United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
filed his Complaint in this matter on July 21, 2016 (Filing
No. 1). Plaintiff has been given leave to proceed in
forma pauperis (Filing No. 5). The court now
conducts and initial review of the Complaint to determine
whether summary dismissal is appropriate under 28 U.S.C.
SUMMARY OF COMPLAINT
alleges his constitutional rights were violated when
Defendant Timothy Himes, an Omaha Assistant City Attorney,
asked Judge “Stratman” to eject Plaintiff from
the courtroom in a state court proceeding where he was a
spectator, but the Judge refused (Filing No. 1 at CM/ECF
p. 1). Plaintiff also alleges Defendant harassed him by
“getting in our line of sight on north side of civic
center ... and approach us ... to reach elevator wielding
large knife he held high by his breast throat ... to
conceal” (Filing No. 1 at CM/ECF p. 2). He
states that “no knives of any kind [are] allowed in
center and Hines clearly used his ‘perch’ to
bring butcher knife into center” (Id.).
Defendant is sued in both his official and individual
made substantially similar allegations against Defendant in
Case No. 8:16CV71, which was dismissed without prejudice for
lack of prosecution on June 6, 2016, after Plaintiff failed
to file an amended complaint within the time specified by the
court. The court had found on initial review that the
complaint failed to state a claim upon which relief can be
STANDARDS ON INITIAL REVIEW
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. §
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.”).
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).
alleged attempt to have Plaintiff removed as a spectator from
a courtroom is not a constitutional violation.
Defendant’s alleged “wielding” of a knife
near Plaintiff is not a constitutional violation. Because
Plaintiff was advised in the previously filed action that his
allegations were insufficient to state a claim for relief
under 42 U.S.C. § 1983, Plaintiff will not be given
further leave to amend. See Jackson v. Riebold, 815
F.3d 1114, 1122 (8th Cir. 2016) (“Futility is a valid
basis for denying leave to amend.”).
action is dismissed with prejudice for ...