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Gonzalez v. South Sioux City Police Department

United States District Court, D. Nebraska

January 8, 2015

JOSE E. GONZALEZ, Plaintiff,


JOSEPH F. BATAILLON, Magistrate Judge.

Plaintiff Jose Gonzalez ("Plaintiff") filed his Complaint in this matter on May 1, 2014. (Filing No. 1.) This court has given Plaintiff leave to proceed in forma pauperis. (Filing No. 7.) 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.


Plaintiff is presently confined in the Tecumseh State Prison in Tecumseh, Nebraska. He filed this action under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350.[1] Liberally construed, Plaintiff also asserts jurisdiction under 42 U.S.C. § 1983. Defendants include Dakota County, Nebraska ("Dakota County"); South Sioux City, Nebraska; the South Sioux City Police Department; Kim Watson, the county attorney in Dakota County; Robert Deck, Plaintiff's court-appointed attorney; Judge William Binkard, a state district court judge in Dakota County; and Sarah Meadow, a deputy county attorney in Dakota County. (Filing No. 1 at CM/ECF pp. 2-3.)

Plaintiff alleges he is a Mexican national. He was arrested on October 31, 2008, by South Sioux City Police and was charged with first degree sexual assault. He was ultimately convicted and sentenced to prison. ( Id. at CM/ECF p. 3.) He was held in the Dakota County Jail from October 31, 2008, until he was sentenced on June 29, 2009. ( Id. )

Plaintiff states that at no time after his arrest was he advised by any of the named defendants of his right to consular notification under Article 36 of the Vienna Convention. ( Id. at CM/ECF p. 4.) Plaintiff argues that, had the Mexican Consulate been notified, consular officials would have, among other things, "protected him from [] abuse by the judicial system." ( Id. at CM/ECF p. 5.) For example, consular officials would have "secur[ed] his fellow employees' statements and testimony that Plaintiff was in fact at work when the alleged sexual abuses occurred." ( Id. at CM/ECF p. 4.) Plaintiff alleges that his public defender, Robert Deck, was aware of his "obligation to notify Plaintiff of his rights under the Convention, but intentionally refused to do so." ( Id. at CM/ECF p. 5.)

As relief, Plaintiff seeks general damages in the amount of $25, 000, 000.00; special damages "at an average of $1, 000.00 per week, over the past six years"; and exemplary and punitive damages in the amount of $100, 000, 000.00. ( Id. at CM/ECF p. 6.) He also seeks an order certifying a class of "all foreign nationals similarly situated, " and requiring that the defendants "cease their current practice of seizing foreign nationals without notifying them of their rights under the Vienna Convention."[2] ( Id. )


The court is required to review prisoner and in forma pauperis complaints seeking relief against a governmental entity or an officer or employee of a governmental entity to determine whether summary dismissal is appropriate. See 28 U.S.C. §§ 1915(e) and 1915A. The court must dismiss a complaint or any portion of it 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); 28 U.S.C. § 1915A(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." 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.").

"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)). However, "[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).

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).


A. Right to Consular Notification under the ...

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