United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
granting Plaintiff leave to proceed in forma pauperis, 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).
SUMMARY OF COMPLAINT
Binyamin El (f/k/a Benjamin H. Draper) alleges that on
February 10, 2017, Omaha Police Officers Chong and Luna
stopped his vehicle, advised him that his side brake light
was out, and requested to see Plaintiff's license,
registration, and proof of insurance. While Plaintiff
repeatedly objected to this request, additional officers
arrived on the scene.
eventually provided the officers with his van registration, a
“Notarized Affidavit that has a picture on it, ”
and a “Legal Notice and Demand.” Plaintiff
alleges he asked the officers to read and sign the Legal
Notice and Demand “for [their] protection.”
Plaintiff then asked Officer Luna to sign a “Public
Servant Questionnaire” and to include his name and
badge number. Luna refused to sign the questionnaire and
issued Plaintiff a citation, advising Plaintiff that any
information Plaintiff would need to file a complaint was on
the citation. Plaintiff eventually signed the citation, and
the officers then told Plaintiff he could not move or drive
his vehicle because he needed a driver's license to do
so, and Plaintiff's license had been suspended. (Filing
No. 1 at CM/ECF p. 7.)
to Plaintiff's Complaint is the apparent Uniform Citation
and Complaint issued to Plaintiff on February 10, 2017,
although the citation is made out to “Benjamin H.
Draper” instead of “Binyamin El.” (Filing
No. 1 at CM/ECF p. 9.) The citation notes an appearance date
of March 17, 2017, in Douglas County Court. Douglas County
Court records in the JUSTICE database indicate that Plaintiff did
not appear at his March 17 arraignment, an arrest warrant was
issued, and bond was set at $5, 000. Stutzka v.
McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005) (court
may take judicial notice of judicial opinions and public
attached to Plaintiff's Complaint is a Journal Entry and
Order dated more than a year later on March 27, 2018, and
signed by Defendant Douglas County Court Judge Lawrence
Barrett, noting the offenses for which “Benjamin H.
Draper” was ticketed, as well as Plaintiff's
failure to appear at the March 17, 2017, hearing. The Order
issued after the hearing states, “No action
taken.” (Filing No. 1 at CM/ECF p.8.) JUSTICE court
records indicate that Plaintiff appeared at the hearing, and
the case remains open.
apparent 42 U.S.C. § 1983 action alleging a violation of
his due process rights when Judge Barrett refused to
“remove warrant” after the March 27, 2018,
hearing in Douglas County Court, Plaintiff names as
Defendants Officers Chong and Luna, Judge Barrett, and
Lindsey Bitzes, the City of Omaha prosecutor who appeared at
the hearings in Douglas County Court. For relief, Plaintiff
requests removing his photo “from the
www.omahasheriff.org website” and “removing the
unlawful warrant.” Plaintiff also requests money
damages. (Filing No. 1 at CM/ECF p. 4.)
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).
the Younger abstention doctrine, abstention is
mandatory where: (1) there is an ongoing state proceeding;
(2) an important state interest is implicated; and (3) the
plaintiff has an avenue open for review of constitutional
claims in the state court. Younger v. Harris, 401
U.S. 37 (1971); see Aaron v. Target Corp., 357 F.3d
768, 774 (8th Cir. 2004) (“Under Younger v.
Harris,  federal courts should abstain from exercising
jurisdiction in cases where ...