Dan v. Douglas County et al

Filing 17

MEMORANDUM AND ORDER Plaintiff's Complaint is dismissed without prejudice for failure to state a claim upon which relief can be granted. Judgment shall be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(LRM)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ANTHONY TERRY DAN,
Plaintiff,

8:20CV283

vs.
DOUGLAS COUNTY and MICHAEL
W. JENSEN, Prosecutor Attorney, in his
individual capacity,

MEMORANDUM
AND ORDER

Defendants.

Plaintiff is an inmate with the Nebraska Department of Corrections. The court
has granted Plaintiff permission to proceed in forma pauperis (Filing 8), and the
court now conducts an initial review of the Complaint (Filing 1) to determine
whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.
I. SUMMARY OF COMPLAINT
Plaintiff sues Douglas County and county prosecutor Michael Jensen in his
individual capacity for “maliciously prosecuting [him] under two different case
numbers.” (Filing 1 at CM/ECF p. 4.) The only factual allegations Plaintiff makes
to support his claim is that he crashed his truck into Metropolitan Community
College while trying to get away from several gang members who were trying to rob
him in Omaha, Nebraska, on July 27, 2019. Plaintiff requests $500,000 in damages.
(Id. at CM/ECF pp. 4-5.)
Attached to Plaintiff’s Complaint is a grievance he appears to have sent to the
Office of the Counsel for Discipline (Filing 1-1) on April 30, 2020, complaining
about Defendant Jensen’s performance in two criminal cases that presumably

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involve Plaintiff, CR 19-22667 and CR 19-4641.1 Plaintiff accuses Jensen of
prosecuting charges against him without probable cause or sufficient evidence and
failing to disclose to the defense “all evidence and information in a timely manner.”
(Id. at CM/ECF p. 3.) In Case No. CR 19-4641, Plaintiff states that “se[ver]al people
have engaged in conduct involving dishonesty, fraud, deceit, and or
misrepresentation and engaged in conduct prejudicial to the administration of
justice” which constitutes “organized corruption.” (Id. at CM/ECF p. 4.) The Office
of the Counsel for Discipline declined to investigate Plaintiff’s allegations. (Id. at
CM/ECF p. 2.)2
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).

The Nebraska Courts’ JUSTICE system confirms that CR 19-22667
(Douglas County Court) was prosecuted by Michael Jensen against Plaintiff for two
counts of first-degree assault and one count of criminal mischief occurring on July
27, 2019. After the preliminary hearing was waived, the case was bound over to
district court (CR 19-4641, District Court of Douglas County), where Plaintiff was
found guilty on one count of first-degree assault. The second first-degree-assault
charge and the criminal-mischief charge were dropped and dismissed.
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2

Plaintiff has also filed documents regarding a separate criminal case, CR 1918946, and Plaintiff’s complaints to the Counsel for Discipline regarding his counsel
in that case, Richard P. McGowan. (Filings 15, 16.) It is not clear how these
documents are relevant to the case before this court.
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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
A. Claim Against Douglas County
In order to state a plausible claim against Douglas County, Plaintiff must
allege that a “policy” or “custom” caused a violation of his constitutional rights. Doe
By and Through Doe v. Washington County, 150 F.3d 920, 922 (8th Cir. 1998)
(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). An “official
policy” involves a deliberate choice to follow a course of action made from among
various alternatives by an official who has the final authority to establish
governmental policy. Jane Doe A By & Through Jane Doe B v. Special School Dist.
of St. Louis County, 901 F.2d 642, 645 (8th Cir. 1990) (citing Pembaur v. City of
Cincinnati, 475 U.S. 469, 483 (1986)). 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;
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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 Douglas County or its prosecutors, that
Douglas County’s policymaking officials were deliberately indifferent to or tacitly
authorized any unconstitutional conduct, that any unconstitutional custom was the
moving force behind his injuries, or that the county failed to adequately train its
employees. Even with the most liberal construction, Plaintiff has failed to allege
sufficient facts to state a claim upon which relief may be granted against Douglas
County.
Allowing amendment of Plaintiff’s Complaint to state a claim against Douglas
County would be futile because without a constitutional violation by a county
employee, there can be no section 1983 or Monell liability for the county and, as
discussed below, there can be no liability on the part of the county prosecutor in this
case. Whitney v. City of St. Louis, Missouri, 887 F.3d 857, 861 (8th Cir. 2018); see
also Malone v. Hinman, 847 F.3d 949, 955 (8th Cir. 2017) (“Because we conclude
that Officer Hinman did not violate Malone’s constitutional rights, there can be no
§ 1983 or Monell liability on the part of Chief Thomas and the City.”); Sitzes v. City
of W. Memphis, 606 F.3d 461, 470 (8th Cir. 2010) (agreeing with district court that
plaintiffs’ claims “could not be sustained absent an underlying constitutional
violation by the officer”); Sanders v. City of Minneapolis, 474 F.3d 523, 527 (8th
Cir. 2007) (“Without a constitutional violation by the individual officers, there can
be no § 1983 or Monell . . . municipal liability.”).

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Accordingly, Plaintiff’s claims against Douglas County will be dismissed.
B. Claim Against Prosecutor in Individual Capacity
Plaintiff also sues Defendant Jensen in his individual capacity for malicious
prosecution. “It is well established in this circuit that ‘[a]n action for malicious
prosecution by itself is not punishable under § 1983 because it does not allege a
constitutional injury.’” Pace v. City of Des Moines, 201 F.3d 1050, 1055 (8th Cir.
2000) (quoting Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 977 (8th Cir. 1993)).
“[M]alicious prosecution can form the basis of a § 1983 suit only if defendant’s
conduct also infringes some provision of the Constitution or federal law,” Sanders,
984 F.2d at 977, which Plaintiff does not allege.
Furthermore, “[p]rosecutors are entitled to absolute immunity from civil
liability under § 1983 when they are engaged in prosecutorial functions that are
‘intimately associated with the judicial process.’” Schenk v. Chavis, 461 F.3d 1043,
1046 (8th Cir. 2006) (quoting Anderson v. Larson, 327 F.3d 762, 768 (8th Cir.
2003)). The filing of criminal charges—about which Plaintiff complains—is an
action intimately associated with the judicial phase of the criminal process, and
absolute immunity applies “even if the prosecutor’s steps to initiate a prosecution
are patently improper.” Sample v. City of Woodbury, 836 F.3d 913, 916 (8th Cir.
2016). “Allegations of unethical conduct and improper motive in the performance
of prosecutorial functions do not defeat the protection of absolute immunity.” Id.
Accordingly, Plaintiff’s claim against Defendant Jensen must be dismissed.
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s Complaint is dismissed without prejudice for failure to state
a claim upon which relief can be granted.
2.

Judgment shall be entered by separate document.

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DATED this 18th day of November, 2020.
BY THE COURT:

Richard G. Kopf
Senior United States District Judge

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