United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
filed her pro se Complaint on February 16, 2018 (Filing No.
1), and was granted leave to proceed in forma
pauperis that same date (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.
SUMMARY OF COMPLAINT
Complaint references Case No. 8:16CV131, which she filed in
this court on March 25, 2016, against the City of Omaha,
“8 Unknown Jane-John Doe Omaha Police Officers, ”
and Chris Brown, the defendant herein. Brown is sued
both individually and officially. Plaintiff alleges Brown
falsely stated in an affidavit for a search warrant that
Plaintiff sold drugs to a confidential informant.
APPLICABLE STANDARDS ON INITIAL REVIEW
court is required to review in forma pauperis complaints to
determine whether summary dismissal is appropriate.
See 28 U.S.C. § 1915(e). 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. §
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).
DISCUSSION OF CLAIM
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege the violation of a right secured by the Constitution
and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48
(1988). “A warrant based upon an affidavit containing
deliberate falsehood or reckless disregard for the truth
violates the Fourth Amendment and subjects the officer who
submitted the affidavit to § 1983
liability.” Schaffer v. Beringer, 842 F.3d
585, 593 (8th Cir. 2016) (quoting Block v. Dupic,
758 F.3d 1062, 1063 (8th Cir. 2014)), cert. denied,
137 S.Ct. 2299 (2017).
Complaint contains sufficient facts to state a claim for
relief against Officer Brown in his individual capacity, as
it is alleged that Brown “lied to the county judge to
get search warrant to break into our house ... based off a
phony make believe ‘CI'” (Filing No.
1 at CM/ECF p. 1-2). More specifically, Plaintiff
alleges “Officer Brown lied to the judge [by] stating
that Brown got ‘CI' to do two controlled buys on
the 14th & 16th day of July
2015” (Filing No. 1 at CM/ECF p. 2). Plaintiff
alleges the search warrant was executed on July 17, 2015, but
no drugs were found.
further alleges that “7 months later police came back
to our house with a warrant for our arrest claiming that we
sold drugs ... [and] we was assaulted and tased by John Doe
police” (Filing No. 1 at CM/ECF p. 1). There is no
allegation that Brown participated in this alleged false
arrest and excessive use of force. Plaintiff also claims she
was strip searched at some point (Filing No. 1 at CM/ECF p.
2), but again there is no allegation that Brown was a
action is therefore limited to a Fourth Amendment claim
against Brown for allegedly submitting a false affidavit to
obtain the search warrant. Such claim, however, can only be
brought against Brown in his individual capacity because
Plaintiff has not alleged any facts to show that a municipal
policy or custom played a part in the alleged constitutional
suit against a public official in his official capacity is
actually a suit against the entity for which the official is
an agent.” Schaffer, 842 F.3d at 596 (quoting
Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir.
2006)). “The plaintiff must prove that the municipality
itself caused the constitutional violation at issue.”
Id. “Thus, [the] first inquiry in any case
alleging municipal liability under § 1983 is
the question whether there is a direct causal link between a
municipal policy or custom and the alleged constitutional
deprivation.” Id. (quoting City of Canton
v. Harris, 489 U.S. 378, 385 (1989)). To prove the
existence of a policy, a plaintiff must point to “an
official policy, a deliberate choice of a guiding principle
or procedure made by the municipal official who has final
authority regarding such matters.” Id.
(quoting Mettler v. Whitledge, 165 F.3d 1197, 1204
(8th Cir. 1999)). Further, the plaintiff must prove that the
policy was the “moving force” behind a
constitutional violation. Id. (quoting Monell v.
Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)).