Moten v. Omaha Police Department, et al

Filing 9

MEMORANDUM AND ORDER that this action is dismissed without prejudice for lack of subject-matter juris diction and without prejudice to reassertion in the proper state forum. Judgment shall be entered by separate document. 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
STEVE L. MOTEN,
Plaintiff,
v.
OMAHA POLICE DEPARTMENT,
JACOB HANISZEWSKI, #2241,
SHERIE N. THOMAS, #1549,
JORDAN W. VANDERZWAAG,
#2222, and CHRIS L. TOMPKINS,
#Y049,
Defendants.

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8:17CV197

MEMORANDUM
AND ORDER

Plaintiff, an inmate in the Douglas County Correctional Center, brings this
action against the Omaha Police Department and four of its officers because Plaintiff
was bitten by the officers’ K-9 dog in an incident occurring prior to his incarceration.
The court previously granted Plaintiff permission to proceed in forma pauperis in this
action. (Filing No. 8.) The court now conducts an initial review of the Complaint
(Filing No. 1) to determine whether summary dismissal is appropriate under 28 U.S.C.
§§ 1915(e) and 1915A.
I. SUMMARY OF COMPLAINT
Plaintiff alleges that he was bitten by the defendants’ K-9 dog in Omaha. He
claims the officers pulled up behind him when he was exiting his vehicle; the officers
said “freeze,” but Plaintiff “didn’t know who they was talking to”; the officers “let the
dog go”; Plaintiff then put his hands up; and the dog then bit Plaintiff under his right
arm, which “will never be the same and after 3 months still no feeling under [his] arm
and nerve damage.” (Filing No. 1 at CM/ECF pp. 4-5 (capitalization and spelling
corrected).) Plaintiff alleges no basis for this court’s jurisdiction (Filing No. 1 at

CM/ECF p. 3), and for relief requests only that “the officers . . . make better decisions
with the K-9.” (Filing No. 1 at CM/ECF p. 5 (capitalization and spelling corrected).)
II. LEGAL 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).
III. DISCUSSION
Federal district courts are courts of limited jurisdiction. Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The subject-matter jurisdiction of the
federal district courts is generally set forth in 28 U.S.C. §§ 1331 and 1332. Under
these statutes, federal jurisdiction is available only when the parties are of diverse
citizenship and the amount in controversy exceeds $75,000, or when a “federal
question” is presented. “If the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3).
Subject-matter jurisdiction is proper pursuant to 28 U.S.C. § 1332, commonly
referred to as “diversity of citizenship” jurisdiction, when “the citizenship of each
plaintiff is different from the citizenship of each defendant.” Ryan v. Schneider Natl.
Carriers, Inc., 263 F.3d 816, 819 (8th Cir. 2001). In addition, the amount in
controversy must be greater than $75,000.00. 28 U.S.C. § 1332(a).
Subject-matter jurisdiction is also proper under 28 U.S.C. §§ 1331 when a
plaintiff asserts a “non-frivolous claim of a right or remedy under a federal statute,”
2

the Constitution, or treaties of the United States, commonly referred to as “federal
question” jurisdiction. Northwest South Dakota Prod. Credit Ass’n v. Smith, 784 F.2d
323, 325 (8th Cir. 1986). Under this type of jurisdiction, a plaintiff must allege that the
defendants deprived him of a right secured by the Constitution or laws of the United
States and that the alleged deprivation was committed under “color of state law” in
order to bring a claim under 42 U.S.C. § 1983. West v. Atkins, 487 U.S. 42, 48 (1988);
Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).
Upon careful review of Plaintiff’s Complaint, the court finds that it lacks
subject-matter jurisdiction over this matter. As to diversity-of-citizenship jurisdiction,
Plaintiff does not allege that he and Defendants are citizens of different states.
Because the citizenship of Plaintiff and at least one of the defendants is not diverse,
diversity-of-citizenship jurisdiction does not exist in this case. Further, Plaintiff does
not claim that federal-question jurisdiction is applicable, nor does he set forth any
specific actions taken by Defendants that violate any constitutional right or support
a claim under 42 U.S.C. § 1983 or any other federal statute. Rather, Plaintiff appears
to be asserting a state-law tort claim for personal injury.
For these reasons, the court lacks subject-matter jurisdiction pursuant to either
28 U.S.C. §§ 1331 or 1332, and this action must be dismissed without prejudice1
pursuant to Federal Rule of Civil Procedure 12(h)(3). The court will not give Plaintiff
an opportunity to amend his complaint in this matter because it is obvious that
amendment would be futile.

1

See County of Mille Lacs v. Benjamin, 361 F.3d 460, 464 (8th Cir. 2004) (“A
district court is generally barred from dismissing a case with prejudice if it concludes
subject matter jurisdiction is absent.”)

3

Even liberally construed, Plaintiff’s Complaint does not set forth any
discernible claim for relief over which this court has jurisdiction. Plaintiff’s
Complaint makes clear that the K-9 dog was released when Plaintiff was not in
custody. Therefore, if Plaintiff has any claim, it sounds in negligence under state law.
If Plaintiff wishes to bring a tort claim for negligence against Defendants, he should
consult the Nebraska Political Subdivisions Tort Claims Act, Neb. Rev. Stat. §§ 13901 to 13-928 (Westlaw 2017), which allows tort claims to be filed with the city
“clerk, secretary, or other official whose duty it is to maintain the official records of
the political subdivision, or the governing body of a political subdivision may provide
that such claims may be filed with the duly constituted law department of such
subdivision.” Neb. Rev. Stat. § 13-905. Plaintiff should also consult Neb. Rev. Stat.
§ 13-919, which sets forth the deadlines for filing such a tort claim. Accordingly,
IT IS ORDERED:
1.
This action is dismissed without prejudice for lack of subject-matter
jurisdiction and without prejudice to reassertion in the proper state forum.
2.

Judgment shall be entered by separate document.

DATED this 5th day of October, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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