Wallace v. Yanez et al

Filing 11

MEMORANDUM AND ORDER - Plaintiff shall file an amended complaint by March 5, 2018, that states a claim upon which relief may be granted against the City of Omaha, Yanez, Diminico, and Seaton. Failure to file an amended complaint within the time speci fied by the court will result 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: March 5, 2018: check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
FLOYD L. WALLACEJR.,
Plaintiff,

8:17CV305

vs.
NICOLAS YANEZ, 1506; BRIAN
DIMINICON, 1988; WILLIAN
SEATON, 1761; and OMAHA POLICE
DEPARTMENT,

MEMORANDUM
AND ORDER

Defendants.
Plaintiff filed his Complaint on August 17, 2017. (Filing No. 1.) He has been
given leave to proceed in forma pauperis. (Filing No. 5.) The court now conducts
an initial review of Plaintiff’s Complaint to determine whether summary dismissal
is appropriate under 28 U.S.C. § 1915(e)(2).
I. SUMMARY OF COMPLAINT
Plaintiff brings this action against the Omaha Police Department and three
Omaha police officers in their individual capacities. Plaintiff alleges that on July
12, 2016, Officers Nicolas Yanez, William Seaton, and Brian Diminico1 conducted
a no-knock raid at Plaintiff’s residence, kicked in his door, put guns to Plaintiff’s
face, and arrested him for a crime he did not commit. Plaintiff alleges the officers
arrested him for robbery which “got dismissed” on August 19, 2016. (Filing No. 1
at CM/ECF p.4.) As a result of these events, Plaintiff claims he suffered emotional
distress, for which he received treatment while in jail, and that he was evicted and

1

The spelling of the individual officers’ names differs between the caption and the body
of the Complaint. (See Filing No. 1 at CM/ECF pp.1–3.) The court will use the spelling from
Section B of the Complaint identifying each Defendant.

