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Weathers v. Shaeffer

United States District Court, D. Nebraska

June 14, 2017

BRANDON J. WEATHERS, Plaintiff,
v.
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

         Plaintiff 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.

         I. BACKGROUND

         Plaintiff 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 Weathers' semen.

Id. at *1.

         II. SUMMARY OF PLEADINGS

         Plaintiff 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.)

         On 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.)

         III. APPLICABLE STANDARDS OF REVIEW

         The 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).

         Pro se 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.”).

         “The 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).

         Liberally 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 ...


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