United States District Court, D. Nebraska
DE-VAUNTE J. TAYLOR, Plaintiff,
JAMES E. HOLTMEYER, STATE OF NEBRASKA, and OMAHA POLICE DEPARTMENT, Defendants.
MEMORANDUM AND ORDER
JOHN M. GERRARD, District Judge.
Plaintiff De-Vaunte J. Taylor ("Taylor" or "Plaintiff") filed his Complaint in this matter on May 30, 2014. (Filing No. 1.) This court has given Taylor leave to proceed in forma pauperis. 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.
I. SUMMARY OF COMPLAINT
Taylor brings this action pursuant to 42 U.S.C. § 1983 for violations of the Fourth and Fourteenth Amendments. Taylor alleges that on May 31, 2013, Omaha Police Department Officer James E. Holtmeyer pulled over the vehicle Taylor was driving. Taylor alleges Holtmeyer assaulted him during a traffic stop. Taylor alleges, in relevant part:
James E. Holtmeyer pulled behind me in an alleged traffic stop. Office[r] Holtmeyer then instructed me out of the Tahoe truck I was driving at gun point. He then instructed me to turn around and put my hands up which I did. Officer Holtmeyer then pushed me down sideways into the drivers [sic] side cockpit of the Tahoe truck I was driving where he climbed on top of me placing me in a choke hold and then drug me up out of the cockpit of the Tahoe truck and proceeded to call me Leanglo and punched me in the face several times before slam[m]ing me to the ground. All this is caught on video by the police car cam[e]ra.
(Filing No. 1 at CM/ECF pp. 4-5.)
As a result of this incident, Taylor claims he suffered a "black eye, swollen face, back pains, mental suffering, [and] depression." ( Id. at CM/ECF p. 5.) As relief, Taylor asks the court to order the State of Nebraska, the Omaha Police Department, and Holtmeyer to pay Taylor $1, 000, 000.00. He also asks the court to order Holtmeyer to resign. ( Id. at CM/ECF p. 6.)
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, 570 (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."). 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 Cir. 1985). A pro se plaintiff's allegations must be construed liberally. Burke v. North Dakota Dep't of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations omitted).
Liberally construed, Plaintiff here alleges federal constitutional claims. 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); Buckley v. Barlow , 997 F.2d 494, 495 (8th Cir. 1993).
III. DISCUSSION OF CLAIMS
A. Sovereign Immunity
The Eleventh Amendment bars claims for damages by private parties against a state, state instrumentalities, and an employee of a state sued in the employee's official capacity. See, e.g., Egerdahl v. Hibbing Cmty. Coll. , 72 F.3d 615, 619 (8th Cir. 1995); Dover Elevator Co. v. Arkansas State Univ. , 64 F.3d 442, 446-47 (8th Cir. 1995). Any award of retroactive monetary relief payable by the state, including for back pay or damages, is proscribed by the Eleventh Amendment absent a waiver of ...