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Andrews v. City of Omaha Police Department

United States District Court, D. Nebraska

December 29, 2014

MICHAEL ANDREWS, Plaintiff,
v.
CITY OF OMAHA POLICE DEPARTMENT, et al., Defendants.

MEMORANDUM AND ORDER

LYLE E. STROM, Senior District Judge.

This matter is before the Court on review of plaintiff Michael Andrews' ("Andrews" or "plaintiff") complaint (Filing No. 1). Plaintiff was granted leave to proceed in forma pauperis in this matter. The Court now reviews the complaint in accordance with 28 U.S.C. § 1915(e).

I. SUMMARY OF COMPLAINT

Andrews, who lives in Omaha, Nebraska, has sued the Omaha Police Department, the Omaha Housing Authority, and two officers of the Omaha Police Department, Luciano Rizzo and Michael Belcastro (Filing No. 1 at CM/ECF p. 1). Liberally construed, he brings this action pursuant to 42 U.S.C. § 1983 for the violation of his constitutional right to procedural due process. He also asserts a state law claim for abuse of process.

Andrews alleged he was in the South Omaha Projects when he called 911 to report he had been robbed. Rizzo and Belcastro responded to the call. When Andrews explained what had happened, the officers stated, "we're not doing this shit." Andrews apparently argued with the officers and asked them if "they [were] going to do their job." They responded by informing Andrews he would be banned from the South Omaha Projects. Eventually a housing officer with the Omaha Housing Authority arrived on the scene, took a photograph of Andrews, and advised him that he was being placed on the "barred and banned list" for the South Omaha Projects. The housing officer never questioned Andrews about what had occurred, and never gave him "fair warning" that he would be barred from entering the South Omaha Projects (Filing No. 1 at CM/ECF pp. 7-9).

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). A complaint or any portion thereof must be dismissed if it 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, 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."). 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).

III. DISCUSSION

Andrews alleged in his complaint that a housing officer with the Omaha Housing Authority barred him from the South Omaha Projects at the request of Belcastro and Rizzo. Andrews alleged he did not receive "fair warning" that he would be banned from the South Omaha Projects and that his picture would be placed in the gallery of the South Omaha Projects reflecting that he had been banned from the premises (Filing No. 1 at CM/ECF pp. 8-9).

The Fourteenth Amendment provides that "[n]o State shall... deprive any person of life, liberty, or property without due process of law." U.S. Const. amend. XIV, § 1. In order to state a procedural due process claim, a plaintiff must allege that (1) he suffered a deprivation of a constitutionally protected interest in life, liberty, or property, and (2) such deprivation occurred without due process of law. See Mathews v. Eldridge, 424 U.S. 319, 332 (1976). "In procedural due process claims, the deprivation by state action of a constitutionally protected interest in life, liberty, or property' is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law. " Zinermon v. Burch, 494 U.S. 113, 125 (1990).

The principle that an individual possesses a constitutionally protected liberty interest in remaining in a public place of his or her choosing is well-established. See Vincent v. City of Sulphur, No. 2:13-CV-189, 2014 WL 2003193, *6 (W.D. La. May 15, 2014) (collecting cases). Andrews allegations suggest the South Omaha Projects are a public place and he has been banned from the public place without notice and an opportunity to be heard. Thus, he has identified a potential violation of his constitutional rights. However, for the reasons explained below, as pled, his Complaint fails as a matter of law.

A. Demand for Relief

Complaints filed in federal court must contain "a demand for the relief sought." Fed.R.Civ.P. 8(a)(3). Andrews did not specify the relief he seeks. ( See generally Filing No. 1.) Accordingly, this matter may not proceed on plaintiff's current complaint. On the Court's own motion, Andrews will have an ...


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