United States District Court, D. Nebraska
ALPHONSO V. FRAZIER II, Plaintiff,
DON KLEINE, TODD SCHMADERER, and ARRESTING OFFICERS, Defendants. v.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
who is incarcerated at the Douglas County Correctional
Center, filed his Complaint in this matter on March 10, 2017.
(Filing No. 1.) Plaintiff has been given leave to
proceed in forma pauperis. (Filing No. 8.) The court
now conducts an initial review of the Complaint to determine
whether summary dismissal is appropriate under 28 U.S.C.
SUMMARY OF COMPLAINT
alleges that on January 16, 2017, unidentified Omaha police
officers unlawfully entered his home, arrested him, and
seized a large hunting knife without a warrant. Plaintiff
further alleges that after Douglas County Attorney Don Kleine
viewed the video of the seizure, Plaintiff was
“re-arrested after posting bond.” (Filing No.
1 at CM/ECF p. 4.) Plaintiff seeks $75, 000 in
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).
construed, Plaintiff here alleges 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).
seeks damages for alleged violations of his Fourth Amendment
right against unreasonable searches and seizures. Plaintiff
contends that the defendants unlawfully arrested him and
seized property from his home without a warrant. However,
because Plaintiff's Complaint does not specify whether he
is suing the defendants in their official or individual
capacities, this court presumes the defendants are sued in
their official capacities only. See Johnson v. Outboard
Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999)
(“This court has held that, in order to sue a public
official in his or her individual capacity, a plaintiff must
expressly and unambiguously state so in the pleadings,
otherwise, it will be assumed that the defendant is sued only
in his or her official capacity.”). A claim against an
individual in his official capacity is, in reality,
a claim against the entity that employs the official, in this
case, the City of Omaha and Douglas County. See Parrish
v. Luckie, 963 F.2d 201, 203 n.1 (8th Cir. 1992)
(“Suits against persons in their official capacity are
just another method of filing suit against the entity. A
plaintiff seeking damages in an official-capacity suit is
seeking a judgment against the entity.”) (internal
citations omitted)). The City of Omaha and Douglas County can
only be liable under § 1983 if a municipal policy or
custom caused Plaintiff's injury. See Monell v. New
York Department of Social Services, 436 U.S. 658, 694
(1978). Plaintiff has not made allegations supporting such a
court's own motion, the court will provide Plaintiff with
an opportunity to file an amended complaint that states a
claim upon which relief may be granted. Failure to file an
amended complaint within the time specified by the court will
result in the court dismissing this case without further
notice to Plaintiff.
THEREFORE ORDERED that:
1. Plaintiff shall file an amended complaint by June 19,
2017, that states a claim upon which relief may be granted
against the defendants. Failure to file an amended complaint
within the time specified by the court will result in the