United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
December 5, 2016 Plaintiff filed her pro se Complaint (Filing
No. 1). On December 16, 2016, after Plaintiff was
granted leave to proceed in forma pauperis, the court
conducted an initial review of the Complaint to determine
whether summary dismissal was appropriate under 28 U.S.C.
alleged 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. The
court determined that the Complaint failed to state a claim
upon which relief could be granted against the City of Omaha,
the only named Defendant, because Plaintiff did not allege
that an official policy or custom caused the alleged
deprivation of her constitutional rights, but Plaintiff was
granted leave to amend to correct this pleading deficiency.
An Amended Complaint (Filing No. 7) was filed on
December 21, 2016.
SUMMARY OF THE AMENDED COMPLAINT
addition to suing the City of Omaha, Plaintiff has now named
seven police officers and one other individual as Defendants,
together with Douglas County and the State of Nebraska.
Plaintiff has provided additional information regarding
searches of her residence and person in July 2015, and of her
arrest in January 2016, but the events described are the
subject two other pending actions filed by Plaintiff in this
court. Thus, in Case No. 8:16CV131, which was filed
on March 25, 2016, Plaintiff complains about a body cavity
search that was conducted at her residence in July 2015. In
Case No. 8:16CV174, which was filed on April 19,
2016, Plaintiff again complains about the body cavity search,
alleges that criminal charges filed against her in January
2016 for possession of a controlled substance resulted from
an illegal search, and alleges that excessive force was used
in arresting her in January 2016.
present case, Plaintiff alleges that the warrant for her
arrest was issued on January 16, 2016, that she “had to
stay in jail for 1 to 2 days” where she “had a
felony hold on [her] for possession of a controlled
substance, ” and that after getting out of jail she
“was placed on pretrial for about 9 months”
(Filing No. 7 at CM/ECF p. 4). Plaintiff's Amended
Complaint contains no factual allegations to show that she
was falsely charged with a criminal offense because of a
municipal policy or custom.
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