United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge.
filed his Complaint in this matter on September 10, 2017.
(Filing No. 1.) Plaintiff has been given leave to proceed in
forma pauperis. (Filing No. 5.) The court now conducts an
initial review of the Complaint to determine whether summary
dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
alleges that on August 18, 2017, the “police
defendants” illegally seized $5, 512.00 from him at
Reinhart Food in Omaha, Nebraska, without a hearing. He
alleges that the police continue to hold his money “on
pretext of some Nebulous investigation of some unspecified
Crime, ” thereby violating his rights under the Fourth
Amendment, as well as his rights to due process and equal
STANDARDS ON INITIAL REVIEW
reviewing an in forma pauperis complaint to determine whether
summary dismissal is appropriate, the court must dismiss a
complaint or any portion thereof 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” for failing to state a claim upon which
relief can be granted. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (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.”).
Regardless of whether a plaintiff is represented or is
appearing pro se, the plaintiff's complaint must allege
specific facts sufficient to state a claim. See Martin v.
Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). A pro se
plaintiff's allegations must be construed liberally.
Burke v. North Dakota Dep't of Corr. &
Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002)
construed, Plaintiff here seeks to allege 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
Plaintiff's Complaint does not specify whether he is
suing Defendants in their official or individual capacities,
this court presumes they 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)). These city
and county entities can only be liable under § 1983 if a
municipal policy or custom caused Plaintiff to be deprived of
a federal right or if the municipality failed to adequately
train its employees. Snider v. City of Cape
Girardeau, 752 F.3d 1149, 1160 (8th Cir. 2014) (citing
City of Canton v. Harris, 489 U.S. 378, 385 (1989);
Monell v. N.Y. Dep't of Soc. Servs., 436 U.S.
658, 694 (1978)). Plaintiff has not made any allegations
supporting a policy, custom, or failure-to-train claim.
Fourth Amendment, applicable to the states through the
Fourteenth Amendment, provides: “The right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon
probable cause . . . particularly describing the place to be
searched, and the persons or things to be seized.”
Thus, the Fourth Amendment prohibits unreasonable seizures by
governmental officials. “The reasonableness requirement
necessarily requires a balancing of the competing interests,
which in turn requires a consideration of the interests at
stake.” PPS, Inc. v. Faulkner Cty., Ark., 630
F.3d 1098, 1103 (8th Cir. 2011).
case of an alleged unreasonable seizure, “an
individual's possessory rights in its property . . . are
balanced against the government's interest in effective
law enforcement.” Id. Presuming one has a
possessory interest in property seized without a warrant,
such seizure will violate the Fourth Amendment “unless
the seizure was supported by one of what are commonly
referred to as the ...