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Swift v. Does

United States District Court, D. Nebraska

April 7, 2015

LATINI SWIFT, Plaintiff,
v.
JOHN DOES, OMAHA POLICE, and KYLER, Defendants.

MEMORANDUM AND ORDER

JOHN M. GERRARD, District Judge.

Plaintiff Latini Swift filed her Complaint (Filing No. 1) in this matter on December 30, 2014. This court has given her leave to proceed in forma pauperis. The court now conducts an initial review of her Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).

I. SUMMARY OF COMPLAINT

Latini Swift brings this action pursuant to 42 U.S.C. § 1983 for violations of the Fourth and Fourteenth Amendments. She named the Omaha Police, "Kyler, " and John Does as Defendants. Her allegations, in their entirety, are as follows:

On 8-8-14 Officer Kyler followed Plaintiff to Bank and illegally arrested Plaintiff on search warrant as was set out 8-14cv243 on docket. Plaintiff handcuffed at Bank and transported to 3929 N 42nd street as said supra on pretext that Bous warrant to search Justified illegal arrest as said wherefore, we pray $100, 000, 000 damage and declaration our rights violated as said.

(Filing No. 1 at CM/ECF p. 1.)

The court takes judicial notice of the case referenced by Plaintiff, a case currently pending before this court. In Swift v. Kyler, Case Number 8:14CV243, Plaintiff Charles Swift alleged that on August 8, 2014, he was at his wife's residence with his wife, Arnetta Hill Swift, and Latini Swift. Charles, Arnetta, and Latini Swift (collectively "the Swifts") left the residence in a vehicle and were followed by officers of the Omaha Police Department. The officers pulled the vehicle over for allegedly failing to signal. The officers, including Officer Kyler, then informed the Swifts they had a warrant to search the residence the Swifts had just departed. The officers arrested the Swifts and then transported them to the residence where they conducted a search and found nothing illegal inside. ( See Case No. 8:14CV243 at Filing No. 1 and Filing No. 7.)

In Case Number 8:14CV243, the court determined Charles Swift had stated a plausible Fourth Amendment claim against Officer Kyler in his individual capacity. (Case No. 8:14CV243 at Filing No. 8.) The court determined Charles Swift did not state a plausible claim for relief against the City of Omaha because he had not alleged an official policy or custom caused a violation of his constitutional rights. (Case No. 8:14CV243 at Filing No. 6 at CM/ECF p. 3.)

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). 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).

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 ...


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