Valentine v. Brown

Filing 6

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED: The only claim alleged in Plaintiff's Complaint (Filing No. 1 ) that will be allowed to proceed is a Fourth Amendment claim against Defendant Chris Brown, in his individual capacity, for allegedl y submitting a false affidavit to obtain a search warrant. Any and all other claims alleged in the Complaint are dismissed without prejudice. For service of process on Defendant Chris Brown, in his individual capacity, the clerk of the court is dire cted to complete a summons form and a USM-285 form for said Defendant using the address "OmahaPolice Department, 505 South 15th Street, Omaha, NE 68102," and forward them together with a copy of the Complaint (Filing No. 1 ) and a copy of this Memorandum and Order to the Marshals Service. The Marshals Service shall serve Defendant personally at the Omaha Police Department. Service may also be accomplished by using any of the following methods: residence, certified mail, or designated delivery service. See Federal Rule of Civil Procedure 4(e); Neb. Rev. Stat. § 25- 508.01 (Reissue 2016). Federal Rule of Civil Procedure 4(m) requires service of the complaint on a defendant within 90 days of filing the complaint. However, Pl aintiff is granted, on the courts own motion, an extension of time until 90 days from the date of this order to complete service of process. The United States Marshal shall serve all process in this case without prepayment of fees from Plaintiff. The clerk of the court is directed to set the following pro se case management deadline: June 25, 2018Check for completion of service of process. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(TCL)

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

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8:18CV69

MEMORANDUM
AND ORDER

Plaintiff filed her pro se Complaint on February 16, 2018 (Filing No. 1), and
was granted leave to proceed in forma pauperis that same date (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
Plaintiff’s Complaint references Case No. 8:16CV131, which she filed in this
court on March 25, 2016, against the City of Omaha, “8 Unknown Jane-John Doe
Omaha Police Officers,” and Chris Brown, the defendant herein.1 Brown is sued both
individually and officially. Plaintiff alleges Brown falsely stated in an affidavit for a
search warrant that Plaintiff sold drugs to a confidential informant.
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

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Brown was dismissed (without prejudice) as a defendant on initial review of
the complaint in that case because Plaintiff merely alleged that a search warrant
Brown had obtained was “bogus.” See Memorandum and Order entered on May 25,
2016 (Filing No. 6 in Case No. 8:16CV131).

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). “A warrant based upon an affidavit
containing deliberate falsehood or reckless disregard for the truth violates the Fourth
Amendment and subjects the officer who submitted the affidavit to § 1983 liability.”
Schaffer v. Beringer, 842 F.3d 585, 593 (8th Cir. 2016) (quoting Block v. Dupic, 758
F.3d 1062, 1063 (8th Cir. 2014)), cert. denied, 137 S. Ct. 2299 (2017).
Plaintiff’s Complaint contains sufficient facts to state a claim for relief against
Officer Brown in his individual capacity, as it is alleged that Brown “lied to the
county judge to get search warrant to break into our house ... based off a phony make
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believe ‘CI’” (Filing No. 1 at CM/ECF p. 1-2). More specifically, Plaintiff alleges
“Officer Brown lied to the judge [by] stating that Brown got ‘CI’ to do two controlled
buys on the 14th & 16th day of July 2015” (Filing No. 1 at CM/ECF p. 2). Plaintiff
alleges the search warrant was executed on July 17, 2015, but no drugs were found.
Plaintiff further alleges that “7 months later police came back to our house with
a warrant for our arrest claiming that we sold drugs ... [and] we was assaulted and
tased by John Doe police” (Filing No. 1 at CM/ECF p. 1). There is no allegation that
Brown participated in this alleged false arrest and excessive use of force. Plaintiff also
claims she was strip searched at some point (Filing No. 1 at CM/ECF p. 2), but again
there is no allegation that Brown was a participant.
Plaintiff’s action is therefore limited to a Fourth Amendment claim against
Brown for allegedly submitting a false affidavit to obtain the search warrant. Such
claim, however, can only be brought against Brown in his individual capacity because
Plaintiff has not alleged any facts to show that a municipal policy or custom played
a part in the alleged constitutional violation.
“A suit against a public official in his official capacity is actually a suit against
the entity for which the official is an agent.” Schaffer, 842 F.3d at 596 (quoting ElderKeep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006)). “The plaintiff must prove that
the municipality itself caused the constitutional violation at issue.” Id. “Thus, [the]
first inquiry in any case alleging municipal liability under § 1983 is the question
whether there is a direct causal link between a municipal policy or custom and the
alleged constitutional deprivation.” Id. (quoting City of Canton v. Harris, 489 U.S.
378, 385 (1989)). To prove the existence of a policy, a plaintiff must point to “an
official policy, a deliberate choice of a guiding principle or procedure made by the
municipal official who has final authority regarding such matters.” Id. (quoting
Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999)). Further, the plaintiff must
prove that the policy was the “moving force” behind a constitutional violation. Id.
(quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)).

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IV. CONCLUSION
Plaintiff’s Complaint states a plausible Fourth Amendment claim against
Defendant Chris Brown, in his individual capacity only, for allegedly submitting a
false affidavit to obtain a search warrant.
IT IS THEREFORE ORDERED:
1.

The only claim alleged in Plaintiff’s Complaint (Filing No. 1) that will
be allowed to proceed is a Fourth Amendment claim against Defendant
Chris Brown, in his individual capacity, for allegedly submitting a false
affidavit to obtain a search warrant. Any and all other claims alleged in
the Complaint are dismissed without prejudice.

2.

For service of process on Defendant Chris Brown, in his individual
capacity, the clerk of the court is directed to complete a summons form
and a USM-285 form for said Defendant using the address “Omaha
Police Department, 505 South 15th Street, Omaha, NE 68102,” and
forward them together with a copy of the Complaint (Filing No. 1) and
a copy of this Memorandum and Order to the Marshals Service. The
Marshals Service shall serve Defendant personally at the Omaha Police
Department.2 Service may also be accomplished by using any of the

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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 lastknown 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
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following methods: residence, certified mail, or designated delivery
service. See Federal Rule of Civil Procedure 4(e); Neb. Rev. Stat. § 25508.01 (Reissue 2016).
3.

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.

4.

The United States Marshal shall serve all process in this case without
prepayment of fees from Plaintiff.

5.

The clerk of the court is directed to set the following pro se case
management deadline: June 25, 2018—Check for completion of service
of process.

DATED this 26th day of March, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

furnish no more than information necessary to identify defendant; Marshal should be
able to ascertain defendant’s current address).
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