Clayborne v. City of lincoln, Lincoln Police Department et al

Filing 14

MEMORANDUM AND ORDER - Plaintiff's ADA claims are dismissed without prejudice. The clerk of court shall change the case caption to reflect that Defendants Parker, James, Hein, Ripley, Messersmith, Kounovsky, and Sundermeier are sued in their ind ividual capacities only and to correct the spelling of "individual." Plaintiff's Fourth Amendment claims against Defendants Parker, James, Hein, Ripley, Messersmith, Kounovsky, and Sundermeier in their individual capacities may proceed to service of process. The clerk of court is directed to obtain the last known addresses for Defendants Parker, James, Hein, Ripley, Messersmith, Kounovsky, and Sundermeier from the Marshals Service for service of process on them in their individual capacities. Upon obtaining the necessary addresses, the clerk of court is directed to complete and issue summonses for Defendants Parker, James, Hein, Ripley, Messersmith, Kounovsky, and Sundermeier in their individual capacities at the addresses pr ovided by the Marshals Service. The clerk of court is further directed to deliver the summonses, the necessary USM-285 Forms, the Complaint (filing no. 1 ), the Amended Complaint (filing no. 13 ), a copy of the court's previous memorandum and order on initial review (filing no. 12 ), and a copy of this order to the Marshals Service for service of process on Defendants Parker, James, Hein, Ripley, Messersmith, Kounovsky, and Sundermeier in their individual capacities. Service may be accom plished by using any of the following methods: personal, residence, certified mail, or designated delivery service. See Federal Rule of Civil Procedure 4(e); Neb. Rev. Stat. § 25-508.01 (Reissue 2016). The clerk of court is directed to file unde r seal any document containing the last known addresses for Defendants Parker, James, Hein, Ripley, Messersmith, Kounovsky, and Sundermeier. The United States Marshal shall serve all process in this case without prepayment of fees from Plaintiff. Fed eral Rule of Civil Procedure 4(m) requires service of the complaint on a defendant within 90 days of filing the complaint. However, Plaintiff is granted, on the court's own motion, an extension of time until 90 days from the date of this order t o complete service of process. The clerk of court is directed to set the following pro se case management deadline: February 13, 2019: check for completion of service of process. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT EARL CLAYBORNEJR.,
Plaintiff,

8:17CV481

vs.
PARKER, Officer, #1577, Individuidal
capacity and official capacity; JAMES,
Sgt, #1370, Individuidal capacity and
official capacity; CHAD HEIN, Officer,
#1552, Individuidal capacity and official
capacity; RIPLEY, Officer, #1256,
Individuidal capacity and official
capacity; MESSERSMITH, Officer,
#1568, Individuidal capacity and official
capacity; KOUNOVSKY, Officer,
#1593, Individuidal capacity and official
capacity; and SUNDERMEIER,
Captain, #717, Individuidal capacity and
official capacity;

MEMORANDUM
AND ORDER

Defendants.
This matter is before the court upon review of Plaintiff’s Amended
Complaint. (Filing No. 13.) For the reasons explained below, Plaintiff’s Fourth
Amendment claims will be permitted to proceed to service of process.
I. BACKGROUND
On December 18, 2017, Plaintiff, an inmate currently confined at the
Tecumseh State Correctional Institution, filed this action against the City of
Lincoln, Nebraska (“City of Lincoln”); the City of Lincoln Police Department
(“Lincoln Police Department”); and several City of Lincoln Police Officers in their

individual and official capacities. (Filing No. 1.) Plaintiff alleged that he was
subject to an unreasonable search and seizure and excessive force in violation of
his rights under the 4th and 14th Amendments and also cited to the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213, as legal authority for his
claims.
This court conducted an initial review of Plaintiff’s Complaint on October 9,
2018. (Filing No. 12.) The court dismissed Plaintiff’s claims against the Lincoln
Police Department as it is not a suable entity and concluded that Plaintiff had
stated viable Fourth Amendment claims against Lincoln Police Officers James,
Sundermeier, Parker, Hein, Ripley, Messersmith, and Kounovsky in their
individual capacities. However, the court determined that Plaintiff had failed to
state a claim against the City of Lincoln or the Lincoln Police Officers in their
official capacities and also failed to state a claim under the ADA. The court
granted Plaintiff leave to file an amended complaint with respect to his officialcapacity and ADA claims and ordered that Plaintiff’s Fourth Amendment claims
against the officers in their individual capacities would proceed to service of
process only after Plaintiff had an opportunity to amend his Complaint.
Plaintiff filed his Amended Complaint on October 22, 2018. (Filing No. 13.)
II. SUMMARY OF AMENDED COMPLAINT
Plaintiff’s Amended Complaint names as Defendants City of Lincoln Police
Officers Parker, James, Hein, Ripley, Messersmith, Kounovsky, and Sundermeier
in their individual capacities only. Again, Plaintiff claims that he was subjected to
an unreasonable search and seizure and excessive force in violation of his rights
under the 4th and 14th Amendments. (Id. at CM/ECF p. 3.) Specifically, Plaintiff
alleges:
Lincoln Police forced entry & conspired to force entry inside my
home to arrest me without an arrest warrant or search warrant
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supported with probable cause or oath or affirmation, particular[ly]
describing the place to be searched & person to be seized, or without
consent or exigent circumstances as a mental[ly] disabled Adult and
placed me in detention in the Lancaster County Jail on Dec[ember]
27[,] 2011 between 3[:]28am and 4:00am in Lincoln[,] NE.
(Id. at CM/ECF p. 5.) Plaintiff also alleges the Defendants deprived him of his
“civil right to due process as a mentally disabled adult under the [ADA].” (Id. at
CM/ECF p. 3.)
Plaintiff seeks monetary damages for a number of alleged harms including
“physical injury of restraint of liberty[,] . . . pain and suffering[,] mental distress,
false arrest and unlawful detention.” (Id. at CM/ECF p. 6.)
III. DISCUSSION
Plaintiff’s Amended Complaint essentially restates the allegations of his
original Complaint but omits his claims against the City of Lincoln and the Lincoln
Police Officers in their official capacities. Plaintiff only seeks relief against
Lincoln Police Officers Parker, James, Hein, Ripley, Messersmith, Kounovsky,
and Sundermeier in their individual capacities for the alleged Fourth Amendment
violations and for an alleged violation of the ADA.
With respect to his ADA claim, Plaintiff’s Amended Complaint suffers from
the same defect as the original Complaint. Plaintiff has failed to plausibly allege
the elements of a claim under the ADA or to set forth any factual support for such
a claim. Accordingly, Plaintiff’s ADA claim is dismissed without prejudice.1
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To the extent Plaintiff seeks to allege a due process claim, the bare allegation that the
Defendants violated his due process rights fails to state a plausible claim for relief. See Mathews
v. Eldridge, 424 U.S. 319, 332 (1976) (In order to state a procedural due process claim, a
plaintiff must allege that (1) he suffered a deprivation of a constitutionally protected interest in
life, liberty, or property, and (2) such deprivation occurred without due process of law.). First, if
Plaintiff is alleging the Defendants deprived him of process due under the ADA, such claim fails
as Plaintiff has not alleged a plausible ADA claim. Second, if Plaintiff is complaining of the

