas County. 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)). The City of
Omaha and Douglas County 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:
Plaintiff shall file an amended complaint by June 19, 2017, that states a
claim upon which relief may be granted against the defendants. 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.
The Clerk of Court is directed to set a pro se case management deadline
using the following text: June 19, 2017—Check for amended complaint.
DATED this 22nd day of May, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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