United States District Court, D. Nebraska
THOMAS D. SAILORS, Plaintiff,
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.
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge
an inmate 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.
SUMMARY OF COMPLAINT
alleges that around 8:00 p.m. on January 5, 2018, Lincoln
Police Department (“LPD”) officers 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
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).)
purports to bring this action against the Lancaster County
and City of Lincoln Defendants under 42 U.S.C. § 1983 and
against the U.S. Marshal Defendants 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
LEGAL STANDARDS ON INITIAL REVIEW
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).
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).
Section 1983 Claims
Lancaster County Police Department
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).
City of Lincoln Police Officers in Official
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).
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
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;
3) That plaintiff was injured by acts pursuant to the
governmental entity's custom, i.e., that the custom was
the moving force ...