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In accordance with the court’s October 9, 2018 Memorandum and Order on
initial review, the court finds that Plaintiff’s Fourth Amendment claims, restated in
the Amended Complaint, may now proceed to service of process against Lincoln
Police Officers Parker, James, Hein, Ripley, Messersmith, Kounovsky, and
Sundermeier in their individual capacities.
IT IS THEREFORE ORDERED that:
1.

Plaintiff’s ADA claims are dismissed without prejudice.

2.
The clerk of court shall change the case caption to reflect that
Defendants Parker, James, Hein, Ripley, Messersmith, Kounovsky, and
Sundermeier are sued in their individual capacities only and to correct the spelling
of “individual.”
3.
Plaintiff’s Fourth Amendment claims against Defendants Parker,
James, Hein, Ripley, Messersmith, Kounovsky, and Sundermeier in their
individual capacities may proceed to service of process. The clerk of court is
directed to obtain the last known addresses for Defendants Parker, James, Hein,
Ripley, Messersmith, Kounovsky, and Sundermeier from the Marshals Service for
service of process on them in their individual capacities.
4.
Upon obtaining the necessary addresses, the clerk of court is directed
to complete and issue summonses for Defendants Parker, James, Hein, Ripley,
Messersmith, Kounovsky, and Sundermeier in their individual capacities at the
addresses provided by the Marshals Service. The clerk of court is further directed
to deliver the summonses, the necessary USM-285 Forms, the Complaint (filing
no. 1), the Amended Complaint (filing no. 13), a copy of the court’s previous
memorandum and order on initial review (filing no. 12), and a copy of this order to
deprivation of his liberty based on the Defendants’ alleged warrantless seizure of Plaintiff, such
claim is encompassed within his Fourth Amendment claim.

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the Marshals Service for service of process on Defendants Parker, James, Hein,
Ripley, Messersmith, Kounovsky, and Sundermeier in their individual capacities.
Service may be accomplished by using any of the following methods: personal,
residence, certified mail, or designated delivery service. See Federal Rule of Civil
Procedure 4(e); Neb. Rev. Stat. § 25-508.01 (Reissue 2016). 2
5.
The clerk of court is directed to file under seal any document
containing the last known addresses for Defendants Parker, James, Hein, Ripley,
Messersmith, Kounovsky, and Sundermeier.
6.
The United States Marshal shall serve all process in this case without
prepayment of fees from Plaintiff.
7.
Federal Rule of Civil Procedure 4(m) requires service of the
complaint on a defendant within 90 days of filing the complaint. However,
Plaintiff is granted, on the court’s own motion, an extension of time until 90 days
from the date of this order to complete service of process.
8.
The clerk of court is directed to set the following pro se case
management deadline: February 13, 2019: check for completion of service of
process.

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Pro se litigants proceeding in forma pauperis are entitled to rely on service by the
United States Marshals Service. Wright v. First Student, Inc., 710 F.3d 782, 783 (8th Cir. 2013).
Pursuant to 28 U.S.C. § 1915(d), in an in forma pauperis case, “[t]he officers of the court shall
issue and serve all process, and perform all duties in such cases.” See Moore v. Jackson, 123
F.3d 1082, 1085 (8th Cir. 1997) (language in § 1915(d) is compulsory). See, e.g., Beyer v.
Pulaski County Jail, 589 Fed. Appx. 798 (8th Cir. 2014) (unpublished) (vacating district court
order of dismissal for failure to prosecute and directing district court to order the Marshal to seek
defendant’s last-known contact information where plaintiff contended that the Jail would have
information for defendant’s whereabouts); Graham v. Satkoski, 51 F.3d 710, 713 (7th Cir. 1995)
(when court instructs Marshal to serve papers for prisoner, prisoner need furnish no more than
information necessary to identify defendant; Marshal should be able to ascertain defendant’s
current address).

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Dated this 15th day of November, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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