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Bartunek v. United States

United States District Court, D. Nebraska

October 23, 2018

GREGORY P. BARTUNEK, Plaintiff,
v.
UNITED STATES, et al., Defendants.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff, Gregory P. Bartunek, a pretrial detainee at the Hall County Jail in Grand Island, Nebraska, filed his Complaint (Filing 1) on July 16, 2018. The court determined upon initial review that the 29 Defendants named in the Complaint could not be joined in a single action under Federal Rule of Civil Procedure 20(a)(2), and directed Plaintiff to amend his pleading to cure this defect. On September 24, 2018, Defendant filed an Amended Complaint (Filing 12). The court now conducts an initial review of Plaintiff's Amended Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.

         I. SUMMARY OF AMENDED COMPLAINT

         Plaintiff's Amended Complaint names only three Defendants: (1) the United States of America; (2) Douglas County, Nebraska; and (3) Michael Norris, Assistant United States Attorney, who is sued both individually and in his official capacity. But although the number of Defendants has been significantly reduced, the allegations of the Amended Complaint (Filing 12, pp. 23-62; Filing 12-1, pp. 2-17) are identical to the allegations of the original Complaint (Filing 1, pp. 21-62; Filing 1-1, pp. 2-17). Apart from the elimination of twenty-six Defendants, the only substantive change is that Plaintiff has added a “Discussion of Claims” section to the Amended Complaint (Filing 12-1, pp. 19-23) and has omitted five exhibits that were appended to the original Complaint (Filing 1-1, pp. 23-64).

         II. LEGAL STANDARDS ON INITIAL REVIEW

         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. See 28 U.S.C. §§ 1915(e) and 1915A. 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).

         III. DISCUSSION OF CLAIMS

         Plaintiff seeks to recover damages from Defendants for allegedly violating his constitutional rights between May 23, 2016, when his residence was searched and computer equipment was seized by Omaha police, and March 2018, at which time Plaintiff was in the custody of the Douglas County Department of Corrections Center awaiting trial on federal criminal charges. Six numbered claims are alleged in the Amended Complaint, [1] which is brought pursuant to 42 U.S.C. § 1983.[2]

         A. Claims Against the United States

         It is well established that, absent an express waiver, the doctrine of sovereign immunity bars a plaintiff's claim for money damages against the United States, its agencies, and its officers in their official capacities. See FDIC v. Meyer, 510 U.S. 471, 475 (1994). “Sovereign immunity is jurisdictional in nature.” Id. (citing United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction”). No. such waiver of sovereign immunity applies in this case. Although the United States has consented to suit under the Federal Tort Claims Act (“FTCA”), the FTCA does not apply to this case, and the waiver of sovereign immunity under that act does not help Plaintiff because the FTCA does not reach federal constitutional torts. Id. at 475, 477. Consequently, any claims alleged against the United States must be dismissed for lack of jurisdiction.

         B. Claims Against AUSA Norris

         A suit against an official of the federal government in his official capacity is considered a suit against the United States. Searcy v. Donelson, 204 F.3d 797, 798 (8th Cir. 2000). Thus, any claims alleged against AUSA Norris in his ...


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