United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge
filed a Complaint on January 4, 2018. (Filing No.
1.) He has been given leave to proceed in forma
pauperis. (Filing No. 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) and 1915A.
SUMMARY OF COMPLAINT
is a pretrial detainee in the custody of the Gage County
Detention Center in Beatrice, Nebraska. (Filing No. 1 at
CM/ECF pp.2, 5.) He brings this action pursuant
to 42 U.S.C. § 1983 against the Gage County
Sheriff's Department and the U.S. Marshals Fugitive Task
Force. Liberally construed, he also sues U.S. Marshals Tanner
Hippen and Aaron Crooks and Gage County Sheriff's
Department Deputies Z. Smith, Bebensee, and Matthew
Ernst. (Id. at CM/ECF p.7.)
asserts that the Defendants used excessive force to effect
his arrest on July 21, 2017, at Plaintiff's
stepfather's house in Blue Spring, Nebraska. (Id. at
CM/ECF pp.5-7.) Plaintiff alleges that he was first
tased in his right arm by Deputy Smith through the passenger
window of Plaintiff's vehicle, after which Plaintiff put
up his hands and stated “I'm done.” (Id.
at CM/ECF p.7.) Even though he “was not resisting,
” Plaintiff claims Deputy Bebensee broke out the
driver's side window and Plaintiff was tased a second
time in his left shoulder by U.S. Marshal Tanner Hippen.
(Id.) Plaintiff alleges the arresting officers then
forcibly removed him from the vehicle, slammed him to the
ground, and beat him. As a result, Plaintiff claims he
suffered an acute kidney injury as well as abrasions, bumps,
and bruises for which he required an overnight stay in the
hospital and follow-up treatment. Plaintiff seeks $1.5
million in damages.
APPLICABLE 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. §
1915(e)(2)(B); 28 U.S.C. § 1915A(b).
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).
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).
seeks damages from the Defendants for violations of his
Fourth Amendment right to be free from excessive force. An
officer may employ some degree of physical force or threat
thereof to effect an arrest or investigatory stop.
Chambers v. Pennycook, 641 F.3d 898, 905 (8th Cir.
2011). However, “[a]n officer's use of force
violates the Fourth Amendment when it is objectively
unreasonable, given the facts and circumstances of the
particular case, as ‘judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20
vision of hindsight.'” Id. at 905-06
(quoting Graham v. Connor, 490 U.S. 386, 396-97
(1989)). In determining whether the force used to effect an
arrest was reasonable, courts must balance “the nature
and quality of the intrusion on the individual's Fourth
Amendment interests against the countervailing governmental
interests at stake.” Id. at 906 (internal
quotation marks and citations omitted).
Claims against Gage County Sheriff's Department and
sues the Gage County Sheriff's Department, and Gage
County Sheriff's Department Deputies Z. Smith, Bebensee,
and Matthew Ernst in their official capacities. SeeJohnson v. Outboard Marine Corp.,172 F.3d 531, 535
(8th Cir. 1999) (“This court has held that, in order to
sue a public official in his or her individual capacity, a
plaintiff must expressly and unambiguously state so in the
pleadings, otherwise, it will be assumed that the defendant
is sued only in his or her official capacity.”). As an
initial matter, the Gage County Sheriff's Department is
not a distinct legal entity subject to suit. See Ketchum
v. City of West Memphis, Ark.,974 F.2d 81, 82 (8th Cir.
1992) (departments or subdivisions of local government are
“not juridical entities suable as such”);
Friar v. Jackson Cnty. Sheriff Dept., No.