United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
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.
SUMMARY OF COMPLAINT
brings this 42 U.S.C. § 1983 action requesting
injunctive relief and money damages against the Lincoln
Police Department 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.
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. §
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).
DISCUSSION OF CLAIMS
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). 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).
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.”
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)).
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. 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).
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 ...