United States District Court, D. Nebraska
BRANDON J. WEATHERS, Plaintiff,
BECKY SHAEFFER, Det., #1906; JAMES WISECARVER, M.D.; KAYE SHEPARD, M.T., ASCP, DNA Analyst, Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
filed a Complaint on March 13, 2017. (Filing No. 1.) He has
been given leave to proceed in forma pauperis. (Filing No.
6.) The court subsequently granted Plaintiff's motion to
file an amended complaint. (Filing No. 12.) Plaintiff filed
an Amended Complaint on May 25, 2017. (Filing No. 13.)
Because the court did not advise Plaintiff that his Amended
Complaint would supersede his original Complaint, the court
will consider it as supplemental to his original Complaint.
See NECivR 15.1(b). The court now conducts an initial review
of Plaintiff's Complaint and Amended Complaint to
determine whether summary dismissal is appropriate under 28
U.S.C. §§ 1915(e) and 1915A.
was convicted of two counts of first degree sexual assault of
a child, a Class IB felony. See State v. Weathers,
A-16-305, 2017 WL24777 (Neb.App. 2017). The Nebraska Court of
Appeals opinion set forth the following facts:
Weathers was charged with two counts of first degree sexual
assault of a child. The evidence presented at trial
established that the 13-year-old victim, H.A., was a foster
child placed in Weathers' home in April 2014. Although
H.A. was removed from Weathers' care in June 2014, she
became pregnant in October, and DNA testing proved that
Weather was the father of the child, which H.A. ultimately
miscarried. Weathers' defense at trial was that he never
had sexual intercourse with H.A.; rather, the pregnancy
occurred as a result of H.A. using a syringe containing
Id. at *1.
SUMMARY OF PLEADINGS
is a prisoner confined at the Lincoln Correctional Center.
(Filing No. 1 at CM/ECF p. 1.) He names Omaha Police
Department Detective Becky Shaeffer (“Shaeffer”)
and Dr. James Wisecarver (“Wisecarver”) and Kaye
Shepard (“Shepard”), both DNA analysts with the
University of Nebraska Medical Center (“UNMC”),
as Defendants. (Id. at CM/ECF p. 2.) He sues them in
their official and individual capacities. (Filing No. 13 at
CM/ECF p. 5.)
November 14, 2014, Shaeffer took Plaintiff's buccal swabs
pursuant to a search warrant involving an ongoing criminal
investigation. (Filing No. 1 at CM/ECF pp. 4-5.) Plaintiff
states that the swabs were taken the next day to the
“Human DNA Identification laboratory” at UNMC for
forensic paternity testing only. (Id.) Plaintiff
alleges that, “during the course of this forensic
paternity testing” and unknown to him until a later
date, Wisecarver or Shepard “in conju[n]ction
with” Shaeffer submitted his DNA to “either the
State DNA Data Base, the Combined DNA Index System (CODIS),
or the State DNA Sample Bank” without a subpoena, court
order, or search warrant. (Id. at CM/ECF pp. 5-6.)
He claims, in doing so, Defendants violated his Fourth
Amendment rights and specific Nebraska statutes.
(Id. at CM/ECF p. 6; Filing No. 13 at CM/ECF p. 3.)
Plaintiff seeks monetary relief for “mental anguish,
loss of privacy.” (Filing No. 1 at CM/ECF pp. 6-7.)
APPLICABLE STANDARDS OF 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
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 ...