carries that “eviction on [his] record for seven years.” (Id. at CM/ECF p.5.) For
relief, Plaintiff seeks $100,000.00 in damages.
II. APPLICABLE 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).
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
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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).
III. DISCUSSION OF CLAIMS
Plaintiff asserts claims under 42 U.S.C. § 1983 based on wrongful
imprisonment, false arrest, destruction of property, and violations of 18 U.S.C. §
241 and the Fourth Amendment. For the reasons that follow, the Complaint’s
allegations are insufficient to state a plausible claim for relief.
A. No Private Right of Action under 18 U.S.C. § 241
As an initial matter, Plaintiff’s claim that his rights under 18 U.S.C. § 241
were violated fails as a matter of law. Section 241 makes it a crime for two or more
persons to conspire to violate constitutional or statutory rights. 18 U.S.C. § 241.
That provision does not create a private right of action. See Mousseaux v. U.S.
Com’r of Indian Affairs, 806 F. Supp. 1433, 1437 (D.S.D. 1992), aff’d in part,
remanded in part sub nom. Mousseaux v. United States, 28 F.3d 786 (8th Cir.
1994); see also Davis v. Sarles, 134 F. Supp. 3d 223, 228 (D.D.C. 2015).
B. Claims against Omaha Police Department
Plaintiff names the Omaha Police Department in its official capacity as a
Defendant in this matter. However, the Omaha Police Department is not a distinct
legal entity amenable to suit under § 1983. See Ketchum v. City of West Memphis,
Ark., 974 F.2d 81, 82 (8th Cir. 1992) (departments or subdivisions of local
government are “not juridical entities suable as such”); Dean v. Barber, 951 F.2d
1210, 1214–15 (11th Cir. 1992) (“[s]heriff’s departments and police departments
are not usually considered legal entities subject to suit”). Construing the Complaint
as a suit against the City of Omaha itself, municipal liability under § 1983 will lie
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only if a municipal policy or custom caused a violation of Plaintiff’s constitutional
rights. Doe By and Through Doe v. Washington County, 150 F.3d 920, 922 (8th
Cir. 1998) (citing Monell v. Department of Soc. Servs., 436 U.S. 658, 694 (1978)).
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.
Here, Plaintiff does not allege that there is a continuing, widespread,
persistent pattern of unconstitutional misconduct by the City of Omaha’s police
officers, or that the City of Omaha’s policymaking officials were deliberately
indifferent to or tacitly authorized any unconstitutional conduct. In addition,
Plaintiff does not allege that an unconstitutional custom was the moving force
behind the alleged constitutional violation. Accordingly, Plaintiff has failed to
allege sufficient facts to state a claim for relief against the City of Omaha.
However, on the court’s own motion, Plaintiff shall have 30 days in which to
amend his Complaint to clearly state a claim upon which relief can be granted
against the City of Omaha.
C. Claims against Officers Yanez, Diminico, and Seaton
Liberally construed, Plaintiff alleges Officers Yanez, Diminico, and Seaton
entered his residence, damaged his property, and arrested him in violation of the
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Fourth and Fourteenth Amendments. The Fourth Amendment, applicable to the
States through the Fourteenth Amendment, provides: “The right of the people to be
secure in their persons . . . against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause . . . particularly
describing the place to be searched, and the persons or things to be seized.” The
general rule is that “‘Fourth Amendment seizures are “reasonable” only if based on
probable cause’ to believe that the individual has committed a crime.” Bailey v.
United States, 568 U.S. 186, 192 (2013) (quoting Dunaway v. New York, 442 U.S.
200, 213 (1979)). Likewise, a search of private property, without proper consent, is
unreasonable unless it has been authorized by a valid search warrant. See Groh v.
Ramirez, 540 U.S. 551, 559 (2003).
Here, the Complaint merely contains Plaintiff’s bare assertion that he was
arrested for a crime he did not commit. The Complaint contains no factual
allegations from which the court can infer that the officers arrested Plaintiff
without probable cause or, even, whether the officers acted without a warrant. See
Anderson v. Franklin County, 192 F.3d 1125, 1131 (8th Cir.1999) (false arrest
claim under § 1983 does not lie where officer had probable cause to make arrest).
Plaintiff’s reference to a “no-knock raid” implies that the officers may have been
acting pursuant to a no-knock warrant. However, the Complaint’s lack of factual
allegations regarding the circumstances surrounding Plaintiff’s arrest prevents the
court from drawing any sort of inference about the validity or invalidity of any
such warrant. Plaintiff has failed to allege sufficient facts to “nudge” his claims of
unlawful arrest against the individual officers across the line from conceivable to
plausible.
Plaintiff has also failed to state a plausible Fourth Amendment claim for
property damage. “To state a Fourth Amendment claim under § 1983 for property
damage, the plaintiff must allege that the searching officers acted unreasonably in
causing the property damage.” Rassier v. Sanner, No. CV 17-938 (DWF/LIB),
2017 WL 5956909, at *5 (D. Minn. Nov. 30, 2017) (citing Cook v. Gibbons, 308
Fed.Appx. 24, 28 (8th Cir. 2009) (“[O]fficers executing search warrants on
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occasion must damage property in order to perform their duty.”)). As the court
previously stated, the Complaint lacks sufficient facts regarding the circumstances
of the officers’ entry into Plaintiff’s residence from which the court could infer that
they acted unreasonably in damaging Plaintiff’s door.
On the court’s own motion, Plaintiff shall have 30 days in which to amend
his Complaint to clearly state a claim upon which relief can be granted against
Officers Yanez, Diminico, and Seaton. Plaintiff should be mindful to clearly set
forth the facts surrounding his arrest and the actions of each named Defendant.
Any amended complaint shall fully restate the allegations of Plaintiff’s current
Complaint (Filing No. 1), and any new allegations. Failure to consolidate all claims
into one document will result in the abandonment of claims. Failure to file an
amended complaint within the time specified by the court will result in the court
dismissing this action without further notice to Plaintiff.
D. Plaintiff’s State Law Claims
Liberally construing the Complaint, Plaintiff may also have claims for
violations of state law such as negligence, false imprisonment, damage to property,
and conspiracy. Pending amendment of the Complaint as set forth in this
Memorandum and Order, the court makes no finding regarding its jurisdiction over
any potential state law claims.
IT IS THEREFORE ORDERED that:
1.
Plaintiff shall file an amended complaint by March 5, 2018, that
states a claim upon which relief may be granted against the City of Omaha, Yanez,
Diminico, and Seaton. 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.

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2.
The clerk of the court is directed to set a pro se case management
deadline using the following text: March 5, 2018: check for amended complaint.
Dated this 2nd day of February, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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