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Wallace v. Yanez

United States District Court, D. Nebraska

February 2, 2018

FLOYD L. WALLACE JR., Plaintiff,
v.
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

         Plaintiff 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. § 1915(e)(2).

         I. SUMMARY OF COMPLAINT

         Plaintiff 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[1] 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.

         II. APPLICABLE LEGAL STANDARDS ON INITIAL 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 law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).

         III. DISCUSSION OF CLAIMS

         Plaintiff 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.

         A. No Private Right of Action under 18 U.S.C. § 241

         As an 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 (D.D.C. 2015).

         B. Claims against Omaha ...


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