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Binyamin El v. Bitzes

United States District Court, D. Nebraska

August 22, 2018

BINYAMIN EL, Plaintiff,
LINDSEY L. BITZES, Prosecutor, LAWRENCE E. BARRETT, Judge, JACOB CHONG, Omaha Police Department, and EMILIO LUNA, Omaha Police Department, Defendants.


          Richard G. Kopf Senior United States District Judge.

         After 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).


         Plaintiff Binyamin El (f/k/a Benjamin H. Draper)[1] 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.

         Plaintiff 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.)

         Attached 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[2] 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 records).

         Also 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.

         In an 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 website” and “removing the unlawful warrant.” Plaintiff also requests money damages. (Filing No. 1 at CM/ECF p. 4.)[3]


         The 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. § 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).


         Under 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 ...

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