United States District Court, D. Nebraska
FLOYD L. WALLACE JR., Plaintiff,
NICOLAS YANEZ, 1506; BRIAN DIMINICON, 1988; WILLIAN SEATON, 1761; and OMAHA POLICE DEPARTMENT, Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
filed his Complaint on August 17, 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.
SUMMARY OF COMPLAINT
brings this action against the Omaha Police Department and
three Omaha police officers in their individual capacities.
Plaintiff alleges that on July 12, 2016, Officers Nicolas
Yanez, William Seaton, and Brian Diminico conducted a
no-knock raid at Plaintiff's residence, kicked in his
door, put guns to Plaintiff's face, and arrested him for
a crime he did not commit. Plaintiff alleges the officers
arrested him for robbery which “got dismissed” on
August 19, 2016. (Filing No. 1 at CM/ECF p.4.) As a
result of these events, Plaintiff claims he suffered
emotional distress, for which he received treatment while in
jail, and that he was evicted and carries that
“eviction on [his] record for seven years.”
(Id. at CM/ECF p.5.) For relief, Plaintiff seeks
$100, 000.00 in damages.
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 omitted).
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
asserts claims under 42 U.S.C. § 1983 based on wrongful
imprisonment, false arrest, destruction of property, and
violations of 18 U.S.C. § 241 and the Fourth Amendment.
For the reasons that follow, the Complaint's allegations
are insufficient to state a plausible claim for relief.
No Private Right of Action under 18 U.S.C. §
initial matter, Plaintiff's claim that his rights under
18 U.S.C. § 241 were violated fails as a matter of law.
Section 241 makes it a crime for two or more persons to
conspire to violate constitutional or statutory rights. 18
U.S.C. § 241. That provision does not create a private
right of action. See Mousseaux v. U.S. Com'r of
Indian Affairs, 806 F.Supp. 1433, 1437 (D.S.D. 1992),
aff'd in part, remanded in part sub nom. Mousseaux v.
United States, 28 F.3d 786 (8th Cir. 1994); see
also Davis v. Sarles, 134 F.Supp.3d 223, 228
Claims against Omaha ...