United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
filed her pro se Complaint on December 5, 2016 (Filing No.
1), and was granted leave to proceed in forma
pauperis on December 7, 2016 (Filing No. 5). 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).
SUMMARY OF COMPLAINT
construing the Complaint, Plaintiff alleges that she was
falsely charged with a criminal offense and placed on
pretrial release for a period of 18 months before the charges
were dismissed by the prosecutor. She sues the City of Omaha
for $100 million in damages.
APPLICABLE 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).
DISCUSSION OF CLAIM
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege the violation of a right secured by the Constitution
and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48
(1988). The City of Omaha may only be liable under
section 1983 if its “policy” or
“custom” caused a violation of Plaintiff's
constitutional rights. See Doe By and Through Doe v.
Washington Cnty., 150 F.3d 920, 922 (8th Cir. 1998)
(citing Monell v. Dep't of Soc. Servs., 436 U.S.
658, 694 (1978)).
“official policy” involves a deliberate choice to
follow a course of action made from among various
alternatives by an official who has the final authority to
establish governmental policy. Jane Doe A By and Through
Jane Doe B v. Special School Dist. of St. Louis Cnty.,
901 F.2d 642, 645 (8th Cir. 1990) (citing Pembaur v. City
of Cincinnati, 475 U.S. 469, 483 (1986)). To establish
the existence of a governmental custom, a plaintiff must
1) The existence of a continuing, widespread, persistent
pattern of unconstitutional misconduct by the governmental
2) Deliberate indifference to or tacit authorization of such
conduct by the governmental entity's policymaking
officials after notice to the officials of that misconduct;
3) That plaintiff was injured by acts pursuant to the
governmental entity's custom, i.e., that the custom was
the moving force ...