Wynn-Thomas v. Dempsey et al
MEMORANDUM AND ORDER - Plaintiff's claims against Defendant ROBERT MARCUSSO, in his official and individual capacities, are dismissed without prejudice. Plaintiff's claims against Defendant DOUGLAS COUNTY, NEBRASKA, are dismissed withou t prejudice. Plaintiff's claims against Defendant OMAHA POLICE DIVISION are dismissed without prejudice. Plaintiff's claims against Defendant PATRICK DEMPSEY, in his official capacity, are dismissed without prejudice. This case will pr oceed to service of process only against Defendant PATRICK DEMPSEY, in his individual capacity. The Clerk of the Court is directed to complete a summons form and a USM-285 form for Defendant PATRICK DEMPSEY, in his individual capacity. The Clerk shall forward the completed forms to the Marshals Service, 4 together with a copy of Plaintiff's Complaint (Filing 1 ) and a copy of this Memorandum and Order, for service upon Defendant by certified mail or other authorized method. The Unite d States Marshal shall serve all process in this case without prepayment of fees from Plaintiff. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 9/2/2021:Check for completion of service of summons) Ordered by Senior Judge Richard G. Kopf. (Copies mailed as directed and to prose party)(MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PATRICK DEMPSEY, Badge # 2122, in
his official and individual capacities;
ROBERT MARCUSSO, in his official
and individual capacities; OMAHA
POLICE DIVISION, a Nebraska Political
Subdivision; and DOUGLAS COUNTY,
NEBRASKA, a Nebraska Political
Plaintiff, a state prisoner, filed his Complaint on February 16, 2021, and has
been granted leave to proceed in forma pauperis. Plaintiff paid the required initial
partial filing fee on May 14, 2021. The court now conducts an initial review of
Plaintiff’s Complaint (Filing 1) pursuant to 28 U.S.C. '' 1915(e)(2) and 1915A.
I. STANDARDS ON INITIAL REVIEW
The court is required to conduct an initial review of “a complaint in a civil
action in which a prisoner seeks redress from a governmental entity or officer or
employee of a governmental entity.” 28 U.S.C.A. ' 1915A(a). On such initial
review, the court must dismiss the complaint if it: “(1) is frivolous, malicious, or
fails to state a claim upon which relief may be granted; or (2) seeks monetary relief
from a defendant who is immune from such relief.” 28 U.S.C.A. ' 1915A(b). See
also 28 U.S.C. ' 1915(e)(2)(B) (requiring dismissal of in forma pauperis complaints
“at any time” on the same grounds as ' 1915A(b)).
“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)). 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
“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). This means that “if the essence of an
allegation is discernible, even though it is not pleaded with legal nicety, then the
district court should construe the complaint in a way that permits the layperson’s
claim to be considered within the proper legal framework.” Stone v. Harry, 364 F.3d
912, 915 (8th Cir. 2004). However, even pro se complaints are required to allege
facts which, if true, state a claim for relief as a matter of law. Martin v. Aubuchon,
623 F.2d 1282, 1286 (8th Cir. 1980).
II. SUMMARY OF COMPLAINT
Plaintiff’s Complaint indicates this is a civil rights action brought under 42
U.S.C. § 1983. Two basic claims are asserted. First, Plaintiff alleges that Detective
Patrick Dempsey, of the “Omaha Police Division,” conducted unlawful searches and
seizures on March 25, 2018. Second, Plaintiff alleges that his public defender, Jack
Mancusso, forged Plaintiff’s signature on a Waiver of Appearance form, thereby
interfering with Plaintiff’s right of access to the courts. Dempsey and Mancusso are
both sued in their individual and official capacities. The “Omaha Police Division”
and Douglas County, Nebraska, are also named as Defendants. Plaintiff seeks an
award of compensatory and punitive damages.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of
rights 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). The traditional
definition of acting under color of state law requires that the defendant in a § 1983
action have exercised power “possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of state law.” Id. (quoting
United States v. Classic, 313 U.S. 299, 326 (1941)).
A. Public Defender Mancusso
“[A] public defender does not act under color of state law when performing a
lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.”
Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981); West, 487 U.S. at 50. Indeed, when
a public defender represents an indigent defendant in a state criminal proceeding, he
is “not acting on behalf of the State; he is the State's adversary.” Dodson, 454 U.S.
at 322 n.13. That is the situation presented here.
A § 1983 claim may be brought against a public defender who conspires with
a state actor to deprive an individual of a federally-protected right, see Manis v.
Sterling, 862 F.2d 679, 681 (8th Cir. 1988), but the allegations of Plaintiff’s
Complaint fall far short of stating a plausible conspiracy claim involving Mancusso.
See Harris v. Craig, No. 8:20CV17, 2020 WL 2914026, at *2 & n. 1 (D. Neb. June
3, 2020) (collecting cases).
Plaintiff’s individual-capacity claims against Defendant Mancusso will be
dismissed for failure to state a claim upon which relief may be granted.
B. Douglas County
“A suit against a government officer in his official capacity is functionally
equivalent to a suit against the employing governmental entity.” McKay v. City of
St. Louis, 960 F.3d 1094, 1102 (8th Cir. 2020) (quoting Veatch v. Bartels Lutheran
Home, 627 F.3d 1254, 1257 (8th Cir. 2010)). Thus, Plaintiff’s official-capacity
claims against Defendant Mancusso are, in effect, claims against Douglas County,
Nebraska. Plaintiff has also sued Douglas County directly in this case by naming it
as a Defendant.
In Monell v. Department of Social Services, 436 U.S. 658 (1978), the Supreme
Court held that a municipality (or other local government unit) can be liable under
42 U.S.C. § 1983 if an “action pursuant to official municipal policy of some nature
caused a constitutional tort.” Id. at 691. “To establish municipal liability, a plaintiff
must first show that one of the municipality’s officers violated [his] federal right.”
Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010) (citing City
of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam); Sanders v. City of
Minneapolis, 474 F.3d 523, 527 (8th Cir. 2007)). “If that element is satisfied, then a
plaintiff must establish the requisite degree of fault on the part of the municipality
and a causal link between municipal policy and the alleged violation.” Id. (citing
City of Canton v. Harris, 489 U.S. 378, 388-92 (1989)).
To prevail on a claim alleged against Douglas County, Plaintiff must show
that the constitutional violation resulted from (1) an official “policy,” (2) an
unofficial “custom,” or (3) a deliberately indifferent failure to train or supervise.
Corwin v. City of Independence, 829 F.3d 695, 699 (8th Cir. 2016). “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 Sch. Dist.
of St. Louis Cty., 901 F.2d 642, 645 (8th Cir. 1990) (quoting Pembaur v. City of
Cincinnati, 475 U.S. 469, 483 (1986)).
Alternatively, a plaintiff may establish municipal liability through an
unofficial custom of the municipality by demonstrating “(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
a moving force behind the constitutional violation.
Malone v. Hinman, 847 F.3d 949, 955 (8th Cir. 2017) (quoting Corwin, 829 F.3d at
A municipal liability claim based on a theory of inadequate training or
supervision is simply an extension of a claim based on a “policy” or “custom” theory
of municipal liability. Marsh v. Phelps Cty., 902 F.3d 745, 751 (8th Cir. 2018); see
City of Canton v. Harris, 489 U.S. 378, 389 (1989) (“Only where a municipality’s
failure to train its employees in a relevant respect evidences a ‘deliberate
indifference’ to the rights of its inhabitants can such a shortcoming be properly
thought of as a city ‘policy or custom’ that is actionable under § 1983.”). Thus, to
state a viable § 1983 claim for “failure to train” against a municipality, a plaintiff
must “plead facts sufficient to show that (1) [the municipality’s] [ ]training practices
were inadequate; (2) [the municipality] was deliberately indifferent to the rights of
others in adopting these training practices, and [the municipality’s] failure to train
was a result of deliberate and conscious choices it made; and (3) [the municipality’s]
alleged training deficiencies caused [Plaintiff's] constitutional deprivation.” Ulrich
v. Pope Cty., 715 F.3d 1054, 1061 (8th Cir. 2013).
