United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp, Chief United States District Judge.
matter is before the Court on the Court's own motion
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). For the
reasons stated below, this case will be dismissed with
following facts are those alleged in the Complaint, ECF No.
1, and are assumed true.
17, 2015, Defendant Chris Brown, a police officer with the
Omaha Police Department, and several other officers executed
a search of the residence at 1915 Emmet Street in Omaha,
Nebraska, pursuant to a search warrant. The warrant permitted
the officers to search the residence and Plaintiff Veronica
Valentine's person for crack cocaine and any materials
used to conduct illegal narcotics operations. In connection
with the search, two female officers conducted a strip
search, including a visual body cavity search, of Valentine.
The officers found no drugs.
on these facts, Valentine initiated two separate lawsuits
under 28 U.S.C. § 1983-Case Nos. 8:16cv131 and
8:16cv174-which were consolidated under Fed.R.Civ.P. 42(a).
With the assistance of court-appointed counsel,
Valentine filed her Second Amended Complaint, ECF No. 149 in
Case No. 8:16cv131; ECF No. 148 in Case No. 8:16cv174,
which asserted one claim-that the visual body cavity search
conducted by defendants Lisa Villwok and Jennifer Hansen
violated her Fourth Amendment rights. Following a bench
trial, the Court found in favor of the defendants, and
against Valentine, because Valentine consented to the search.
Findings of Fact and Conclusions of Law, ECF No. 219 in Case
No. 8:16cv131. The U.S. Court of Appeals for the Eighth
Circuit summarily affirmed this Court's judgment. ECF No.
244 in Case No. 8:16cv131.
on the same July 17, 2015, search at issue in Case Nos.
8:16cv131 and 8:16cv174, Valentine filed her Complaint in
this case on February 16, 2018, claiming Brown submitted a
false affidavit to obtain the search warrant. The
Court conducted an initial review under 28
U.S.C. § 1915(e)(2) and concluded that the Complaint
stated “a plausible Fourth Amendment Claim against
Defendant Chris Brown, in his individual capacity only, for
allegedly submitting a false affidavit to obtain a search
warrant.” Mem. and Order, ECF No. 6, Page ID 16.
Valentine's Second Amended Complaint in Case Nos.
8:16cv131 and 8:16cv174 did not assert this claim.
not appear that either party has conducted any discovery in
this case, and the time to file dispositive motions has
expired without either party filing a dispositive motion. ECF
No. 17, Page ID 33 (stating all dispositive motions must be
filed on or before October 11, 2018). Both parties also
failed to appear at a scheduled status conference before the
Magistrate Judge on September 18, 2018. ECF No. 20. Because
the parties have not done anything to litigate this case,
because Valentine's sole claim arises out of the same
search that was at issue in her prior lawsuits, the Court
will review her claim pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) to determine whether it is a claim upon
which relief can be granted.
28 U.S.C. § 1915(e)(2)(B)(ii), “the court shall
dismiss the case at any time if the court determines
that . . . the action . . . fails to state a claim on which
relief may be granted.” (emphasis added). To satisfy
this requirement, a plaintiff must plead “enough facts
to state a claim to relief that is plausible on its
face.” Corrado v. Life Inv'rs Ins. Co. of
Am., 804 F.3d 915, 917 (8th Cir. 2015) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“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.” Barton v. Taber, 820 F.3d
958, 964 (8th Cir. 2016) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Zink v. Lombardi,
783 F.3d 1089, 1098 (8th Cir. 2015) (quoting Iqbal,
556 U.S. at 678), cert. denied, 135 S.Ct. 2941
(2015). The complaint's factual allegations must be
“sufficient to ‘raise a right to relief above the
speculative level.'” McDonough v. Anoka
Cty., 799 F.3d 931, 946 (8th Cir. 2015) (quoting
Twombly, 550 U.S. at 555). The Court must accept
factual allegations as true, but it is not required to accept
any “legal conclusion couched as a factual
allegation.” Brown v. Green Tree Servicing
LLC, 820 F.3d 371, 373 (8th Cir. 2016) (quoting
Iqbal, 556 U.S. at 678). Thus, “[a] pleading
that offers ‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of action
will not do.'” Ash v. Anderson Merchandisers,
LLC, 799 F.3d 957, 960 (8th Cir. 2015) (quoting
Iqbal, 556 U.S. at 678), cert. denied, 136
S.Ct. 804 (2016).
stage, the Court must rule “on the assumption that all
the allegations in the complaint are true, ” and
“a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
improbable, and ‘that a recovery is very remote and
unlikely.'” Twombly, 550 U.S. at 555 &
556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)). “Determining whether a complaint states a
plausible claim for relief . . . [is] a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Mickelson v. Cty. of
Ramsey, 823 F.3d 918, 923 (8th Cir. 2016) (alternation
in original) (quoting Iqbal, 556 U.S. at 679).
the doctrine of claim preclusion, Valentine's Fourth
Amendment claim against Brown for allegedly submitting an
affidavit containing false information to obtain a search
warrant is precluded by the judgment entered in Case Nos.
8:16cv131 and 8:16cv174. Valentine has, therefore, failed to
state a claim upon which relief can be granted. See C.H.
Robinson Worldwide, Inc. v. Lobrano, 695 F.3d 758,
763-64 (8th Cir. 2012).
preclusive effect of a judgment is defined by claim
preclusion and issue preclusion, which are collectively
referred to as ‘res judicata.'” Taylor v.
Sturgell, 553 U.S. 880, 892 (2008). To determine the
preclusive effect of ...