United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
filed a Complaint on October 5, 2017. (Filing No.
1.) He has been given leave to proceed in forma
pauperis. (Filing No. 5.) The court now conducts an
initial review of Plaintiff's Complaint to determine
whether summary dismissal is appropriate under 28 U.S.C.
§§ 1915(e) and 1915A.
SUMMARY OF COMPLAINT
names the Omaha Police Department and Unknown Bivens and John
Doe Officers as defendants in his Complaint brought pursuant
to 42 U.S.C. § 1983. Plaintiff alleges that
“defendants police” stopped his vehicle on the
pretext of speeding and violating a stop sign but never
issued him a traffic ticket. Plaintiff claims police
prolonged the stop “in violation of Rodriguez” to
have a drug dog circle the vehicle and then performed a
search. Plaintiff claims that Defendants used the information
obtained from the search to connect Plaintiff with an alleged
burglary in Lincoln. Plaintiff requests $100, 000, 000 in
damages for the alleged 4th Amendment violation.
to Plaintiff's handwritten Complaint is a copy of an
arrest warrant and the affidavit in support of the warrant
filed in the County Court of Lancaster County, Nebraska.
(Filing No. 1 at CM/ECF pp.3-10.) The court also takes
judicial notice of additional state court records available
online to the court. See Stutzka v. McCarville, 420
F.3d 757, 761, n.2 (8th Cir. 2005) (court may take judicial
notice of public records). Plaintiff's state court
records show that he was arrested and charged with
burglary; that he was bound over to the Lancaster County
District Court on September 21, 2017; and that the charge was
dismissed without prejudice by the prosecutor on January 19,
APPLICABLE 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).
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 law. West
v. Atkins, 487 U.S. 42, 48 (1988); Buckley v.
Barlow, 997 F.2d 494, 495 (8th Cir. 1993).
DISCUSSION OF CLAIMS
Complaint, Plaintiff alleges a violation of his Fourth
Amendment rights based on a “prolonged” traffic
stop. The 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. A seizure for a traffic violation may
become unlawful if the stop is prolonged beyond the time
reasonably required to address the traffic violation that
justified the stop. Rodriguez v. U.S., __ U.S. __,
135 S.Ct. 1609, 1614-15 (2015).
construed, Plaintiff has alleged sufficient factual
allegations to state a plausible Fourth Amendment violation.
However, Plaintiff has failed to allege that such violation
was caused by a person acting under color of state law.
First, the Omaha Nebraska Police Department is not a distinct
legal entity amenable to suit under § 1983. See
Ketchum v. City of West Memphis, Ark., 974 F.2d 81,
82 (8th Cir. 1992) (departments or subdivisions of local
government are “not juridical entities suable as
such”); Dean v. Barber, 951 F.2d 1210, 1214-15
(11th Cir. 1992) (“[s]heriff's departments and
police departments are not usually considered legal entities
subject to suit”).
because 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. 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)). As a
municipality, the City of Omaha 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 ...