No such facts are pleaded by Plaintiff’s Complaint. A pleading that offers
“labels and conclusions” or “a formulaic recitation of the elements of a cause of
action will not do.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Nor
does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.” Id. (quoting Twombly, 550 U.S. at 557).
Because Plaintiff has not alleged any facts to suggest that the alleged violation
of his constitutional rights was caused by a Douglas County policy or custom, or by
the County’s failure to train or supervise public defenders, Plaintiff has failed to state
a Monell claim of municipal liability. Plaintiff’s claims against Douglas County, and
against Defendant Mancusso in his official capacity, will be dismissed for failure to
state a claim upon which relief may be granted.
C. Omaha Police Division
The Omaha Police Division (or Department) is not a proper party, and must
be dismissed from this action. See Ketchum v. City of W. Memphis, Ark., 974 F.2d
81, 82 (8th Cir. 1992) (city police department not suable juridical entity because it
is department or subdivision of city government); Fehderau v. Omaha Police Dep't,
No. 8:18CV592, 2019 WL 4858303, at *2 (D. Neb. Oct. 2, 2019) (“Plaintiff cannot
maintain a § 1983 action against the Omaha Police Department because it is not a
distinct legal entity amenable to suit under § 1983.”); Meyer v. Lincoln Police Dep't,
347 F. Supp. 2d 706, 706 (D. Neb. 2004) (city police department not subject to suit
because it is agency of the city, which is a political subdivision, and has no separate
legal status under Nebraska law).
D. Detective Dempsey
Plaintiff has sued Detective Dempsey in his official capacity, as well as
personally. The official-capacity claims are, in effect, claims against Dempsey’s
employer, the City of Omaha. Plaintiff does not claim his constitutional rights were
violated by a municipal policy or custom, but does claim the City of Omaha is liable
for failing to train or supervise Dempsey; specifically, Plaintiff alleges that with
proper training Dempsey “should have known that Nebraska law required that the
search of a probationer must be directed by a probation officer.” (Filing 1, ¶ 18.)
However, Plaintiff has not pleaded any facts to show that the City was deliberately
indifferent to the rights of probationers, or that the alleged deficiency in Dempsey’s
training was the result of deliberate and conscious choices the City made. See Ulrich,
715 F.3d at 1061. The official-capacity claims against Dempsey therefore will be
dismissed for failure to state a claim upon which relief may be granted.
With respect to the individual-capacity claims against Dempsey, however, the
court concludes there are sufficient facts alleged to state plausible claims for relief
under § 1983 for violations of Plaintiff’s Fourth Amendment rights. Essentially,
Plaintiff alleges that Dempsey and other police officers, who were part of OPD’s
gang unit, showed up at the residence of Plaintiff’s mother, where Plaintiff was also
residing, under the pretense of conducting a probation check. Plaintiff alleges his
probation officer had no knowledge of this police action and did not authorize a
warrantless search of the premises. After conducting a search of Plaintiff’s living
quarters and finding nothing, Dempsey allegedly pretended to place a phone call to
Plaintiff’s mother and then told Plaintiff his mother had given consent for the police
to search her bedroom. Police then searched the bedroom and claimed to have found
a stolen handgun hidden in the back of the closet.1 Plaintiff was placed under arrest
and subsequently charged with possession of a stolen firearm and with violating the
terms of his probation.
The court takes judicial notice that Plaintiff was convicted of the firearms
charge on November 7, 2018, following a bench trial on stipulated facts in the
District Court of Douglas County, Nebraska. The conviction was affirmed by the
Nebraska Court of Appeals on August 19, 2019. Plaintiff then filed a motion for
post-conviction relief, which was denied by the District Court on April 23, 2020.
The Court of Appeals affirmed that ruling on May 10, 2021. See State v. WynnThomas, Case No. CR18-1174, District Court of Douglas County, Nebraska. (Court
record publicly available at https://www.nebraska.gov/justice.)
