United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE
filed her Complaint on March 30, 2018. (Filing No.
1.) She has been given leave to proceed in forma
pauperis. (Filing No. 6.) The court now conducts an
initial review of Plaintiff's Complaint to determine
whether summary dismissal is appropriate under 28 U.S.C.
SUMMARY OF COMPLAINT
brings this action against Omaha Police Department Officers
Garcia and Lang for their alleged use of excessive force in
arresting Plaintiff on February 29, 2016. The Complaint does
not indicate whether the officers are sued in their
individual or official capacities.
alleges that Garcia and Lang responded to 1915 Emmet Street,
Omaha, Nebraska, because of a report of an assault involving
Plaintiff's boyfriend. Plaintiff answered the door upon
the Defendants' arrival at 1915 Emmet, informed them that
her boyfriend was not there, and allowed the officers to look
around. Garcia and Lang then left but returned thirty minutes
later, stating they needed to speak with Plaintiff. Plaintiff
alleges she asked the officers to wait while she went
upstairs to put on shoes and started to close the door. As
she was shutting the door, Plaintiff alleges that Garcia and
Lang forced their way in and told Plaintiff she was going to
jail. Plaintiff alleges that she repeatedly asked the
officers why she was going to jail, and Garcia and Lang tried
to make Plaintiff put her hands behind her back, which
Plaintiff refused to do. The officers then tased Plaintiff
and put her in hand cuffs, at which time the officers told
Plaintiff there was a warrant for her arrest.
alleges her right arm was bruised and bleeding from being
tased “all because Garcia . . . and Lang . . .
wouldn't tell [her] why [she] had a warrant.”
(Filing No. 1 at CM/ECF p. 3.) Plaintiff seeks $100,
000, 000 in damages as relief.
Complaint, Plaintiff references Nos. 8:16CV131,
8:16CV174, and 8:18CV69, and alleges that
her February 29, 2016 arrest at issue in this case arises out
of the “bogus search warrant” at issue in the
three referenced cases. (Filing No. 1 at CM/ECF p.
1.) In the consolidated actions in Nos. 8:16CV131 and
8:16CV174, Plaintiff alleged Officers Lisa Villwok and
Jennifer Hansen conducted an unreasonable body cavity search
upon Plaintiff at her residence on July 17, 2015, as part of
the execution of the “bogus” search warrant.
Those consolidated cases were dismissed with prejudice on
February 21, 2018, after a bench trial was held before Chief
Judge Laurie Smith Camp. (See Filing Nos.
219 & 220, No. 8:16CV131.) In No.
8:18CV69, Plaintiff has sued Omaha Police Officer Chris
Brown, alleging that the same search warrant executed on July
17, 2015, was based on Brown's false statements in his
affidavit that Plaintiff sold drugs to a confidential
informant. That case proceeded to service of process and is
currently pending before Chief Judge Smith Camp.
APPLICABLE LEGAL STANDARDS ON IN 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).
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).
construed, Plaintiff seeks damages from the Defendants for
violations of her 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.
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