Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Burr v. Gage County Sheriffs Department

United States District Court, D. Nebraska

June 1, 2018

CHARLES LEE BURR, Plaintiff,
v.
GAGE COUNTY SHERIFFS DEPARTMENT, and U.S. MARSHALS FUGITIVE TASK FORCE, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge

         Plaintiff 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.

         I. SUMMARY OF COMPLAINT

         Plaintiff 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.[1] (Id. at CM/ECF p.7.)

         Plaintiff 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.

         II. APPLICABLE 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); 28 U.S.C. § 1915A(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).

         Liberally 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).

         III. DISCUSSION

         Plaintiff 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).

         A. Claims against Gage County Sheriff's Department and Deputies

         Plaintiff 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. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.