In the post-conviction proceeding, Plaintiff claimed ineffective assistance of
counsel for failing to challenge the search of his mother’s bedroom. The Nebraska
Court of Appeals concluded the search was lawful, and held Plaintiff was not entitled
to an evidentiary hearing based on a conclusory allegation that his mother’s consent
to the search was not sufficiently attenuated from the officers’ illegal acts regarding
the probation check. See State v. Wynn-Thomas, No. A-20-431, 2021 WL 1993461,
at *3 (Neb. Ct. App. May 10, 2021). Plaintiff does not appear to have claimed, as he
does now, that his mother did not consent to the search.
The Supreme Court has held that “in order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff
must prove that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to make
Plaintiff’s Complaint references two exhibits that purportedly are attached
to the Complaint—a warrantless arrest affidavit signed by Dempsey and a counteraffidavit by Plaintiff’s mother—but the filed pleading has no such attachments.
such determination, or called into question by a federal court's issuance of a writ of
habeas corpus, 28 U.S.C. § 2254.” Heck v. Humphrey 512 U.S. 477, 486-87 (1994)
A claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under §
1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the
district court must consider whether a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or sentence; if
it would, the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been
invalidated. But if the district court determines that the plaintiff's action,
even if successful, will not demonstrate the invalidity of any
outstanding criminal judgment against the plaintiff, the action should
be allowed to proceed, in the absence of some other bar to the suit.
Id., at 487 (emphasis in original; footnotes omitted).
For example, a suit for damages attributable to an allegedly
unreasonable search may lie even if the challenged search produced
evidence that was introduced in a state criminal trial resulting in the §
1983 plaintiff's still-outstanding conviction. Because of doctrines like
independent source and inevitable discovery, and especially harmless
error, such a § 1983 action, even if successful, would not necessarily
imply that the plaintiff’s conviction was unlawful. In order to recover
compensatory damages, however, the § 1983 plaintiff must prove not
only that the search was unlawful, but that it caused him actual,
compensable injury, which … does not encompass the “injury” of being
convicted and imprisoned (until his conviction has been overturned).
Id., n. 7 (emphasis in original; citations omitted).
The Supreme Court was “careful in Heck to stress the importance of the term
‘necessarily.’” Nelson v. Campbell, 541 U.S. 637, 647 (2004). “To hold otherwise
would have cut off potentially valid damages actions as to which a plaintiff might
never obtain favorable termination—suits that could otherwise have gone forward
had the plaintiff not been convicted.” Id.
Because an illegal search or arrest may be followed by a valid conviction,
Heck does not generally bar § 1983 claims for Fourth Amendment search and seizure
violations. Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003) (citing cases). See
Collins v. Bruns, 195 F. App’x 533, 535 (8th Cir. 2006) (unpublished) (“The district
court erred in concluding that the defective-search-warrant claim was categorically
barred by Heck, as success on this claim would not necessarily imply the invalidity
of [plaintiff’s] conviction.”); Moore v. Inman, 210 F. App’x 550, 551 (8th Cir. 2006)
(unpublished) (preservice dismissal was not appropriate where it was not apparent
on the record that success on the merits of plaintiff’s Fourth Amendment claim for
an unlawful vehicle search would necessarily imply the invalidity of any state court
conviction); Whitmore v. Harrington, 204 F.3d 784, 784-85 (8th Cir. 2000) (per
curiam) (district court erred in dismissing plaintiff’s unlawful-investigative-stop
claim as Heck-barred because success on this claim would not necessarily imply the
invalidity of his later drug convictions); Moore v. Sims, 200 F.3d 1170, 1171-72 (8th
Cir. 2000) (“If [a § 1983 plaintiff] successfully demonstrates that his initial seizure
and detention by officers was without probable cause, such a result does not
necessarily imply the invalidity of his drug-possession conviction.”).
Plaintiff’s Fourth Amendment claims against Defendant Dempsey, in his
individual capacity, will be permitted to proceed to service of process because it is
not apparent that such claims, if successful, will necessarily invalidate Plaintiff’s
conviction for possession of a stolen firearm.
