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Hancock v. Lincoln Police Department

United States District Court, D. Nebraska

May 29, 2018

ANTHONY EUGENE HANCOCK, Plaintiff,
v.
LINCOLN POLICE DEPARTMENT, et al., Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Plaintiff, Anthony Hancock, who is incarcerated at the Lincoln Correctional Center, has been granted leave to proceed in forma pauperis (Filing 7). 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) and 1915A.

         I. SUMMARY OF COMPLAINT

         Plaintiff brings this 42 U.S.C. § 1983 action requesting injunctive relief and money damages against the Lincoln Police Department[1] and four officers. Plaintiff alleges the officers gained access to his apartment on November 15, 2017, to question him about an alleged domestic assault, but then proceeded to ask him about drug dealing activities and to search the premises without a warrant. The officers allegedly justified the search by stating it was permitted as a condition of his parole.

         II. 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).

         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).

         III. DISCUSSION OF CLAIMS

         “In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.” Riley v. California, 134 S.Ct. 2473, 2482 (2014). Plaintiff alleges in this case that the police officers claimed they had a right to search his apartment without a warrant as a condition of his parole, and he does not refute this claim by alleging any facts to the contrary in his Complaint. The officers' alleged basis for conducting the warrantless search is not necessarily wrong as a matter of law. The United States Supreme Court has held that a search conducted pursuant to state law, but without even a reasonable suspicion of criminal activity, does not violate a parolee's Fourth Amendment rights. See Samson v. California, 547 U.S. 843, 856-57 (2006).[2] See also United States v. Jackson, 866 F.3d 982, 984-85 (8th Cir. 2017); United States v. Hamilton, 591 F.3d 1017, 1021-22 (8th Cir. 2010) (discussing Samson ruling).

         Unless Plaintiff can truthfully allege facts showing that the officers violated his constitutional rights by searching his apartment without a warrant, this Fourth Amendment claim must be dismissed. For example, Plaintiff might allege that the conditions of his supervision did not allow such a search, and might attach a copy of those conditions. Out of an abundance of caution, the court will grant Plaintiff leave to file an Amended Complaint for the limited purpose of stating a plausible Fourth Amendment claim. If an Amended Complaint is filed, it will supersede, rather than supplement, Plaintiff's original Complaint. That is to say, the Amended Complaint must “stand on its own.”

         Plaintiff complains that he was not administered Miranda warnings, but from the facts alleged, he does not appear to have been in custody while being questioned by the police. See United States v. Czichray, 378 F.3d 822, 826 (8th Cir. 2004) (“When a person is questioned on his own turf, we have observed repeatedly that the surroundings are “not indicative of the type of inherently coercive setting that normally accompanies a custodial interrogation.”) (internal quotations and citations omitted). In any event, “the remedy for a Miranda violation is the exclusion from evidence of any compelled self-incrimination, not a section 1983 action.” Hannon v. Sanner, 441 F.3d 635, 636 (8th Cir. 2006) (quoting Warren v. City of Lincoln, 864 F.2d 1436, 1442 (8th Cir. 1989) (en banc)).

         The caption to Plaintiff's Complaint mentions “malicious prosecution” and “arrest in bad faith, ” but these claims presumably relate to the domestic assault charge, for which Plaintiff pleaded guilty.[3] There are no facts alleged in the Complaint to support such claims, but even if there were, Plaintiff cannot bring a section 1983 action unless the conviction has been invalidated. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (affirming dismissal of § 1983 action against prosecutors and police for alleged constitutional violations that led to plaintiff's conviction).

         The caption to Plaintiff's Complaint also mentions “racial discrimination and harassment.” Plaintiff alleges he is black, but there are no facts alleged to show that he was discriminated against or harassed by the officers because of his race. To prevail on such under the Equal Protection Clause, Plaintiff must prove that he was treated differently than others who were similarly ...


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