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Whitten v. City of Omaha

United States District Court, D. Nebraska

June 18, 2015

CITY OF OMAHA, a political subdivision, JOHN MARTIN, Detective, and JOHN DOES #1-#3, in their individual and official capacities, Defendants.


John M. Gerrard United States District Judge

Plaintiff Matthew Whitten filed his Complaint (Filing No. 1) in this case on March 13, 2015. This court has given him leave to proceed in forma pauperis. 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).


Whitten’s claims are based on incidents that occurred in Omaha, Nebraska, on July 11, 2014, when officers of the Omaha Police Department (“OPD”) searched his home, questioned him, and arrested him. Defendants include the OPD, OPD Officer John Martin, and three unidentified OPD officers (John Does #1, #2, and #3). Liberally construed, Whitten asserts state-law claims for malicious prosecution and false arrest, and also Fourth and Fourteenth Amendment claims brought pursuant to 42 U.S.C. § 1983.

On July 11, 2014, Martin and John Doe #1 questioned Whitten outside his home concerning allegations of terroristic threats. Whitten informed the officers he did not intend to threaten or terrorize anyone, he did not own any weapons, there were no weapons located inside his home, and he was not planning any robberies. (Filing No. 1 at CM/ECF p. 2.) Whitten further stated he would not consent to a search of his home. Thereafter, Martin spoke to his superior, John Doe #2, and then arrested Whitten without an arrest warrant, without witnessing Martin commit any crime, and without probable cause to believe Martin had committed a crime. (Id.)

Martin applied for, and was granted, a warrant to search Whitten’s home for firearms, explosives, and ammunition. Whitten alleges that nothing in the application for the search warrant established a remote possibility that contraband or evidence of criminal activity would be found. Thereafter, Martin and John Does #1 and #2 executed the warrant. They did not find firearms, explosives, or ammunition, but did find “evidence” that resulted in Whitten being charged with a felony crime. (Id. at CM/ECF p. 4.) Whitten spent 21 days in jail following his arrest. (Id.) On January 22, 2015, the District Court of Douglas County, Nebraska, sustained Whitten’s motion to suppress the evidence found in his home, and the prosecutor dismissed the felony charges against Whitten. (Id. at CM/ECF p. 5.)

Whitten seeks declaratory relief and unspecified money damages in this case. (Id. at CM/ECF p. 12.)


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 v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).


A. Unlawful Search and Arrest

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