Plaintiff must understand, however, that he cannot recover any damages for
his conviction and imprisonment, because “a § 1983 cause of action for damages
attributable to an unconstitutional conviction or sentence does not accrue until the
conviction or sentence has been invalidated.” Heck, 512 U.S. at 489-90 (1994)
(footnote omitted). Also, with respect to Plaintiff’s claims related to the search of
his residence and the seizure of his handgun and person, he must be able to plead
and prove an “actual, compensable injury” in order to recover compensatory
damages. Id., at 487 n. 7; see Waters v. Madson, 921 F.3d 725, 740 (8th Cir. 2019)
(affirming district court’s dismissal of § 1983 claim where plaintiffs failed to allege
that any damages stemmed from unlawful search of their vehicle’s trunk). Nominal
damages (of $1.00) may be awarded without proof of actual injury, however. See
Waters, 921 F.3d at 740 n. 8; Garrett v. Clarke, 147 F.3d 745, 747 (8th Cir. 1998)
(“If [plaintiff] proves [his Fourth Amendment search] claim, he is entitled to a
finding of liability and nominal damages even if he cannot prove actual damages.”).
With an appropriate showing, punitive damages may also be awarded.2 See Salitros
v. Chrysler Corp., 306 F.3d 562, 574 (8th Cir. 2002) (“Our Circuit long ago rejected
the notion that compensatory damages, as opposed to nominal damages, were
prerequisite to an award of punitives.”) (citing Goodwin v. Circuit Court of St. Louis
Cty., 729 F.2d 541, 548 (8th Cir. 1984) (“As to the claim that punitive damages may
not be awarded unless actual damages are proved, this is not the law.”).
Liberally construed, Plaintiff’s Complaint states plausible claims for relief
against Defendant Dempsey, in his individual capacity, for alleged violations of
Plaintiff’s Fourth Amendment right to be free from unreasonable searches and
seizures.3 In all other respects, however, the Complaint fails to state a claim upon
which relief may be granted.
IT IS THEREFORE ORDERED:
Plaintiff’s claims against Defendant ROBERT MARCUSSO, in his
official and individual capacities, are dismissed without prejudice.
Plaintiff’s claims against Defendant DOUGLAS
NEBRASKA, are dismissed without prejudice.
Plaintiff’s claims against Defendant OMAHA POLICE DIVISION are
dismissed without prejudice.
Punitive damages are appropriate in a § 1983 case when the defendant’s
conduct is shown to be motivated by evil motive or intent, or when it involves
reckless or callous indifference to the federally protected rights of others.
Washington v. Denney, 900 F.3d 549, 564 (8th Cir. 2018).
The court cautions Plaintiff that this is only a preliminary determination
based solely on the allegations in his Complaint. This is not a determination of the
merits of Plaintiff's claims or potential defenses thereto.
Plaintiff’s claims against Defendant PATRICK DEMPSEY, in his
official capacity, are dismissed without prejudice.
This case will proceed to service of process only against Defendant
PATRICK DEMPSEY, in his individual capacity.
The Clerk of the Court is directed to complete a summons form and a
USM-285 form for Defendant PATRICK DEMPSEY, in his individual
capacity, using the following address:
Omaha Police Department
505 S. 15th St, Omaha, NE 68102
The Clerk shall forward the completed forms to the Marshals Service,4
together with a copy of Plaintiff=s Complaint (Filing 1) and a copy of
this Memorandum and Order, for service upon Defendant by certified
mail or other authorized method. See Fed. R. Civ. P. 4(e); Neb. Rev.
Stat. § 25-508.01(1).
The United States Marshal shall serve all process in this case without
prepayment of fees from Plaintiff.
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,
A[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) ); Fed. R. Civ. P. 4(c)(3) (court must order that service
be made by United States Marshal if plaintiff is authorized to proceed in forma
pauperis under 28 U.S.C. § 1915). See, e.g., Beyer v. Pulaski County Jail, 589 Fed.
App'x 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).
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.
10. The Clerk of the Court is directed to set a pro se case management
deadline in this case with the following text: “September 2, 2021:
Check for completion of service of summons.”
11. Plaintiff shall keep the court informed of his current address at all times
while this case is pending. Failure to do so may result in dismissal.
Dated this 4th day of June, 2021.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge
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