United States District Court, D. Nebraska
CORY T. ALLEN, Plaintiff,
THE COUNTY OF DOUGLAS, is to be sued in Official Capacity, PAUL LATSCHER, O.P.D. Officer, is to sued Individually and in he Official Capacity, JERRY SWANSON, O.P.D. Officer, is to be sued Individually and in his Official Capacity, THE CITY OF OMAHA, a Municipality, is to be sued in its Official Capacity, and DONALD KLEINE, Douglas County District Attorney, is to be sued Individually and in his Official Capacity, Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
matter is before the court on initial review of
Plaintiff's Complaint. (Filing No. 1.) For the
reasons that follow, the court finds Plaintiff's
pleadings do not state any claims on which relief may be
granted. However, the court will allow Plaintiff to file an
SUMMARY OF COMPLAINT
Complaint sets forth multiple causes of action, including (1)
conspiracy; (2) violation of civil rights; (3) negligent
supervision; (4) aiding and abetting; (5) intentional
infliction of emotional distress; and (6) negligent hiring.
(Filing No. 1.) Defendant's Complaint names
Douglas County, Nebraska, the City of Omaha, the Douglas
County District Attorney, and several Omaha police officers
as defendants. The employee defendants are sued in their
official and individual capacities. Plaintiff seeks monetary
alleges that Defendants Latscher and Swanson, who are Omaha
police officers, pulled him over while he was driving a white
Cadillac DeVille without probable cause. Latscher and Swanson
subsequently reported that Plaintiff shot them during the
traffic stop. Plaintiff claims that Latscher and Swanson
“submitted fraudulent police reports in a conspiracy to
cover up an accidental shooting of one police officer by
another police officer.” (Filing No. 1 at CM/ECF p.
STANDARDS ON INITIAL REVIEW
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).
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).
Claims Relating to Criminal Conviction
alleges, in part, that Defendants conspired against him to
ensure he was convicted of a crime. Specifically, Plaintiff
claims that Latscher and Swanson “submitted fraudulent
police reports in a conspiracy to cover up an accidental
shooting of one police officer by another police
officer.” (Filing No. 1 at CM/ECF p. 7.)
Because this claim relates entirely to the validity of
Plaintiff's conviction, it cannot be brought in a civil
Heck v. Humphrey, the Supreme Court held a prisoner
may not recover damages in a § 1983 suit where the
judgment would necessarily imply the invalidity of his
conviction, continued imprisonment, or sentence unless the
conviction or sentence is reversed, expunged, or called into
question by issuance of a writ of habeas corpus. 512 U.S.
477, 486-87 (1994); Schafer v. Moore, 46 F.3d 43, 45
(8th Cir. 1995). Although Heck, on its face,
addresses only actions brought under § 1983, courts have
expanded the contours of Heck to reach 42 U.S.C.
§ 1985 and other civil rights statutes. See,
e.g., Poston v. Shappert, 222 Fed. Appx.
301 (4th Cir. 2007); Cook v. City of Philadelphia,
179 Fed.Appx. 855, 859 (3d Cir. 2006); Browdy v.
Karpe, 131 Fed.Appx. 751, 753 (2d Cir. 2005);
McQuillion v. Schwarzenegger, 369 F.3d 1091, 1097 n.
4 (9th Cir. 2004); Lanier v. Bryant, 332 F.3d 999,
1005-06 (6th Cir. 2003).
the facts demonstrate that the Heck bar is properly
invoked. Plaintiff maintains that Defendants tampered with
evidence, altered investigative reports, fabricated evidence,
and committed other acts of misconduct in connection with his
criminal case. (Filing No. 1 at CM/ECF p. 15.) The
court cannot find in Plaintiff's favor based on such
arguments without calling into question the legitimacy of his
criminal conviction. Heck makes clear that Plaintiff
may not use a civil rights action to cast doubt on the
legality of his conviction or confinement. Heck, 512
U.S. at 486-87. Rather, he must first find a favorable
outcome in a habeas corpus or other ...