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Sailors v. U.S. Marshals Service Dept.

United States District Court, D. Nebraska

September 10, 2018

US MARSHALS SERVICE DEPT., LANCASTER COUNTY POLICE DEPT., PAUL KEYES, U.S. Marshal #3483, MAXWELL HUBKA, City of Lincoln Police Ofc. #1655, and COLE JENNINGS, City of Lincoln Police Ofc. #1650, in their official and individual capacities, Defendants.


          Richard G. Kopf, Senior United States District Judge

         Plaintiff, an inmate[1] at the Lancaster County Jail, brings this action requesting $100 million for injuries he allegedly suffered while the U.S. Marshal and city police officers were pursuing him on a drug charge. The court has granted Plaintiff permission to proceed in forma pauperis (Filing No. 7), and the court now conducts an initial review of the Complaint (Filing No. 1) to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.


         Plaintiff alleges that around 8:00 p.m. on January 5, 2018, Lincoln Police Department (“LPD”) officers[2] and a U.S. Marshal were “looking for [him] on a drug charge.” (Filing No. 1 at CM/ECF p. 13 (capitalization corrected).) Plaintiff claims he was sleeping in the driver's seat of a GMC Yukon in an apartment complex parking lot when U.S. Marshal Paul Keyes ran his vehicle into the front end of Plaintiff's Yukon, forcing Plaintiff's face into the steering wheel from the impact. Keyes then allegedly began “running at [Plaintiff] shooting.” (Id.) Plaintiff claims he then reversed his Yukon and ran into an unlit police car and a brick wall.

         Plaintiff alleges that when he was “sitting in the wall not doing nothing, ” he was “shot at 19 times and was hit with some of these bullets” on his hand, forehead, eye, and legs. (Id.) Plaintiff then drove himself to the hospital. Plaintiff believes LPD Officers Hubka and Jennings also fired at him because there were two different types of bullet casings found at the scene. Plaintiff accuses Hubka and Jennings of “trying to make it look like it was just the U.S. Marshal that fired ‘19' rounds at [Plaintiff].” As a result of these events, Plaintiff claims he underwent surgery on his hand, legs, eye, and forehead, and he now suffers from post-traumatic stress disorder. (Filing No. 1 at CM/ECF pp. 5, 14 (capitalization and spelling corrected).)

         Plaintiff purports to bring this action against the Lancaster County and City of Lincoln Defendants[3] under 42 U.S.C. § 1983 and against the U.S. Marshal Defendants[4] under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 397 (1971), claiming that the Defendants' “policy and practice and excessive force” and “not having body cams on” violated his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments. For relief, Plaintiff requests $100 million in medical costs and punitive damages. (Filing No. 1 at CM/ECF pp. 4-5 (capitalization and spelling corrected).)


         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. 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).


         A. Section 1983 Claims

         1. Lancaster County Police Department

         Because a county police department is not a suable entity, Plaintiff's claims against the Lancaster County Police Department must be dismissed without prejudice. Ketchum v. City of W. Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992) (in pro se § 1983 action, “The West Memphis Police Department and West Memphis Paramedic Services are not juridical entities suable as such. They are simply departments or subdivisions of the City government.”); De La Garza v. Kandiyohi Cty. Jail, Corr. Inst., 18 Fed.Appx. 436, 437 (8th Cir. 2001) (§ 1983 action against county jail and county sheriff's department must be dismissed without prejudice because they are not legal entities subject to suit) (citing cases) (unpublished).

         2. City of Lincoln Police Officers in Official Capacities

         Plaintiff sues City of Lincoln Police Officers Hubka and Jennings in their official capacities. “A suit against a public official in his official capacity is actually a suit against the entity for which the official is an agent”-here, the City of Lincoln. Marsh v. Phelps Cty., No. 17-1260, 2018 WL 3863923, at *4 (8th Cir. Aug. 15, 2018) (internal quotation and citation omitted).

         A city or county may only be liable under section 1983 if its “policy” or “custom” caused a violation of Plaintiff's constitutional rights. Doe By and Through Doe v. Washington County, 150 F.3d 920, 922 (8th Cir. 1998) (citing Monell v. Department of Soc. Servs., 436 U.S. 658, 694 (1978)). An “official policy” involves a deliberate choice to follow a course of action made from among various alternatives by an official who has the final authority to establish governmental policy. Jane Doe A By and Through Jane Doe B v. Special School Dist. of St. Louis County, 901 F.2d 642, 645 (8th Cir. 1990) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)). To establish a governmental “custom, ” a plaintiff must prove:

1) The existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity's employees;
2) Deliberate indifference to or tacit authorization of such conduct by the governmental entity's policymaking officials after notice to the officials of that misconduct; and
3) That plaintiff was injured by acts pursuant to the governmental entity's custom, i.e., that the custom was the moving force ...

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