United States District Court, District of Nebraska
ERIC J. D’ERCOLE, Plaintiff,
HARRAHS HOTEL RESORT, DOUG SEXTON, DCI IRGC, BRIAN EYBERG, OMAHA POLICE DEPARTMENT, DOUGLAS COUNTY CORRECTIONS DEPARTMENT, and LAURA PETERSEN, Defendants.
MEMORANDUM AND ORDER
RICHARD G. KOPF, Senior United States District Judge.
Plaintiff Eric D’Ercole (“Plaintiff”) filed his Complaint (Filing No. 1) on September 25, 2014. This court has given Plaintiff leave to proceed in forma pauperis. (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 sued Harrah’s Hotel in Council Bluffs, Iowa, the Omaha Police Department, the Douglas County Corrections Department, and three individuals who are never mentioned in the Complaint. His allegations are rambling and difficult to decipher. As best as the undersigned judge can tell, he alleged he contracted food poisoning after eating undercooked chicken at Harrah’s Hotel. He complained to the hotel. Thereafter, he “was persecuted as a criminal on court docket proceedings” and sodomized by a female police officer named Janig. (Filing No. 1 at CM/ECF p. 3.)
Plaintiff alleged his claims arise under the Constitution, laws or treaties of the United States and that his civil rights have been violated. (Id. at CM/ECF p. 4.) For relief, he asks for the court to “quash all charges against [him]” because they are predicated upon a “false arrest.” He also asks the court to award him monetary damages. (Id. at CM/ECF p. 5.)
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). However, 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
Plaintiff’s Complaint fails to state a claim upon which relief can be granted against any of the named Defendants. Plaintiff alleged he suffered a “false arrest” but provided no factual allegations to support such a claim. In addition, it is entirely unclear to the undersigned judge what relationship Plaintiff’s allegations concerning food poisoning have to his false arrest claim or to his allegation that he was sodomized by a police officer.
On the court’s own motion, Plaintiff will be provided with an opportunity to file an amended complaint. Plaintiff should keep the following discussion in mind when drafting his amended complaint.
A. Rules of Pleading
Plaintiff named six individuals as Defendants and has asked for leave to add numerous others. Most of these individuals are never mentioned ...