United States District Court, D. Nebraska
STEVE L. MOTEN, Plaintiff,
OMAHA POLICE DEPARTMENT, JACOB HANISZEWSKI, #2241, SHERIE N. THOMAS, #1549, JORDAN W. VANDERZWAAG, #2222, and CHRIS L. TOMPKINS, #Y049, Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
an inmate in the Douglas County Correctional Center, brings
this action against the Omaha Police Department and four of
its officers because Plaintiff was bitten by the
officers' K-9 dog in an incident occurring prior to his
incarceration. The court previously granted Plaintiff
permission to proceed in forma pauperis in this action.
(Filing No. 8.) The court now conducts an initial
review of the Complaint (Filing No. 1) to determine
whether summary dismissal is appropriate under 28 U.S.C.
§§ 1915(e) and 1915A.
SUMMARY OF COMPLAINT
alleges that he was bitten by the defendants' K-9 dog in
Omaha. He claims the officers pulled up behind him when he
was exiting his vehicle; the officers said “freeze,
” but Plaintiff “didn't know who they was
talking to”; the officers “let the dog go”;
Plaintiff then put his hands up; and the dog then bit
Plaintiff under his right arm, which “will never be the
same and after 3 months still no feeling under [his] arm and
nerve damage.” (Filing No. 1 at CM/ECF pp. 4-5
(capitalization and spelling corrected).) Plaintiff alleges
no basis for this court's jurisdiction (Filing No. 1
at CM/ECF p. 3), and for relief requests only
that “the officers . . . make better decisions with the
K-9.” (Filing No. 1 at CM/ECF p. 5
(capitalization and spelling corrected).)
LEGAL STANDARDS ON INITIAL 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).
district courts are courts of limited jurisdiction.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
377 (1994). The subject-matter jurisdiction of the federal
district courts is generally set forth in 28 U.S.C.
§§ 1331 and 1332. Under these statutes, federal
jurisdiction is available only when the parties are of
diverse citizenship and the amount in controversy exceeds
$75, 000, or when a “federal question” is
presented. “If the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the
action.” Fed.R.Civ.P. 12(h)(3).
jurisdiction is proper pursuant to 28 U.S.C. § 1332,
commonly referred to as “diversity of
citizenship” jurisdiction, when “the citizenship
of each plaintiff is different from the citizenship of each
defendant.” Ryan v. Schneider Natl. Carriers,
Inc., 263 F.3d 816, 819 (8th Cir. 2001). In
addition, the amount in controversy must be greater than $75,
000.00. 28 U.S.C. § 1332(a).
jurisdiction is also proper under 28 U.S.C. §§ 1331
when a plaintiff asserts a “non-frivolous claim of a
right or remedy under a federal statute, ” the
Constitution, or treaties of the United States, commonly
referred to as “federal question” jurisdiction.
Northwest South Dakota Prod. Credit Ass'n v.
Smith, 784 F.2d 323, 325 (8th Cir. 1986).
Under this type of jurisdiction, a plaintiff must allege that
the defendants deprived him of a right secured by the
Constitution or laws of the United States and that the
alleged deprivation was committed under “color of state
law” in order to bring a claim under 42 U.S.C.
§ 1983. West v. Atkins, 487 U.S. 42, 48
(1988); Buckley v. Barlow, 997 F.2d 494, 495
(8th Cir. 1993).
careful review of Plaintiff's Complaint, the court finds
that it lacks subject-matter jurisdiction over this matter.
As to diversity-of-citizenship jurisdiction, Plaintiff does
not allege that he and Defendants are citizens of different
states. Because the citizenship of Plaintiff and at least one
of the defendants is not diverse, diversity-of-citizenship
jurisdiction does not exist in this case. Further, Plaintiff
does not claim that federal-question jurisdiction is
applicable, nor does he set forth any specific actions taken
by Defendants that violate any constitutional right or
support a claim under 42 U.S.C. § 1983 or any other
federal statute. Rather, Plaintiff appears to be asserting a
state-law tort claim for personal injury.
these reasons, the court lacks subject-matter jurisdiction
pursuant to either 28 U.S.C. §§ 1331 or 1332, and
this action must be dismissed without prejudicepursuant to
Federal Rule of Civil Procedure 12(h)(3). The court
will not give Plaintiff an opportunity to amend his complaint
in this matter because it is obvious that amendment would be
liberally construed, Plaintiff's Complaint does not set
forth any discernible claim for relief over which this court
has jurisdiction. Plaintiff's Complaint makes clear that
the K-9 dog was released when Plaintiff was not in custody.
Therefore, if Plaintiff has any claim, it sounds in
negligence under state law. If Plaintiff wishes to bring a
tort claim for negligence against Defendants, he should
consult the Nebraska Political Subdivisions Tort Claims Act,
Neb. Rev. Stat. §§ 13-901 to 13-928
(Westlaw 2017), which allows tort claims to be filed with the
city “clerk, secretary, or other official whose duty it
is to maintain the official records of the political
subdivision, or the governing body of a political subdivision
may provide that such claims may be filed with the duly
constituted law department of such subdivision.”
Neb. Rev. Stat. § 13-905. Plaintiff should also
consult Neb. Rev. Stat. § 13-919, which sets forth the
deadlines for filing such a tort claim. Accordingly, IT IS
action is dismissed without prejudice for lack of
subject-matter jurisdiction and without prejudice to