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Neehill v. Lux

United States District Court, D. Nebraska

July 27, 2016

ARNETTA SWIFT NEEHILL, Plaintiff,
v.
JEFFERY LUX, Assistant DC Defender, CLAUDIA KNIGHT, UNKNOWN JOHN DOE, CORRECTIONAL OFFICERS, MIZKI JAREBECK, HEATHER, FOXALL, Director of Corrections in and for Douglas County, Nebraska, HIS JOHN JANE DOE ACCOMPLICES IN HIS EMPLOY, and JAMES HOLTMEYER, Defendants.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF Senior United States District Judge.

         This matter is before the court on its own motion. On June 9, 2016, the court conducted an initial review (Filing No. 12) of Plaintiff’s Complaint which, in its entirety, read: “We pray for a decioration that ‘Lux’ violated our constitutional rights under color of state law when he held us without NesNe Sine die Sans MesMe.” (Filing No. 1.) Finding that Plaintiff failed to comply with the general rules of pleading, Fed. R. Civ. P. 8, the court ordered Plaintiff to file an Amended Complaint with the following directions: “Plaintiff should be mindful to explain what Defendants did to her, when Defendants did it, how Defendants’ actions harmed her, and what specific legal rights Plaintiff believes Defendants violated.” Plaintiff was also cautioned to “not repeat claims made in her other numerous lawsuits. (See Case Nos. 4:16CV3081, 8:14CV259, 8:16CV53, 8:16CV67, 8:16CV106, 8:16CV150, 8:16CV151, 8:16CV152.)” (Filing No. 12 at CM/ECF p. 3.)

         Plaintiff has now filed an Amended Complaint (Filing No. 13), which the court must now review and determine whether summary dismissal under 28 U.S.C. § 1915(e)(2) is appropriate.

         I. SUMMARY OF COMPLAINT

         Plaintiff has complied with the Court’s prior order insofar as she very broadly alleges what was done to her (illegal arrest based on search of an unspecified place; search warrant relied only on information provided by a “rat confidential informant”; and held in jail for three weeks to two months after she “posted bond”); when these actions occurred (2014, 2015, 2016); harm she suffered as a result (“lost thousands of dollars of possessions”); and what legal rights were violated (court may infer Fourth and Fourteenth Amendment rights from allegations).

         However, contrary to the court’s prior order, Plaintiff has repeated claims made in previous lawsuits against some of the same defendants. See Swift v. Holtmyer, No. 8:16CV150 (Plaintiff’s suit against Omaha Police Officer Holtmyer for unlawful search, arrest, and unwarranted criminal charges) (amended complaint due Aug. 1, 2016); Swift v. Foxall & Employee John Doe, No. 8:16CV151 (Plaintiff’s suit against Foxall and unknown John Doe employee for holding Plaintiff in jail after release order was entered) (amended complaint due Aug. 1, 2016); Swift v. Jerabek, Foxall, et al., No. 8:16CV67 (Plaintiff’s suit against Foxall, Jerabek, and others for illegal arrest upon “bogus” warrant and being held in jail after bond posted; dismissed July 15, 2016, for failure to diligently prosecute).

         Further, Plaintiff has not made any allegations whatsoever regarding any specific defendant[1] she has named in her complaints, except in reference to Plaintiff’s comment that even “supra white and racist” judges can see that people may not be held in jail without a “motion from lux to hold []petitioner”[2] or a judge’s order. (Filing No. 13 at CM/ECF p. 1.)

         II. STANDARDS ON INITIAL REVIEW

         In reviewing an in forma pauperis complaint to determine whether summary dismissal is appropriate, the court must dismiss a complaint or any portion thereof 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” for failing to state a claim upon which relief can be granted. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 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). 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).

         Liberally construed, Plaintiff here seeks to allege 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).

         III. DISCUSSION

         Plaintiff sues the defendants both “individually and officially.”[3] (Filing No. 13 at CM/ECF p. 1.)

         A. Official ...


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