United States District Court, D. Nebraska
GREGORY P. BARTUNEK, Plaintiff,
UNITED STATES, et al., Defendants.
MEMORANDUM AND ORDER
RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE
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
SUMMARY OF AMENDED COMPLAINT
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).
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. 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. §
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).
DISCUSSION OF CLAIMS
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,  which is brought pursuant to 42 U.S.C.
Claims Against the United States
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.
Claims Against AUSA Norris
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