United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
filed her pro se Complaint on April 4, 2018 (Filing No.
1) and was given leave to proceed in forma pauperis
on April 18, 2018 (Filing No. 6). 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
alleges that Defendant, who is identified simply as a
“cop, ” removed Plaintiff's children from her
home without benefit of a court order or warrant on March 7,
2014. Plaintiff claims Defendant violated her
constitutional rights under the Fourth and Fourteenth
Amendments and she brings suit under 42 U.S.C. § 1983 to
recover damages for emotional distress.
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.”).
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).
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).
Nebraska statute of limitations for personal injury actions,
Neb. Rev. Stat. § 25-207, applies in this case,
see Wilson v. Garcia, 471 U.S. 261, 279 (1985), and
provides a 4-year limitations period for bringing suit.
Because Plaintiff's claim accrued on March 7, 2014, when
her children allegedly were removed from her home, she was
required to file suit no later than March 7, 2018. Plaintiff
did not file suit until nearly one month later, on April 4,
2018. This action is therefore time-barred and will be
dismissed on initial review.
Complaint fails to state a claim upon which relief can be
granted because the claim alleged is barred by the applicable
statute of limitations. Plaintiff will not be allowed to file
an amended complaint because the court has concluded that to
do so would be futile.
THEREFORE ORDERED that the case is dismissed without
prejudice. The court will enter ...