United States District Court, D. Nebraska
ERIC D. STEPHENSON, Plaintiff,
DAVID BRUNO, et al., Defendants.
MEMORANDUM AND ORDER
LYLE E. STROM, Senior District Judge.
Plaintiff Eric Stephenson ("plaintiff") filed his complaint in this matter on May 12, 2104 (Filing No. 1). Plaintiff was given leave to proceed in forma pauperis (Filing No. 8). 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) and 1915A. Also pending is plaintiff's motion to appoint counsel (Filing No. 9).
I. SUMMARY OF COMPLAINT
Plaintiff brings this action pursuant to 28 U.S.C. § 1983 alleging violations of his constitutional rights. Plaintiff also raises various state law claims, including claims for negligence, libel, and defamation.
Plaintiff is incarcerated at the Omaha Correctional Center in Omaha, Nebraska. The Court takes judicial notice of Nebraska Department of Correctional Services public records, which show that plaintiff was convicted of intentional child abuse in Lancaster County, Nebraska, and began his sentence on November 5, 2013. See Stutzka v. McCarville, 420 F.3d 757, 761, n.2 (8th Cir. 2005) (court may take judicial notice of public records).
Plaintiff names the following individuals as defendants in this action: David Bruno, C.J. Roberts, Lincoln Police Department ("LPD") Officer D. Lind, and Deputy County Attorney Holly Parsley. (Filing No. 1 at CM/ECF p. 1.) Plaintiff alleges that in early 2012, the Department of Health and Human Services ("DHHS") appointed Bruno to investigate allegations that plaintiff and his girlfriend were exposing his girlfriend's minor children to domestic violence and drug use, allegations that plaintiff claims were unfounded. ( Id. at CM/ECF pp. 2-3.) Following the birth of plaintiff's and his girlfriend's infant son in September of 2012, Bruno took steps to remove the infant from plaintiff's care. On October 2, 2012, Bruno visited plaintiff's residence and later "alleged that he smelled a strong odor of marijuana coming from the window of the residence." ( Id. at CM/ECF p. 3.) Plaintiff claims he and his girlfriend were not inside the residence at the time. ( Id. ) Later the same day, Bruno and several LPD officers visited plaintiff's home. Plaintiff informed them they did not have permission to enter the residence. For the next three weeks, Bruno and law enforcement officers "secretly conducted surveillance on [plaintiff and his girlfriend's] residence, as they planned to remove the [infant from the home]." ( Id. at CM/ECF pp. 3-4.)
On October 30, 2012, the Juvenile Court of Lancaster County, Nebraska, placed plaintiff's infant son and his girlfriend's minor children in the custody of DHHS. ( Id. at CM/ECF p. 4.) Bruno and LPD officers went to plaintiff's residence to take physical custody of the children, but plaintiff and his girlfriend were not home. Plaintiff alleges he and his girlfriend had taken the infant and "relocate[d] to a local motel in Lincoln to avoid the lack of privacy at their home." ( Id. ) Plaintiff claims he was unaware of the custody order that had been entered in the juvenile court. ( Id. at CM/ECF p. 5.) Thereafter, LPD officers learned that plaintiff, his girlfriend, and the infant were staying in the motel. ( Id. )
On November 2, 2012, LPD officers secured a warrant and then forced their way into plaintiff's motel room. As the officers were forcing their way into the room, "Plaintiff froze, holding his [infant son] near him by the door" and then "ran into the bathroom trying to protect his [son] from being harmed." ( Id. at CM/ECF p. 5.) A "physical struggle" ensued, which plaintiff's girlfriend captured on a cellular phone camera. ( Id. at CM/ECF p. 6.) During this struggle, "Sergeant Price grabbed the plaintiff's shoulder and told Officer Wilkinson to twist the plaintiff's arm to get him down. During this, Sergeant Price told another officer to put the plaintiff in a chokehold." ( Id. ) Plaintiff alleges he was later diagnosed with a sprained neck. ( Id. )
On November 2, 2012, plaintiff was charged with child abuse, and an attorney was appointed to represent him. Plaintiff alleges his attorney refused to file a motion to retrieve evidence that was in prosecutor Holly Parsley's possession, and was generally ineffective in representing him. ( Id. at CM/ECF pp. 6-7.) Plaintiff pled no contest to child abuse, was sentenced to 30 to 48 months imprisonment, and his parental rights were terminated. ( Id. at CM/ECF p. 7.)
Liberally construed, plaintiff alleges Bruno and NDHHS falsely accused him of exposing minor children to domestic violence and drug abuse, their investigation into the allegations of abuse was negligent, and they violated his right to substantive due process. Plaintiff also alleges LPD officers violated his right to substantive due process by "induc[ing]" him to commit child abuse. ( Id. at CM/ECF pp. 8-9). In addition, LPD officers failed to read plaintiff his Miranda  rights following his arrest. ( Id. ) As relief, plaintiff seeks monetary damages in the amount of $2, 001, 000.00. ( Id. at CM/ECF p. 10.) Plaintiff also asks the Court to "consider  Plaintiff's case since [ Miranda] safeguards were not used." ( Id. at CM/ECF p. 9.)
II. APPLICABLE LEGAL 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)(2). The Court must dismiss a complaint or any portion thereof 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" for failing to state a claim upon which relief can be granted. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 676 (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."). Regardless of whether a plaintiff is represented or is appearing pro se, the plaintiff's complaint must allege specific facts sufficient to state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th ...